- --------------------------------------------------------------------------------
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
WORLD ACCESS SOLUTIONS, INC.
AS SELLER
AND
META3, INC.
AS PURCHASER
- --------------------------------------------------------------------------------
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is entered into effective the
1st day of October, 1997 (the "Effective Date"), by and between WORLD ACCESS
SOLUTIONS, INC., a Mississippi Corporation ("Seller") qualified and doing
business in the State of Mississippi, and META3, INC., a Mississippi Corporation
qualified and doing business in the State of Mississippi ("Purchaser"), who
declare, covenant and agree that:
1. RECITALS. Seller is engaged in the business of providing computer
services to certain users (the "Business"). Seller desires to sell and Purchaser
desires to purchase the division of the computer Business which engages in the
business and activities of providing a standard Internet access connection on
the terms and conditions and for the consideration described below.
2. DEFINITIONS. As used in this Agreement, the following terms shall have
the meanings set forth below:
2.1 "Closing" shall mean the closing of the transaction in the
offices of Taylor, Covington & Smith, P.A. on the Closing Date (defined below)
or at such other place as may be mutually agreed upon by the parties hereto.
2.2 "Closing Date" shall mean on or before October 15, 1997 on or
accruing after October 1, 1997, or such other earlier date as Seller and
Purchaser may agree.
2.3 LEFT BLANK INTENTIONALLY
2.4 "Purchased Assets" shall mean the following properties and
assets of Seller used or associated with the Business including, but not limited
to, the dial up customer base, all other current or potential customers, all
accounts receivable on or accruing after October 1, 1997 (less an allowance for
doubtful accounts), all necessary accounts payable accruing on or after October
1, 1997, all equipment supporting the dial up base, accounts payable that are
current and necessary to operate the business (no bills originating with
Teclink, Inc. shall be assumed by Purchaser), all licenses, documentation,
support contracts, warranties and guaranties, leasehold rights, agreements,
hardware, software (including object and source code in machine readable and
listing form), internal documentation, training materials, proprietary rights,
franchise rights, goodwill and prepaid assets beginning on October 1, 1997.
2.4.1 The current list of customers subscribing to the standard
Internet access connection, containing approximately four thousand six hundred
(4,600) customers, each subscribing at an average monthly rate of Seventeen
Dollars ($17.00).
2.4.2 The following expenses are specifically excluded from the
Purchased Assets and are not assumed by Purchaser: All obligations or
liabilities of Seller, except for those specifically assumed by Purchaser, and
the DIRECPC inventory.
2.5 "Purchase Price" shall have the meaning ascribed to it in
Section 4.1.
3. SALE OF PROPERTIES AND ASSETS. At the Closing, Seller will sell,
transfer, assign, convey and deliver to Purchaser, and Purchaser will purchase,
accept and acquire from Seller all of the Purchased Assets.
4. PURCHASE PRICE.
4.1 Purchase Price. The purchase price for the Purchased Assets (the
"Purchase Price") shall be as follows: Ten Dollars ($10.00) per subscriber over
an ten (10) month period.
4.1.1 Purchaser shall also pay for any prepaid assets agreed
to in writing by Purchaser prorated as of October 1, 1997.
4.2 The number of dial up subscribers shall be counted as of the
first day of October, 1997. The Attrition Rule, as defined in Section 4.2 below,
shall commence on November 1, 1997.
4.3. Payment. The Purchase Price shall be paid in monthly
installments from funds received without reservation from the dial up
subscribers beginning on November 15, 1997, and continuing on the same day of
each succeeding month until August 15, 1998. All payments shall be reduced by
(1) any accounts payable assumed by Purchaser relating to services or goods
accruing prior to October 1, 1997, paid by Purchaser on Seller's behalf and (2)
the Attrition Rule ("Attrition Rule") which rule shall mean that all customers
lost or terminating their account during the first half of the Purchase Period
shall be the responsibility of Seller and all customers lost or terminating
their accounts during the second half of the Purchase Period shall be the
responsibility of Purchaser. Seller will also be compensated, pursuant to
Paragraph 4.1, for any net accounts provisioned during the first half of the
Purchase Period. Notwithstanding anything contained herein to the contrary, the
Attrition Rule shall apply only to existing Points of Presence ("POPS") of
Seller as of October 1, 1997. The Purchase Price shall be reduced by any
accounts payable accrued prior to Purchaser's purchase of the Purchased Assets.
Purchaser will assume those operating expenses that are necessary to the
operation of the Purchased Assets in Purchaser's sole discretion beginning on
October 1, 1997. Unnecessary expenses will be terminated by Purchaser.
-3-
4.3.1 Purchaser agrees to generate a detailed customer ledger
at the end of each month during the first half of the Purchaser Period and
account for the increase or decrease in the number of customer accounts during
each month of the first half of the Purchase Period.
5. CLOSING DOCUMENTS AND REQUIREMENTS: FURTHER ASSURANCES.
5.1 Closing Responsibilities of Sel1er. At the Closing, Seller shall
deliver to Purchaser:
5.1.1 A bill of sale executed by Seller, conveying the
Purchased Assets, free and clear of any liens or encumbrances, in the form and
substance attached as Exhibit "A".
5.1.2 Certificates authorizing the execution and delivery of
this Agreement to Seller and the carrying out of the provisions hereof duly
authorized by the Board of Directors of Seller and authorized by Seller's
shareholders.
5.1.3 Such documents, certificates and opinions as may be
required by Purchaser evidencing that all of the Purchased Assets are free and
clear of all liens, encumbrances or restrictions whatsoever.
5.1.4 Bills of Sale or verified receipts of purchase where
appropriate for all of the Purchased Assets.
5.1.5 Execute and deliver to Purchaser such instruments as may
be required to carry out the intent and purpose of this Agreement.
5.1.6 Deliver to Purchaser such data, papers and information
as may be requested by Purchaser to assist Purchaser in the use of the Purchased
Assets.
5.2 Closing Responsibilities of Purchaser. At the Closing, Purchaser
shall deliver to Seller:
5.2.1 A Promissory Note evidencing the obligation of
Purchaser.
5.2.2 A Certificate of Authority from the Board of Directors
of Purchaser authorizing the execution of this Agreement and the Promissory Note
as set forth hereinabove.
-4-
5.3 Further Assurances. Following the Closing, at the request of
Purchaser, Seller shall deliver any further instruments of transfer and take all
reasonable action as may be necessary or appropriate (i) to vest in Purchaser
good and marketable title to the Purchased Assets, free and clear of any liens
or encumbrances, and (ii) to transfer to Purchaser all licenses, agreements,
contract rights, accounts, premiums, and permits necessary for the operation of
the Business and the Purchased Assets.
6. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents and
warrants to Purchaser as follows:
6.1 Existence and Good Standing. Seller is a Nevada corporation
existing and in good standing and qualified to do business under the laws of the
State of Mississippi. Seller has the power to own its properties and the
Purchased Assets and to carry on its business as now being conducted. Seller is
duly qualified to do business in and is in good standing in all jurisdictions in
which the character or the location of the properties owned or leased by Seller
or the nature of the business conducted by Seller makes such qualification
necessary.
6.2 Corporate Authority and Approvals. Seller has the corporate
power and authority to make, execute, deliver and perform this Agreement, and
this Agreement has been duly authorized and approved by all required corporate
action of Seller. This Agreement has been duly executed and delivered by Seller
and constitutes a legal, valid and binding obligation enforceable against Seller
in accordance with its terms.
6.3 Ownership: Exclusivity. No person other than Purchaser has any
right or option to acquire any ownership rights or equity in and to the
Purchased Assets.
6.4 Financial Statements. The financial statements of Seller that
have been provided to Purchaser have been prepared on a basis consistent with
that of the preceding years or periods and to the best of Seller's knowledge,
fairly represent in all material respects the financial position of Seller and
the results of its operations as of the dates and for the periods indicated.
6.5 Litigation. Except for those matters described in Section 11
below, there is no action, suit, proceeding at law or in equity, arbitration or
administrative or other proceeding by or before (or, to the best knowledge,
information and belief of Seller, any investigation by) any governmental or
other instrumentality or agency, pending or, to the best knowledge, information
and belief of Seller, threatened against or affecting the Business, or any of
the Purchased Assets, which could materially and adversely affect the right or
ability of the Seller or Purchaser to carry on the Business as now being
conducted, or which could materially and adversely affect the condition,
-5-
whether financial or otherwise, or properties of the Business. Neither the
Seller nor the Business is subject to any judgment, order or decree entered in
any lawsuit or proceeding which may have a materially adverse effect on any of
their operations or business practices.
6.6 Title to Property; Encumbrances. Seller has good, valid and
marketable title to the Purchased Assets, subject to no encumbrance, lien,
charge or other restriction of any kind or character.
6.7 Restrictive Documents. Seller is not subject to any charter,
bylaws, mortgage, lien, lease agreement, instrument, order of law, rule
regulation, judgment or decree, or any other restriction of any kind or
character, which would prevent consummation of the transactions contemplated by
this Agreement.
6.8 Subsidiaries. Seller has no subsidiaries.
6.9 Broker's or Finder's Fee. No agent, broker, person or firm
acting on behalf of Seller is or will be entitled to any commission or broker's
or finder's fee from any of the parties hereto, nor from any person controlling,
controlled by, or under common control with any of the parties hereto, in
connection with any of the transactions contemplated by this Agreement.
6.10 Non-Encumbrance. There is no suit, action or claim that the
computer technology, software, proprietary rights, dial up customer base, or any
of the Purchased Assets or any portion thereof, or the exercise of any rights
related thereto or to the Purchased Assets do not infringe any patents,
copyrights, trade secrets, trademarks or other proprietary rights of third
parties.
6.11 Sales Taxes. Any sales taxes which may be payable in connection
with the transfer of any of Seller's assets shall be borne solely by Seller, who
shall certify to Purchaser that all such taxes have been paid and hold Purchaser
harmless therefor.
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Except as set forth in
this Agreement, Purchaser makes no representation or warranty, express or
implied, with respect to any of the transactions contemplated by this Agreement
or with respect to the Purchaser or its businesses, the Purchased Assets,
financial condition or liabilities, or with respect to any other matter
whatsoever. Seller has and will have no claim against Purchaser except for a
breach of an express representation, warranty or covenant of Purchaser under
this Agreement. Purchaser represents and warrants to Seller as follows:
-6-
7.1 Existence and Good Standing of Purchaser; Power and Authority.
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Mississippi and is duly registered to do business
in the State of Mississippi. Purchaser has the corporate power and authority to
make, execute, deliver and perform this Agreement.
7.2 Authority. This Agreement has been duly authorized and approved
by all required corporate action of Purchaser. This Agreement has been duly
executed and delivered by Purchaser and constitutes a legal, valid and binding
obligation enforceable against Purchaser in accordance with its terms.
8. COVENANTS OF SELLER. Seller covenants and agrees that from the
Effective Date to the Closing Date:
8.1 Cooperation. Seller will cause the sale contemplated by this
Agreement to be consummated and, without limiting the generality of the
foregoing, to obtain all consents and authorizations of third parties which may
be necessary or reasonably required in order for Seller to effect the
transactions contemplated hereby.
8.2 Dispositions and Encumbrances on Purchased Assets. Seller will
not, directly or indirectly, dispose of any of the Purchased Assets other than
in the ordinary course of business. Seller will not, directly or indirectly,
further encumber any of the Purchased Assets.
9. COVENANTS OF PURCHASER. Purchaser covenants and agrees that from the
Effective Date to the Closing Date:
9.1 Cooperation. Prior to the Closing, Purchaser shall use its best
efforts to cause the sale contemplated by this Agreement to be consummated and,
without limiting the generality of the foregoing, to obtain all consents and
authorizations of third parties which may be necessary or reasonably required in
order for Purchaser to effect the transactions contemplated hereby.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER. All obligations of
Seller under this Agreement are subject to the fulfillment, at the option of
Seller, at or prior to the Closing Date, of each of the following conditions:
10.1 Representations and Warranties True. The representations and
warranties of Purchaser herein contained shall be true on and as of the Closing
Date with the same force and effect as though made on and as of said date.
-7-
10.2 Performance of Purchaser. Purchaser shall have performed all of
its obligations and agreements and complied with all of its covenants contained
in this Agreement to be performed and complied with by the Purchaser prior to
the Closing Date.
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER. All obligations
of Purchaser under this Agreement are subject to the fulfillment, at the option
of the Purchaser, at or prior to the Closing Date, of each of the following
conditions:
11.1 Representations and Warranties True. The representations and
warranties of Seller herein contained shall be true on and as of the Closing
Date with the same force and effect as though made on and as of said date.
11.2 Performance of Seller. Seller shall have performed all of its
obligations and agreements and complied with all of its covenants contained in
this Agreement to be performed and complied with by it prior to the Closing
Date.
11.3 LEFT BLANK INTENTIONALLY.
11.4 Satisfactory Investigation of Pending Lawsuit. Purchaser shall
have conducted a reasonable investigation into the lawsuit currently pending
against Teclink, Inc. and more particularly that lawsuit styled Heritage
Graphics, Inc. et. al. v Telephone Electronics Corporation et. al. and shall
have determined, pursuant to said investigation, that the circumstances
surrounding the lawsuit will not adversely effect the consummation of this
transaction. Seller hereby represents, covenants and warrants that said lawsuit
will have no adverse impact on the Purchased Assets and that same is not a lien
or encumbrance on said Purchased Assets.
11.5 Due Diligence. Satisfactory completion of such due diligence
investigation concerning the Purchased Assets as shall be required by Purchaser.
Purchaser shall be permitted to review and obtain copies of such documents,
records, bank accounts, customer records, flash reports, active user lists, data
bases, or other records it deems necessary in Purchaser's sole discretion.
Purchaser shall also be permitted to interview, for due diligence purposes, such
individuals or representatives of such companies or entities as it deems
necessary in its sole discretion to ascertain the condition and value of the
Purchased Assets.
11.6 Non-Encumbrance. Seller shall not sell, encumber or pledge any
of its assets or the Purchased Assets. Seller shall not reduce the access fees,
charges, support contracts or other sources of income from the date of the
execution of this Agreement.
-8-
Further, there shall be no increase in compensation payable from the date of the
execution hereof.
12. SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties set forth in or incorporated by reference into
this Agreement shall survive the Closing and thereafter be fully effective and
enforceable. The respective representations and warranties set forth in this
Agreement shall not be affected by any investigation, verification or approval
by any party hereto or by anyone on behalf of such party. The respective
covenants and agreements set forth in this Agreement, except those covenants and
agreements that are required by this Agreement to be fully kept, performed and
discharged on or before the Closing, shall survive the Closing and thereafter be
fully effective and enforceable.
13. INDEMNIFICATION.
13.1 Indemnification by Seller. Seller and shareholder, Digitec
2000, Inc. both individually and jointly, shall protect, defend, indemnify and
hold harmless Purchaser with respect to any losses, claims, damages, liabilities
or related expenses (including, but not limited to, reasonable attorney's fees
and expenses) to which Purchaser may become subject as a result of: (i) the
breach of any of the representations, warranties, covenants or agreements made
by Seller in this Agreement; (ii) non-compliance by Seller with any bulk sales
act which may apply to the transactions contemplated by this Agreement; and
(iii) any third party claim or claims made or threatened against Purchaser to
the extent such claim or claims are based upon any act, omission or occurrence
with respect to the Business or the Purchased Assets, including any liability
arising out of the pending litigation styled Heritage Graphics Corporation, Inc.
et. al. v Telephone Electronics Corporation et. al. Further, Purchaser shall
have the right to set off against any amount owed to Seller any and all amounts,
including attorney fees and costs, expended by Purchaser in defending any claim,
lawsuit or dispute contemplated herein.
13.2 Indemnification by Purchaser. Purchaser will protect, defend,
indemnify and hold harmless Seller with respect to any losses, claims, damages,
liabilities or related expenses (including, but not limited to, reasonable
attorney's fees and expenses) to which Seller or its officers or employees, may
become subject as a result of: (i) the breach of any of the representations,
warranties, covenants or agreements made by Purchaser in and under this
Agreement; and (ii) any third party claim or claims made or threatened against
Seller arising out of any loss, injury or damage due to an act or omission of
Purchaser on and subsequent to the Effective Date with respect to the Business.
Purchaser shall not be responsible for past due, delinquent or questionable
debts or obligations of Seller.
-9-
13.3 Indemnification Procedure. The party or parties seeking
indemnification under this section (the "Indemnitee") shall notify the party or
parties against whom such indemnification is being sought (the "Indemnitor") of
any such breach or claim, with reasonable promptness, but not later than fifteen
(15) calendar days after receipt of notice of such claim, and solely in the case
of third party claims, the Indemnitor or its legal representative shall have, at
its election, the right to settle or defend any such matter involving any such
asserted liability through counsel of Indemnitor's choosing and at its expense.
Such notice and opportunity to settle or defend, if applicable, shall be a
condition precedent to any liability of Indemnitor for third party claims under
this section. If the Indemnitor undertakes to settle or defend any third party
claims under this section, it shall notify the Indemnitee in writing promptly of
its intention to do so, and Indemnitee shall fully cooperate with Indemnitor and
its counsel in the settlement or defense thereof. If the Indemnitor elects to
settle such third party claim, and the Indemnitee shall reject the terms of such
settlement, the Indemnitee shall be responsible for defending such claim,
including, without limitation, selecting legal counsel and negotiating terms of
settlement. The Indemnitee shall be responsible for the payment of all fees of
legal counsel so selected by it. In such event, the Indemnitor shall be
responsible hereunder for the loss, liability or judgment incurred in such third
party claim only to the extent of the amount of settlement therefore approved by
the Indemnitor and rejected by the Indemnitee.
14. EXPENSES. Seller and Purchaser shall each pay their own expenses
including, without limitation, fees and expenses of agents, representatives,
counsel, accountants and other experts, incidental to the preparation and
consummation of this Agreement. Purchaser and Seller shall bear equally the
costs associated with filings, title searches, lien searches, title insurance
premiums or other ordinary closing costs. Ad valorem taxes on the Purchased
Assets will be pro rated as of the Effective Date.
15. DESTRUCTION OR DAMAGE OF PROPERTY. If a material amount of the
tangible Purchased Assets are destroyed by fire, flood or other casualty prior
to the Closing, Purchaser shall have the option to: (i) cancel this Agreement;
or (ii) proceed with the Closing, and accept the Purchased Assets subject to the
damage. In such latter event, Seller shall assign to Purchaser all of its rights
to insurance proceeds payable due to such destruction. In such case, the
Purchase Price shall be adjusted to reflect any deficiency in insurance
proceeds. Seller represents that the Purchased Assets are insured for at least
the Purchase Price and that said insurance is subject to no mortgage, lien or
other restriction whatsoever. By execution of this Agreement, Seller hereby
assigns to Purchaser all rights and funds associated with all insurance
pertaining to the Purchased Assets.
-10-
16. TERMINATION.
16.1 By Mutual Consent. Notwithstanding anything contained in this
Agreement to the contrary, this Agreement may be terminated by mutual consent of
all parties hereto.
16.2 By Seller. Seller may terminate this Agreement if any of the
conditions to Closing contained in Section 10 shall not have been satisfied or
waived prior to Closing.
16.3 By Purchaser. Purchaser may terminate this Agreement if any of
the conditions to Closing contained in Section 11 shall have not been satisfied
or waived prior to the Closing.
17. MISCELLANEOUS. The following shall also apply to this Agreement:
17.1 Notice. Any notice, permission, approval, demand or request
affecting any obligations or terms must be in writing and shall be deemed to be
given on the date: (i) delivered by hand, or (ii) two (2) business days after
being mailed by certified mail, return receipt requested.
17.2 Addresses. All mailings shall be to the address of the party
shown or to any subsequent address in the United states of America requested:
SELLER:
World Access Solutions, Inc.
_____________________________
_____________________________
PURCHASER:
Meta3, Inc.
1450 Deposit Guaranty National Bank Plaza
14th Floor
Jackson, Mississippi 39201
-11-
with a copy to:
William C. Smith III
Taylor, Covington & Smith, P.A.
Post Office Box 3509
Jackson, Mississippi 39207
17.3 Gender. The singular and plural and any gender shall include
the other.
17.4 No Waiver. No waiver of any condition, obligation or other term
shall constitute a waiver of any other, or a waiver of a subsequent right to
demand strict compliance with all conditions, obligations and terms.
17.5 Specific Performance. Purchaser may enforce this Agreement by
specific performance. Time is of the essence hereof.
17.6 Cumulative Rights. The rights and remedies herein reserved by
or granted to the parties are distinct, separate and cumulative, and the
exercise of any one of them shall not be deemed to preclude, waive or prejudice
the parties' right to exercise any or all others. Whether or not specifically
enumerated in this Agreement, the parties reserve all rights and remedies at law
and in equity, and nothing contained in this Agreement shall be construed as a
limitation of any rights or remedies.
17.7 Entire Agreement. This Agreement, including the documents and
instruments referred to herein:
17.7.1 constitutes the entire Agreement and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter of this Agreement;
17.7.2 is not intended to confer upon any other person any
rights or remedies;
17.7.3 may be executed in two or more counterparts which
together shall constitute a single agreement.
17.7.4 shall inure to the benefit of, being binding upon and
enforceable against the heirs, legal representatives, successors, transferees
and assigns of the parties hereto; and
-12-
17.7.5 maybe amended only by mutual agreement of the parties
hereto in writing.
17.8 Headings. The headings and table of contents contained in this
Agreement are for reference purposes only and do not affect in any way the
meaning or interpretation of this Agreement.
17.9 Interpretation: No Presumption. All parties acknowledge that
this Agreement has been reviewed and negotiated by all parties and their
attorneys and other representatives and, therefore, no presumption shall arise
favoring any party by virtue of the authorship of any of its provisions.
17.10 Seller states and represents that there are no contracts
exceeding thirty (30) days in duration obligating Seller or it successors and
assigns in any manner.
18. ASSIGNMENT. Purchaser may assign its rights under this Agreement to
any entity controlled by Purchaser.
19. LAWS. This Agreement shall be construed according to the laws of the
State of Mississippi.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one in the same instrument.
21. EMPLOYEES. Purchaser makes no representation as to the continued
employment of any employee of Seller. Seller represents and warrants that it has
no employment agreements in effect with any of its employees and that all
employees are employees at will.
22. SURVIVABILITY. The terms and conditions, including but not limited to
all representations, warranties and indemnifications, shall survive the closing
hereof.
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
SELLER:
WORLD ACCESS SOLUTIONS, INC.
By: /s/ Frank Magliato
------------------------------
Frank Magliato
President
By: /s/ Suzanne Wilkinson
------------------------------
Suzanne Wilkinson
Executive Vice President
By: /s/ Keith McGowan
------------------------------
Keith McGowan
Vice President of Finance
AGREED TO AND APPROVED BY:
DIGITEC 2000, INC.
By: /s/ Frank Magliato
-------------------------------
Frank Magliato
President
PURCHASER:
META3, INC.
By: /s/ James Smith
------------------------------
James V. Smith
President
-14-
ASSIGNMENT OF GUARANTIES AND WARRANTIES
THIS ASSIGNMENT made as of this first day of October, 1997 between WORLD
ACCESS SOLUTIONS, INC., a Nevada corporation (herein, the "Assignor"), and
META-3, INC., a Mississippi corporation (herein, the "Assignee").
RECITALS:
A. Effective contemporaneously herewith, Assignor has conveyed to Assignee
certain property (the "Purchased Assets") described in that certain Asset
Purchase Agreement By And Between World Access Solutions, Inc. As Seller And
Meta-3, Inc. As Purchaser (the "Agreement"). The Agreement is incorporated
herein by reference in aid hereof.
B. In connection with the sale of the Purchased Assets, Assignor agreed to
transfer, convey and assign to Assignee all Guaranties and Warranties with
respect to the Purchased Assets (the "Guaranties and Warranties").
C. Assignor possesses all right, title and interest in and to the
Guaranties and Warranties, and Assignor desires to sell, assign, convey, and
transfer the Guaranties and Warranties, and Assignee desires to accept said
sale, assignment, conveyance, and transfer upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the purchase of the Purchased Assets
and of the mutual covenants herein set forth and for Ten Dollars ($10.00) and
other good and valuable consideration, the parties hereto agree as follows:
1. Assignor hereby sells, assigns, and transfers to Assignee all of
the Assignor's interest in and to all of Assignor's Guaranties and
Warranties in favor of Assignor for all personal property conveyed to
Assignee, including but not limited to the Purchased Assets.
2. This Assignment shall be binding on the successors and assigns of
the parties hereto. The parties hereto shall execute such further and
additional documents as may be necessary to evidence or carry out the
provisions of the Assignment.
3. To the extent that any conflict should arise between the terms
and conditions of this Assignment and the Agreement, the terms and
conditions of the Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed or have caused this
Assignment to be executed on the day and year set forth above.
AGREED TO AND APPROVED BY: ASSIGNOR:
DIGITEC 2000, INC., A Nevada WORLD ACCESS SOLUTIONS, INC.,
Corporation A Nevada Corporation
By: /s/ Frank Magliato By: /s/ Frank Magliato
----------------------------- ------------------------------
Frank Magliato Frank Magliato
President President
By: /s/ Suzanne Wilkinson
------------------------------
Suzanne Wilkinson
Executive Vice President
By: /s/ Keith McGowan
-----------------------------
Keith McGowan
V.P. of Finance
ASSIGNEE:
META-3, INC.
A Mississippi Corporation
By: /s/ James Smith
------------------------------
James V. Smith
President
-2-
BILL OF SALE AND ASSIGNMENT
KNOW All PERSONS BY THESE PRESENTS:
THAT WORLD ACCESS SOLUTIONS, INC., a Nevada corporation, ("Grantor") for
good and valuable consideration paid by META-3, INC., a Mississippi Corporation
("Grantee"), the receipt and sufficiency of which are hereby acknowledged, has
ASSIGNED, TRANSFERRED, SET OVER AND DELIVERED, and by these presents does ASSIGN
TRANSFER, SET OVER AND DELIVER unto Grantee all of the following:
1. The Purchased Assets (hereinafter the "Purchased Assets") as defined
in that certain Asset Purchase Agreement By And Between WORLD ACCESS
SOLUTIONS, INC., As Seller and META-3, INC., As Purchaser (herein
after "Agreement"), said Agreement being incorporated herein by
reference in aid hereof. Without limiting the generality of the
foregoing, the Purchased Assets shall include all domain
registrations, telephone lines, telephone numbers and telephone
systems wheresoever located.
2. All contracts, rights or benefits applicable or relating to or
necessary for the operation of the Purchased Assets.
Grantor has full right to sell and transfer the above described Purchased
Assets.
Grantor warrants that the Purchased Assets are free and clear of all
security interests, liabilities, obligations and encumbrances.
Grantor warrants that there are no judgments against Grantor in any court
of the State of Mississippi, the United States of America and there are no
replevins, attachments, executions, or other writs or processes issued against
it; that it has not filed
any petition in bankruptcy, nor has any petition in bankruptcy been filed
against it, and that it has not been adjudicated a bankrupt.
IN WITNESS WHEREOF, Grantor has caused this Bill of Sale to be executed
effective as of October 1, 1997.
AGREED TO AND APPROVED BY: GRANTOR:
DIGITEC 2000, INC., a Nevada WORLD ACCESS SOLUTIONS, INC.,
Corporation a Nevada Corporation
By: /s/ Frank Magliato By: /s/ Frank Magliato
------------------------------- ------------------------------
Frank Magliato Frank Magliato
President President
By: /s/ Suzanne Wilkinson
------------------------------
Suzanne Wilkinson
Executive Vice President
By: /s/ Keith McGowan
--------------------------------
Keith McGowan
V.P. of Finance
-2-
ASSIGNMENT OF LEASES
KNOW ALL MEN BY THESE PRESENTS:
THAT WORLD ACCESS SOLUTIONS, INC., a Nevada corporation ("Assignor"), in
consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby effective October 1, 1997 (the "Effective Date"),
assign, transfer and set over absolutely unto META-3, INC., a Mississippi
corporation ("Assignee"), that certain lease described on the attached Exhibit
"A" and all other leases related to or necessary for the operation of the
Purchased Assets as defined in that certain Asset Purchase Agreement By And
Between WORLD ACCESS SOLUTIONS, INC. As Seller And META-3, INC. As Purchaser
(the "Agreement"), together with any and all right, title, interest or benefit
thereunder. Said Agreement is incorporated herein by reference in aid hereof.
The Assignor hereby agrees to indemnify and hold Assignee harmless from and
against any claim, demand, liability, cost or expense asserted against Assignee
(including, without limitation, and by way of example only, reasonable
attorney's fees, disbursements and amounts paid in settlement of claims) arising
out of failure of Assignor to perform its obligations under the Leases during
the period prior to the date of this Assignment.
To the extent that any conflict should arise between the terms and
conditions of this Assignment and the Agreement, the terms and conditions of the
Agreement shall control.
IN WITNESS WHEREOF, Assignor has caused its hand to be set effective this
first day of October, 1997.
AGREED TO AND APPROVED BY: ASSIGNOR:
DIGITEC 2000, INC., a Nevada WORLD ACCESS SOLUTIONS, INC.,
Corporation a Nevada Corporation
By: /s/ Frank Magliato By: /s/ Frank Magliato
------------------------------ ------------------------------
Frank Magliato Frank Magliato
President President
By: /s/ Suzanne Wilkinson
------------------------------
Suzanne Wilkinson
Executive Vice President
By: /s/ Keith McGowan
------------------------------
Keith McGowan
V.P. of Finance
-2-
EXHIBIT "A"
LEASES
That certain Lease Agreement dated May 16, 1997 by and between The
Independent Order of Foresters, a Canadian corporation, and WORLD ACCESS
SOLUTIONS, INC.
ASSIGNMENT OF INTANGIBLES
THIS ASSIGNMENT made as of the first day of October, 1997, between WORLD
ACCESS SOLUTIONS, INC., a Nevada corporation (herein the "Assignor"), and
META-3, INC., a Mississippi corporation (herein the "Assignee").
RECITALS:
A. Effective as of the date hereof, Assignor has conveyed to Assignee
certain property (the "Purchased Assets") described in that certain Asset
Purchase Agreement By And Between World Access Solutions, Inc. As Seller And
Meta-3, Inc. As Purchaser (the "Agreement"), said Agreement being incorporated
herein by reference in aid hereof.
B. In connection with the sale of the Purchased Assets, Assignor agreed to
transfer, convey and assign to Assignee all of its transferable rights in any
intangibles and intellectual property with respect to the Purchased Assets (the
"Intangibles"). The Intangibles are described on Exhibit "A" which is attached
hereto and incorporated herein by reference.
C. Assignor desires to sell, assign, convey, and transfer all of its
rights in the Intangibles, and Assignee desires to accept said sale, assignment,
conveyance, and transfer upon the terms and conditions hereinafter set forth
NOW, THEREFORE, in consideration of the purchase of the Property and of
the mutual covenants herein set forth and for Ten Dollars ($10.00) and other
good and valuable consideration, the parties hereto agree as follows:
1. Assignor hereby sells, assigns, and transfers to Assignee all of
Assignor's interest in and to the Intangibles in favor of Assignor.
2. This Assignment shall be binding on the successors and assigns of
the parties hereto. The parties hereto shall execute such further and
additional documents as may be necessary to evidence or carry out the
provisions of this Assignment.
3. To the extent that any conflict should arise between the terms
and conditions of this Assignment and the Agreement, the terms and
conditions of the Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed or have caused
this Assignment to be properly executed on the day and year set forth
above.
AGREED TO AND APPROVED BY: ASSIGNOR:
DIGITEC 2000, INC., a Nevada WORLD ACCESS SOLUTIONS, INC.,
Corporation a Nevada Corporation
By: /s/ Frank Magliato By: /s/ Frank Magliato
---------------------------- ------------------------------
Frank Magliato Frank Magliato
President President
By: /s/ Suzanne Wilkinson
------------------------------
Suzanne Wilkinson
Executive Vice President
By: /s/ Keith McGowan
----------------------------
Keith McGowan
V.P. of Finance
ASSIGNEE:
META-3, INC.
A Mississippi Corporation
By: /s/ James Smith
------------------------------
James V. Smith
President
-2-
EXHIBIT "A"
1. All domain registrations
2. All names, titles, services marks, logos, trademarks for use in press
releases or promotionals concerning the purchase of the Purchased Assets
by META-3, INC.
3. All media related materials, including current advertising in place, phone
listings, marketing plans, drawings, manuals and information related to
the sale of the Purchased Assets to META-3, INC.
4. All rights to plans, specifications, design criteria and architectural
plans for improvements at the office of WORLD ACCESS SOLUTIONS, INC. in
Capitol Towers in Jackson, Mississippi.
ASSIGNMENT OF CONTRACTS
KNOW ALL MEN BY THESE PRESENTS:
THAT WORLD ACCESS SOLUTIONS, INC., a Nevada corporation ("Assignor"), in
consideration of the sum of Ten and No/1000 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby effective as of October 1, 1997 (the "Effective
Date"), assign, transfer and set over absolutely unto META-3, INC., a
Mississippi Corporation ("Assignee"), all of the Assignor's right, title and
interest in and to those certain contracts related to or necessary for the
operation of the Purchased Assets as defined in that certain Asset Purchase
Agreement By And Between WORLD ACCESS SOLUTIONS, INC. As Seller And META-3, INC.
As Purchasers (the "Agreement") which Agreement is incorporated herein by
reference in aid hereof. The Assignor hereby agrees to indemnify and hold
Assignee harmless from and against any claim, demand, liability, cost or expense
asserted against, Assignee (including, without limitation, and by way of example
only, reasonable attorney's fees, disbursements and amounts paid in settlement
of claims) arising out of the failure of Assignor to perform its obligations
under the Contracts during the period prior to the date of this Assignment.
To the extent that any conflict should arise between the terms and
conditions of this Assignment and the Agreement, the terms and conditions of the
Agreement shall control.
IN WITNESS WHEREOF, Assignor and Assignee have caused their hands and
sea1s to be set as of the first day of October, 1997.
AGREED TO AND APPROVED BY: ASSIGNOR:
DIGITEC 2000, INC., a Nevada WORLD ACCESS SOLUTIONS, INC.,
Corporation a Nevada Corporation
By: /s/ Frank Magliato By: /s/ Frank Magliato
------------------------------ ------------------------------
Frank Magliato Frank Magliato
President President
By: /s/ Suzanne Wilkinson
------------------------------
Suzanne Wilkinson
Executive Vice President
By: /s/ Keith McGowan
------------------------------
Keith McGowan
V.P. of Finance
ASSIGNEE:
META-3, INC.
A Mississippi Corporation
By: /s/ James Smith
------------------------------
James V. Smith
President
-2-
NOTE
Jackson, Mississippi
October 1, 1997
FOR VALUE RECEIVED, the undersigned promises to pay to the order of WORLD
ACCESS SOLUTIONS, INC., a Nevada corporation, an amount equal to a sum to be
derived pursuant to the terms and conditions of that certain Asset Purchase
Agreement By And Between WORLD ACCESS SOLUTIONS, INC. As Seller And META-3, Inc.
As Purchaser (the "Agreement") effective the first day of October, 1997 said
Agreement being incorporated herein by reference in aid hereof, being due and
payable as follows:
Payable in ten (10) monthly installments, beginning November 15,
1997, with an installment being due and payable on the same day of
each and every month thereafter until the entire balance is paid in
full.
All installments are payable in lawful money of the United States of
America, which shall be legal tender for public and private debts at the time of
payment, at the office of the payee in New York, New York or at such other place
as the holder hereof may designate in writing.
Said funds shall be paid solely from funds received by Meta3, Inc. without
restriction or reservation from the dial-up customer base and are subject to set
offs and other adjustments as set forth in the Agreement, including without
limitation, and by way of example only, payments made by Meta3, Inc. to the
Internal Revenue Service, Bell South or payments made or expenses incurred as a
result of the Heritage Graphic litigation.
To the extent that any conflict should arise between the terms and
conditions of this Note and the Agreement, the terms and conditions of the
Agreement shall control.
PURCHASER:
META-3, Inc.
A Mississippi Corporation
By: /s/ James Smith
------------------------------
James V. Smith
President
-2-
BILL OF SALE AND ASSIGNMENT
KNOW All PERSONS BY THESE PRESENTS:
THAT WORLD ACCESS SOLUTIONS, INC., a Nevada corporation, ("Grantor") for
good and valuable consideration paid by META-3, INC., a Mississippi Corporation
("Grantee"), the receipt and sufficiency of which are hereby acknowledged, has
ASSIGNED, TRANSFERRED, SET OVER AND DELIVERED, and by these presents does ASSIGN
TRANSFER, SET OVER AND DELIVER unto Grantee all of the following:
1. The Purchased Assets (hereinafter the "Purchased Assets") as defined
in that certain Asset Purchase Agreement By And Between WORLD ACCESS
SOLUTIONS, INC., As Seller and META-3, INC., As Purchaser (herein
after "Agreement"), said Agreement being incorporated herein by
reference in aid hereof. Without limiting the generality of the
foregoing, the Purchased Assets shall include all domain
registrations, telephone lines, telephone numbers and telephone
systems wheresoever located.
2. All contracts, rights or benefits applicable or relating to or
necessary for the operation of the Purchased Assets.
Grantor has full right to sell and transfer the above described Purchased
Assets.
Grantor warrants that the Purchased Assets are free and clear of all
security interests, liabilities, obligations and encumbrances.
Grantor warrants that there are no judgments against Grantor in any court
of the State of Mississippi, the United States of America and there are no
replevins, attachments, executions, or other writs or processes issued against
it; that it has not filed
any petition in bankruptcy, nor has any petition in bankruptcy been filed
against it, and that it has not been adjudicated a bankrupt.
IN WITNESS WHEREOF, Grantor has caused this Bill of Sale to be executed
effective as of October 1, 1997.
AGREED TO AND APPROVED BY: GRANTOR:
DIGITEC 2000, INC., a Nevada WORLD ACCESS SOLUTIONS, INC.,
Corporation a Nevada Corporation
By: /s/ Frank Magliato By: /s/ Frank Magliato
----------------------------- ------------------------------
Frank Magliato Frank Magliato
President President
By: /s/ Keith McGowan By: /s/ Suzanne Wilkinson
------------------------------ ------------------------------
Keith McGowan Suzanne Wilkinson
V.P. of Finance Executive Vice President
-2-