U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): October 17, 2000
NPS INTERNATIONAL CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
0-13858 86-0214815
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(Commission File No.) (IRS Employer
Identification No.)
4400 US Highway 9
Freehold, N.J. 07728
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (732) 625-0770
812 Proctor Ave.
Ogdensburg, N.Y. 13669
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(Former name or former address, if changed since last report)
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Item 1(a). Change in Control of Registrant.
As a result of the acquisition of Assets described hereinbelow under
"Item 2, Acquisition and Disposition of Assets,", the percentage of voting
securities of the Company now beneficially owned directly or indirectly by the
persons who acquired control and the identity of the persons who acquired
control are as follows:
Percent
Name and Address of Amount and Nature of of
Beneficial Owner Beneficial Ownership Class
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MaxPlanet Corp. 3,500,000 24.8%
4400 US Highway
Rt. 9 South
Suite 2800
Freehold, N.J. 07728
All Directors 3,500,000 24.8%
and Officers as a
Group (3 persons)
Item 2. Acquisition and Disposition of Assets.
Effective October 17, 2000, NPS International Corp. (the "Company")
acquired certain assets from MaxPlanet Corp., a Delaware publicly held
corporation ("MPC") in exchange for issuance of 3.5 million shares of the
Company's common stock in favor of MPC, which shares were valued at $123,000.
The assets acquired include the rights to three (3) domain names, including
"oneclass.com," "1class.com" and "telephonebook.net" along with related business
plans, servers, database and software previously developed by MPC. A copy of the
relevant agreement is included in this report as Exhibit 10.2.
The relevant agreement was executed in August 2000; however, the
agreement provides that the effective date of the agreement would not be until
such time as the assets had been fully delivered to the Company. Final delivery
of the relevant URL's and platforms was completed on October 17, 2000.
In addition, the Company has also agreed to lease its corporate office
from MPC and use the services of MPC's Internet development and production
facility in Miami, Florida in order to generate users and customers to products
and services to be offered by the Company. This agreement requires the Company
to pay $5,000 per month to MPC until September 2001, which term will
automatically renew for successive one year terms until written notice of
termination is provided. The Company has also agreed, among other things, to pay
MPC a minimum quarterly fee of 100,000 shares of the Company's common stock for
supporting the Company's growth.
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As a result of this acquisition, the principal business plan of the
Company has changed. The Company now intends to acquire, joint venture,
advertise, promote and market unaffiliated companies worldwide in the Internet,
biotechnology, genomics, pharmaceuticals and life-sciences industries by
offering multiple solutions and platforms for these companies to promote their
advertisements and content. The Company also intends to provide solutions for
public and private companies to raise capital, raise business awareness and
effect strategic mergers, acquisitions and other business combinations.
Through its network, the Company intends to offer a minimum of ten (10)
Platform solutions for the advertiser or marketer to choose from, including (i)
wireless devices; (ii) World Wide Web; (iii) E-mail; (iv) Interactive TV; (v)
Digital Billboards; (vi) Internet Kiosks; (vii) Smart Devices, i.e. PALM, etc.;
(viii) ATM Machines; (ix) Desktop Software; and (x) Alternative Media - Mobile
Truck Ads/Truck and Bus Wrap, Card Racks.
Subsequent to the closing of the aforesaid Assets acquisition, some of
the Company's officers and directors resigned and the following persons were
appointed to the positions indicated:
Name Position
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Henry Val CEO, President and Director
Israel Goldreich Director
Mr. Stephen Rosenburgh remains as a director of the Company.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
The Registrant hereby undertakes to file with the Commission an
amendment to this Form 8-K wherein the Registrant shall provide the audited
financial statements of the Assets and the Company's pro forma financial
statements within sixty (60) days after the filing of this Form 8-K.
(c) Exhibits.
10.2 Asset Purchase Agreement between the Company and
MaxPlanet Corp.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934 the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NPS INTERNATIONAL CORPORATION
By:s/ Henry Val
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Henry Val, President
Dated: October 31, 2000
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NPS INTERNATIONAL CORPORATION
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EXHIBIT 10.2 TO FORM 8-K
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ASSET PURCHASE AGREEMENT
BETWEEN THE COMPANY AND
MAXPLANET, CORP.
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of August_____, 2000, by and among MAX
PLANET COROPRATION INC., a New Jersey Corporation having its principal place of
business at 4400 US Highway Freehold, NJ 07728. ( hereinafter referred to as
("Seller"), and NPS INTERNATIONAL CORPORATION.; a NewYork Corporation
("Purchaser"), with its principal place of business at 812 Proctor Avenue
Ogdensburg, NY 13669 with reference to the following RECITALS:
A. Seller, is engaged in the internet business (hereinafter referred to as
the "Business").
B. After the transaction, Purchaser shall have acquired certain of the
assets and none of the liabilities of Seller.
C. Subject only to the limitations and exclusions contained in this
Agreement and on the terms and conditions hereinafter set forth, Seller desires
to sell and Purchaser desires to purchase the assets of the Seller as more
particularly described herein.
NOW THEREFORE, in consideration of the recitals and of the respective
covenants, representations, warranties and agreements herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I - PURCHASE AND SALE
1.1. Description of Assets. Upon the terms and subject to the conditions
set forth in this Agreement, Seller, does hereby agree to grant, convey, sell,
transfer and assign to Purchaser and Purchaser shall purchase all of Seller's
right, title, and interest in the following assets, properties and contractual
rights of Seller, listed on Schedule on 1.1 which is attached hereto and made a
part hereof.
1.2 Non-Assumption of Liabilities. Except as explicitly set forth in this
Agreement, Purchaser shall not, by the execution and performance of this
Agreement or otherwise, assume, become responsible for, or incur any liability
or obligation of any nature of Seller whether legal or equitable, matured or
contingent, known or unknown, foreseen or unforeseen, ordinary or extraordinary,
patent or latent, whether arising out of occurrences prior to, at or after the
date of this Agreement, including, without limiting the generality of the
foregoing, any liability or obligation arising out of or relating to: (a) any
occurrence or circumstance (whether known or unknown) which occurs or exists on
or prior to the Closing Date and constitutes, or which by the lapse of time or
giving notice (or both) would constitute, a breach or default under any lease,
contract, or other instrument or agreement or obligation (whether written or
oral); (b) injury to or death of any person or damage to or destruction of any
property, whether based on negligence, breach of warranty, or
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any other theory; (c) violation of the requirements of any governmental
authority or of the rights of any third person, including, without limitation,
any requirements relating to the reporting and payment of federal, state, local
or other income, sales, use, franchise, excise or property tax liabilities of
Seller; (d) any severance pay obligation of Seller or any employee benefit plan
(within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974 as amended) or any other fringe benefit program maintained or
sponsored by Seller or to which Seller contributes or any contributions,
benefits or liabilities therefor or any liability for the withdrawal or partial
withdrawal from or termination of any such plan or program by Seller; (g) the
debts and obligations of Seller; and (h) liabilities or obligations of the
Seller for brokerage or other commissions relative to this Agreement or the
transactions contemplated hereunder. Seller hereby agrees to indemnify
Purchaser, its successors and assigns from and against all of the above
liabilities and obligations in accordance with the terms of this Agreement.
1.3 Accounts Receivable. Purchaser shall not purchase any accounts
receivable of Sellers reflected on Sellers' books as of the Closing.
1.4 Agreement to Purchase. At the Closing hereunder, Purchaser shall
purchase the Assets from Seller, upon and subject to the terms and conditions of
this Agreement and in reliance on the representations, warranties and covenants
of Seller contained herein, in exchange for the Purchase Price (hereinafter
defined).
ARTICLE II - PURCHASE PRICE
2.1 Purchase Price. In exchange for the Assets, Purchaser shall pay Seller
(subject to adjustment as provided in Section 2.4 below) (the "Purchase
Price").Three Million Five Hundred(3,500.000) shares of the Purchaser's common
stock.
2.2 Payment at Closing. At the closing, the Purchaser shall, deliver a
letter to its transfer agent authorizing the issuance of the agreed
upon number of shares.
2.3 Allocation of Purchase Price. The Purchase Price shall be allocated
among the assets as set forth on schedule 1.1
ARTICLE III - CLOSING, ITEMS TO BE DELIVERED,
THIRD PARTY CONSENTS, CHANGE IN NAME AND FURTHER
ASSURANCES
3.1 Closing. The Closing (the "Closing") of
the sale and purchase of the Assets shall take place
at 10:00 A.M., local time, on or about August 5, 2000
an agreed upon location, or on such other date as may
be mutually agreed upon in writing by Purchaser and
Seller. The date of the Closing is sometimes herein
referred to as the "Closing Date."
3.2 Items to be Delivered at Closing. At
the Closing and subject to the terms and conditions
herein contained:
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(a) Seller shall deliver to
Purchaser the following:
(i) such bills of sale with covenants of warranty,
assignments, endorsements, and other good and
sufficient instruments and documents of conveyance
and transfer, in form reasonably satisfactory to
Purchaser and its counsel, as shall be necessary and
effective to transfer and assign to, and vest in,
Purchaser all of Seller's right, title and interest
in and to the Assets.
(ii) all of the agreements, contracts, commitments,
leases, plans, bids, quotations, proposals,
instruments, computer programs and software, data
bases, manuals and guidebooks, price books and price
lists, customer and subscriber lists, supplier lists,
sales records, files, correspondences, legal
opinions, rulings issued by governmental entities,
and other documents, books, records, papers, files,
office supplies and data belonging to Seller which
are part of or related to the Assets;
(b) Purchaser shall deliver to Seller the following:
(i) the items reflecting the payment of the Purchase
Price and related documents.
(c) at or prior to the Closing, the parties hereto shall
also deliver to each other the agreements, certificates and
other documents and instruments referred to in this Agreement.
3.3 Further Assurances. Each of the parties hereto will cooperate with the
other and execute and deliver to the other parties hereto, without further
consideration, such other instruments and documents and take such other actions
as may be reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence and confirm the intended purposes of this
Agreement.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SELLER
Seller and Shareholders represent and warrant to the Purchaser as follows:
4.1 Organization and Qualification. Seller is a corporation duly organized,
validly existing, and in good standing under the laws of its jurisdiction of
incorporation. Seller has all requisite power and authority, and all necessary
consents, authorizations, approvals, orders, licenses,
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certificates, and permits of and from, and declarations and filings with, all
federal, state, local, and other governmental authorities and all courts and
other tribunals, to own, lease, license, and use its properties and assets and
to carry on the business in which it is now engaged. Seller is duly qualified to
transact the business in which it is engaged and is in good standing as a
foreign corporation in every jurisdiction in which its ownership, leasing,
licensing, or use of property or assets or the conduct of their business makes
such qualification necessary.
4.2 Tax and Other Liabilities. Seller has no liability of any nature,
accrued or contingent, including without limitation liabilities for federal,
state, local, or foreign taxes and penalties, interest, and additions to tax
("Taxes") and liabilities to customers or suppliers, which will have any adverse
impact on the Purchaser.
4.3 Litigation and Claims. There is no litigation, arbitration, claim,
governmental action or other proceeding (formal or informal), or investigation
pending, threatened, or in prospect (or any basis therefor known to Seller) with
respect to Seller, or any of its or his respective businesses, properties, or
assets, and Seller is not affected by any present or threatened strike or other
labor disturbance which affects the Assets being transferred. To the best of
Seller's knowledge, Seller is not in violation of, or in default with respect
to, any law, rule, regulation, order, judgment, or decree; nor is Seller
required to take any action in order to avoid such violation or default.
4.4 Assets and Properties. Schedule 1.1 lists all of the tangible and
intangible properties and assets of Seller being transferred. Seller has good
and marketable title to the assets free and clear of all liens, mortgages,
security interests, pledges, charges, and encumbrances (except such as may be
listed in Schedule 1.1.) Upon consummation of the transactions contemplated
hereby, Purchaser will acquire good and marketable title to the Assets.
4.5 Customers. Schedule 4.5 accurately sets forth the customer list,
service charges, equipment locations, and customer contracts to the extent they
may exist.
4.6 Employees. Nothing contained in this Agreement or otherwise shall
obligate Purchaser to employ any person who is now or in the future employed by
Seller except for and Henry Val who shall become Purchaser's President.
4.7 INTENTIONALLY DELETED
4.8 Authority to Sell. Seller has all requisite power and authority to
execute, deliver, and perform this Agreement. All necessary corporate
proceedings of Seller have been duly taken to authorize the execution, delivery,
and performance of this Agreement by Seller. This Agreement has been duly
authorized, executed, and delivered by Seller and constitutes the legal, valid,
and binding obligation of Seller and is enforceable as to them in accordance
with its terms.
4.9 Financial Statements.
Attached hereto with respect to the Seller is the compiled balance sheet
and income statement of each of the last two (2) fiscal years, (the "Seller's
Financial Statement"). The Financial Statements together with the related notes
and schedules attached thereto:
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(1) have been prepared in accordance with the books of account and
records of the Seller;
(2) fairly present Seller's financial condition and the results of
operations as and for the period therein specified and contain all notes
required to make the presentation therein accurate in all material
respects;
(3) have been prepared in accordance with generally accepted
accounting principles consistently applied during the periods involved;
(4) do not include or omit to state any fact which renders such
financial statements misleading; and
(5) all of which have been certified by the President of the Seller to
the effect set forth in the foregoing clauses (1) through (4).
4.10 INTENTIONALLY OMITTED
4.11 Absence of Broker. No agent or broker or other person acting pursuant
to authority of the Seller or of Shareholders is entitled to any commission,
finder's or similar fee in connection with the Transaction contemplated by this
Agreement.
4.12 Securities Representation. Shareholders represent that they have had
an opportunity to review all of purchasers filings with the Securities and
Exchange Commission filed by Purchaser. Shareholders further represent that they
have been afforded an opportunity to ask questions of officers or agents of
Purchaser and to investigate the business and affairs of Purchaser to their
satisfaction. Shareholders further represent that they understand that although
the Shares of Purchaser which they are receiving in the transaction will be
registered under the Securities Act of 1933, as amended (the "Act"). Such shares
shall be subject to the provisions of a separate "Lock-up" Agreement which is
attached hereto as Exhibit B.
4.13 Payment of Obligations. All obligations of Seller have been incurred
in the ordinary course of business and will be paid in the ordinary course of
business of Seller as they become due.
4.14 Books and Records. The books and records pertaining to the business of
Seller delivered or made available to Purchaser and its representatives for
review are substantially complete and substantially correct in all material
respects and have been maintained in accordance with good business practice.
4.15 Consents for Sale. No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or other
tribunal is required by Seller for the sale of the Assets to Purchaser. No
consent of any party to any contract, agreement, instrument, lease, license,
arrangement, or understanding to which Seller is a party, or to which it or he
or any of its or his respective businesses, properties, or assets are subject,
is required for the sale of the Assets to Purchaser. The execution, delivery,
and performance of this Agreement will not: (a) violate, result in a breach of,
conflict with, or (with or without the giving of notice or the passage of time
or both) entitle any party
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to terminate or call a default under, entitle any party to rights and privileges
that such party was not receiving or entitled to receive immediately before this
Agreement was executed (except for service contracts between the Seller and
customers which may not be assignable without the customer's consent); (b)
create any obligation on the part of Seller that it was not paying or obligated
to pay immediately before this Agreement was executed under, any term of any
such contract, agreement, instrument, lease, license, arrangement, or
understanding; or, (c) violate or result in a breach of any term of the
Certificate of Incorporation (or other charter document) or by-laws of Seller,
or violate, result in a breach of, or conflict with any law, rule, regulation,
order, judgment or decree binding on Seller, or any Shareholder or to which it
or he or any of its or his respective businesses, properties, or assets are
subject.
4.16 Completeness of Disclosure. No representation or warranty by the
Seller in this Agreement contains or on the date of the Closing will contain an
untrue statement of material fact or omits or on the date of the Closing will
omit to state a material fact required to be stated therein or necessary to make
the statements made therein not misleading.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to Seller as follows:
5.1 Organization. The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation. with all requisite power and authority to own, lease, license,
and use its properties and assets. To the best of Purchaser's knowledge, it has,
with all requisite power and authority, and all necessary consents,
authorizations, approvals, orders, licenses, certificates, and permits of and
from, and declarations and filings with, all federal, state, local, and other
governmental authorities and all courts and other tribunals, to own, lease,
license, and use its properties and assets and to carry on the business in which
it is now engaged and the business in which it contemplates engaging. To the
best of Purchaser's knowledge, Purchaser is duly qualified to transact the
business in which it is engaged and is in good standing as a foreign corporation
in every jurisdiction in which its ownership, leasing, licensing, or use of
property or assets or the conduct of their business makes such qualification
necessary.
5.2 Authority to Buy. The Purchaser has all requisite power and authority
to execute, deliver, and perform this Agreement. All necessary corporate
proceedings of the Purchaser have been duly taken to authorize the execution,
delivery, and performance of this Agreement by the Purchaser. This Agreement has
been duly authorized, executed, and delivered by the Purchaser, is the legal,
valid, and binding obligation of the Purchaser, and is enforceable as to it in
accordance with its terms.
5.3 Conflicts. The execution and delivery of this Agreement and the
instruments and documents to be delivered by Purchaser pursuant to this
Agreement, the consummation of the transactions contemplated by this Agreement
and the compliance with the terms, conditions and provisions of this Agreement
by Purchaser will not (i) contravene any provision of Purchaser's articles of
incorporation or bylaws; or (ii) conflict with or result in a breach of or
constitute a default
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(or an event which might, with the passage of time or the giving of notice or
both, constitute a default) under any of the terms, conditions or provisions of
any indenture, mortgage, loan or credit agreement or any other agreement or
instrument to which Purchaser is a party or by which it or its assets may be
bound or affected, or any judgment or order of any court or governmental
department, commission, board, agency or instrumentality, domestic or foreign,
or any applicable law, rule or regulation.
5.4 Litigation and Claims. There are no actions, suits, investigations or
proceedings pending or, to Purchaser's knowledge, threatened against or
affecting Purchaser, its executive officers or directors at law or in equity, by
or before any court or governmental department, agency or instrumentality that
would prevent Purchaser from consummating the transactions contemplated hereby
and fulfilling its obligations hereunder. Purchaser is not in violation of, or
in default in respect to any law, rule, regulations, order, judgment, or decree;
nor is Purchaser required to take any action in order to avoid such violation or
default. To the best of Purchaser's knowledge, it is not now in violation or
breach of, or in default with respect to complying with, any material term of
any contract, agreement, lease or license, and additionally is not aware of any
facts that could result in a claim or lawsuit against the Purchaser which would
materially affect the Purchaser's financial status or ability to transact its
contemplated business.
5.5 Completeness of Disclosure. No representation or warranty made by
Purchaser in this Agreement contains or on the date of the Closing will contain
an untrue statement of material fact or omits or on the date of the Closing will
omit to state a material fact required to be stated therein or necessary to make
the statements made therein not misleading.
ARTICLE VI - AGREEMENTS PENDING CLOSING
6.1 Actions of Purchaser. Purchaser will not knowingly take any action
which would result in a breach of any of its representations and warranties
hereunder. Furthermore, Purchaser shall cooperate with Seller and use its best
efforts to cause all of the conditions to the obligations of Purchaser and
Seller under this Agreement to be satisfied on or prior to the Closing Date.
6.2 Audit. In the event that an audit be required by Purchaser, then
Purchaser's obligation to consummate this transaction is contingent upon
Purchaser's determination that it can obtain certified audited historical
financial statements, which in the opinion of Purchaser's professional advisors,
are suitable for incorporation in registration statements and other material to
be filed by Purchaser with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. Purchaser shall arrange and pay for such
certified audits to be prepared by an auditor of its choice. The Seller and
Shareholders shall be solely responsible for the costs of their own accountants.
Seller agrees to provide Purchaser and Purchasers' auditors full and complete
access to its books and records both prior to and after the Closing and to
cooperate in the preparation of audited financial statements if the same are
necessary.
ARTICLE VII - CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER
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The obligations of the Purchaser under this Agreement are subject to the
following conditions which shall occur or be waived by the Purchaser prior to
closing:
7.1 Accuracy of Representations and Compliance with Conditions. All
representations and warranties of Seller contained in this Agreement shall be
accurate when made and, in addition, shall be accurate as of the Closing as
though such representations and warranties were then made in exactly the same
language by Seller and such representations and warranties will be made in the
office's closing certificates; as of the Closing Seller shall have performed and
complied with all covenants and agreements and satisfied all conditions required
to be performed and complied with by any of them at or before such time by this
Agreement (which have not been waived by Purchaser closing without same); and
the Purchaser shall have received certificates executed by the chief executive
officer and the chief financial officer of Seller dated the date of the Closing,
to that effect.
7.2 Other Closing Documents. Seller shall have delivered to the Purchaser
at or prior to the closing such other documents as the Purchaser may reasonably
request in order to enable the Purchaser to determine whether the conditions to
their obligations under this Agreement have been met and otherwise to carry out
the provisions of this Agreement.
7.3 Review of Proceedings. All actions, proceedings, instruments, and
documents required to carry out this Agreement or incidental thereto and all
other related legal matters shall be subject to the reasonable approval of,
counsel to the Purchaser, and Seller and shall have furnished Purchaser's
counsel such documents as such counsel may have reasonably requested for the
purpose of enabling them to pass upon such matters.
7.4 Legal Action. There shall not have been instituted or threatened any
legal proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Agreement, or to obtain
substantial damages with respect thereto.
7.5 No Governmental Action. There shall not have been any action taken, or
any law, rule, regulation, order, judgment, or decree proposed, promulgated,
enacted, entered, enforced, or deemed applicable to the transactions
contemplated by this Agreement by any federal, state, local, or other
governmental authority or by any court or other tribunal, including the entry of
a preliminary or permanent injunction, which, in the reasonable judgment of the
Purchaser, (a) makes any of the transactions contemplated by this Agreement
illegal, (b) results in a delay in the ability of the Purchaser to consummate
any of the transactions contemplated by this Agreement, (c) imposes material
limitations on the ability of the Purchaser effectively to exercise full rights
of ownership of the assets, or (d) otherwise prohibits, restricts, or delays
consummation of any of the transactions contemplated by this Agreement or
impairs the contemplated benefits to the Purchaser of any of the transactions
contemplated by this Agreement.
7.6 Governmental Approval. It is not necessary for any party to obtain at
or prior to the Closing the unconditional written approval of any governmental
agency for the execution, delivery, and performance of this Agreement by each of
them.
7.7 Contractual Consents Needed. The parties to this Agreement shall have
obtained at or prior to the Closing all consents, if any, required for the
consummation of the transactions contemplated by this Agreement from any party
to any contract, agreement, instrument, lease,
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license, arrangement, or understanding to which any of them is a party, or to
which any of them or any of their respective businesses, properties, or assets
are subject, except for service contracts between Seller and its customers.
ARTICLE VIII - CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
All obligations of Seller under this Agreement are subject to the
fulfillment or satisfaction, prior to or at the Closing, of each of the
following conditions precedent:
8.1 Deliveries. Purchaser shall receive at Closing, all of the Purchase
Price consideration set forth in Section 2.1.
8.2 Representations and Warranties True as of the Closing Date. The
representations and warranties of Purchaser contained in this Agreement or in
any list, certificate or document delivered by Purchaser to Seller pursuant to
the provisions hereof shall be true on the Closing Date with the same effect as
though such representations and warranties were made as of such date.
8.3 Compliance with this Agreement. Purchaser shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by them prior to or at the Closing.
(c) any sales, use, documentary, intangible, or other tax or fee owed by
Seller or resulting from the transaction or the conduct of the Business prior to
Closing or resulting from this transaction.
(d) anything to the contrary set forth above notwithstanding - Star
Services Group Inc. shall remain liable on this indemnification.
(e) any damages, losses, deficiencies, liabilities, cost and expenses
resulting from 9.2(a)(i) and (iii) shall be limited to an amount equal to the
purchase price.
8.4 No Threatened or Pending Litigation. On the Closing Date, no suit,
action or other proceeding, or injunction or final judgement relating hereto,
shall be threatened or be pending before any court or governmental or regulatory
official, body or authority in which it is sought to restrain or prohibit or to
obtain damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby, and no investigation that
might result in any such suit, action or proceeding shall be pending or
threatened.
ARTICLE X - POST CLOSING MATTERS
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9.1 Discharge of Obligations. From and after the Closing Date Seller shall
pay and discharge, in accordance with past practice but not less than on a
timely basis, all obligations and liabilities incurred prior to the Closing Date
with respect to the assets (except for those expressly assumed by Purchaser
hereunder) which Seller retains, including without limitation any liabilities or
obligations to employees, trade creditors and clients (except for those assumed
by Purchaser).
9.2 Maintenance of Books and Records. Seller and Purchaser shall preserve
until the second anniversary of the Closing Date all records possessed or to be
possessed by such party relating to any of the assets, liabilities or business
of the business prior to the Closing Date. After the Closing Date, where there
is a reasonable and legitimate purpose, such party shall provide the other
parties with access to the books and records, upon prior reasonable written
request specifying the need therefor, during regular business hours.
9.3 Post Closing Matters. From and after the closing Date, Seller will
promptly refer all inquiries with respect to ownership of the Assets to
Purchaser. In addition, Seller will execute such documents and financing
statements as Purchaser may request from time to time to evidence transfer of
the Assets to Purchaser, including any necessary assignments of financing
statements.
9.4 Assumption. Purchaser shall perform and discharge all of Seller's
obligations and liabilities which are effectively assumed in accordance with
this Agreement.
ARTICLE X11 - MISCELLANEOUS
10.1 Termination.
Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be terminated by written notice of termination at any time before
the Closing Date only as follows:
(i) by mutual consent of Seller and Purchaser;
(ii) by Purchaser, (A) at any time if the representations and
warranties of Seller contained in Section 3.1 hereof were incorrect in any
material respect when made or at any time thereafter, or (B) upon written
notice to Seller given at any time prior to the Closing Date (or such later
date as shall have been specified in a writing authorized on behalf of
Seller and Purchaser) if all of the conditions precedent set forth in this
Agreement are not satisfied;
(iii) by Seller, (A) at any time if the representations and warranties
of Purchaser contained in this Agreement hereof were incorrect in any
material respect when made or at any time thereafter, or (B) upon written
notice to Purchaser given at any time prior to the Closing Date (or such
later date as shall have been specified in a writing authorized on behalf
of Seller and Purchaser) if all of the conditions precedent set forth in
this Agreement are not satisfied.
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10.2 Headings. The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
10.3 Further Actions. At any time and from time to time, each party agrees,
at its or their expense, to take such actions and to execute and deliver such
documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
10.4 Availability of Equitable Remedies. Since a breach of the provisions
of this Agreement could not adequately be compensated by money damages, any
party shall be entitled, either before or after the Closing, in addition to any
other right or remedy available to it, to an injunction restraining such breach
or a threatened breach and to specific performance of any such provision of this
Agreement. and in either case no bond or other security shall be required in
connection therewith, and the parties hereby consent to the issuance of such an
injunction and to the ordering of specific performance.
10.5 Survival. The covenants, agreements, representations, and warranties
contained in or made pursuant to this Agreement by all parties shall survive the
Closing for a period of three (3) year. The statements contained in any document
executed by Seller, relating hereto or delivered to the Purchaser in connection
with the transactions contemplated hereby or thereby, or in any statement,
certificate, or other instrument delivered by or on behalf of Seller, pursuant
hereto or thereto or delivered to the Purchaser in connection with the
transactions contemplated hereby or thereby shall be deemed representations and
warranties, covenants and agreements, or conditions, as the case may be, for all
purposes of this Agreement.
10.6 Modification. This Agreement and the Exhibits hereto set forth the
entire understanding of the parties with respect to the subject matter hereof,
supersede all existing agreements among them concerning such subject matter, and
may be modified only by a written instrument duly executed by each party.
10.7 Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested or by Federal Express, Express Mail, or similar
overnight delivery or courier service or delivered (in person or by telecopy,
telex, or similar telecommunications equipment) against receipt to the party to
whom it is to be given at the address of such party set forth in the preamble to
this Agreement (or to such other address as the party shall have furnished in
writing in accordance with the provisions of this Section 10.7) with a copy to
each of the other parties hereto. Any notice given to any corporate party shall
be addressed to the attention of the Corporate Secretary. Notice to the estate
of any party shall be sufficient if addressed to the party as provided in this
Section 10.08. Any notice or other communication given by certified mail shall
be deemed given at the time of certification thereof, except for a notice
changing a party's address which will be deemed given at the time of receipt
thereof. Any notice given by other means permitted by this Section 11.7 shall be
deemed given at the time of receipt thereof.
10.8 Waiver. Any waiver by any party of a breach of any term of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of that term or of any breach of any other term of this Agreement. The
failure of a party to insist upon strict adherence to any term of this Agreement
on one or more occasions will not be considered a waiver or deprive that party
of
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the right thereafter to insist upon strict adherence to that term or any other
term of this Agreement. Any waiver must be in writing .
10.9 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of Seller, and Purchaser, and their respective
successors and assigns and shall inure to the benefit of each Indemnitee and its
successors and assigns (if not a natural person) and his assigns, heirs, and
personal representatives (if a natural person).
10.10 No Third Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement.
10.11 Fees and Expenses. Each party shall bear its own fees and expenses
incurred in connection with this transaction.
10.12 Separability. If any provision of this Agreement is invalid, illegal,
or unenforceable, the balance of this Agreement shall remain in effect, and if
any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances. If,
however, the clause determined to be invalid materially affects the performance
of the parties, or materially impacts the parties' expectations or positions
with respect to the Agreement, the parties will negotiate in good faith to
modify the Agreement in some fashion so as to, as near as possible, place the
parties in the same position they were in, viz-a-vie, their intent, performance
expectations, and economic position.
10.13 Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the State of NewYork,
without giving effect to conflict of laws.
IN WITNESS WHEREOF, the Parties hereto have this day set their hand and
seal.
MAXPLANET CORPORATION
By: s/Henry Val
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NPS INTERNATIONAL CORPORATION
By: s/Michael Wexler
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