PURCHASE AGREEMENT
I. Parties.
This PURCHASE AGREEMENT is made this 9th day of February, 1999, by and
between Maxnet, Inc., incorporated under the laws of the State of Delaware, the
("Buyer"), and Trident Recovery Systems, Inc., (hereinafter "Trident") a
corporation organized and existing under the laws of the State of New York the
("Seller").
II. Recitals.
WHEREAS, Seller is desirous of selling Trident and certain assets
("Assets") list of which is attached as Attachment #2, to the Buyer upon the
terms and conditions hereinafter set forth in this Purchase Agreement (together
with any Attachments hereto, the "Agreement").
WHEREAS, Seller is the owner of certain collection related assets
including but not limited to the customers, equipment, expertise, and all
similar designations thereto, certain proprietary contracts, etc. See
Attachment; and
WHEREAS, Xxxxxx X. Xxxxxxxx, is the sole shareholder in Trident and the
assets as listed on the Attachment; and
WHEREAS, Xxxxxx X. Xxxxxxxx, wish to sell, transfer and exchange 100%
of the joint and respective rights, title and interest in and to 100% of the
shares in Trident and the assets as listed on the Attachment to Buyer; and
WHEREAS, the Board of Directors of Trident and Xxxxxx X. Xxxxxxxx has
consented to such sale, transfer and exchange; and
WHEREAS, Buyer desires to purchase 100% of the aforesaid share of
Trident and the assets as listed on the Attachment for and in consideration of
the Purchase Price referred to below; and
IN CONSIDERATION of the purpose of this Purchase Agreement, all parties
hereby mutually and individually acknowledge and agree to the following:
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.
1. Agreement to Sell. All of the SELLERS PARTIES hereby agree to sell,
transfer and exchange 100% of their joint and respective shares in Trident and
the assets listed on the Attachment to Buyer, said shares to aggregate 200
shares (out of 200 total share issued and outstanding) of common stock, no par
value, constituting 100% of the issued and outstanding shares in and to Trident
and Buyer hereby agrees to purchase all of said shares for and in consideration
of the Purchase Price referred to in Paragraph 2, below.
2. Purchase Price. All parties hereby agree that the purchase price for
100% of the Trident shares referred to in Paragraph 1 shall be $875,000.00 and
the shareholders are willing to accept 500,000 common shares of MXNT .0001 par
value. To be released as follows: $100,000 to be released upon the signing of
this document and Trident transferring its assets as listed on the Attachment;
the next 100,000 shares are to be released in three (3) months after
consummation of the purchase; then 100,000 shares in six (6) months, then
100,000 in nine (9) months, then the final 100,000 in twelve (12) months. Said
distribution of shares to be distributed to the respective member of the PARTY
in proportion to the stock ownership in Trident and the Assets.
3. Closing. Closing of the above referenced transaction shall take
place at 2:00 P.M. on February 9, 1999 at the offices of Maxnet, Inc. located at
0000 X.X. Xxxxxxx Xx 0 Xxxxx, Xxxxx 0000 Xxxxxxxx, XX 00000 or at any other
location acceptable by both parties.
IV. Value.
Seller, on the Closing Date, shall sell, transfer, assign and convey to
the Buyer, and the Buyer shall purchase from the Seller, all of Seller's right,
title and interest in Trident 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.
V. 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 delivery to
Buyer Trident and the Assets at Closing, and Buyer is so acquiring at Closing,
good, valid and marketable title to Trident and 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 to 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' right, and will not:
(i) Violate any provision of law;
(ii) Conflict with the Certificate of
Incorporation or the Bylaws of the Seller's
Corporation; or
(iii) 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 200 Shares of no 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 delivery 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 Trident and 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 Trident and
the Assets as provided in this Agreement, and such delivery will convey to the
Buyer lawful, valid, marketable and indefeasible title to all of 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. In the event that a license is
required to carry on any and all business related to this Agreement, the Seller
shall apply for such license within 10 days of any notification of such
necessity for such license.
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, Trident.
I. Litigation. There is no suit, action, arbitration, proceeding or
investigation pending or threatened by or against Seller, its business,
properties, assets, licenses, permits or goodwill, or by or against any or the
Seller's officers, directors, employees, affiliates 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 by
any governmental department, bureau, commission, board, agency or
instrumentality, not 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 monies due to them or damages sustained
by them which relates to or may affect the business or financial condition of
the Seller.
J. Financial Statements. Seller shall prepare and furnish any and all
financial statements required by the Buyer within 10 days of such request.
K. Absence of Liabilities. The Buyer desires to purchase the Assets
owned by Seller free and clear of all liabilities, claims, liens or obligations
of any kind, on the terms and conditions hereinafter set forth.
L. Corporate Documents. Attached hereto are copies of the current
articles, bylaws, and minutes of the Trident Corporation. There are no other
documents which affect the rights of the Trident Corporation or any shareholders
thereof. There is nothing in the articles or bylaws or any other documents which
prohibit the Seller or X. Xxxxxxxxx from entering to this transaction, or
consummating the transactions as contemplated thereby.
M. Binding Contracts. Except as set forth hereto, as of the Closing
Date, the Seller does not have any material contracts, commitments, arrangements
or understandings, except for the employment agreement between Trident and
Xxxxxx X. Xxxxxxxx, LLC and, after the Closing, will not be bound by any
material contract commitment, arrangement or understanding, excluding employment
agreements, if not otherwise set forth in this Agreement.
N. Property. There is no real or personal property which is owned, of
record or beneficially, by the Seller or which the Seller has agreed to purchase
or sell.
O. Patents, Trademarks, Trade Names, Etc. Except as set forth hereto,
the Seller does not own or possess any license or other rights to use any
patient, trademark, service xxxx, trade name, patent, copyright, trade secret or
other item of industrial or intellectual property belonging to any other person,
corporation or entity not listed in this Agreement.
P. Agents, Power of Attorney. As of the Closing Date, the Seller will
not have any agents, except as required by law, and will have withdrawn the
authority of any agents previously appointed.
Q. Authority, Bank Accounts, Etc. All Authority to Bank Accounts after
this closing shall be arranged by Maxnet, Inc. Corporate headquarters in New
Jersey.
R. Tax Matters. The Seller has duly and properly filed, and or the
Seller filed on behalf of the Trident 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.
S. 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 buyer, its licenses, its financial condition and any
business prospects of the Buyer. The Seller has not now, and will not have at
the Closing Date, withheld knowledge of such events, conditions, and facts which
the Seller knows or has reasonable ground to know may affect the Buyer, its
licenses, its financial condition and any business prospects of the Buyer.
Except as otherwise disclosed pursuant to this Agreement, no representation or
warranty contained herein, or in any of the Attachments 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.
T. 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.
VI. 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 the complete and unrestricted power and authority to execute and
acquire at Closing the Shares of Trident and Assets 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.
VII. 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
the Letter of Intent, dated February 3rd, 1999, until the Closing, the Seller
shall 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 TRIDENT 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 Trident Corporation
as they may reasonable request.
(ii) Conduct of Business. During the period from the date of
the Letter of Intent until the Closing, except with the prior written consent of
the Buyer, the Seller shall cause the Trident Corporation to comply with all
laws material to the Trident 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 the
Letter of Intent until Closing, except with the prior written consent of the
Buyer, the Seller Shall Not cause the Trident Corporation to do any of the acts
described in the following items (1) through (5).
(1) make any change in Trident 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 Trident Corporation's capital
stock, or directly or indirectly redeem purchase, or otherwise acquire any of
Trident Corporations capital stock, or issue distribute, hypothecate or pledge
any share of Trident Corporation 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.
VIII. 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 the Letter of Intent and the Closing Date, any material adverse change in
Trident Corporation's condition, financial or otherwise, nor the creation of any
liabilities to the Trident Corporation and the Assets 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 Trident 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 Trident 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 Trident 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 would be
materially adverse to the business of the Trident 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.
IX. 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.
X. Closing.
The Closing of the transactions contemplated hereunder shall be
consummated at the office of Maxnet, Inc. on February 9, 1999. 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,"
XI. 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.
XII. Indemnification.
Seller hereby agrees to indemnify, defend and hold harmless the 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 Trident Corporation,
its Assets or the Buyer caused by (a) liabilities and obligations of, and claims
against, the Trident Corporation, its Assets (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 made on behalf of the Trident 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.
XIII. Documentation.
The Trident Corporation and each Seller agree to execute and deliver on
or before the Closing hereunder such other instruments, certificates, or
documents which Buyer and or Buyer's counsel may request as being necessary to
carry out the intentions of this Agreement.
XIV. 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
Jersey.
XV. 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 Buyer: Xxxxxx Xxxxxxx, Esq.
00 Xxxx Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxxx Xxxxxxx, XX 00000
To Seller: Xxxxxx Xxxxxxxx, Esq., LLC
000 Xxxxx Xxxxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000
XVI. 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, not shall a partial or single
exercise thereof preclude any other or further exercise of any other right,
power or privilege.
XVII. 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
XVIII. 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.
XIX. Parties Bound
The parties hereto acknowledge and agree that the Agreement shall be
binding upon and inure to the benefit of their respective heirs,
representatives, and their respective successors and assigns.
XX. 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.
XXI. Counsel
The parties represent that each has had an opportunity to have counsel
review the Agreement and neither is relying upon the advice, statement or
comments of counsel for the other.
XXII. 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.
XXIII. 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.
XXIV. 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:
TRIDENT:
By: ______________________________________________
Xxxxxx Xxxxxxxx, President and Chairman of the Board
Buyer:
MAXNET, INC.
By:_________________________________________
Xxxxx Xxx, President and CEO
