PURCHASE AGREEMENT BETWEEN MAXNET, INC.
AND VALANTINO ▇▇▇▇▇▇▇, INC.
I. Parties.
This PURCHASE AGREEMENT is made this 8th day of May, 1998, by
and between Maxnet, Inc., incorporated under the laws of Delaware (the "Buyer"),
and Valantino ▇▇▇▇▇▇▇, Inc., a corporation organized and existing under the law
of New York (the "Seller" or "Corporation").
II. Recitals.
A. Seller is desirous of selling to Buyer; a ▇▇▇▇ of Sale is
attached as Exhibit "A." The Buyer and Seller agree upon the terms and
conditions hereinafter set forth in this Purchase Agreement (together with all
exhibits hereto, the "Agreement").
B. The Buyer desires to purchase the Assets owned by Seller
free and clear of all liabilities, obligations, claims, liens or obligations of
any kind, on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties mutually
agree as follows:
III. Recitals True and Correct.
The foregoing recitals are true and correct and are
incorporated herein by reference unless otherwise stated.
Purchase Price.
The terms are as follows; shareholders of VS received 500,000
shares of Maxnet, Inc., common stock plus $50,000 in working capital. VS shall
need additional funding from time to time, to proceed with its business plan.
After evaluating VS's quarterly budget Maxnet, Inc. shall provide additional
funding per quarter.
V. Value
Seller, on the Closing Date, shall sell, transfer, assign, and
convey to the Buyer a ▇▇▇▇ of Sale, and the Buyer shall purchase from the
Seller, all of Seller's right, title and interest in and to the Assets upon the
terms and conditions herein set forth. Upon closing, the Seller shall deliver to
Buyer the Assets, duly endorsed for transfer and accompanied by appropriate
instruments of transfer duly endorsed, with appropriate documentary tax and
intangible tax stamps affixed, if any are required, upon delivery to the Seller
of the Purchase Price.
VI. Representation and Warranties of Seller.
The Seller represents and warrants to the Buyer that:
A. Corporate Standing. Seller owns and will have at Closing a
complete and unrestricted power of authority to sell, assign, transfer and
deliver to Buyer the Assets at Closing, and Buyer is so acquiring at Closing,
good, valid and marketable title to the Assets, free and clear of all
liabilities, obligations, claims, liens, charges, options and encumbrances of
any kind whatsoever, whether oral or written.
B. Seller's Authority and Consents. The Seller has the right,
power, legal capacity, and authority to enter into this Agreement and perform
its obligations hereunder without obtaining the prior approval or consent of any
person, entity or governmental body.
C. Corporate Standing: Qualifications of Corporation. The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York with all requisite power and authority
to own, lease and operate its business. The Corporation has all the necessary
franchises, permits, licenses and certificates necessary to conduct its
business, without any violations of the rights of others, and is duly
authorized, qualified and licensed under all laws, regulations, authorizations
or orders of public authorities to carry on such business at the locations and
in the manner customarily conducted.
D. Binding Agreement. This Agreement has been duly executed
and delivered by the Seller, acting pursuant to the direction and authorization
of the Management and Board of Directors of Seller, after full and complete
presentation of this Agreement to Seller's Supervisory Board.
Upon execution by Seller, this Agreement shall constitute the
legal, valid and binding obligations of Seller, enforceable against it in
accordance with its terms, except to the extent limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws of
general application relating to or affecting the enforcement of creditors'
rights, and will not:
(i) Violate any provision of law; Conflict with the
Certificate of Incorporation or the Bylaws of the Corporation; or Result in the
loss or adverse modification of, the imposition of sanctions, penalties or fines
on, any license, permit, or other authorization granted to or otherwise held by
or for the use of the Corporation under which the Corporation conducts its
business.
E. Capital Stock. The Seller's authorized capital stock
consists entirely of _____Shares of _____ par value common stock, all of which
shares have been issued and are outstanding, and have been duly authorized,
validly issued, fully paid and nonassessable. There is no security convertible
into or exchangeable for stock of the Corporation nor is there any existing
option, warrant, right, agreement, call or commitment obligations the
Corporation to issue of deliver any additional stock of the Corporation of any
class or character. The Seller is the beneficial and record owner of the Shares.
F. Title to Assets. The Seller owns these Assets free and
clear of any and all liens, pledges, security agreements, equities, options,
restrictions, encumbrances or charges whatsoever. The ownership of the Shares is
not subject to any agreement, trust or adverse claim. The Seller has the lawful,
valid, marketable and indefeasible title to the Assets, and has full right,
power and authority, without the prior or subsequent approval of any person,
governmental body or court to sell, transfer, assign and deliver the Shares as
provided in this Agreement, and such delivery will convey to the Buyer lawful,
valid, marketable and indefeasible title to the Assets, free and clear of any
trust, liens, claims charges, pledges, security interests, options, encumbrances
or restrictions of whatever nature.
G. Licensing to carry on Business
H. Subsidiaries, Affiliation, Etc. The Seller does not own,
directly or indirectly, nor is it under any obligation to acquire securities of
any corporation, whether equity or debt, or any interest in a partnership,
association, joint stock company, business trust or other entity. There are no
business operations conducted by the Seller under trade names different from
that of the Seller, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
I. Litigation. There is no suit, action, arbitration,
proceeding or investigation pending or threatened by or against the Corporation,
its business, properties, assets, licenses, permits or goodwill, or by or
against any or the Seller's officers or directors or against or affecting the
transactions contemplated by this Agreement, or pertaining to any labor dispute,
grievance, controversy or strike or organizational claim, before any court or
before or by any governmental department, bureau, commission, board, agency or
instrumentality, nor does the Seller know of any basis for any such action,
proceeding or investigation. The Seller is not subject to or bound by any order,
writ, injunction, or decree of any federal, state, local, or foreign court,
department, agency, or instrumentality. The Seller is not presently engaged in
any legal action to recover moneys due to either of them or damages sustained by
either of them, which relates to or may affect the business or financial
condition of the Seller.
Financial Statements.
K. Absence of Liabilities.
L. Corporate Documents. Attached hereto as Exhibit "B" are
copies of the current articles, by laws, and minutes of the Corporation. There
are no other documents which affect the rights of the Corporation or any
shareholders thereof. There is nothing in the articles or bylaws or any other
documents which prohibit the Seller or the Corporation from entering into this
transaction, or consummating the transactions as contemplated thereby.
M. Binding Contracts. Except as set forth on Exhibit "C"
hereto, as of the Closing Date, the Corporation does not have any material
contracts, commitments, arrangements or understandings, and, after the Closing,
will not be bound by any material contract commitment, arrangement or
understanding, including but not limited to employment agreements, employee
benefit plans, leases, license, distributor or supply agreements, or any
intercompany agreement, tax allocation agreement with any Seller, or any other
related company, or any other material contracts or agreements whatsoever not
otherwise set forth in this Agreement.
O. Property. There is no real or personal property, which is
owned, of record or beneficially, by the Corporation or which the Corporation
has agreed to purchase or sell.
P. Patents, Trademarks, Trade Names, Etc. Except as set forth
on Exhibit "A" hereto, the Corporation does not own or possess any license or
other rights to use any patent, trademark, service ▇▇▇▇, trade name, patent,
copyright, trade secret or other item of industrial or intellectual property
belonging to any other person, corporation or entity.
Q. Agents; Power of Attorney. As of the Closing Date, the
Corporation will not have any agents, except as required by law, and will have
withdrawn the authority of any agents previously appointed.
R. Authority, Bank Accounts, Etc.
S. Tax Matters. The Corporation has duly and properly filed or
had Seller file on behalf of the Corporation all tax reports and returns
required to be filed by it and has duly and properly paid all taxes and other
charges due or claimed to be due from it by federal, state, local, foreign or
other taxing authorities.
T. Full Disclosure. As of the date of this Agreement, the
Seller, and at the Closing Date will have, disclosed all events, conditions, and
facts which could materially affect the Corporation, its licenses, its financial
condition and any business prospects of the Corporation. The Seller has not now,
and will not have at the Closing Date, withheld knowledge of such events,
conditions, and facts which the Seller or the Corporation knows or has
reasonable ground to know may affect the Corporation, its licenses, its
financial condition and any business prospects of the Corporation. Except as
otherwise disclosed pursuant to this Agreement, no representation or warranty
contained herein, or in any of the Exhibits or Documents attached hereto or in
the financial statements or in any certificate, statement or memorandum
furnished or to be furnished pursuant to this Agreement, contains or will
contain any untrue or incorrect statement or omits or will omit any fact without
which such representation, warranty statement or certificate would be
misleading.
U. Corporate Documents. The Certificate of Incorporation, all
amendments thereto, By-laws, and all amendments thereto, and all minutes of the
meetings of the Board of Directors and Shareholders of the Corporation are
contained in the Minute Book of the Corporation and are true, correct and
complete.
VII. Representations And Warranties Of The Buyer
The buyer represents and warrants to the seller that the
matters set forth hereafter are true and correct:
A. Organization; Authority. Buyer is a company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and will have at Closing complete and unrestricted power and authority to
execute and acquire at Closing the Shares in accordance with the terms hereof,
and to perform the transactions contemplated hereby.
B. Buyer's Authority and Consents. The Buyer has the right,
power, legal capacity and authority to enter into this Agreement and perform the
obligations of Buyer hereunder without obtaining the consent of any person,
entity or governmental body.
C. Binding Obligations. This Agreement has been duly executed
and delivered by a duly authorized officer of the Buyer. Upon execution by
Buyer, this Agreement shall constitute the legal valid and binding obligation of
the Buyer.
VIII. Obligations of the Parties Prior to Closing.
Obligations of the Seller prior to Closing:
(i) Access to Records, Etc. During the period from the date of
this Agreement until the Closing, the Seller shall cause the Corporation to
afford the Buyer or its representatives, on reasonable notice, full access to
all assets, properties, books, records, agreements, commitments and personnel
during the normal business hours of the Corporation, to allow them to make such
extracts and copies as they may require and to furnish them with all such
information and documents concerning the affairs of the Corporation as they may
reasonably request.
(ii) Conduct of Business. During the period from the date of
this Agreement until the Closing, except with the prior written consent of the
Buyer, the Seller shall cause the Corporation to comply with all laws material
to the Corporation and its business and all laws of which compliance is required
for the valid consummation of the transactions contemplated hereby.
(iii) Standstill. During the period from the date of this
Agreement until Closing, except with the prior written consent of the Buyer, the
Seller shall cause the Corporation not to do any of the acts described in the
following items (1) through (5):
make any change in the Corporation's authorized or issued capital stock, or
issue or create any warrants, obligations, subscriptions, options or any
securities convertible into, or any rights to purchase, any shares or stock of
any class; declare, set aside or pay any dividends or make any other
distribution or payment in respect of the Corporation's capital stock, or
directly or indirectly redeem, purchase, or otherwise acquire any of the
Corporation's capital stock, or issue, distribute, hypothecate or pledge any
shares of the Corporation's capital stock held in its treasury; mortgage,
pledge, or subject to lien or any other charge or encumbrance the shares;
purchase or otherwise acquire any equity or debt security or any corporation,
entity or otherwise; or conduct the business in other than a normal and regular
manner.
(iv) Cooperation. Seller shall cooperate with Buyer, and shall
otherwise comply with all reasonable requests for information or documentation
necessary for the consummation of the transactions contemplated hereby.
IX. Conditions Precedent to the Buyer's Obligations.
Notwithstanding the execution and delivery of this Agreement
or the performance of any part hereof, each and every obligation of the Buyer
under this Agreement, whether to be performed prior to or at the Closing, is
subject to the fulfillment of the conditions set forth in each and every
paragraph of this Section unless such fulfillment is waived in whole or in part
by the Buyer in the manner stipulated hereunder.
A. No Material Adverse Changes. Except as otherwise disclosed
pursuant to this Agreement, there shall not have occurred, between the date of
execution of this Agreement and the Closing Date, any material adverse change in
the Corporation's condition, financial or otherwise, nor the creation of any
liabilities to the Corporation whether or not it is reflected on the balance
sheet as of the Closing Date.
B. Representations and Warranties of the Seller. The
representations and warranties of the Seller contained in this Agreement and any
document given pursuant hereto shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if such
representations and warranties had been made as of the Closing Date.
C. Performance by the Seller. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by the Seller of
the Corporation on or before the Closing Date shall have been complied with and
performed.
D. Delivery of Corporate Documents, Etc. The Seller shall
deliver to the Buyer at the Closing true and complete copies of the
Corporation's records to show ownership of the assets to be sold, including but
not limited to payment receipts, shipping documents, etc.
E. Absence of Litigation. No action, suit or proceeding shall
have been instituted or threatened against Seller or the Corporation prior to
the Closing, the result of which could prevent, or make illegal, the
consummation of any part of the transaction contemplated by this Agreement, or
which could be materially adverse to the business of the Corporation.
F. Authority and Consents. All necessary agreements and
consents required of the Seller for the performance of the transactions
contemplated by this Agreement or otherwise pertaining to the matter covered by
it shall have been obtained by the Seller and delivered to Buyer, and shall be
in full force and effect at the Closing.
G. Approval of Documentation. The form and substance of all
certificates, instruments, and other documents delivered to the Buyer under this
Agreement shall be satisfactory in all reasonable respects to the Buyer and its
legal counsel.
H. Shareholders' Agreement and Distributorship Agreement. The
Shareholders' Agreement attached hereto as Exhibit "E" and the Distributorship
Agreement, attached hereto as Exhibit "F", shall have been executed and
delivered by the parties thereto.
X. Conditions Precedent to the Seller's Obligations.
Representations and Warranties of the Buyer. The
representations and warranties of the Buyer contained in this Agreement and any
document given pursuant hereto shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if such
representation and warranties had been made as of the Closing Date.
Performance by the Buyer. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by the Buyer on
or before the Closing Date shall have been complied with and performed.
XI. Closing.
The Closing of the transactions contemplated hereunder shall
be consummated at the offices of Maxnet, Inc., on May 8, 1998. The date of sale
and the consummation of transactions contemplated by this Agreement are,
respectively, herein referred to as the "Closing Date," and the "Closing."
XII. Survival of Representation.
Unless otherwise disclosed at the Closing by the representing
or warranting party, all of the representatives and warranties of Seller and
Buyer shall be true as of the Closing Date and shall survive the Closing of the
transactions contemplated herein, any investigations made, and the delivery of
all required instruments and documents hereunder. The absence of specific
survival language after any specific provision set forth in the representations,
warranties or obligations shall not be deemed or construed to mean that such
representations, warranties or obligations do not survive.
XIII. Indemnification.
Seller hereby agrees to indemnify, defend and hold harmless
the corporation and Buyer from and against all demands, claims actions, causes
of action, assessments, losses, damages, liabilities, costs and expenses,
including without limitation, interest, penalties and reasonable attorney fees
and expenses asserted against, resulting to, and imposed upon or incurred by
either the Corporation or the Buyer caused by (a) liabilities and obligations
of, and claims against, the Corporation (including but not limited to the
payment of taxes, assessment and the like) existing as of the Closing Date or
arising out of facts or Circumstances existing on or prior thereto, or (b) a
breach of any agreement, covenant, representation or warranty of Seller
(including those on made on behalf of the Corporation) or any facts or
circumstances constitute such a breach. Seller's obligation under this paragraph
shall survive the closing of the transaction contemplated hereunder and the
delivery of all required instruments and documents hereunder.
XIV. Documentation.
The Corporation and each Seller agree to execute and deliver
on or before the Closing hereunder such other instruments, certificates, or
documents which Buyer's counsel may request as being necessary to carry out the
intentions of this Agreement.
XV. Governing Law.
This Agreement shall be construed and interpreted and the
rights granted herein governed by the provisions of the laws of the State of New
York.
XVI. Notices.
Any notice, request, demand, or other communication to be
given hereunder shall be in writing, and shall be deemed to have been
sufficiently given or served for all purposes if it is sent by Registered or
Certified Mail, Return Receipt Requested, postage prepaid, to the party who is
to receive same, or its or his legal representative, at the address hereinafter
set forth or to such other addresses as may be designated by such party, in
writing:
To Seller: ▇▇▇▇ ▇▇▇▇▇▇, Esq., P.C.
_______, NY
To Buyer: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
XVII. Waiver and Modification.
No waiver or modification of the Agreement or any covenant or
limitation herein contained, shall be valid unless in writing and duly executed
by the party to be charged, and no evidence of any waiver or modification shall
be offered or received in evidence in any litigation or arbitration between the
parties or any of them, arising out of the Agreement, unless such waiver or
modification is in writing and duly executed, as aforesaid. No waiver of any of
the provisions of this Agreement shall be deemed a waiver of any other
provision, irrespective of similarity, or shall constitute a continuing waiver,
unless otherwise expressly provided. No failure or delay on the part of any
party exercising any right, power or privilege under any provision of this
Agreement shall operate as a waiver thereof, nor shall a partial or single
exercise thereof preclude any other or further exercise of any other right,
power or privilege.
XVIII. Assignment.
This Agreement may not be assigned by either party without the
prior written consent of the other party, which consent shall not be
unreasonably withheld, except that, Buyer may assign its rights hereunder to an
affiliated company, upon notice to Seller.
XIX. Entire Agreement.
This Agreement contains the entire agreement among the parties
with respect to the transactions contemplated herein and supersedes all prior
negotiations, agreements, and understandings, if any.
XX. Parties Bound.
The parties hereto acknowledge and agree that the Agreement
shall be binding upon and shall inure to the benefit of their respective heirs,
representatives, and their respective successors and assigns.
XXI. Captions.
The captions contained in the Agreement appear as a matter of
convenience only and shall not be deemed to change the substantive matters
contained within the paragraph.
XXII. Counsel.
The parties represent that each has had an opportunity to have
his counsel review the Agreement and neither is relying upon the advice,
statements or comments of counsel for the other.
XXIII. Counterparts.
This Agreement may be executed in several counterparts, and
all counterparts duly executed shall constitute one agreement, provided that the
several counterparts together shall have been each executed by Buyer and Seller.
XXIV. Parties in Interest.
Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any person other than the parties hereto and their respective permitted
successors and assigns; nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third person to any party to this
Agreement; nor shall any provision hereof give any third person any right of
subrogation or action over or against any party to this Agreement.
XXV. Severability.
In the event any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby, and
this Agreement shall be interpreted and construed as if such provision, to the
extent the same shall have been held invalid, illegal, or unenforceable, had
never been contained herein.
IN WITNESS WHEREOF, the parties have set their hands and seals
on the date before written.
Seller:
Valantino ▇▇▇▇▇▇▇, Inc.
By:
---------------------------------
▇▇▇▇▇ ▇▇▇, President
Buyer:
Maxnet, Inc.
By:
---------------------------------
▇▇▇▇▇ ▇▇▇, Chairman and CEO
AGREEMENT TO SUB-LEASE
This agreement, made this 8th day of May, 1998, between
Tradeway Upholstery Corporation,(hereinafter "Lessor") and Valantino ▇▇▇▇▇▇▇
(Maxnet, Inc.), (hereinafter "Lessee").
Lessor does hereby agree to grant, demise and let, and Lessee
does hereby agree to take possessions from the 8th day of May, until May 31,
1999.
It is further agreed by and between the parties that the
Lessor shall: renew lease on a year to year basis, unless terminated in writing
by either of the parties.
It is further agreed that the lease herein provided for shall
be executed by the parties hereto on the 8th day of May.
It is further agreed that in the event that the lease herein
provided for shall be executed, then and in such case the Lessor shall give, and
the Lessee shall take, possession of said premises on the 8th day of May, of the
3rd Floor of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
It is further agreed that these presents shall operate only as
a sub-lease.
IN WITNESS WHEREOF, the parties hereto do set their hands and
seals.
Witnesses:
Landlord
Tenant