PURCHASE AGREEMENT BETWEEN MAXNET, INC. AND INTRASOFT, LTD.
I. Parties.
This PURCHASE AGREEMENT is made this 4th day of June, 1998, by and
between Maxnet, Inc., incorporated under the laws of Delaware (the "Buyer"), and
Intrasoft, Ltd., a corporation organized and existing under the laws of the
State of New York (the "Seller" or "Corporation").
II. Recitals.
A. Seller is desirous of selling certain assets (the "Assets") list of
which is attached as Exhibit "A" and consist of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.'s name
and assets as listed, ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and other URL's, Accounts, to the Buyer
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 only certain 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 promises 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.
IV. Purchase Price.
Upon the terms, and subject to the conditions set forth in this
Agreement, the purchase price shall be $70,000 which is already paid in full by
the Buyer in the form of the loans extended to Intrasoft and to be considered as
payment at the closing of this transaction. The Buyer also shall establish an
escrow account, with the attorney, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. Esq., and deposit 250,000
shares of common stock of Maxnet, Inc, therein, said shares are to be used as an
incentive for present employees of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to continue their employment
with the Company, whereby, each employee shall be evaluated on an individual
basis. The issuance of such 250,000 shares of common stock shall be at the sole
discretion of Maxnet. Inc.
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 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 the conduct of 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 at 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;
(ii) 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 of common stock, all of which shares
have been issued and are outstanding, and have been duly authorized, validly
issued, fully paid and non-assessable. 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 or 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.
J. 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 onto 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 inter-company
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 Data, 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.
A. 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):
(1) 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;
(2) 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;
(3) mortgage, pledge, or subject to lien or any
other charge or encumbrance the shares;
(4) purchase or otherwise acquire any equity or
debt security or any corporation, entity or
otherwise; or
(5) 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 Change. 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. Shareholder's Agreement and Distributorship Agreement. The
Shareholder's 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.
A. 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.
B. 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 June 30, 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.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 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.
XXVI. Funding from Maxnet, Inc. Private Placement.
Should Maxnet, Inc. be successful in raising funds through its private
placement memorandum, the funds shall be used for ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s operations
as described in the use of proceeds in Maxnet Inc.'s private placement
memorandum. See attachment of private placement memorandum.
IN WITNESS WHEREOF, the parties have set their hands and seals on the
date before written.
SELLER:
Intrasoft, Ltd. - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
By:
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SELLER:
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.- ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President*
By:
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*▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is signing this document only to sell the name and assets of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. to Maxnet, Inc.
BUYER:
Maxnet, Inc. -
By:
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▇▇▇▇▇ ▇▇▇, Chairman and CEO