ASSET ACQUISITION AGREEMENT
THIS ASSET ACQUISITION AGREEMENT, made and entered into as of this 3rd
day of February, 2000, by and between Maxx International, Inc., a corporation
duly organized under the laws of the State of Nevada and having its principal
place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
referred to as the "Seller") and Area Investment and Development Company, a
corporation duly organized under the laws of the State of Utah and subject to
the reporting requirements imposed pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended, and having its principal place of business at
0000 Xxxx 0000 Xxxxx, Xxxxx 000, Xxxxx, Xxxx 00000 (hereinafter referred to as
the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Seller desires to sell certain of its assets, including but
not limited to certain contractual rights, pursuant to the terms and conditions
hereof; and,
WHEREAS, Purchaser desires to purchase such assets in accordance with
the terms and provisions hereof.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, the parties hereto agree as follows:
1. SALE AND PURCHASE OF ASSETS
1.1 Transfer of Assets
Subject to the terms and conditions of this Agreement, Purchaser, in
reliance upon Seller's warranties and representations herein made, shall
purchase and acquire from Seller, and Seller, shall sell, transfer and convey to
Purchaser, with the exceptions set forth herein and in the schedules annexed
hereto, all of the assets, properties and rights of Seller, of every type and
description, whether tangible or intangible, including the following:
(a) All rights of Seller under any licensing agreements, distribution
agreements, and all other agreements of whatever nature or kind
relating to the Seller and/or its Proprietary Rights (as
hereinafter defined); the foregoing being more specifically
defined and described in the Schedule of Contract Rights,
Schedule A, attached hereto and made a part hereof (hereinafter
collectively referred to as the "Contract Rights").
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(b) All patents, patent applications, copyrights, trade secrets,
trademarks, trade names, and other proprietary rights; the
foregoing being more specifically defined and described in the
Schedule of Proprietary Rights, Schedule B, attached hereto and
made a part hereof (hereinafter collectively referred to as the
"Proprietary Rights").
All assets of Seller to be transferred to the Purchaser pursuant
hereto, including the Proprietary Rights and Contract Rights, are sometimes
hereinafter collectively referred to as the "Seller's Assets".
1.2 Excluded Assets
The following shall be excluded from Seller's Assets being sold and
transferred hereunder:
(a) All liabilities or obligations of Seller, in existence at
the time of the Closing.
1.3 Encumbrances
The sale and transfer of Seller's Assets shall, at the time of Closing,
be free and clear of all obligations, security interests, liens, infringements
and encumbrances whatsoever, except to the extent expressly included in the
Schedule of Encumbrances, Schedule C, attached hereto and made a part hereof.
1.4 Purchase Price
In consideration for the sale of the Seller's Assets to Purchaser,
Purchaser shall pay Seller as follows:
Three Million Five Hundred Thousand (3,500,000) shares of Area
Investment and Development Company common stock, $0.01 par value, which shall be
duly authorized, validly issued, fully paid and non-assessable (hereinafter
referred to as the "Purchaser Stock").
1.5 Closing
The "Closing" means the settlement of the obligations of Seller and
Purchaser to each other under this Agreement, including the payment of the
purchase price to Seller as provided in Paragraph 1.4 above and the satisfactory
fulfillment of the condition precedents provided for in Paragraph 6 hereof. The
Closing shall be held at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxx, LLP, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on or about February 4, 2000 (the "Closing
Date").
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1.6 Access and Information
Seller shall give to Purchaser, Purchaser's accountants, technical
personnel, counsel and other representatives access, during normal business
hours, from the date hereof to Closing, books, records, contracts and
commitments of Seller (including Contract Rights) and shall furnish the
Purchaser, during such period, with information concerning Seller's Assets as
the Purchaser may reasonably request. Such information shall be subject to the
provisions of Paragraph 7.15.
1.7 Conduct of Business
Seller warrants and represents to, and covenants and agrees with
Purchaser that, pending completion of the Closing, unless otherwise agreed upon
in writing by the Purchaser:
(d) Seller shall not sell, license, contract, commit or otherwise
encumber Seller's Assets, other than in the ordinary course of
business;
(e) Seller shall not amend, modify or terminate any agreement to
which it is a party and which in any way relates to Seller's
Assets, other than in the ordinary course of business;
(f) Seller shall not increase compensation payable or to become
payable by Seller to any employee, agent or consultant; and,
(g) Seller and its officers and employees shall use their best
efforts to preserve the business organization, Contract Rights
and Proprietary Rights in good order; and to preserve for the
Purchaser the good will of those having any business relationship
with Seller which relates to Seller's Assets or any portion
thereof.
2. COVENANTS, WARRANTIES AND REPRESENTATIONS OF SELLER
Seller warrants and represents to Purchaser as follows:
2.1 Corporate Organization
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and has full power and authority
to carry on its current business and to own, use and sell its assets, including
Seller's Assets, and properties.
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2.2 Corporate Authority
The execution and delivery of this Agreement to Purchaser and the
carrying out of the provisions hereof have been duly authorized by the Board of
Directors of Seller and authorized by Seller's shareholders, and at Closing,
Seller shall furnish Purchaser duly certified copies of the authorizing
resolutions of Seller's Board of Directors and its shareholders.
2.3 Labor Issues
To the best of Seller's knowledge and belief, no strike, picketing or
similar action is pending or threatened against Seller by its employees or any
labor union. Seller further represents and warrants that to the best of its
knowledge and belief, Seller is not engaged in any unfair labor practices in
connection with the operation of the business of Seller relating to Seller's
Assets. Seller will not be responsible for any violations arising or determined
subsequent to Closing which have been caused by any act of Purchaser or any
failure to act by Purchaser. Seller warrants and represents that it has not had
any solicitation by any labor organization within the preceding three (3) years.
2.4 Noninfringement
To the best of Seller's knowledge, the Proprietary Rights, in whole or
in part, do not infringe any patents, copyrights, trade secrets, trademarks or
other proprietary rights of any third parties and, to the best of Seller's
knowledge and belief, no rights or licenses are required from third parties to
exercise any rights with respect to Seller's Assets or any portion thereof.
2.5 Proprietary Rights
The Proprietary Rights are in full force and effect and there are no
liens, claims, proceedings or causes of actions which in any way affect the
validity or enforceability of such Proprietary Rights.
2.6 Contracts, Licenses, Permits and Approvals
(a) To the best of Seller's knowledge, Seller has no presently
existing contracts or commitments extending beyond the execution
date hereof which in any way relate to Seller's Assets that are
not included in the Schedule of Contract Rights, Schedule A
hereto.
(b) Seller does not have any obligation under any collective
bargaining agreement or any other contract with a labor union.
Except to the extent set forth in the Schedule of Contract
Rights, Schedule A hereto, Seller is not a party to any executive
or employee compensation plan or agreement or compensatory plan
or agreement with any independent contractors, or employees or
agents of Seller, including, without limitation, any pension,
retirement, profit sharing, stock purchase, stock option, bonus
or savings plan.
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Seller agrees to pay or allow as a credit to the Purchaser any
vacation or sick pay accrued to Seller's employees at Closing up
to and including the Closing Date.
(c) Seller agrees to update Purchaser of any changes in status of the
Paragraph 2.6 representations.
2.7 Compliance
Neither the execution and delivery of this Agreement, nor any
instrument or agreement to be delivered by Seller to the Purchaser at the
Closing pursuant to this Agreement, nor the compliance with the terms and
provisions thereof by Seller, will result in the breach of any applicable
statute or regulation promulgated thereunder, or any administrative or court
order or decree, nor will such compliance conflict with, or result in the breach
of; any of the terms, conditions or provisions of the Certificate of
Incorporation or by-laws of Seller, as amended, or any agreement or other
instrument to which Seller is a party, or by which Seller is or may be bound, or
constitute an event of default or default thereunder, or with the lapse of time
or the giving of notice or both constitute an event of default thereunder.
2.8 Litigation
There is no suit or action, or legal, administrative, arbitration or
other proceeding or governmental investigation affecting Seller's Assets
pending, or to the best knowledge and belief of Seller, threatened against
Seller which materially or adversely affects the business of Seller relating to
Seller's Assets or Seller's Assets. Seller further warrants and represents that
there is no outstanding judgment, decree or order against Seller which affects
Seller or Seller's Assets in any way.
2.9 Effect of Agreement
The terms and conditions of this Agreement and all other instruments
and agreements to be delivered by Seller to Purchaser pursuant to the terms and
conditions of this Agreement are valid, binding and enforceable against Seller
in accordance with their terms, subject only to the applicable bankruptcy,
moratorium and other laws generally affecting the rights and remedies of
creditors.
2.10 Good Title
Seller has and shall transfer to Purchaser at Closing good and
marketable title to Seller's Assets, free and clear of any and all security
interests, encumbrances or liens.
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2.11 Representations and Warranties
No representation or warranty by Seller in this Agreement or any
document provided hereunder contains or will contain any untrue statement or
omissions, or will omit to state any material fact necessary to make the
statements contained herein or therein not misleading. All representations and
warranties made by Seller in this Agreement and any document provided hereunder
shall be true and correct as of the date of Closing with the same force and
effect as if they had been made on and as of such date.
2.12 Due Performance
Seller has in all material respects performed all obligations required
to be performed by it under, and is not in default in any material respect
under, or in violation in any material respect of, its Certificate of
Incorporation or by-laws, as amended, or any agreement, lease, mortgage, note,
bond, indenture, license or other documents or undertaking, oral or written, to
which it is a party or by which it is bound, or by which it or any of its
properties or assets may be materially affected. To the best of its knowledge,
Seller is not in violation or default in any material respect of any order,
regulation, injunction or decree of any court, administrative agency or
governmental body. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby will not result in any of
the violations or defaults referred to in this paragraph.
2.13 Subsidiaries
Seller does not have any subsidiaries nor does it have any interest in
any undisclosed business enterprise relating to or competing with Seller's
Assets or any portion thereof.
3. COVENANTS, WARRANTIES AND REPRESENTATIONS OF PURCHASER
Purchaser warrants and represents to Seller as follows:
3.1 Corporate Organization
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Utah and is subject to the reporting
requirements imposed pursuant to Section 12(g,) of the Securities Exchange Act
of 1934, as amended, and has full power and authority to carry on its current
business and to purchase, own, use and sell its assets and properties.
3.2 Corporate Authority
The execution and delivery of this Agreement to Seller and the carrying out
of the provisions hereof have been duly authorized by the Board of Directors of
Purchaser, and at Closing, Purchaser shall furnish Seller duly certified copies
of the authorizing resolutions of Purchaser's Board of Directors.
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3.3 Capitalization
The authorized capital stock of the Purchaser immediately prior to
giving effect to the transactions contemplated hereby consists of 50,000,000
shares, of which 9,048,171 shares of its $.01 par value common stock are issued
and outstanding as of the date hereof. After giving effect to the issuance of
its shares, as provided herein, the Purchaser shall have 12,548,171 shares of
its $.01 par value common stock issued and outstanding. Additionally, all
securities issued by Purchaser as of the date of this Agreement have been issued
in compliance with all applicable state and federal laws.
3.4 Binding Nature
This Agreement shall be, when duly executed and delivered, a legal and
binding obligation of Purchaser, enforceable in accordance with its terms.
3.5 Warranties and Representations
No representation or warranty by Purchaser in this Agreement contains
or will contain any untrue statement or omission, or will omit to state a
material fact necessary to make the statements contained herein not misleading.
All representations and warranties made by Purchaser in this Agreement shall be
true and correct as of Closing with the same force and effect as if they had
been made on and as of such date.
3.6 Compliance with Securities Laws
Neither Purchaser nor any officer, director, affiliate, or controlling
person of Purchaser has committed any violation, or been in any way in
contravention, of any law, rule or regulation governing transactions in
securities, in connection with the transactions herein.
3.7 Inspection and Value
Purchaser has formed its own opinion as to the value of Seller's Assets
being purchased hereunder. Seller's warranties include only such express written
warranties as are contained in this Agreement. Any other express warranty, oral
or written, not contained in this Agreement are of no force and effect. Seller
hereby disclaims all implied warranties, including without limitation, implied
warranties of merchantability and implied warranties of fitness for special or
ordinary uses or purposes. Purchaser has inspected Seller's Assets to the full
extent of Purchaser's desire, and Seller has given Purchaser ample opportunity
to conduct such inspections. Seller's Assets, except as expressly warranted or
represented herein, are purchased "As Is" and "With All Faults."
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3.8 Litigation
There are no pending, or to the best knowledge and belief of the
Purchaser, threatened actions or proceedings before any court or administrative
agency or other authority which might or will materially or adversely affect
Purchaser's ability or right to perform all of Purchaser's obligations
hereunder.
3.9 Conduct of the Business
Purchaser covenants that pending the Closing:
(a) Except as otherwise described herein, or as may be necessary to
effect the transactions contemplated by this Agreement, no change
will be made in Purchaser's Certificate of Incorporation or
bylaws and no change will be made in Purchaser's issued shares of
stock, as set forth in Paragraph 3.3 above, other than such
changes as may be first approved in writing by Seller.
(b) No dividends shall be declared and no stock options shall be
granted.
(c) Purchaser shall not sell any of its assets, nor incur additional
debt, without the express written consent of the Seller.
3.10 SEC Filings
As of the date of this Agreement, Purchaser has accurately and timely
filed with the Securities and Exchange Commission ("SEC") all registration
statements, financial statements, applications, reports, schedules, forms, proxy
statements and all other instruments, documents and written information
(collectively, the "SEC Filings") required to be filed by Purchaser under the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended. At the date hereof, none of the SEC Filings contains or, on the Closing
Date, will contain any untrue statement of a material fact or omits or, on the
Closing Date, will omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances in which they were
made or shall have been made, not misleading.
4. LIABILITIES
4.1 No Assumption of Liabilities
(a) Seller acknowledges that Purchaser is acquiring Seller's Assets
hereunder without any assumption of Seller's liabilities, except
to the extent expressly set forth in Schedule of Contract Rights,
Schedule A hereto.
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(b) Seller will indemnify and hold Purchaser harmless from and
against any and all claims for products, service, and
professional liability against Seller arising out of sales of
products or services or grants of licenses rendered by Seller
prior to Closing.
4.2 Bulk Sales Law
Purchaser and Seller hereby waive compliance by Seller with the
provisions of the Bulk Sale Transfer Article of the Nevada Uniform Commercial
Code, to the extent applicable. Seller hereby represents and warrants that it
presently has sufficient amount of net cash proceeds in its operating and/or
trust account to pay all of Seller's creditors, if any, as and when their claims
come due and to indemnify and hold Purchaser harmless from and against any loss,
damage or expense, including a reasonable attorneys' fees and court costs,
incurred by Purchaser as a result of or attributable to the Seller's failure to
comply with said provisions.
5. CONDITIONS PRECEDENT
5.1 Conditions Precedent to Seller's Obligations
The obligations of Seller to complete the Closing hereunder are, at
Seller's option, subject to the following conditions:
(a) Purchaser's representations, warranties and covenants contained
in this Agreement shall be true at the time of Closing as though
such representations, warranties and covenants were made at such
time.
(b) Purchaser shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or
complied with prior to or at the Closing.
(c) Purchaser covenants that it has complied in all material respects
with all applicable laws, orders and regulations of federal,
state, municipal and/or other governments and/or any
instrumentality thereof, domestic or foreign, applicable to its
assets, to the business conducted by it and to the transactions
contemplated by this Agreement.
(d) Effective as of the Closing Date, all of the members of
Purchaser's current board of directors and each and every person
serving as an officer of Purchaser shall resign their respective
positions and/or offices by tendering written resignations.
Immediately prior to said resignations, Purchaser's board of
directors shall appoint those persons set forth on the Schedule
of New Directors and Officers, Schedule D, attached hereto and
made a part hereof, as members of Purchaser's new board and/or as
officers of Purchaser, with such appointments to correspond with
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the position or office designated on Schedule D and with such
appointments to be effective as of the Closing.
(e) All press releases, shareholder communications, SEC Filings and
other publicity generated by Purchaser regarding the transactions
contemplated by this Agreement, or indirectly related to this
Agreement, shall have been reviewed and approved by the Seller
before their release to the public or any governmental agency.
5.2 Conditions Precedent to Purchaser's Obligations
The obligations of Purchaser to complete the Closing under
this Agreement are, at Purchaser's option, subject to fulfillment by
Seller, or otherwise, of each of the following conditions:
(a) All representations and warranties of Seller contained in this
Agreement shall be true in all material respects as of and at the
Closing with the same effect as if said representations and
warranties had been made on and as of Closing, except and to the
extent otherwise specifically provided by the terms and
conditions of this Agreement.
(b) Seller shall have performed and complied with all agreements,
terms and conditions required by this Agreement to be performed
and complied with by Seller on or before the Closing.
(c) Seller shall have delivered to Purchaser such other instruments
and documents as Purchaser shall reasonably request for the
purpose of further perfecting the title of Purchaser in Seller's
Assets.
(d) Seller shall not be in bankruptcy or similar proceedings.
(e) Seller shall deliver to Purchaser an Investment Letter
substantially similar to the Form of Investment Letter attached
hereto as Exhibit A.
5.3 Waivers and Consents
Promptly following the execution of this Agreement, Seller shall use
its best efforts to obtain such written waivers and consents as may be required,
or reasonably requested by Purchaser, in connection with the sale and assignment
of Seller's Assets by Seller to Purchaser in accordance with the terms of this
Agreement.
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6. CLOSING OBLIGATIONS
6.1 Seller's obligations at Closing
At the Closing, Seller shall execute and deliver to Purchaser:
(a) A xxxx of sale, assignments, or such other instruments, and
documents of conveyance and transfer to Purchaser of all of
Seller's Assets.
(b) Appropriate original instruments of consent or waiver executed by
third parties with respect to all Contract Rights being
transferred to Purchaser hereunder in order more fully to effect
transfer of Seller's Assets hereunder, including, without
limitation, consents by all appropriate governmental agencies, if
any.
(c) Possession of the originals of all Seller's Assets and all copies
thereof; it being understood and agreed that no Seller's Assets
or any portion thereof shall remain in the possession or control
of Seller after the Closing.
(d) True and complete copies of resolutions duly accepted by Seller's
board of Directors and all shareholders entitled to vote hereon
confirming this Agreement, authorizing the carrying out of all
transactions contemplated herein and the execution and delivery
by Seller of all instruments then or thereafter required to do
so; said resolutions to be duly certified by the Secretary of
Seller.
(e) Such other instruments and documents as may be elsewhere herein
required.
(f) A certificate signed by the President and by the Secretary of
Seller, dated the date of Closing, certifying that all of
Seller's representations and warranties set forth in this
Agreement continue to be true on the Closing date as if
originally made on such date, except and to the extent otherwise
expressly provided or permitted in this Agreement.
(g) Seller shall deliver to Purchaser an Investment Letter
substantially similar to the Form of Investment Letter attached
hereto as Exhibit A.
6.2 Seller's Further Assurance
From time to time, at Purchaser's request and expense, whether at or
after the Closing and without further consideration, Seller shall:
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(a) Execute and deliver to Purchaser such instruments as may
reasonably be required to carry out the intent and purpose of
this Agreement.
(b) Deliver to Purchaser such other data, papers and information as
may be requested by the Purchaser to assist the Purchaser in the
use of Seller's Assets.
6.3 Purchaser's Obligations at Closing
At Closing, Purchaser shall execute and deliver to Seller:
(a) The payments provided for herein in a form of stock certificates,
stock power and such other instruments and documents as may be
necessary and required herein.
(b) True and complete copies of resolutions duly adopted by
Purchaser's Board of Directors and duly certified by the
Secretary of the Purchaser which provide all necessary corporate
authorization for the execution and carrying out of this
Agreement and the provisions hereof.
(c) A certificate signed by the President and by the Secretary of the
Purchaser, dated the date of Closing, certifying that all of
representations and warranties set forth in this Agreement
continue to be true on the Closing date as if originally made on
such date and the fulfillment of the covenants and agreements as
of the Closing.
(d) Appropriate instruments assuming obligations of Seller in the
Contract Rights and indemnifying Seller.
7. MISCELLANEOUS
7.1 Brokerage
Each party hereto represents and warrants to the other that no broker
or finder is entitled to any commission, or similar fee, in connection with the
making and carrying out of this Agreement.
7.2 Sales Taxes
Any sales taxes which may be payable in connection with the transfer of
any of Seller's Assets shall be borne solely by Seller, who shall certify to the
Purchaser that all such taxes have been paid and shall indemnify and hold
Purchaser harmless therefor.
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7.3 Indemnification
Seller covenants and agrees to defend, indemnify, and hold Purchaser
harmless against any loss, damage, claim of third parties, actions, suits,
demands, judgments, or expense (including legal and other fees, costs and
charges) incurred or sustained by Purchaser as a result of or attributable, in
whole or in part, to any misrepresentation or breach of any representation,
warranty, covenant, or agreement herein (including, without limitation,
provisions on applicable bulk transfer laws) given or made by Seller. Purchaser
covenants and agrees to defend, indemnify, and hold Seller harmless against any
loss, damage, claim of third parties, actions, suits, demands, judgments, or
expenses (including legal and other fees, costs and charges) incurred or
sustained by Seller as a result of or attributable, in while or in part, to any
misrepresentation or breach of any representation, warranty, covenant, or
agreement herein (including, without limitation, provisions with respect to
applicable bulk transfer sales laws and Purchaser's representations of
compliance with securities laws, rules and regulations) given or made by
Purchaser.
7.4 Effectiveness
This Agreement supersedes any and all agreements, if any, previously
made between the parties relating to the subject matter hereof; and there are no
understandings or agreements other than those included herein.
7.5 Notices and Communications
Any notice, payment, request, instruction, or other document to be
delivered hereunder shall be deemed sufficiently given if in writing and
delivered personally, mailed by certified mail, postage prepaid, or by any
nationally-recognized overnight mail or courier services, if to Purchaser
addressed to Purchaser at the address first set forth above, with one copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq. and Xxxxxxxx X. Xxxxxxx, Esq.
and if addressed to Seller, addressed to Seller at:
0000 Xxxx 0000 Xxxxx, Xxxxx 000
Xxxxx, Xxxx 00000
Attention: Xxx Xxxxx, President
unless in each case Purchaser or Seller shall have notified the other in writing
of a different address.
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7.6 Non-waiver
No delay or failure on the part of either party in exercising any right
hereunder, and no partial or single exercise thereof; will constitute a waiver
of such right or of any other right hereunder.
7.7 Headings
Headings in this Agreement are for convenience only and are not to be used
for interpreting or construing any provision hereof
7.8 Governing Law
This Agreement shall be construed in accordance with and governed by
the laws of the State of Utah without giving effect to conflict of law
principals.
7.9 Counterparts
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
7.10 Binding Nature
The provisions of this Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
7.11 Survival of Representations and Warranties
Except as otherwise expressly provided in this Agreement or the
Schedules annexed, the representations and warranties of Purchaser and Seller
extended hereunder shall survive the Closing. Each party against whom liability
is asserted under the provisions of this Agreement shall be given the
opportunity to participate, directly or through its authorized representative,
at its cost and expense, in the conduct of any negotiations relating to the
settlements of any liability or any other proceeding instituted by any third
party against either Seller or Purchaser, as the case may be, giving rise to the
alleged breach.
7.12 Expenses
Except as otherwise expressly provided herein, each party shall pay all
of its own expenses incidental to the negotiation and preparation of the
documentation and financial statements relating to this Agreement and for
entering into and carrying out the terms and conditions of this Agreement and
consummating the transactions, irrespective of whether the transactions
contemplated shall be consummated.
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7.13 Payment of Taxes
All fees, costs, charges, and expenses payable to any federal, state,
or municipal authority, including without limitation all filing fees,
documentary stamps and transfer, sales and other taxes required to be paid, or
imposed in connection with the transfer of any of Seller's Assets pursuant to
the terms of this Agreement shall be paid by Seller.
7.14 Amendment; Successors and Assigns
This Agreement may be amended only by an instrument signed by the
authorized representatives of the parties hereto. Neither party may assign any
of its rights, obligations, or liabilities arising hereunder without the prior
written consent of the other, except as otherwise provided herein, and any such
assignment or attempted assignment shall be null and void.
7.15 Confidentiality
Prior to the Closing of the transactions contemplated hereunder, the
parties hereto shall keep confidential the existence of this Agreement, the
transactions described herein and all information obtained from the other
concerning Seller's Assets or the business plans of the Purchaser; provided,
however, the covenants contained in this Paragraph 7.15 shall not apply in
respect to any information which:
(a) was already known to either of the parties at the time of receipt
thereof from the other,
(b) was readily available to the general public at the time of
receipt thereof from the other,
(c) subsequently becomes known to the general public through no fault
or omission on the part of the party receiving such information,
(d) is subsequently disclosed by a third party which has the bona
fide right to make such disclosure, or
(e) is required to be disclosed by applicable law, regulation or
court order.
7.16 Third Party Beneficiaries
Except for their proper successors and assigns, the parties hereto
intend that no third party shall have any rights or claims by reason of this
Agreement.
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7.17 Facsimile Signatures
In order to expedite the execution of this Agreement, the parties
hereto agree that either party may send its signature by facsimile transmission
to the other party hereto and that, upon transmission, such signing party
intends to be bound by the terms and conditions of this Agreement. Both the
Seller and the Purchaser further acknowledge and agree that any signature
obtained by facsimile transmission shall be relied upon by the other party
hereto and waive any and all defenses to the enforcement of this Agreement based
upon the form of the signature.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
in their respective corporate names by their respective Presidents, and their
respective corporate seals to be affixed and attested by their respective
Secretaries, duly authorized by resolution of their respective Boards of
Directors, on the day and year first above written.
SELLER:
Maxx International, Inc.
By: /s/ Xxxx Xxxxxx
----------------------
Xxxx Xxxxxx, President
PURCHASER:
Area Investment and Development Company
By: /s/ Xxx Xxxxx
----------------------
Xxx Xxxxx, President
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Schedule A
Schedule of Contract Rights
1. July 14, 1999 Assignments of the June 21, 1999 Agreement between Max
Entertainment LLC, Xxxxx Capital Management Limited and Libreria Editrice
Rogate.
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Schedule B
Schedule of Proprietary Rights
1. URL: "xxx.xxxxxxxxxxxxxxxxx.xxx"
--------------------------
2. "Maxx International, Inc."
3. All works in progress, or development, in connection with the rights
acquired from the July 14, 1999 Assignment of the June 21, 1999
Agreement between Max Entertainment LLC, Xxxxx Capital Management
Limited and Libreria Editrice Rogate
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Schedule C
Schedule of Encumbrances
None
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Schedule D
Schedule of New Directors and Officers
Board of Directors:
------------------
Xxxxxxx Xxxxxxx - Chairman of the Board
Xxxx Xxxxxx
Xxxxx Xxxxxxx
Officers:
--------
Xxxx Xxxxxx - President, Secretary and Treasurer
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Exhibit A
Form of Investment Letter
AREA INVESTMENT AND DEVELOPMENT COMPANY c/o Xxx Xxxxx, president 0000 Xxxx 0000
Xxxxx Xxxxx 000
Xxxxx, Xxxx 00000
Re: INVESTMENT LETTER DATED ____________________
Dear Xx. Xxxxx:
As consideration of a sale of assets by Maxx International, Inc.
("Maxx") to Area Investment and Development Company ("Area"), Maxx has agreed to
acquire 3,500,000 pre- split restricted shares of Common Stock of Area, a Utah
corporation, par value $0.01 (the "Securities"). To induce Area to issue the
Securities, Maxx hereby represents to Area that:
1. The Securities which are to be acquired by Maxx are being
acquired for its own account and for investment and not with a
view to the public resale or distribution thereof.
2. Maxx acknowledges and understands that the Securities have not
been registered pursuant to any federal or state securities laws
and therefore may not be resold unless the Securities are
subsequently registered under the Securities Act of 1933, as
amended (the "Act"), or an exemption from such registration is
available. The Securities are thus "restricted securities" as
that term is defined in Rule 144 (the "Rule") promulgated under
the Act, which Rule addresses the resale of unregistered
securities.
3. Maxx agrees not sell, transfer or otherwise dispose of the
Securities unless, in the opinion of the Area's counsel, such
disposition conforms with applicable securities laws
requirements.
4. Maxx further acknowledges that it is fully aware of the
applicable limitations on the resale of the Securities. These
restrictions for the most part are set forth in the Rule. If and
when the Rule is available to Maxx, it may only make sales of the
Securities in accordance with the terms and conditions of the
Rule.
5. Maxx has received and reviewed all of the information it deems
necessary from Area including Area's 10-SB filing dated August
10, 1999 and Area's 10-QSB filing dated September 30, 1999. Maxx
acknowledges that it has had an opportunity to ask questions of
and receive answers from duly designated representatives of Area
concerning the finances of Area and the proposed business plan of
Area.
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6. By reason of Maxx's knowledge and experience in financial and
business matters in general and investments in particular it is
capable of evaluating the merits and risks of an investment in
the Securities.
7. Maxx is capable of bearing the economic risks of an investment in
the Securities. Maxx fully understand the speculative nature of
the Securities and the possibility of loss.
8. Maxx's present financial condition is such that it is under no
present or contemplated immediate future need to dispose of any
portion of the Securities to satisfy any existing or contemplated
immediate undertaking, need, or indebtedness.
9. Any and all certificates representing the Securities, and any and
all securities issued in replacement thereof or in exchange
therefor, shall bear a restrictive legend.
10. Maxx further agrees that Area shall have the right to issue
stop-transfer instructions to its transfer agent until such time
as sale is permitted under the Act and acknowledge that Area
hereby informs Maxx of its intention to issue such instructions.
Very truly yours,
Maxx International, Inc.
By:/s/ Xxxx Xxxxxx
Name:Xxxx Xxxxxx
Title:President
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