ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of October 17, 2000, by and
among MAXPLANET CORPORATION INC., a New Jersey Corporation having its principal
place of business at 0000 XX Xxxxxxx Xxxxxxxx, XX 00000. (hereinafter referred
to as ("Seller"), and NPS INTERNATIONAL CORPORATION, a New York corporation
("Purchaser"), with its principal place of business at 000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 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: any
occurrence or circumstance (whether known or unknown
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:
(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,
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 Xxxxx Xxx 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:
(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 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 (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
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, 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.
(a) 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.
(b) anything to the contrary set forth above notwithstanding -
Star Services Group Inc. shall remain liable on this indemnification.
(c) 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
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.
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 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 New York,
without giving effect to conflict of laws.
IN WITNESS WHEREOF, the Parties hereto have this day set their hand and
seal.
MAXPLANET CORPORATION
By:_____________________________________
NPS INTERNATIONAL CORPORATION
By:_____________________________________
