SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August 31, 2001
Clixtix, Inc.
-------------
(Exact Name of Registrant as Specified in Charter)
New York 333-46828
-------- ---------
(State of Incorporation) (Commission File Number)
13-3526402
----------
(IRS Employer Identification No.)
1501 Broadway, Suite 1807, New York, New York 10036
---------------------------------------------------
(Address of principal executive offices)(Zip Code)
(212) 768-2383
--------------
(Registrant's telephone number, including area code)
Phyllis Maxwell's Groups, Inc.
------------------------------
(Former name or address, if changed since last report)
INFORMATION TO BE INCLUDED IN THE REPORT
Item 2. Acquisition or Disposition of Assets.
On August 31, 2001, Clixtix, Inc. (the "Company") and Maxwell Group
Entertainment, Inc., a newly formed New York corporation (the "Subsidiary")
entered into an Agreement and Plan of Reorganization (the "Agreement"). Under
the terms of the Agreement, the Company sold to the Subsidiary all of its
tangible and intangible assets appearing on the Company's Balance Sheet as of
June 30, 2001 (the "Balance Sheet") and the Subsidiary assumed all of the
Company's liabilities appearing on the Balance Sheet in consideration for 100
shares of the Subsidiary's common stock, which constitute all of the issued and
outstanding stock of the Subsidiary.
Item 5. Other Events.
On August 31, 2001, the Company filed with the New York State Secretary
of State a Certificate of Amendment to the Certificate of Incorporation which
amended the Company's Certificate of Incorporation by (i) changing the Company's
name to "Clixtix, Inc." and (ii) adding a provision to the Certificate of
Incorporation enabling stockholders of the Company to take action on written
consent whenever under the provisions of the New York Business Corporation law
shareholders are required or permitted to take action by vote, setting forth the
action so taken signed by the holders of outstanding shares having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted.
Item 7. Financial Statements and Exhibits.
Exhibit 2. Agreement and Plan of Reorganization
Exhibit 3(i) Certificate of Amendment to the Certificate of Incorporation
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Clixtix, Inc.
-------------
(Registrant)
Dated: September 7, 2001 By: /s/ Phyllis Maxwelll
-----------------------
Phyllis Maxwell, President
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Exhibit 2
- ---------
AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
Maxwell Group Entertainment Inc., a New York corporation, having its
principal place of business located at 1501 Broadway, Suite 1807, New York, NY
10036 ("Buyer,") and Clixtix, Inc., a New York corporation, having its principal
place of business located at 1501 Broadway, Suite 1807, New York, NY 10036
("Seller,") hereby agree as follows:
ARTICLE 1.
PURCHASE AND SALE OF ASSETS.
----------------------------
1.01. Assets Being Purchased. Seller shall sell to Buyer and Buyer
---------------------- shall purchase from Seller on the terms
specified in this Agreement, all the business, properties and assets
of the Seller of every kind and description, wherever located, real,
personal or mixed, tangible or intangible, (collectively, the
"Assets") as reflected on the June 30, 2001 Balance Sheet (the
"Balance Sheet"), a copy of which is attached hereto as Exhibit 1.01.
In connection with the sale of the Assets, and at the Closing (as
hereinafter defined), the Seller shall execute and deliver to and in
favor of the Buyer, an Assignment and Bill of Sale and such other
instruments as may be required in order to transfer of record all
right, title and interest of the Assets to the Buyer except as
otherwise herein expressly provided.
1.02. Liabilities Assumed. The buyer shall, simultaneously with the
------------------- sale of the Assets, assume all debts,
obligations, contracts and liabilities of the Seller as reflected on the
Balance Sheet (collectively, the "Assumed Liabilities").
1.03. Purchase Price. The purchase price to the Buyer for the Assets
--------------- shall be 100 shares of its common stock, $.001
par value per share (the "Buyer Shares"), which shares will constitute all
of the then issued and outstanding stock of the Buyer. At the Closing (as
hereinafter defined), Buyer will issue and deliver the Buyer Shares to the
Seller, and Seller will purchase the Buyer Shares from the Buyer.
1.04. Closing. The sale and purchase described in this Agreement shall
-------- be consummated on or before August 31, 2001 ("Closing"
or "Closing Date"), or such other date as shall be mutually agreed by the
parties, at the offices of Sierchio & Company, LLP, located at 150 East
58th Street, 25th Floor, New York, NY 10155 or at such other time and place
as the parties hereto may agree to in writing.
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ARTICLE 2.
REPRESENTATIONS AND WARRANTIES BY SELLER.
-----------------------------------------
2.01. Title to Assets. Seller has good and marketable title to
--------------- all Assets covered by this Agreement, free
and clear of any liens, encumbrances, or other defects.
2.02. Authority to Sell. Seller has complied with all of the
------------------ requirements of any applicable law of the
State of New York relative to the saleof assets described in this Agreement
and prior to Closing, all of the consents, approvals and notices that may
be required by law or by agreements to which Seller may be a party will be
obtained and given, respectively.
2.03. Liabilities. Except as set forth on the Balance Sheet, there
----------- are no liabilities to which the Seller's
assets are subject. The Assumed Liabilities all arose in the ordinary
course of Seller's business.
2.04. Defaults and Violations. Seller is not in default or in
------------------------ material violation of any contracts,
agreements, leases, or other instruments or obligations relating to
the Assets to be sold and transferred to Buyer pursuant to this
Agreement, and this Agreement and the purchase and sale to be
consummated pursuant to this Agreement will not create or cause a
default or material violation of any contract, agreement, lease or
other instrument to which Seller may be a party.
2.05. Taxes. All federal, state and local tax returns and payments
------ relating to the Assets that have become due from Seller to
the date of this Agreement have been timely filed and timely paid by it
including any returns or taxes due for: (1) state or federal income or
franchise tax, (2) personal or real property tax levied on any of the
assets, (3) sales tax, or (4) other tax. All tax returns and payments for
the above taxes relating to the Assets which become due between the date of
this Agreement through the Closing Date shall be timely filed and paid by
Seller.
2.06. Litigation. There is no litigation threatened or pending against
----------- Seller of which it or its officers are aware that
will, might, or could affect consummation of the purchase and sale
described in this Agreement or transfer of title of any of the Assets as
required by this Agreement.
2.07. Investment Intent; Evaluation. (a)The Seller has conducted its
------------------------------ own due-diligence investigation
respecting the Buyer, its business, plans and financial condition relating
to Seller's willingness to accept the Buyer Shares as consideration for the
sale of the Assets; the Seller has received all materials which have been
requested by the Seller; has had a reasonable opportunity to ask questions
of the Buyer and its representatives; and the Buyer has answered all
inquiries that the Seller or the Seller's representatives have put to it.
The Seller has had access to all information necessary to verify the
accuracy of the information provided to it, and has taken all the steps
necessary to evaluate the merits and risks of an investment in the Buyer
Shares.
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(b) The Seller has such knowledge and experience in finance,
securities, investments and other business matters so as to be able to protect
the interests of the Seller concerning this transaction, and the Seller's
resulting investment in the Buyer hereunder is not material when compared to the
Seller's total capacity. The Seller understands an investment in the Buyer is of
a speculative nature involving a high degree of risk.
(c) The Seller understands the various risks of an investment in the
Buyer as proposed herein and can afford to bear such risks, including, without
limitation, the risk of losing its entire investment in the Buyer Shares.
(d) The Seller acknowledges that no market for the Buyer Shares exists
and it is unlikely that one will develop in the future, and that the Seller may
find it impossible to liquidate the investment in the Buyer Shares at a time
when the Seller may desire to do so, or at any other time.
(e) The Seller is aware that the Buyer Shares have not been registered
under the Act, that the Buyer Shares will be issued on the basis of the
statutory exemption provided by Section 4(2) of the Act promulgated thereunder,
relating to transactions by an issuer not involving any public offering and
under similar exemptions under certain state securities laws, that this
transaction has not been reviewed, passed on or approved by any federal or state
agency or self-regulatory organization where an exemption is being relied upon,
and that the Buyer's reliance thereon is based in part upon the representations
made by the Seller in this Agreement. The Seller acknowledges that it has been
informed by the Buyer, or is otherwise familiar with, the nature of the
limitations imposed by the Act and the rules and regulations thereunder on the
transfer of securities. In particular, the Seller agrees that no sale,
assignment or transfer of any of the Buyer Shares will be valid or effective,
and the Buyer shall not be required to give any effect to such sale, assignment
or transfer, unless (i) such sale, assignment or transfer is registered under
the Act, it being understood that the Buyer Shares are not currently registered
for sale and that the Buyer has no obligation or intention to so register the
Buyer Shares, or (ii) the Buyer Shares are sold, assigned or transferred in
accordance with all the requirements and limitations of Rule 144 under the Act,
it being understood that Rule 144 is not available at the present time for the
sale of the Buyer Shares, or (iii) such sale, assignment or transfer is
otherwise exempt from the registration requirements under the Act. The Seller
further understands that an opinion of counsel and other documents may be
required to transfer the Buyer Shares. The Seller acknowledges that the
certificate evidencing the Buyer Shares will bear the following, or a
substantially similar legend, and such other legends as may be required by state
blue sky laws:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act"), or any
state securities laws and neither such securities nor any interest
therein may be offered, sold, pledged, assigned or otherwise
transferred unless: (1) a registration statement with respect
thereto is effective under the Act and any applicable state
securities laws, or (2) the Buyer receives an opinion of counsel to
the
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holder of such securities, which counsel and opinion are
reasonably satisfactory to the Buyer, that such securities may be
offered, sold, pledged, assigned or transferred in the manner
contemplated without an effective registration statement under the
Act or applicable state securities laws."
(f) The Seller is acquiring the Buyer Shares for the Seller's own
account for investment and not with a view to the sale or distribution
thereof or the granting of any participation interest therein, and has no
present intention of distributing or selling to others any of such interest
or granting participations therein.
2.08 Intellectual Property. To the best of Seller's knowledge, none of
---------------------- the Assets to be purchased hereunder,
including, but not limited to, any trademarks and tradenames included in
Exhibit 1.01, violate or infringe any patents, trademark, service mark,
copyrights, trade secrets or other intellectual property rights of any
third person.
2.09. Due Organization. Seller is a corporation duly organized
----------------- and existing under the General
Corporation Law of the State of New York.
2.10 Survival of Warranties. Seller agrees that all warranties made by
---------------------- it in this Agreement shall survive the
Closing.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES BY BUYER.
----------------------------------------
3.01. Consents, Approvals and Notices. Buyer has complied with all of
-------------------------------- the requirements of any
applicable law of the State of New York, its state of organization,
relative to its purchase of the Assets described in this Agreement and that
prior to Closing, all of the consents, approvals and notices that may be
required by law or by agreements to which Buyer may be a party will be
obtained and given, respectively.
3.02. Authorized and Issued Stock. The authorized capital stock of
---------------------------- Buyer consists of 1,000 shares of
Common Stock. The Buyer presently has no shares of Common Stock issued and
outstanding. When issued, the Buyer Shares to be sold to the Seller will
represent 100% of Buyer's issued and outstanding shares of Common Stock.
3.03 Litigation. There is now no litigation pending against Buyer of
----------- which it or its officers are aware that will, might,
or could affect consummation of the purchase and sale described in this
Agreement and Buyer is not aware of any threatened litigation which may
affect the consummation of the purchase and sale described in this
Agreement.
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3.04. Due Organization. Buyer is a corporation duly organized and
---------------- existing under the General Corporation Law
of the State of New York and its power as a Corporation has never been and
is not now suspended.
3.05. Authority to Buy. This Agreement has been approved by
----------------- authority to both execute and perform
this Agreement.
3.06. Survival of Warranties. Buyer agrees that all warranties made
---------------------- by it in this Agreement shall survive
the Closing. Buyer's Board of Directors and Buyer has full power and
ARTICLE 4.
OPERATION OF ASSETS.
--------------------
4.01. Seller to Continue Business Prior to Closing. Seller shall
--------------------------------------------- continue to conduct
its business as it is currently being operated until the Closing. Any and
all risk of loss or damages to the Assets during such period from any and
all causes shall be borne by the Seller.
4.02. Buyer to Operate Business After Closing. Buyer shall conduct
---------------------------------------- the business of group
theater ticket sales previously conducted by Seller following the
Closing in such manner as it, in its sole discretion may determine
advisable.
ARTICLE 5.
CONDITIONS TO BUYER'S PERFORMANCE.
----------------------------------
Absent a waiver in writing, all obligations of the Buyer under this
Agreement are subject to satisfaction of the following conditions on or
before the Closing Date:
5.01. Performance by Seller. Seller shall have performed,
---------------------- satisfied and complied with all
covenants, agreements, and conditions required by this Agreement to be
performed or complied with by them, or any of them, on or before the
Closing Date.
5.02. Representations and Warranties True as of the Closing Date.
-----------------------------------------------------------
Except as otherwise permitted by this Agreement, all representations and
warranties by Seller in this Agreement shall be true on and as of the
Closing Date as though made at that time.
5.03. Third Party Consents. All consents and approvals required to be
--------------------- given by third parties shall have been
obtained and Buyer shall have been furnished with appropriate evidence
reasonably satisfactory to it and its counsel of the granting of such
consents and approvals.
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5.04. No Material Adverse Change. During the period from the date of
--------------------------- the most recent financial statement
to the Closing Date the Seller has not sustained any material loss or
damage to its assets, whether or not insured, that materially affect its
ability to conduct a material part of its business.
5.05. Absence of Litigation. No action, suit, or proceeding before any
---------------------- court or any governmental body or
authority, pertaining to the transaction contemplated by this Agreement, or
to its consummation, shall have been instituted or threatened against the
Seller on or before the Closing Date.
5.06. Corporate Approvals. The board of directors of Seller and to the
-------------------- extent required, the shareholders of Seller,
shall have duly authorized and approved the execution and delivery of this
Agreement and all corporate action necessary or proper to fulfill Seller's
obligations hereunder on or before the Closing Date.
ARTICLE 6.
CONDITIONS OF SELLER'S PERFORMANCE.
-----------------------------------
Absent a waiver in writing, all obligations of Seller hereunder are
subject to the satisfaction of the following conditions on or before the
Closing Date:
6.01. Representations and Warranties True as of the Closing Date.
-----------------------------------------------------------
All representations and warranties of Buyer contained in this Agreement
shall be true on and as of the Closing Date as though such representations
and warranties were made on and as of that date.
6.02. Performance By Buyer. Buyer shall have performed and complied
--------------------- with all covenants and agreements and
satisfied all conditions required by this Agreement to be performed by
Buyer on or before the Closing Date.
6.03. Corporate Approvals. The board of directors of Buyer shall
-------------------- have duly authorized and approved
the execution and delivery of this Agreement and all corporate action
necessary or proper to fulfill Buyer's obligations hereunder on or before
the Closing Date.
6.04. No Material Adverse Change. During the period from the date of
--------------------------- this Agreement to the Closing Date,
the Buyer will not have sustained any material loss or damage to its
assets, whether or not insured, that materially affect its ability to
conduct a material part of its business.
6.05. Absence of Litigation. No action, suit, or proceeding before any
---------------------- court or any governmental body or
authority, pertaining to the transaction contemplated by this Agreement, or
to its consummation, shall have been instituted or threatened against the
Buyer on or before the Closing Date.
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ARTICLE 7.
SELLER'S AND BUYER'S COVENANTS.
-------------------------------
7.01. Conduct of Business. From the date of this Agreement to the
-------------------- Closing, Seller shall operate the business
as it is currently being conducted without causing detriment thereto, shall
maintain in effect all governmental permits and approvals necessary for the
operation of the business as it is now being conducted, and shall maintain
the relationships with all persons and entities with whom Seller currently
is doing business. After the Closing, the Seller's business shall be
conducted by Buyer.
7.02. Buyer's Investigation. Seller shall make available to Buyer
---------------------- at all reasonable times all books
and records of the business and such other items as may be from time to
time requested by Buyer.
ARTICLE 8.
MISCELLANEOUS.
--------------
8.01. Entire Agreement. This instrument with its attachments
----------------- constitutes the entire agreement between Buyer
and Seller respecting the Assets or the sale of the Assets to Buyer by
Seller, and any agreement or representation respecting the Assets or their
sale by Seller to Buyer not expressly set forth in this instrument is null
and void.
8.02. Notices. Any and all notices or other communications or
-------- deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and effective on
the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section 8.02 prior to 5:30 p.m. on a business day, (ii)
the business day following the date of mailing, if sent by nationally
recognized overnight courier service, or (iii) upon actual receipt by the
party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to Buyer, to:
Maxwell Group Entertainment, Inc.
1501 Broadway, Suite 1807
New York, New York 10036
Fax: (212) 768-3036
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If to Seller, to:
Clixtix, Inc.
1501 Broadway, Suite 1807
New York, New York 10036
Fax: (212) 768-3036
8.03. Assignment. This Agreement may not be assigned by either
---------- express written consent of the other party to
this Agreement.
8.04. Governing Law. This Agreement shall be governed and all
-------------- rights and liabilities under it determined
in accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
8.05. Counterparts. This Agreement may be executed in two or more
------------ counterparts, each of which shall be an
original, but all of which shall constitute but one Agreement.
8.06. Expenses. Each party shall pay all costs and expenses
-------- incurred by it in negotiating and preparing this
Agreement and in closing and carrying out the transactions contemplated
herein and hereby.
8.07. Further Assurances. The parties agree that at any time and from
------------------- time to time after the Closing Date, they
will execute and deliver to any other party such further instruments or
documents as may be reasonably required to give effect to the transactions
contemplated hereunder.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Buyer and the Seller have through their
respective duly qualified and authorized officers, signed and delivered this
agreement and agree to be bound by the terms hereof as of this 31st day of
August, 2001.
Clixtix, Inc.
A New York corporation
By /s/ Phyllis Maxwell
----------------------------
Name: Phyllis Maxwell
Title: President,
A Duly Authorized Signatory
Maxwell Groups Entertainment, Inc.
By /s/ Phyllis Maxwell
-----------------------------
Name: Phyllis Maxwell
Title: President,
A Duly Authorized Signatory
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Exhibit 3(i)
Certificate of Amendment of the Certificate of Incorporation of
Phyllis Maxwell's Groups, Inc.
Under Section 805 of the Business Corporation Law
It is hereby certified that:
1. The name of the corporation (herein referred to as the
"corporation") is:
Phyllis Maxwell's Groups, Inc.
2. The corporation's Certificate of Incorporation was filed with the
Office of the Secretary of State on April 18, 1989. The corporation filed a
Certificate of Amendment of the Certificate of Incorporation on September
22, 2001.
3. The Certificate of Incorporation of the corporation is hereby
amended changing the Corporation's name by striking out Article FIRST
thereof and by substituting in lieu of said Article the following new
Article:
"FIRST: The name of the Corporation is Clixtix, Inc., hereinafter
sometimes referred to as the "Corporation."
4. The Certificate of Incorporation of the corporation is hereby
amended by adding the following Article "EIGHTH" thereto:
"EIGHTH: Whenever under the provisions of the New York Business
Corporation law shareholders are required or permitted to take action by vote,
such action may be taken without a meeting on written consent, setting forth the
action so taken signed by the holders of outstanding shares having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted."
5. The amendments of the Certificate of Incorporation herein certified
were duly authorized by unanimous written consent of the Board of Directors
followed by a vote of a majority of all outstanding shares entitled to vote
thereon at a meeting of shareholders of the corporation in accordance with the
provisions of Section 803(a) of the New York Business Corporation Law.
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IN WITNESS WHEREOF, the undersigned, being an authorized officer of the
corporation, has hereunto signed his name and affirms that the statements made
herein are true under the penalties of perjury, this 28th day of August, 2001.
Phyllis Maxwell's Groups, Inc.
BY: ________________________
Phyllis Maxwell, President
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