REORGANIZATION AGREEMENT
Agreement entered into on this 24th day of September, 2003, by and
between Treasury International, Inc., a Delaware corporation (hereinafter
"Treasury") and Retailport.com, Inc., a Delaware corporation (hereinafter
"Retailport.com, Inc.") and Spot Us, Inc. a Florida corporation (hereinafter
"Spot Us") and Spot Us Technologies, Inc., a Florida corporation (hereinafter
"Spot Us Technologies"). Treasury, Retailport.com, Inc., Spot Us and Spot Us
Technologies are referred to collectively herein as the "Parties."
W I T N E S S E T H:
WHEREAS, Spot Us Technologies is a wholly owned subsidiary of Spot Us;
and
WHEREAS, Retailport.com, Inc. is a wholly owned subsidiary of Treasury;
and
WHEREAS, Retailport.com, Inc. wishes to purchase and Spot Us
Technologies wishes to sell all of the assets comprising the business of Spot Us
Technologies; and
WHEREAS, in exchange for the sale of the assets of Spot Us
Technologies, Treasury has agreed to issue voting shares, to be registered
within ninety (90) days of closing, of Treasury to Spot Us or its shareholders
or assigns; and
WHEREAS, the transfer of Spot Us Technologies's assets to
Retailport.com, Inc. in exchange for registered voting shares of Treasury is
intended to be classified as a tax-free Reorganization under the Internal
Revenue Code.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. Basic Transaction.
(a) Purchase and Sale of Assets. On and subject to the terms and
conditions of this Agreement, Retailport.com, Inc. agrees to purchase from Spot
Us Technologies, and Spot Us Technologies agrees to sell, transfer, convey, and
deliver to Retailport.com, Inc., all of the Acquired Assets at the Closing for
the consideration specified below in this ss.1. Said Acquired Assets are more
fully described in the attached Exhibit "A".
(b) Assumption of Liabilities. On and subject to the terms and
conditions of this Agreement, Retailport.com, Inc. agrees to assume and become
responsible for all of the Assumed Liabilities at the Closing. Retailport.com,
Inc. will not assume or have any responsibility, however, with respect to any
other obligation or liability of the Spot Us Technologies not included within
the definition of Assumed Liabilities. Said Assumed Liabilities are more fully
described on the attached Exhibit "B".
(c) Purchase Price. In exchange for the sale of assets from Spot Us
Technologies to Retailport.com, Inc., Treasury agrees to issue One Million
Dollars ($1,000,000.00) of Treasury's voting shares, based on a price of $1.27
per share, representing 787,402 shares, to Spot Us or its Investors or assigns
(as directed by Spot Us at Closing) (the "Shares").
(d) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Macfarlane Ferguson
& McMullen in Tampa, Florida commencing at 10:00 a.m. local time on or before
September 26, 2003 or such other date as the Parties may mutually determine (the
"Closing Date"); provided, however that the Closing Date shall be no later than
September 30, 2003.
(e) Deliveries at the Closing. At the Closing, (i) Spot Us Technologies
will deliver to Retailport.com, Inc. the various certificates, instruments, and
documents referred to in ss.6(a) below; (ii) Retailport.com, Inc. will deliver
to Spot Us Technologies the various certificates, instruments, and documents
referred to in ss.6(b) below; (iii) Treasury will deliver to Spot Us and/or Spot
Us shareholders the various certificates, instruments, and documents referred to
in ss.6(b) below; (iv) Spot Us will deliver to Treasury the various
certificates, instruments, and documents referred to in ss.6(a) below; (v) Spot
Us Technologies will execute, acknowledge (if appropriate), and deliver to
Retailport.com, Inc. (A) a general assignment in the form attached hereto as
Exhibit "C"; (B) such other instruments of sale, transfer, conveyance, and
assignment as Retailport.com, Inc. and its counsel reasonably may request; (iv)
Retailport.com, Inc. will execute, acknowledge (if appropriate), and deliver to
the Spot Us Technologies (A) an assumption in the form attached hereto as
Exhibit "D" and (B) such other instruments of assumption as Spot Us Technologies
and its counsel reasonably may request; and (v) Treasury will deliver to Spot Us
the Shares specified in ss.1(c) above.
(f) Allocation. The Parties agree to allocate the Purchase Price (and
all other capitalizable costs) among the Acquired Assets for all purposes
(including financial accounting and tax purposes) in accordance with the
allocation schedule attached hereto as Exhibit "E".
(g) Registration of Shares. Within Ninety (90) days from the Closing of
the transaction contemplated by this Agreement, Treasury shall, at Treasury's
sole expense, file a registration statement with the Securities and Exchange
Commission ("SEC") registering, on behalf of Spot Us and/or its assigns all of
the Shares. Although the Shares will not yet be registered at Closing, the
voting privileges of any Shares issued to Spot Us Investors pursuant to this
transaction will not be impaired or affected as a result of this temporary delay
in registration.
(h) Lockup Agreement. After Treasury has filed the registration
statement with the Securities and Exchange Commission, Spot Us, or its Investors
or assigns, shall enter into a "lock-up" agreement or agreements whereby it or
they agree not to sell more than 5% of its or their holdings during any thirty
(30) day period for a period of one year, commencing one year from the date of
this Agreement or the date that the registration statement is declared
effective, whichever is earlier.
(i) Tax-free Reorganization. All Parties to this Agreement understand
and acknowledge that the transfer of assets from Spot Us Technologies to
Retailport.com, Inc. and the issuance of $1,000,000 in registered voting stock
to Spot Us by Treasury is to be structured to qualify as a tax-free
reorganization under the Internal Revenue Code, and all Parties also understand
and acknowledge that no tax deduction or set-off relating to the transactions
contemplated herein will be proper because of the non-taxable nature of the
reorganization set forth in this Agreement. It is agreed by all parties hereto
that Spot Us and Spot Us Technologies reserve the right to restructure the
transaction to ensure that it qualifies as a tax-free reorganization under the
Internal Revenue Code. The parties agree that the structure of the transaction
contemplated under this Agreement may be changed by Spot Us Technologies to
accomplish its planning goals so long as there is no material adverse financial
effect on Treasury or Retailport.com, Inc.
2. Representations and Warranties of Spot Us . Spot Us represents and
warrants to Treasury and Retailport.com, Inc. that the statements contained in
this ss.2 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
ss.2), except as set forth in the disclosure schedule attached hereto and
initialed by the Parties (the "Disclosure Schedule"). The Disclosure Schedule
will be arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this ss.2.
(a) Organization of Spot Us Spot Us is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Authorization of Transaction. Spot Us has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of Spot Us and Spot Us
Investors have duly authorized the execution, delivery, and performance of this
Agreement by Spot Us. This Agreement constitutes the valid and legally binding
obligation of Spot Us, enforceable in accordance with its terms and conditions.
(c) Noncontravention. To the Knowledge of Spot Us, neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including the assignments and assumptions
referred to in ss.1 above), will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Spot Us is
subject or any provision of the charter or bylaws of any of Spot Us or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which any of Spot Us and its Subsidiaries is
a party or by which it is bound or to which any of its assets is subject (or
result in the imposition of any Security Interest upon any of its assets),
except where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation, failure to give notice, or Security
Interest would not have a material adverse effect on the financial condition of
Spot Us or on the ability of the Parties to consummate the transactions
contemplated by this Agreement. To the Knowledge of Spot Us, none of Spot Us or
its Subsidiaries needs to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental agency
in order for the Parties to consummate the transactions contemplated by this
Agreement (including the assignments and assumptions referred to in ss.2 above),
except where the failure to give notice, to file, or to obtain any
authorization, consent, or approval would not have a material adverse effect on
the financial condition of Spot Us or on the ability of the Parties to
consummate the transactions contemplated by this Agreement.
(d) Brokers' Fees. Spot Us has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Treasury or
Retailport.com, Inc. could become liable or obligated. None of the Subsidiaries
of Spot Us has any liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement.
(e) Investment. Spot Us (i) understands that the Shares have not yet
been registered under the Securities Act, but also understands that said Shares
will be registered by Treasury, pursuant to the affirmative covenant contained
in ss.1(h), within 90 days of the Closing, (ii) is acquiring the Shares solely
for its own account for investment purposes, and not with a view to the
distribution thereof (except to Spot Us Investors), (iii) is a sophisticated
investor with knowledge and experience in business and financial matters, (iv)
has received certain information concerning Treasury and has had the opportunity
to obtain additional information as desired in order to evaluate the merits and
the risks inherent in holding the Shares, (v) is able to bear the economic risk
and lack of liquidity inherent in holding the Shares, and (vi) is an Accredited
Investor.
(f) Disclaimer of other Representations and Warranties. Except as
expressly set forth in this Section 2, Spot Us makes no representation or
warranty, express or implied, at law or in equity, in respect of any of its
assets (including, without limitation, the Acquired Assets), liabilities or
operations, including, without limitation, with respect to merchantability or
fitness for any particular purpose, and any such other representations or
warranties are hereby expressly disclaimed. Treasury and Retailport.com, Inc.
hereby acknowledge and agree that, except to the extent specifically set forth
in this Section 2, Retailport.com, Inc. is purchasing the Acquired Assets on an
"as-is, where-is" basis. Without limiting the generality of the foregoing, Spot
Us makes no representation or warranty regarding any assets other than the
Acquired Assets or any liabilities other than the Assumed Liabilities, and none
shall be implied at law or in equity.
3. Representations and Warranties of Spot Us Technologies. Spot Us
Technologies represents and warrants to Treasury and Retailport.com, Inc. that
the statements contained in this ss.3 are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date of
this Agreement throughout this ss.3), except as set forth in the disclosure
schedule accompanying this Agreement and initialed by the Parties (the
"Disclosure Schedule"). The Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in this ss.3.
(a) Organization of Spot Us Technologies. Spot Us Technologies is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction. Spot Us Technologies has full power
and authority (including full corporate power and authority) to execute and
deliver this Agreement and to perform its obligations hereunder. Without
limiting the generality of the foregoing, the board of directors of Spot Us
Technologies and Spot Us Technologies Investors have duly authorized the
execution, delivery, and performance of this Agreement by Spot Us Technologies .
This Agreement constitutes the valid and legally binding obligation of Spot Us
Technologies, enforceable in accordance with its terms and conditions.
(c) Noncontravention. To the Knowledge of any of the Investors of Spot
Us Technologies, neither the execution and the delivery of this Agreement, nor
the consummation of the transactions contemplated hereby (including the
assignments and assumptions referred to in ss.1 above), will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which Spot Us Technologies is subject or any provision of the charter
or bylaws of Spot Us Technologies or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which Spot Us Technologies is a party or by which it is bound or to which any
of its assets is subject (or result in the imposition of any Security Interest
upon any of its assets), except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, failure to give notice,
or Security Interest would not have a material adverse effect on the financial
condition of Spot Us Technologies or on the ability of the Parties to consummate
the transactions contemplated by this Agreement. To the Knowledge of any of
Investors of Spot Us Technologies, Spot Us Technologies needs to give any notice
to, make any filing with, or obtain any authorization, consent, or approval of
any government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement (including the assignments and
assumptions referred to in ss.3 above), except where the failure to give notice,
to file, or to obtain any authorization, consent, or approval would not have a
material adverse effect on the financial condition of Spot Us Technologies or on
the ability of the Parties to consummate the transactions contemplated by this
Agreement.
(d) Brokers' Fees. Spot Us Technologies has no liability or obligation
to pay any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which the Treasury or
Retailport.com, Inc. could become liable or obligated.
(e) Title to Tangible Assets. Spot Us Technologies has good title to,
or a valid leasehold interest in, the material tangible assets they use
regularly in the conduct of their businesses.
(f) Subsidiaries. Spot Us Technologies has no subsidiaries.
(g) Financial Statements. Attached hereto as Exhibit "F" are the
following consolidated financial statements for SpotUs.com, Inc., now known as
Spot Us, Inc., Southern Pawn, Inc., and Trumpbid.com, Inc., now known as Spot Us
Technologies, Inc. (collectively the "Financial Statements"): (i) audited
consolidated balance sheets and statements of income, changes in stockholders'
equity, and cash flow as of and for the fiscal years ended 2000 and 2001; and
(ii) unaudited consolidated balance sheets and statements of income, changes in
stockholders' equity, and cash flow (the "Most Recent Financial Statements") as
of and for the fiscal year ended 2002, and the three months ended March 31, 2003
(the "Most Recent Fiscal Month End") for Spot Us Technologies. The Financial
Statements (including the notes thereto) have been prepared in accordance with
GAAP applied on a consistent basis throughout the periods covered thereby and
present fairly the financial condition of the Spot Us Technologies and its
Subsidiaries as of such dates and the results of operations of Spot Us
Technologies for such periods; provided, however, that the Most Recent Financial
Statements are subject to normal year-end adjustments and lack footnotes and
other presentation items.
(h) Events Subsequent to Most Recent Fiscal Month End. Since the Most
Recent Fiscal Month End, there has not been any material adverse change in the
financial condition of Spot Us Technologies. Without limiting the generality of
the foregoing, since that date none of the Spot Us Technologies has engaged in
any practice, taken any action, or entered into any transaction outside the
Ordinary Course of Business the primary purpose or effect of which has been to
generate or preserve Cash.
(i) Legal Compliance. To the Knowledge of any of Spot Us Technologies
Investors, Spot Us Technologies has complied with all applicable laws (including
rules, regulations, codes, plans, injunctions, judgments, orders, decrees,
rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof), except where the failure to comply would
not have a material adverse effect upon the financial condition of Spot Us
Technologies.
(j) Tax Matters.
(i) Spot Us Technologies has filed all Income Tax Returns that it
was required to file, and has paid all Income Taxes shown thereon as
owing, except where the failure to file Income Tax Returns or to pay
Income Taxes would not have a material adverse effect on the financial
condition of Spot Us Technologies.
(ii) ss.3(j) of the Disclosure Schedule lists all Income Tax
Returns filed with respect to Spot Us Technologies for taxable periods
ended on or after December 31, 2000, indicates those Income Tax Returns
that have been audited, and indicates those Income Tax Returns that
currently are the subject of audit. Spot Us Technologies has delivered
to Treasury and Retailport.com, Inc. correct and complete copies of all
federal Income Tax Returns, examination reports, and statements of
deficiencies assessed against or agreed to by Spot Us Technologies
since December 31, 2000.
(iii) Spot Us Technologies has not waived any statute of
limitations in respect of Income Taxes or agreed to any extension of
time with respect to an Income Tax assessment or deficiency.
(iv) Spot Us Technologies is not a party to any Income Tax
allocation or sharing agreement.
(v) To the Knowledge of any of Spot Us Technologies Investors,
Spot Us Technologies has not been a member of an Affiliated Group
filing a consolidated federal Income Tax Return (other than a group the
common parent of which was Spot Us).
(k) Real Property.
(i) ss.3(k)(i) of the Disclosure Schedule lists all real property
that Spot Us Technologies owns. With respect to each such parcel of
owned real property, and except for matters which would not have a
material adverse effect on the financial condition of Spot Us
Technologies:
(A) the identified owner has good and marketable title to
the parcel of real property, free and clear of any Security
Interest, easement, covenant, or other restriction, except for
installments of special assessments not yet delinquent, recorded
easements, covenants, and other restrictions, and utility
easements, building restrictions, zoning restrictions, and other
easements and restrictions existing generally with respect to
properties of a similar character;
(B) there are no leases, subleases, licenses, concessions,
or other agreements granting to any party or parties the right of
use or occupancy of any portion of the parcel of real property;
and
(C) there are no outstanding options or rights of first
refusal to purchase the parcel of real property, or any portion
thereof or interest therein.
(ii) ss.3(k)(ii) of the Disclosure Schedule lists all real
property leased or subleased to Spot Us Technologies. Spot Us
Technologies has delivered to Treasury and Retailport.com, Inc. correct
and complete copies of the leases and subleases listed in ss.3(k)(ii)
of the Disclosure Schedule (as amended to date). To the Knowledge of
any of the Spot Us Technologies Investors, each lease and sublease
listed in ss.3(k)(ii) of the Disclosure Schedule is legal, valid,
binding, enforceable, and in full force and effect, except where the
illegality, invalidity, nonbinding nature, unenforceability, or
ineffectiveness would not have a material adverse effect on the
financial condition of Spot Us Technologies.
(l) Intellectual Property. ss.3(l) of the Disclosure Schedule
identifies each patent or registration which has been issued to Spot Us
Technologies with respect to any of its intellectual property, identifies each
pending patent application or application for registration which Spot Us
Technologies has made with respect to any of its intellectual property, and
identifies each license, agreement, or other permission which Spot Us
Technologies has granted to any third party with respect to any of its
intellectual property.
(m) Contracts. ss.3(m) of the Disclosure Schedule lists all written
contracts and other written agreements to which Spot Us Technologies is a party.
Spot Us Technologies has delivered to the Treasury and Retailport.com, Inc. a
correct and complete copy of each contract or other agreement listed in ss.3(m)
of the Disclosure Schedule (as amended to date).
(n) Powers of Attorney. To the Knowledge of any of the Spot Us
Technologies Investors, there are no outstanding powers of attorney executed on
behalf of Spot Us Technologies.
(o) Litigation. ss.3(o) of the Disclosure Schedule sets forth each
instance in which Spot Us Technologies, (i) is subject to any outstanding
injunction, judgment, order, decree, ruling, or charge or (ii) is a party to any
action, suit, proceeding, hearing, or investigation of, in, or before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction, except where the injunction, judgment, order, decree,
ruling, action, suit, proceeding, hearing, or investigation would not have a
material adverse effect on the financial condition of Spot Us Technologies.
(p) Employee Benefits.
(i) ss.3(p) of the Disclosure Schedule lists each Employee
Benefit Plan that Spot Us Technologies maintains or to which any of
Spot Us Technologies contributes.
(A) To the Knowledge of any of the Spot Us Technologies
Investors, each such Employee Benefit Plan (and each related
trust, insurance contract, or fund) has been maintained, funded
and administered in accordance with the terms of such Employee
Benefit Plan and complies in form and in operation in all
respects with the applicable requirements of ERISA and the Code,
except where the failure to comply would not have a material
adverse effect on the financial condition of Spot Us
Technologies.
(B) All contributions (including all employer
contributions and employee salary reduction contributions) which
are due have been made to each such Employee Benefit Plan which
is an Employee Pension Benefit Plan. All premiums or other
payments which are due have been paid with respect to each such
Employee Benefit Plan which is an Employee Welfare Benefit Plan.
(C) Each such Employee Benefit Plan which is intended to
meet the requirements of a "qualified plan" under Code ss.401(a)
has received a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Code
ss.401(a).
(D) As of the last day of the most recent prior plan year,
the market value of assets under each such Employee Benefit Plan
which is an Employee Pension Benefit Plan (other than any
Multiemployer Plan) equaled or exceeded the present value of
liabilities thereunder (determined in accordance with then
current funding assumptions).
(E) Spot Us Technologies has delivered to the Treasury and
Retailport.com, Inc. correct and complete copies of the plan
documents and summary plan descriptions, the most recent
determination letter received from the Internal Revenue Service,
the most recent annual report (IRS Form 5500), and all related
trust agreements, insurance contracts, and other funding
arrangements which implement each such Employee Benefit Plan.
(ii) With respect to each Employee Benefit Plan that Spot Us
Technologies or any ERISA Affiliate maintains or has maintained during
the prior six years or to which any of them contributes, or has been
required to contribute during the prior six years:
(A) No action, suit, proceeding, hearing, or investigation
with respect to the administration or the investment of the
assets of any such Employee Benefit Plan (other than routine
claims for benefits) is pending, except where the action, suit,
proceeding, hearing, or investigation would not have a material
adverse effect on the financial condition of Spot Us
Technologies.
(B) Spot Us Technologies has not incurred any liability to
the PBGC (other than PBGC premium payments) or otherwise under
Title IV of ERISA (including any withdrawal liability) with
respect to any such Employee Benefit Plan which is an Employee
Pension Benefit Plan.
(q) Environmental, Health, and Safety Matters.
(i) To the Knowledge of any of the Spot Us Technologies
Investors, Spot Us Technologies is in compliance with Environmental,
Health, and Safety Requirements, except for such noncompliance as would
not have a material adverse effect on the financial condition of Spot
Us Technologies.
(ii) To the Knowledge of any of the Spot Us Technologies
Investors, Spot Us Technologies has not received any written notice,
report or other information regarding any actual or alleged material
violation of Environmental, Health, and Safety Requirements, or any
material liabilities or potential material liabilities (whether
accrued, absolute, contingent, unliquidated or otherwise), including
any investigatory, remedial or corrective obligations, relating to Spot
Us Technologies or its facilities arising under Environmental, Health,
and Safety Requirements, the subject of which would have a material
adverse effect on the financial condition of Spot Us Technologies.
(iii) This Section 3(q) contains the sole and exclusive
representations and warranties of Spot Us Technologies with respect to
any environmental, health, or safety matters, including without
limitation any arising under any Environmental, Health, and Safety
Requirements.
(r) Certain Business Relationships with Spot Us Technologies. None of
Spot Us Technologies Investors and their Affiliates has been involved in any
material business arrangement or relationship with Spot Us Technologies within
the past 12 months, and none of Spot Us Technologies Investors and their
Affiliates owns any material asset, tangible or intangible, which is used in the
business of Spot Us Technologies.
(s) Investment. Spot Us Technologies (i) understands that the Shares
have not yet been registered under the Securities Act, but also understands that
said Shares will be registered by Treasury, pursuant to the affirmative covenant
contained in ss.1(h), within 90 days of the Closing, (ii) is acquiring the
Shares solely for its own account for investment purposes, and not with a view
to the distribution thereof (except to the Spot Us Technologies Stockholders),
(iii) is a sophisticated investor with knowledge and experience in business and
financial matters, (iv) has received certain information concerning the Treasury
and has had the opportunity to obtain additional information as desired in order
to evaluate the merits and the risks inherent in holding the Shares, and (v) is
able to bear the economic risk and lack of liquidity inherent in holding the
Shares.
(t) Disclaimer of other Representations and Warranties. Except as
expressly set forth in this Section 3, the Spot Us Technologies makes no
representation or warranty, express or implied, at law or in equity, in respect
of any of its assets (including, without limitation, the Acquired Assets),
liabilities or operations, including, without limitation, with respect to
merchantability or fitness for any particular purpose, and any such other
representations or warranties are hereby expressly disclaimed. Treasury and
Retailport.com, Inc. hereby acknowledge and agree that, except to the extent
specifically set forth in this Section 3, Retailport.com, Inc. is purchasing the
Acquired Assets on an "as-is, where-is" basis. Without limiting the generality
of the foregoing, Spot Us Technologies makes no representation or warranty
regarding any assets other than the Acquired Assets or any liabilities other
than the Assumed Liabilities, and none shall be implied at law or in equity.
4. Representations and Warranties of Treasury. Treasury represents and
warrants to the Spot Us and Spot Us Technologies (and to Spot Us Investors for
purposes of the Agreement with Spot Us Investors) that the statements contained
in this ss.4 are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this ss.4), except as set forth in the Disclosure Schedule. The
Disclosure Schedule will be arranged in paragraphs corresponding to the lettered
and numbered paragraphs contained in this ss.4.
(a) Organization of Treasury. Treasury is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Capitalization. The entire authorized capital stock of Treasury
consists of 100,000,000 Shares, of which 6,154,258 Shares are issued and
outstanding and no Shares are held in Treasury. All of the issued and
outstanding Treasury Shares have been duly authorized and are validly issued,
fully paid, and nonassessable. There are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could require Treasury to issue,
sell, or otherwise cause to become outstanding any of its capital stock. There
are no outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to Treasury.
(c) Authorization of Transaction. Treasury has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of Treasury, enforceable in accordance
with its terms and conditions.
(d) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in ss.1 above), will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Treasury is subject or any provision of
its charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
Treasury is a party or by which it is bound or to which any of its assets is
subject. Treasury does not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated by
this Agreement (including the assignments and assumptions referred to in ss.1
above).
(e) Filings with the SEC. Treasury has made all filings with the SEC
that it has been required to make within the past three years under the
Securities Act and the Securities Exchange Act (collectively the "Public
Reports"). Each of the Public Reports has complied with the Securities Act and
the Securities Exchange Act in all material respects. None of the Public
Reports, as of their respective dates, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading. Treasury has delivered to Spot Us and Spot Us Technologies
a correct and complete copy of each Public Report (together with all exhibits
and schedules thereto and as amended to date).
(f) Financial Statements. Treasury has filed its Quarterly Report on
Form 10-QSB for the fiscal quarter ended July 31, 2003 (the "Most Recent Fiscal
Quarter End"), and an Annual Report on Form 10-KSB for the fiscal year ended
January 31, 2003. The financial statements included in or incorporated by
reference into these Public Reports (including the related notes and schedules)
have been prepared in accordance with GAAP applied on a consistent basis
throughout the periods covered thereby and present fairly the financial
condition of Treasury and its Subsidiaries as of the indicated dates and the
results of operations of Treasury and its Subsidiaries for the indicated
periods; provided, however, that the interim statements are subject to normal
year-end adjustments.
(g) Events Subsequent to Most Recent Fiscal Quarter End. Since the Most
Recent Fiscal Quarter End, there has not been any material adverse change in the
business, financial condition, operations, results of operations, or future
prospects of Treasury and its Subsidiaries taken as a whole.
(h) Brokers' Fees. Treasury has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Spot Us or Spot Us
Technologies could become liable or obligated.
(i) Disclosure. The information supplied by Treasury will comply with
the Securities Exchange Act in all material respects, and will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they will be made, not misleading; provided, however, that Treasury
makes no representation or warranty with respect to any information that Spot Us
will supply specifically for use in the Treasury documents. None of the
information that Treasury will supply specifically for use in the Registration
Statement, the Prospectus, or the Definitive Spot Us Proxy Materials will
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they will be made, not misleading.
5. Pre-Closing Covenants. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary in order to consummate and
make effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in ss.5
below).
(b) Notices and Consents. Each of the Parties will (and the Spot Us
will cause each of its Subsidiaries to) give any notices to, make any filings
with, and use its reasonable best efforts to obtain any authorizations,
consents, and approvals of governments and governmental agencies in connection
with the matters referred to in ss.2(c) and ss.3(c) above.
(c) Operation of Business. Spot Us Technologies will not engage in any
practice, take any action, or enter into any transaction outside the Ordinary
Course of Business. Without limiting the generality of the foregoing, Spot Us
Technologies will not engage in any practice, take any action, or enter into any
transaction outside the Ordinary Course of Business the primary purpose or
effect of which will be to generate or preserve Cash; suffer or permit any
material adverse change to occur subsequent to the date of this letter and prior
to the closing date of the Acquisition with respect to Spot Us Technologies
businesses or assets; or make any material change with respect to their
businesses accounting or bookkeeping methods, principles or practices, except as
required by GAAP.
(d) Full Access. Spot Us Technologies will permit representatives of
Treasury to have full access at all reasonable times, and in a manner so as not
to interfere with the normal business operations of Spot Us Technologies and its
Subsidiaries, to all premises, properties, personnel, books, records (including
tax records), contracts, and documents of or pertaining to each of Spot Us
Technologies. Treasury will treat and hold as such any Confidential Information
it receives from any of the Spot Us Investors, Spot Us, and its Subsidiaries in
the course of the reviews contemplated by this ss.4(d), will not use any of the
Confidential Information except in connection with this Agreement, and, if this
Agreement is terminated for any reason whatsoever, will return to Spot Us
Technologies all tangible embodiments (and all copies) of the Confidential
Information which are in its possession.
(e) Notice of Developments.
(i) Spot Us Technologies may elect at any time to notify Treasury
of any development causing a breach of any of its representations and
warranties in ss.3(g)-(p) above. Unless Treasury has the right to
terminate this Agreement pursuant to ss.6(a)(ii) below by reason of the
development and exercises that right within the period of 10 business
days referred to in ss.6(a)(ii) below, the written notice pursuant to
this ss.5(e)(i) will be deemed to have amended the Disclosure Schedule,
to have qualified the representations and warranties contained in ss.2
and ss.3 above, and to have cured any misrepresentation or breach of
warranty that otherwise might have existed hereunder by reason of the
development.
(ii) Each Party will give prompt written notice to the other
Party of any material adverse development causing a breach of any of
its own representations and warranties in ss.2(a)-(f), ss.3(a)-(f), or
ss.4 above. No disclosure by any Party pursuant to this ss.5(e)(ii),
however, shall be deemed to amend or supplement the Disclosure Schedule
or to prevent or cure any misrepresentation or breach of warranty.
(f) Exclusivity. Spot Us will not solicit, initiate, or encourage the
submission of any proposal or offer from any Person relating to the acquisition
of all or substantially all of the capital stock or assets of any of Spot Us and
its Subsidiaries (including any acquisition structured as a merger,
consolidation, or share exchange); provided, however, that Spot Us Technologies
and its directors and officers will remain free to participate in any
discussions or negotiations regarding, furnish any information with respect to,
assist or participate in, or facilitate in any other manner any effort or
attempt by any Person to do or seek any of the foregoing to the extent their
fiduciary duties may require.
(g) Public Announcements. No party to this Agreement shall make, or
cause to be made, any public announcements in respect of this Agreement or the
transactions contemplated herein or otherwise communicate with any news media
without the prior written consent of the other party, and the parties shall
cooperate as to the timing and contents of any such announcement, except that
any party may make any disclosure that it determines in good faith is required
by applicable law or regulations or the requirements of any recognized
securities exchange or market.
6. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Treasury. The obligation of
Treasury to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in ss.2 and ss.3
above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) Spot Us Technologies shall have performed and complied with
all of its covenants hereunder in all material respects through the
Closing;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
(iv) Spot Us Technologies shall have delivered to Treasury a
certificate to the effect that each of the conditions specified above
in ss.6(a)(i)-(iii) is satisfied in all respects; and
(v) all actions to be taken by Spot Us Technologies in connection
with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Treasury.
Treasury may waive any condition specified in this ss.6(a) if it executes a
writing so stating at or prior to the Closing.
(b) Conditions to Obligation of Spot Us. The obligation of Spot Us to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in ss.4 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) Treasury and Retailport.com, Inc. shall have performed and
complied with all of its covenants hereunder in all material respects
through the Closing;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
(iv) Treasury shall have delivered to Spot Us a certificate to
the effect that each of the conditions specified above in
ss.6(b)(i)-(iii) is satisfied in all respects; and
(v) all actions to be taken by Treasury in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to Spot Us.
Spot Us may waive any condition specified in this ss.6(b) if it executes a
writing so stating at or prior to the Closing.
7. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate this
Agreement as provided below:
(i) Treasury and Spot Us Technologies may terminate this
Agreement by mutual written consent at any time prior to the Closing;
(ii) Treasury may terminate this Agreement by giving written
notice to Spot Us Technologies at any time prior to the Closing in the
event (A) Spot Us Technologies has within the then previous 10 business
days given Treasury any notice pursuant to ss.5(e)(i) above and (B) the
development that is the subject of the notice has had a material
adverse effect upon the financial condition of Spot Us Technologies.
(iii) Treasury may terminate this Agreement by giving written
notice to Spot Us Technologies at any time prior to the Closing (A) in
the event the Spot Us Technologies has breached any material
representation, warranty, or covenant contained in this Agreement
(other than the representations and warranties in ss.3(g)-(p) above) in
any material respect, Treasury has notified Spot Us Technologies of the
breach, and the breach has continued without cure for a period of 30
days after the notice of breach or (B) if the Closing shall not have
occurred on or before September 30, 2003, by reason of the failure of
any condition precedent under ss.5(a) hereof (unless the failure
results primarily from Treasury itself breaching any representation,
warranty, or covenant contained in this Agreement); and
(iv) Spot Us Technologies may terminate this Agreement by giving
written notice to Treasury at any time prior to the Closing (A) in the
event Treasury has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, Spot Us
has notified Treasury of the breach, and the breach has continued
without cure for a period of 30 days after the notice of breach or (B)
if the Closing shall not have occurred on or before September 30, 2003,
by reason of the failure of any condition precedent under ss.6(b)
hereof (unless the failure results primarily from Spot Us Technologies
itself breaching any representation, warranty, or covenant contained in
this Agreement) or (C) based upon the due diligence performed by Spot
Us Technologies regarding Treasury and the shares Spot Us would receive
under this Agreement.
(v) Either party may terminate this Agreement, if for whatever
reason the transaction has not closed prior to September 30, 2003.
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to ss.7(a) above, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party (except
for any liability of any Party then in breach); provided, however, that the
confidentiality provisions contained in ss.5(d) above shall survive termination.
8. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Acquired Assets" means all of the right, title, and interest that Spot
Us Technologies possesses and has the right to transfer in and to all of its
assets, including all of its (a) real property, leaseholds and subleaseholds
therein, improvements, fixtures, and fittings thereon, and easements,
rights-of-way, and other appurtenants thereto (such as appurtenant rights in and
to public streets), (b) tangible personal property (such as machinery,
equipment, inventories of raw materials and supplies, manufactured and purchased
parts, goods in process and finished goods, furniture, automobiles, trucks,
tractors, trailers, tools, jigs, and dies), (c) intellectual property, goodwill
associated therewith, licenses and sublicenses granted and obtained with respect
thereto, and rights thereunder, remedies against infringements thereof, and
rights to protection of interests therein under the laws of all jurisdictions,
(d) leases, subleases, and rights thereunder, (e) agreements, contracts,
indentures, mortgages, instruments, Security Interests, guaranties, other
similar arrangements, and rights thereunder, (f) accounts, notes, and other
receivables, (g) securities (such as the capital stock in its Subsidiaries), (h)
claims, deposits, prepayments, refunds, causes of action, choses in action,
rights of recovery, rights of set off, and rights of recoupment (including any
such item relating to the payment of taxes), (i) franchises, approvals, permits,
licenses, orders, registrations, certificates, variances, and similar rights
obtained from governments and governmental agencies, (j) books, records,
ledgers, files, documents, correspondence, lists, plats, architectural plans,
drawings, and specifications, creative materials, advertising and promotional
materials, studies, reports, and other printed or written materials, (k) Cash up
to an amount equal to the Spot Us Technologies's good faith estimate of the
aggregate liability of Spot Us Technologies and its Subsidiaries for unpaid
taxes as of the Closing (computed in accordance with the past custom and
practice of Spot Us Technologies and its Subsidiaries in filing their tax
returns), and (l) rights in and with respect to the assets associated with its
Employee Benefit Plans; provided, however, that the Acquired Assets shall not
include (i) the corporate charter, qualifications to conduct business as a
foreign corporation, arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals, minute books,
stock transfer books, blank stock certificates, and other documents relating to
the organization, maintenance, and existence of Spot Us Technologies as a
corporation, (ii) any Cash in excess of the amount referred to in clause (k) of
this definition, or (iii) any of the rights of Spot Us Technologies under this
Agreement (or under any side agreement between Spot Us on the one hand and
Treasury on the other hand entered into on or after the date of this Agreement).
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
---------
promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of
-----------------
Code ss.1504(a) or any similar group defined under a similar provision of state,
local, or foreign law.
"Cash" means cash and cash equivalents (including marketable securities
----
and short term investments) calculated in accordance with GAAP applied on a
basis consistent with the preparation of the Financial Statements.
"Closing" has the meaning set forth in ss.1(e).
-------
"Closing Date" has the meaning set forth in ss.1(e).
------------
"COBRA" means the requirements of Part 6 of Subtitle B of Title I of
-----
ERISA and Code ss.4980B and of any similar state law.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Confidential Information" means any information concerning the
--------------------------
businesses and affairs of Spot Us and its Subsidiaries that is not already
generally available to the public.
"Deferred Intercompany Transaction" has the meaning set forth in Reg.
---------------------------------
ss.1.1502-13.
"Disclosure Schedule" has the meaning set forth in ss.3.
-------------------
"Employee Benefit Plan" means any "employee benefit plan" (as such term
---------------------
is defined in ERISA ss.3(3)) and any other material] employee benefit plan,
program or arrangement of any kind.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
--------------------------------
ss.3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
--------------------------------
ss.3(1).
"Environmental, Health, and Safety Requirements" shall mean all
---------------------------------------------------
federal, state, local and foreign statutes, regulations, and ordinances
concerning public health and safety, worker health and safety, and pollution or
protection of the environment, including without limitation all those relating
to the presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, release, threatened release, control, or cleanup of any hazardous
materials, substances or wastes, as such requirements are enacted and in effect
on or prior to the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
"ERISA Affiliate" means each entity which is treated as a single
employer with the Target for purposes of Code ss.414.
"Excess Loss Account" has the meaning set forth in Reg.ss.1.1502-19.
-------------------
"Financial Statement" has the meaning set forth in ss.3(g).
-------------------
"GAAP" means United States generally accepted accounting principles as
----
in effect from time to time.
"Income Tax" means any federal, state, local, or foreign income tax,
----------
including any interest, penalty, or addition thereto, whether disputed or not.
"Income Tax Return" means any return, declaration, report, claim for
-----------------
refund, or information return or statement relating to Income Taxes, including
any schedule or attachment thereto.
"Investors", for the purpose of this Agreement, means the shareholders
---------
of Spot Us, Inc. or Spot Us Technologies, Inc., as the case may be.
"Knowledge" means actual knowledge without independent investigation.
---------
"Most Recent Financial Statements" has the meaning set forth in
-----------------------------------
ss.3(g).
"Most Recent Fiscal Month End" has the meaning set forth in ss.3(g).
----------------------------
"Multiemployer Plan" has the meaning set forth in ERISA ss.3(37).
------------------
"Ordinary Course of Business" means the ordinary course of business
----------------------------
consistent with past custom and practice (including with respect to quantity and
frequency).
"Party" has the meaning set forth in the preface above.
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Person" means an individual, a partnership, a corporation, an
------
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Purchase Price" has the meaning set forth in ss.1(c).
--------------
"Reportable Event" has the meaning set forth in ERISA ss.4043.
----------------
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
-----------------------
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
------------------
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Shares" has the meaning set forth in ss.1(c).
------
"Subsidiary" means any corporation with respect to which a specified
----------
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
9. Miscellaneous.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties contained in this Agreement shall
survive the Closing hereunder as and to the extent provided in the Agreement
with Spot Us Technologies Stockholders.
(b) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
other Party; provided, however, that any Party may make any public disclosure it
believes in good faith is required by applicable law or any listing or trading
agreement concerning its publicly-traded securities (in which case the
disclosing Party will use its reasonable best efforts to advise the other Party
prior to making the disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party provided, however, that the Buyer may (i) assign any or all
of its rights and interests hereunder to one or more of its Affiliates and (ii)
designate one or more of its Affiliates to perform its obligations hereunder (in
any or all of which cases the Buyer nonetheless shall remain responsible for the
performance of all of its obligations hereunder).
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Spot Us:
Spot Us, Inc.
950 Missouri Ave.
Largo, FL 35770
Attn: J. Bartholomew, President
Fax: (727) 585-8904
Copy to:
James W. Goodwin, II, Esq.
Macfarlane, Ferguson & McMullen, P.A.
400 N. Tampa Street, Suite 2300
Tampa, FL 33602
Attn: Jim Goodwin
Fax: (813) 273-4256
If to Treasury:
Treasury International, Inc.
422 Montana Street
Libby, MT 59923
Attn: Dale Doner, President
Fax: (310) 432-6222
Copy to:
William Barnett, Esq.
Law Offices of William B. Barnett
15233 Ventura Boulevard, Suite 410
Sherman Oaks, California 91403
Fax: (818) 789-2680
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Florida without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Florida. Each Party specifically
agrees that proper venue and jurisdiction for any action hereunder shall lie in
Hillsborough County, Florida.
(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Treasury and Spot Us. Spot Us may consent to any such amendment at any time
prior to the Closing with the prior authorization of its board of directors;
provided, however, that any amendment effected after the Spot Us Investors have
approved this Agreement will be subject to the restrictions contained in the
Florida Business Corporation Act. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(k) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of Treasury, Retailport.com, Inc., Spot Us, Spot Us
Technologies, and Spot Us' Subsidiaries will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby. Spot Us will also bear all of the Spot
Us Investors' costs and expenses (including all of their legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby (other than any Income Tax on any income or gain the Spot Us
Investors may realize if Spot Us makes any dividend or distribution to them).
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(o) Tax Matters. Any agreement between Spot Us and any of its
Subsidiaries regarding allocation or payment of taxes or amounts in lieu of
taxes shall be deemed terminated at and as of the Closing. Treasury and Spot Us
will (A) cooperate in the preparation and filing of an election under Code
ss.338(h)(10) with respect to the sale of the stock of the Subsidiaries
hereunder and (B) take all such action as is required in order to give effect to
the election for state, local, and foreign tax purposes to the greatest extent
permitted by law.
(p) Bulk Transfer Laws. Treasury acknowledges that Spot Us will not
comply with the provisions of any bulk transfer laws of any jurisdiction in
connection with the transactions contemplated by this Agreement.
*****
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
TREASURY INTERNATIONAL, INC.
By: __________________________
Title: __________________________
RETAILPORT.COM, INC., INC.
By: __________________________
Title: __________________________
SPOT US, INC.
By: __________________________
Title: __________________________
SPOT US TECHNOLOGIES, INC.
By: __________________________
Title: __________________________
Exhibit "A".
Acquired Assets
- ------------------------------------------------------------------------------------------------------------------------------------
Asset Category Model. Name Desc S/N Ven Cost Purchase
Date
3 Hardware PC PII 400 mouse/key/zip/cd/nic/modem n8282961901 $0.00
18 Hardware Racer PC Cel 400 mouse/key/nic 9398116403 Tech Data $567.29 10/19/1999
51 Hardware Printer HP LaserJet 2100TN 10PPM Eth USCB033186 Tech Data $917.53 10/1/1999
65 Hardware Acer PC Acer power P3/500mhz/64mb/13gb/40x/NI 1234.00293444155A Tech Data $978.00 10/1/1999
68 Hardware Monitor 17" Multisync A700 Color Monitor 9604513ya Tech Data $281.32 10/1/1999
70 Hardware Monitor 17" Multisync A700 Color Monitor 9632257ad Tech Data $281.32 10/1/1999
86 Hardware Dell Server Dell Power Edge 2300 PIII 57z2u National$5,780.00 9/16/1999
450/monitor/m Computer
102 Software Programs Flash V4.0 W9x/NT 200024606721072414 Tech Data $262.64 8/19/1999
110 Software Norton's AntiVirus Enterprise Solution 7.0 Verteks $75.00 12/21/1999
Media
111 Software Norton's AntiVirus Enterprise Solution 7.0 Verteks $750.00 12/21/1999
Lisc. 24 users
112 Software Visio Enterprise Edition (IT Documentation) Micro $959.00 12/15/1999
Warehouse
113 Software Visual Studio Enterprise Edition Verteks$1,580.11 12/30/1999
114 Software F9 Financial Report Generator $0.00
116 Software NT Lisc. Windows NT 4.0 Server 25 user license Verteks $535.00 12/21/1999
117 Software Veritas MU Veritas Backup Executive multi-user 0665700000046012 Verteks $397.09 12/30/1999
upgrade
118 Software Veritas Exch. Veritas Backup Executive Exchange 0672230005073809 Verteks $463.88 12/30/1999
module
119 Software Veritas SQL Veritas Backup Executive SQL module 0172130003039824 Verteks $530.67 12/30/1999
120 Software Veritas Ofile Veritas Backup Executive open file 0272540004028122 Verteks $463.88 12/30/1999
module
121 Office Fire proof Safe Sentry fire proof safe AA559272 Office Depot $59.99 1/12/2000
125 Hardware Server (PDC) 600mhz x 2/SCSI Raid 5 x 3 Verteks$4,990.00 12/21/1999
HD/DAT/CD/NIC
126 Hardware Server (Backup) 600mhz/SCSI Raid 5 x 3 HD/CD/NIC Verteks$2,260.00 12/21/1999
127 Hardware DAT Tapes DAT 4mm tapes x 5 Verteks $30.00 12/21/1999
128 Hardware DAT Cleaner DAT cleaning 4mm tape Verteks $30.00 12/21/1999
132 Hardware Belkin Video/Mouse/Key switch box 4411640 Verteks $270.00 12/21/1999
144 Hardware Compaq Monitor Monitor Compaq S910 19" .22 Hor NS 949GD43AD992 Warehouse .com $497.95 1/13/2000
1600x1200@75hz
151 Hardware RAM 128MB 16x64 pc100 SDRAM National $283.20 11/8/1999
Computer
164 Software PC Anywhere Symantec PC Anywhere 9.0 F/32-BIT (CD) 07-83-00284 Micro $99.95 2/22/2000
Warehouse
165 Software Norton Ghost Norton Ghost 2000 Personal Edition 07-83-00318 Micro $69.95 2/22/2000
Warehouse
168 Hardware 3C8864-US 3Com Router 3Com OfficeConnect Netbuilder IP/IPX 4WXE100151 Buy.com$1,178.95 2/28/2000
Router
177 Software Adobe Acrobat 4.0 Adobe Acrobat 4.0 4.0 WIN95/NT Full CD KWW400R7303365-151 Micro $229.95 2/25/2000
Warehouse
178 Hardware Raid Controller Adaptec AAA-131U2 Ultra2 SCSI Array BA0B9490B3B Verteks $0.00 3/1/2000
Controller
181 Software Backup Exec. V8.0 Veritas Backup Exec. V8.0 Server 05-4627-0002-021961 Micro $479.99 3/15/2000
Server Edition Edition Warehouse
182 Software Backup Exec. V8.0 Veritas Backup Exec. V8.0 Open File 08-7255-0008-048162 Micro $479.99 3/15/2000
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183 Software Backup Exec. V8.0 Veritas Backup Exec. V8.0 SQL Agent 03-7212-0003-059411 Micro $419.99 3/15/2000
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184 Software SQL Internet SQL server 7.0 Internet Connection Micro$2,599.95 3/15/2000
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185 Software SQL Internet SQL server 7.0 Internet Connection Micro$2,599.95 3/15/2000
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188 Hardware Patch Panel Belkin 48 Port Patch Panel Cat5 2286822724 Buy.com $127.95 3/15/2000
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204 Hardware 100745-003 Proliant Server Compaq Proliant 5500R Bare Rackmount D010CQX3K005 Verteks$14,200.06 4/5/2000
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206 Hardware 157866-001 Remote Insight Compaq Remote Insight Manager Lights P25660EBFJ565F Verteks $558.80 4/5/2000
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207 Hardware 242520-B21 DLT Tape Drive Compaq 35/70 GB DLT Internet Tape CXA07S1242 Verteks$5,086.59 4/5/2000
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208 Hardware 388099-B21 Redundant Power Compaq Proliant Hot Pluggable Verteks $615.47 4/5/2000
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209 Hardware 317600-B21 10/100 TX NIC Compaq Nettelligent NC31210 10/100-TX Verteks $84.32 4/5/2000
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211 Hardware 386121-B21 Xeon Fan Kit Compaq Redunant Xeon Fan Kit Verteks $195.87 4/5/2000
212 Hardware 328581-B21 Server RAM Compaq 256 MB RAM Upgrade Kit 4x64MB Verteks $930.44 4/5/2000
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213 Hardware 328939-B22 9.1 GB SCCSI Hard Compaq 9.1 GB Ultra2 Hot swappable 8Q03DBJ1E0ZC Verteks $543.78 4/5/2000
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215 Hardware 328939-B22 9.1 GB SCCSI Hard Compaq 9.1 GB Ultra2 Hot swappable 8Q03DBJ1E0YL Verteks $543.78 4/5/2000
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218 Hardware 328939-B22 9.1 GB SCCSI Hard Compaq 9.1 GB Ultra2 Hot swappable 8Q03DBJ1E0YH Verteks $543.78 4/5/2000
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220 Hardware 100745-003 Proliant Server Compaq Proliant 5500R Bare Rackmount D009CQX3K024 Verteks$14,200.06 4/5/2000
Server Chassis
224 Hardware 388099-B21 Redundant Power Compaq Proliant Hot Pluggable Verteks $615.47 4/5/2000
Supply Redundant Power Supply.0 Watt
225 Hardware 317600-B21 10/100 TX NIC Compaq Nettelligent NC31210 10/100-TX Verteks $84.32 4/5/2000
PCI NIC.
226 Hardware 386121-B21 Xeon Fan Kit Compaq Redunant Xeon Fan Kit Verteks $195.87 4/5/2000
227 Hardware 328581-B21 Server RAM Compaq 256 MB RAM Upgrade Kit 4x64MB Verteks $930.44 4/5/2000
DIMMs EDO
228 Hardware 328939-B22 9.1 GB SCCSI Hard Compaq 9.1 GB Ultra2 Hot swappable 8Q03DBJ1E0WA Verteks $543.78 4/5/2000
Drive 10,000 RPM Hard Drive.
230 Hardware 328939-B22 9.1 GB SCCSI Hard Compaq 9.1 GB Ultra2 Hot swappable 8Q03DBJ1E0XJ Verteks $543.78 4/5/2000
Drive 10,000 RPM Hard Drive.
231 Hardware 328939-B22 9.1 GB SCCSI Hard Compaq 9.1 GB Ultra2 Hot swappable 8Q03DBJ1E0XS Verteks $543.78 4/5/2000
Drive 10,000 RPM Hard Drive.
257 Hardware 157866-001 Remote Insight Compaq Remote Insight Manager Lights P25660EBFJ56CB Verteks $558.80 4/5/2000
Board out Edition Board
267 Hardware C7150A Photo Scanner HP Photosmart S20XI Slide Scanner USB SG0382300G Egghead.com $449.00 4/27/2000
300/2400 DPI 36 Bit
268 Hardware C7150A Photo Scanner HP Photosmart S20XI Slide Scanner USB SG0382300Z Egghead.com $449.00 4/27/2000
300/2400 DPI 36 Bit
270 Hardware C7150A Photo Scanner HP Photosmart S20XI Slide Scanner USB SG0382300B Egghead.com $449.00 4/27/2000
300/2400 DPI 36 Bit
272 Hardware C7150A Photo Scanner HP Photosmart S20XI Slide Scanner USB SG0382300S Egghead.com $449.00 4/27/2000
300/2400 DPI 36 Bit
273 Hardware C7150A Photo Scanner HP Photosmart S20XI Slide Scanner USB SG0382301X Egghead.com $449.00 4/27/2000
300/2400 DPI 36 Bit
274 Hardware C7150A Photo Scanner HP Photosmart S20XI Slide Scanner USB SG0382300M Egghead.com $449.00 4/27/2000
300/2400 DPI 36 Bit
275 Hardware C7150A Photo Scanner HP Photosmart S20XI Slide Scanner USB SG0382304K Egghead.com $449.00 4/27/2000
300/2400 DPI 36 Bit
276 Hardware 3C8864-US 3Com Router 3Com OfficeConnect Netbuilder IP/IPX 4WXE100218 Egghead.com$1,200.99 4/10/2000
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278 Hardware 3C8864-US 3Com Router 3Com OfficeConnect Netbuilder IP/IPX 4WXE100239 Egghead.com$1,200.99 4/10/2000
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281 Hardware 3C16465A-US 3Com Switch NCE, 3Com SSII Baseline 24 PT 10/100 7A7F006330 Egghead.com $707.95 4/10/2000
switch No MGMT
284 Hardware 3C16465A-US 3Com Switch NCE, 3Com SSII Baseline 24 PT 10/100 7A7F006842 Egghead.com $707.95 4/10/2000
switch No MGMT
298 Hardware 67010 Label Printer Dymo Writer Turbo 17-0019226 Buy.com $209.00 4/10/2000
323 Software BENTL044800 Agent Acclerator Veritas Backup Exec NT/2000 v8.0 05-4717-9999-00436Microwarehouse $150.00 4/10/2000
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334 Hardware c7150a#aba Photo Scanner S20XI photosmart slide scanner usb SG0392302P buy.com $431.17 5/16/2000
300dpi 36-bit
351 Hardware 0106-004-01 Digital video AXIS 2100 STANDALONE DIGITAL NETWORK 00408C444473 MicroWarehouse $468.94 5/16/2000
camera CAMERA
355 Hardware 0106-004-01 Digital video AXIS 2100 STANDALONE DIGITAL NETWORK 00408C444470 MicroWarehouse $468.94 5/16/2000
camera CAMERA
357 Hardware BF280c UPS BACK-UPS OFFICE 280VA STANDBY 7 NB9947121926 buy.com $76.62 5/16/2000
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358 Hardware BF280c UPS BACK-UPS OFFICE 280VA STANDBY 7 NB9947121925 buy.com $76.62 5/16/2000
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364 Hardware BF280c UPS BACK-UPS OFFICE 280VA STANDBY 7 NB9947121951 buy.com $76.62 5/16/2000
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367 Hardware BF280c UPS BACK-UPS OFFICE 280VA STANDBY 7 NB9947121987 buy.com $76.62 5/16/2000
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377 Hardware 10/100 5 Port Hub FS105 10/100 5PT Switching Hub FS15A03004595 Plaza $104.86 5/26/2000
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378 Hardware 10/100 5 Port Hub FS105 10/100 5PT Switching Hub FS15A03004596 Plaza $104.86 5/26/2000
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394 Hardware HP JetDirect 170X External Print Server Ext 10BT/RJ45 1 SG02050451 HEWLETT $139.99 6/21/2000
PAR PORT For ethernet 10base-T PACKARD
networks
395 Hardware BF280c UPS BACK-UPS OFFICE 280VA STANDBY 7 NB9947122016
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396 Hardware BF280c UPS BACK-UPS OFFICE 280VA STANDBY 7 NB9947122014
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397 Hardware BF280c UPS BACK-UPS OFFICE 280VA STANDBY 7 NB9947121655
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398 Hardware BF280c UPS BACK-UPS OFFICE 280VA STANDBY 7 NB9947122018
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399 Hardware Compaq Monitor TFT5000 15" 1024x768 LCD monitor 936BH34AA125
400 Hardware BackPack Microsolutions CD-RW external 19506987
401 Hardware Presario Compaq PC 1x13jd4tf55x
402 Hardware Satellite Toshiba Toshiba Satellite 4025 CDT Laptop y8214918a
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403 Hardware Satellite Toshiba Toshiba Satellite 115 CS Laptop 11648653
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404 Hardware Satellite Toshiba Toshiba Satellite 115 CS Laptop 3641013
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405 Hardware Protege Toshiba Toshiba Protege Laptop computer 20453126
406 Hardware LaserJet HP HP LaserJet 4050TN printer uscc149312
407 Hardware PanNet Panduit Panduit PanNet Server Mounting Rack wmpvs20
408 Hardware Phone UNIDEN UNIDEN 2 chanel phone 4.20022E+12
409 Hardware Phone UNIDEN UNIDEN 2 chanel phone 4.20022E+12
410 Hardware 600YGR Gateway Gateway 600ygr Laptop computer BY302220891
411 Hardware Rack Server Mounting Rack
412 Hardware Rack Server Mounting Rack
413 Hardware PC ABE ABE Dual CPU 400Mhz/15GB/256MB 72199
414 Hardware Clear plastic drawer rack
415 Hardware Clear plastic drawer rack
416 Hardware Clear plastic drawer rack
417 Hardware workstation desk
418 Hardware workstation desk
419 Hardware workstation desk
420 Hardware executive chair d9m880
421 Hardware executive chair dm6d3h
422 Hardware executive chair d5ftqh
423 Hardware executive chair d2lk80
424 Hardware executive chair 2625000520
425 Hardware executive chair DRL86N
426 Hardware executive chair D2L8K0
427 Hardware executive chair
428 Hardware Task chair 6462280
429 Hardware workstation and the credenza
430 Hardware Bookcase w/glass doors
431 Hardware Mantle
432 Hardware 2-Drawer file cabinet (legal size)
434 Hardware HP DeskJet 672C cn84e120qd
435 Hardware Gateway PC 27968190
436 Hardware ew5hub Linksys 5 port hub 928007121
437 Hardware 995e GL Studioworks 17" monitor 91ckq01024
438 Hardware kxt7880 Panasonic wireless phone 1ka0h002522
439 Hardware kxt7020 Panasonic phone 5b1e206024
450 Hardware APC 400 UPS eb9645392032
451 Hardware Conference table w/6 chairs
452 Hardware Stack of lockable boxes
453 Hardware Table
454 Hardware Table
455 Hardware Linksys 5 port hub 928003248
456 Hardware Linksys 5 port hub 928001381
457 Hardware Magnavox Magnavox TV/VCR set 63420732
458 Hardware PowerMax Hoover Hoover PowerMax vacuum cleaner
459 Hardware PC Monitor MGC MGC computer monitor 1296300931
- ------------------------------------------------------------------------------------------------------------------------------------
"Auction Agent" trademark
U.S. Trademark Registration Serial Number 76373995
40
Exhibit "B"
Assumed Liabilities
Description Monthly
1. Lease Agreement with 1,707.72 Bartholomew Real Estate
Holdings, LLC
(Space)
2. Lease Agreement 1,981.05 Road Runner
(Equipment)
Total Liabilities 3,688.77
Exhibit "C".
Form of General Assignment
GENERAL ASSIGNMENT
THIS ASSIGNMENT is made this ____ day of 2003, by Spot Us Technologies,
Inc.("Assignor"), a Florida corporation, to Retailport.com, Inc., a Delaware
corporation ("Assignee"), pursuant to that certain Reorganization Agreement
between Assignor and Assignee dated , 2003.
R E C I T A L S:
Assignor desires to assign its entire right, title, and interest in,
to, certain assets (the "Purchased Assets"), which are described on Schedule A
attached hereto.
OPERATIVE TERMS
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor hereby assigns, transfers, and conveys to
Assignee, and its successors and assigns, to the extent transferable, Assignor's
entire right, title, interest, and estate in, to, and under the Purchased
Assets, including, without limitation, all deposits given or received
thereunder.
IN WITNESS WHEREOF, Assignor has caused this instrument to be duly
executed in its name by its President on the date first written above.
WITNESSES: Spot Us Technologies, Inc.
______________________________ By: /s/ Joseph M. Bartholomew
------------------------------
Joseph M. Bartholomew
President
Exhibit "D"
Form of Assumption Agreement
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT ("Assumption Agreement") is made and
---------------------
entered into by Retailport.com, Inc., a Delaware corporation
("Buyer"), pursuant to the Reorganization Agreement by and between Spot Us
Technologies, Inc. (the "Seller") and Buyer, dated , 2003. All capitalized terms
used in this Assumption Agreement and not otherwise defined shall have the
meanings given to them in the Reorganization Agreement.
WHEREAS, in order to induce Sellers to enter into the Reorganization
Agreement, as partial consideration, Buyer (or its affiliated designee) has
agreed to assume certain obligations and liabilities of Sellers as set forth in
Section 1(b) the Reorganization Agreement, and as more fully described on
Exhibit "B" to the Reorganization Agreement (the "Assumed Liabilities");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, for themselves and
their permitted successors and assigns, from and after the date hereof, hereby
agree as follows:
1. Effective as of the date hereof, Sellers hereby (a) delegate the
Assumed Liabilities to Buyer, and (b) assign, convey and transfer to Buyer all
of their rights, title and interest under or with respect to the Assumed
Liabilities.
2. Effective as of the date hereof, Buyer hereby accepts and assumes
the Assumed Liabilities; provided, that nothing in this Assumption Agreement
shall prevent Buyer's right to contest any liability in good faith.
3. This Assumption Agreement is limited solely to the Assumed
Liabilities, and Buyer shall not be deemed to have assumed any other debts,
liabilities or obligations of the Sellers or any other person or entity by
virtue of this Assumption Agreement.
4. This Assumption Agreement shall inure to the benefit of Sellers and
their respective successors and assigns, and shall be binding upon Buyer and its
successors and assigns.
5. Buyer will execute and deliver to Sellers such other instruments and
documents and take such other actions as may be reasonably requested from time
to time by Sellers as necessary to carry out, evidence and confirm the intended
purposes of this Assumption Agreement.
6. This Assumption Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to the
conflicts of law provisions thereof.
7. This Assumption Agreement shall be read and construed in addition to
and not to the exclusion of the Purchase Agreement or any agreement or other
document delivered pursuant to the Purchase Agreement.
8. This Assumption Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument, and it
shall not be necessary in making proof of this Assumption Agreement to produce
or account for more than one such counterpart.
IN WITNESS WHEREOF, the undersigned have caused this Assumption
Agreement to be executed on their behalf by a duly authorized officer this __
day of , 2003.
Retailport.com, Inc.
By:
-----------------------------
Its:
-----------------------------
Spot Us Technologies, Inc.
By:
-----------------------------
Its:
-----------------------------
Exhibit "E"
Allocation of Assets
Exhibit "F"
Financial Statements
Disclosure Schedules
ss.3(j) Income Tax Returns
Form 1120, U.S. Corporation Income Tax Return for period ending 12/31/00
Consolidated return by SpotUs.com, Inc. n/k/a Spot Us, Inc., Southern Pawn, Inc.
and TrumpBid.com, Inc., n/k/a Spot Us Technologies, Inc.
Form 1120, U.S. Corporation Income Tax Return for period ending 12/31/01
Consolidated return by SpotUs.com, Inc. n/k/a Spot Us, Inc., Southern Pawn, Inc.
and TrumpBid.com, Inc., n/k/a Spot Us Technologies, Inc.
ss.3(k)(i) Real Property Owned by Spot Us Technologies
NONE
ss.3(k)(ii) Real Property leased or subleased to Spot Us Technologies
Premises located at 950 Missouri Avenue North in Largo, Florida are leased from
Bartholomew Real Estate Holdings, LLC
ss.3(l) Intellectual Property
"Auction Agent" trademark
U.S. Trademark Registration Serial Number 76373995 Filing Date:
February 22, 2002 Owner: SpotUs Technologies, Inc.
ss.3(m) Contracts and Other Agreements
Verizon monthly yellow pages and phone service
ss.3(o) Litigation
NONE