EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
AMERICAN CARD SERVICES, INC.
a Delaware corporation,
AND
MAXXZONE.COM, INC.
a Nevada corporation,
DATED:
April 21, 2004
TABLE OF CONTENTS
1. Definitions ...............................................................1
2. Purchase and Sale of Assets................................................4
2.1 Purchase and Sale...........................................4
2.2 Purchased Assets................. ..........................4
2.3 Excluded Assets.............................................4
2.4 Assumption of Certain Liabilities...........................4
3. Purchase Price and Payment.................................................4
3.1 Purchase Price..............................................4
3.2 Tax and Accounting Consequences.............................5
3.3 Price Reduction Upon Certain Events.........................5
4. Pre-Closing Matters........................................................5
4.1 Operation of Purchased Assets...............................5
4.2 Consents ...................................................6
4.3 Notification of Certain Events..............................6
4.4 Access to Information.......................................7
4.5 Public Announcements........................................7
5. Conditions to Closing......................................................7
5.1 Transferor's Conditions.....................................7
5.2 Acquiror's Conditions.......................................8
6. Closing ...................................................................9
6.1 Time and Place of Closing...................................9
6.2 Closing Deliveries..........................................9
6.3 Closing Costs..............................................10
6.4 Possession ................................................10
7. Representations and Warranties............................................10
7.1 Transferor's Representations and Warranties................10
7.2 Acquiror's Representations and Warranties..................14
8. Additional Covenants......................................................15
8.1 Covenants by Each Party....................................15
8.2 Indemnification ...........................................15
8.3 Retention of and Access to Books and Records...............16
9. Termination ..............................................................16
9.1 Termination Events.........................................16
9.2 Effect of Termination......................................16
10. Default; Remedies........................................................16
10.1 Time of Essence............................................16
10.2 Remedies ..................................................16
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11. Construction and Interpretation........................................16
12. Miscellaneous Provisions...............................................17
12.1 Survival of Covenants......................................17
12.2 Expenses ..................................................17
12.3 Binding Effect.............................................17
12.4 Assignment.................................................17
12.5 Notices....................................................17
12.6 Waiver.....................................................18
12.7 Amendment..................................................19
12.8 Severability...............................................19
12.9 Integration................................................19
12.10 Governing Law..............................................19
12.11 Arbitration................................................19
12.12 Execution..................................................19
12.13 Incorporation of Recitals, Exhibits, and Schedules.........19
12.14 Further Assurances.........................................19
12.15 No Third Party Beneficiaries...............................20
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into
as of April 20, 2004 (the "EFFECTIVE DATE") by and between American Card
Services, Inc., a Delaware corporation ("ACS" or "TRANSFEROR") and MaxxZone.com,
Inc., a Nevada corporation ("MAXXZONE" or "ACQUIROR").
RECITALS
A. ACS is a company which operates a credit card services business (the
"BUSINESS").
B. Transferor wishes to sell to Acquiror certain assets as described in
Section 2.2 associated with Transferor's Business and Acquiror wishes to
purchase such assets from Transferor, in each case on the terms and conditions
set forth in this Agreement (this term and all other capitalized terms used
herein having the respective meanings set forth in this Agreement).
AGREEMENTS
In consideration of the foregoing, the mutual covenants of the parties set
forth in this Agreement, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, agree as follows:
1. DEFINITIONS. Certain terms are defined in the text of this Agreement.
In addition, as used in this Agreement, the following terms have the respective
meanings set forth below:
"AGREEMENT" shall mean this Asset Purchase Agreement.
"ACQUIROR" shall have the meaning set forth in the preamble to this
Agreement.
"ACQUIROR'S KNOWLEDGE" shall mean that any of the officers or
directors of Acquiror are actually aware of a particular fact or other matter.
"ASSUMED LIABILITIES" shall have the meaning set forth in Section
2.4.
"BEST EFFORTS" shall mean the efforts that a prudent Person who
wishes to achieve a result would use in similar circumstances to achieve such
result as expeditiously as reasonably possible.
"BILL OF SALE" shall mean the document described in Section
6.2.1(a).
"BOOKS AND RECORDS" shall mean all books and records of Transferor
that are necessary to conduct the Business, the ownership, use, and operation of
the Purchased Assets, or the payment or performance of the Assumed Liabilities,
including any such records maintained electronic format, on computers and all
related computer software.
"BREACH" shall mean any material inaccuracy in or material breach
of, or any material failure to perform or comply with, any representation,
warranty, covenant, obligation, or other provision of this Agreement or any
document delivered pursuant to this Agreement.
"BUSINESS" shall have the meaning set forth in the Recitals.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, or
other day on which commercial banks in New York, New York are authorized or
required by applicable Legal Requirements to be closed.
"CLOSING" shall mean the closing of this transaction, at which the
events set forth in Section 6.2 shall occur.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"COMMON STOCK" shall have the meaning set forth in Section 3.1.
"CONSENT" shall mean any approval, consent, ratification, waiver, or
other authorization, including any Governmental Authorization.
"CONTRACT" shall mean any agreement, contract, lease, obligation,
promise, or understanding, whether written or oral and whether express or
implied, that is legally binding.
"DAMAGES" shall have the meaning set forth in Section 8.2.
"EFFECTIVE DATE" shall have the meaning set forth in the preamble to
this Agreement.
"EXCLUDED ASSETS" shall have the meaning set forth in Section 2.3.
"GOVERNMENTAL AUTHORITY" shall mean any national, federal, state,
provincial, county, municipal, or local government, foreign or domestic, or the
government of any political subdivision of the any of the foregoing, or any
entity, authority, agency, ministry, or other similar body exercising executive,
legislative, judicial, regulatory, or administrative authority or functions of
or pertaining to the government, including any quasi-governmental entity
established to perform any such functions.
"GOVERNMENTAL AUTHORIZATION" shall mean any Consent, license,
permit, waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Authority or pursuant to
any Legal Requirement.
"INTELLECTUAL PROPERTY" shall mean (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications, and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof, (b)
all trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptation, derivations, and combinations
thereof and including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrightable
works, all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all mask works and all applications, registrations,
and renewals in connection therewith, (e) all trade secrets and confidential
business information (including ideas, research and development, know-how,
formulas, compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and proposals),
(f) all computer software (including data and related documentation) and (g) all
other proprietary rights.
"LEGAL REQUIREMENT" shall mean any federal, state, local, municipal,
foreign, international, multinational, or other administrative order,
constitution, law, ordinance, principle of common law, regulation, rule,
statute, or treaty.
"LIEN" shall mean a monetary encumbrance against a Purchased Asset.
"ORDINARY COURSE OF BUSINESS" shall mean any action taken by a
Person if, and only if, such action is consistent with the past practices of
such Person and is taken in the ordinary course of the normal day-to-day
operations of such Person.
"ORGANIZATIONAL DOCUMENTS" shall mean (i) the articles or
certificate of incorporation and the bylaws of a corporation, (ii) the
partnership agreement and any statement of partnership of a general partnership,
(iii) the limited partnership agreement and certificate of limited partnership
of a limited partnership, (iv) any charter, operating agreement, or similar
document adopted or filed in connection with the creation, formation, or
organization of a Person, and (v) any amendment to any of the foregoing.
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"PERMITTED ENCUMBRANCES" shall mean those encumbrances incurred in
the ordinary course of business or otherwise in existence as of the Closing
Date.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, joint stock company, trust, unincorporated organization or
association, joint venture, or other organization, whether or not a legal
entity, or a Governmental Authority.
"POSSESSION DATE" shall mean 12:01 a.m., on the day following the
Closing Date.
"PROCEEDING" shall mean any action, arbitration, audit, hearing,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Authority, arbitrator, or mediator.
"PURCHASE PRICE" shall have the meaning set forth in Section 3.1.
"PURCHASED ASSETS" shall have the meaning set forth in Section 2.2.
"REPRESENTATIVE" shall mean, with respect to a particular Person,
any director, officer, employee, agent, consultant, advisor, or other
representative of or to such Person, including such Person's attorneys,
accountants, and financial advisors.
"TRANSFEROR" shall have the meaning set forth in the preamble to
this Agreement.
"TRANSFEROR SHAREHOLDERS" shall have the meaning set forth in
Section 3.2.
"TRANSFEROR'S KNOWLEDGE" shall mean that any of the officers or
directors of Transferor are actually aware of a particular fact or other matter.
"TAX" shall mean any tax (including any income tax, capital gains
tax, value-added tax, sales tax, excise tax, property tax, gift tax, or estate
tax), levy, assessment, tariff, duty (including any customs duty), deficiency,
or other fee, and any related charge or amount (including any fine, penalty,
interest, or addition to tax), imposed, assessed, or collected by or under the
authority of any Governmental Authority or payable pursuant to any tax-sharing
agreement or other Contract relating to the sharing or payment of any such tax,
levy, assessment, tariff, duty, deficiency, or fee
2. PURCHASE AND SALE OF ASSETS.
2.1 PURCHASE AND SALE. Transferor agrees to transfer the Purchased Assets
to Acquiror, and Acquiror agrees to acquire the Purchased Assets from
Transferor, in each case for the price and on the terms and conditions set forth
in this Agreement. Upon payment of the Purchase Price as described in Section 3
hereof and the satisfaction of the other terms of this Agreement, Transferor
shall sell, transfer, assign and deliver the Purchased Assets to Acquiror on the
Closing Date free and clear of any and all liens, encumbrances, security
interests or obligations, except for Permitted Encumbrances.
2.2 PURCHASED ASSETS. The assets to be sold by Transferor to Acquiror
pursuant to this Agreement (the "PURCHASED ASSETS") shall be all of the
Transferor's assets described on EXHIBIT A attached hereto, with the exception
of the Excluded Assets described in Section 2.3.
2.3 EXCLUDED ASSETS. All assets of Transferor not specifically included in
the Purchased Assets (the "EXCLUDED ASSETS") shall not be acquired by Acquiror
pursuant to this Agreement.
2.4 ASSUMPTION OF CERTAIN LIABILITIES. Acquiror shall at Closing assume
all liabilities of Transferor (the "ASSUMED LIABILITIES
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3. PURCHASE PRICE AND PAYMENT.
3.1 PURCHASE PRICE. In consideration of the sale, transfer and conveyance
to Acquiror of the Purchased Assets, Acquiror shall, at the Closing, issue and
transfer to Transferor approximately two hundred forty two million, three
hundred thirty-five thousand (242,335,000) shares of MaxxZone common stock (the
"COMMON STOCK") of Acquiror (the "SHARES"). Notwithstanding the foregoing, if
immediately following the Closing the aggregate percentage ownership of
outstanding shares of Common Stock of Acquiror owned by Transferor is less than
85% (which amount represents the target percentage ownership of Acquiror by
Transferor immediately following the Closing), then Acquiror will issue to
Transferor that additional number of shares of Common Stock of Acquiror to
increase the percentage ownership of Acquiror to 85%. The number of Shares to be
transferred to Transferor shall be appropriately adjusted to reflect the effect
of any stock split, reverse split, stock dividend, reorganization,
recapitalization or other like change with respect to Transferor's common stock
occurring after the Effective Date and prior to Closing, so as to provide
Transferor the same economic effect as contemplated by this Agreement prior to
such stock split, reverse split, stock dividend, reorganization,
recapitalization, or like change. The consideration described in this Section
3.1 is herein referred to as the "PURCHASE PRICE." At Closing, Acquiror shall
deliver a certificate(s) representing the Shares to Transferor in accordance
with SCHEDULE 3.1 hereto.
3.2 TAX AND ACCOUNTING CONSEQUENCES. As a result of the transfer of the
Shares to Transferor, in accordance with the terms and conditions set forth in
this Agreement, there may be certain Tax and accounting consequences to the
shareholders of the Transferor (the "TRANSFEROR SHAREHOLDERS"), who will be the
ultimate recipients of the Shares. Acquiror makes no representations or
warranties or any kind, nor are any intended or should any be inferred,
regarding the economic return or the tax consequences to the transferor
shareholders who will acquire the shares. Acquiror, therefore, recommends that
the transferor shareholders consult their own attorneys, accountants and
financial advisors about the legal and tax consequences and the financial risks
and merits of receiving the Shares.
3.3 PRICE REDUCTION UPON CERTAIN EVENTS. In the event of any damage to or
destruction or condemnation of any of the Purchased Assets (excluding damage or
destruction caused by Acquiror or any of its affiliates), any taking of any of
the Purchased Assets by eminent domain or any material adverse change to the
Transferor's business, operations or financial condition between the Effective
Date and the Closing Date, Acquiror shall have the right, by notice given to
Transferor within five (5) days of such event (but in any case prior to the
Closing Date), to terminate this Agreement. If Acquiror does not elect to
terminate this Agreement, the Purchase Price shall be reduced by an amount equal
to the resulting reduction in the value of the Purchased Assets, which shall be
attributed to the Transferor whose respective Purchased Assets were so damaged,
destroyed or condemned. Transferor shall be entitled to retain any insurance
proceeds or condemnation awards paid or payable on account of such damage or
destruction or such taking. Transferor and Acquiror agree to negotiate in good
faith regarding the reduction in value resulting from any damage to or
destruction or condemnation of the Purchased Assets.
4. PRE-CLOSING MATTERS.
4.1 OPERATION OF PURCHASED ASSETS. Between the Effective Date and the
Closing Date, Transferor, with respect to the Business, shall:
4.1.1 Conduct the Business and operate and maintain the Purchased
Assets in the Ordinary Course of Business;
4.1.2 Not sell, lease, or otherwise transfer or dispose of any
Purchased Assets, or any interest therein, other than transfers and dispositions
made in the Ordinary Course of Business;
4.1.3 Not permit or allow any Purchased Assets to become subject to
any additional Lien (other than Permitted Encumbrances);
4.1.4 Maintain the levels of inventories and supplies in the
Business at customary levels; and
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4.1.5 Use its Best Efforts to maintain the relations and goodwill
with suppliers, customers, and others having business relationships with
Transferor in connection with the Business.
4.2 CONSENTS.
4.2.1 SCHEDULE 4.2.1 to this Agreement sets forth a complete and
accurate list of all Consents to transfer required under (i) all material
Contracts (a) to which Transferor is a party and which relate to Transferor's
Business or the ownership, use, or operation of the Purchased Assets, or (b) by
which any of the Purchased Assets is bound; and (ii) all material Governmental
Authorizations that are held by Transferor and relate to Transferor's Business
or the ownership, use or operation of the Purchased Assets. Acquiror and
Transferor shall use their respective Best Efforts, each at its own expense, to
obtain all such Consents as soon as practicable after the Effective Date. In the
event any such Consent is not obtained by the Closing Date, Transferor agrees to
continue to use its Best Efforts thereafter, in cooperation with Acquiror, to
obtain such Consent as soon as practicable.
4.2.2 Acquiror shall provide all cooperation reasonably requested by
Transferor in connection with obtaining the Consents described on SCHEDULE
4.2.1, including the provision of any information relating to Acquiror that may
be requested by the Person from whom any such Consent is required.
4.3 NOTIFICATION OF CERTAIN EVENTS.
4.3.1 BY TRANSFEROR. Between the Effective Date and the Closing
Date, Transferor shall give prompt notice to Acquiror in the event Transferor
becomes aware of (i) any fact or condition that causes or constitutes a Breach
of any representation or warranty of Transferor set forth herein as of the
Effective Date, (ii) any fact or condition that would cause or constitute a
Breach of any such representation or warranty had such representation or
warranty been made as of the time of occurrence or discovery of such fact or
condition, (iii) the occurrence of any Breach of any covenant of Transferor in
this Agreement, or (iv) the occurrence of any event that Transferor believes
will make the satisfaction of any of the conditions set forth in Section 5
impossible or unlikely. In the event that any fact or condition of the type
described in the foregoing clause (i) or (ii) would have required any change in
any of the Schedules or Exhibits to this Agreement if such fact or condition had
occurred or been known as of the Effective Date, Transferor shall promptly
deliver to Acquiror a supplement to such Schedule or Exhibit specifying the
necessary change.
4.3.2 BY ACQUIROR. Between the Effective Date and the Closing Date,
Acquiror shall give prompt notice to Transferor in the event Acquiror becomes
aware of (i) any fact or condition that causes or constitutes a Breach of any
representation or warranty of Acquiror set forth herein as of the Effective
Date, (ii) any fact or condition that would cause or constitute a Breach of any
such representation or warranty had such representation or warranty been made as
of the time of occurrence or discovery of such fact or condition, (iii) the
occurrence of any Breach of any covenant of Acquiror in this Agreement, or (iv)
the occurrence of any event that Acquiror believes will make the satisfaction of
any of the conditions set forth in Section 5 impossible or unlikely. In the
event that any fact or condition of the type described in the foregoing clause
(i) or (ii) would have required any change in any of the Schedules or Exhibits
to this Agreement if such fact or condition had occurred or been known as of the
Effective Date, Acquiror shall promptly deliver to Transferor a supplement to
such Schedule or Exhibit specifying the necessary change.
4.3.3 NO EFFECT ON REMEDIES. The delivery of a notice or supplement
pursuant to Sections 4.3.1 and 4.3.2 shall have no effect on the remedies of any
party hereunder.
4.4 ACCESS TO INFORMATION. Between the Effective Date and the Closing
Date, Transferor shall, upon reasonable notice from Acquiror, (i) give Acquiror
and its representatives access (during normal business hours), in a manner so as
not to interfere with Transferor's normal operations and subject to reasonable
restrictions imposed by any such representative, to all key employees and to the
Purchased Assets, including the Books and Records relating thereto, and (ii)
cause its representatives to make available to Acquiror for the purpose of
making copies thereof such financial and operating data and other information
with respect to the Business and the Purchased Assets as Acquiror may reasonably
request.
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4.5 PUBLIC ANNOUNCEMENTS. Except as otherwise required by applicable Legal
Requirements, any public announcement or similar publicity with respect to this
Agreement or this transaction shall be issued, if at all, only with such
contents, at such time and in such manner as the parties may agree. If a party
believes that it is required by applicable Legal Requirements to make any such
public announcement, it shall first provide to the other party the content of
the proposed announcement, the reasons such announcement is required to be made,
and the time and place that the announcement will be made.
5. CONDITIONS TO CLOSING.
5.1 TRANSFEROR'S CONDITIONS. Transferor's obligation to close this
transaction shall be subject to and contingent upon the satisfaction (or waiver
by Transferor in writing in its sole discretion) of each of the following
conditions:
5.1.1 All representations and warranties of Acquiror set forth in
this Agreement and each such representation and warranty shall have been
accurate in all respects as of the Effective Date and shall be accurate in all
respects as of the Closing Date, as if made on the Closing Date.
5.1.2 (i) All of the covenants and obligations that Acquiror is
obligated to perform or comply with pursuant to this Agreement prior to or at
the Closing and each such covenant and obligation (considered individually)
shall have been performed and complied with in all respects; and (ii) Acquiror
shall have made the deliveries of documents required to be made pursuant to
Section 6.2.2; PROVIDED, HOWEVER, that with respect to the covenants and
obligations described in this Section 5.1.2, a failure of the foregoing
condition shall not be deemed to have occurred unless (a) Transferor has given
Acquiror notice specifying the nature of any Breach of such covenants or
obligations in reasonable detail, and (b) either (y) Acquiror has failed to cure
such Breach within ten (10) Business Days after such notice is given, or (z) if
such Breach cannot be cured solely by the payment of money and cannot reasonably
be cured within ten (10) Business Days despite the exercise of Best Efforts,
Acquiror has failed to commence curative action within ten (10) Business Days
after such notice is given or thereafter fails to complete the cure of such
Breach as soon as practicable.
5.1.3 Acquiror shall have offered to sell its equity securities for
net proceeds of not less than $550,000 in a private placement exempt from the
registration provisions of the Securities Act of 1933, as amended (the "Act"),
with the sale of such securities, contingent upon the Closing.
5.2 ACQUIROR'S CONDITIONS. Acquiror's obligation to close this transaction
shall be subject to and contingent upon the satisfaction (or waiver by Acquiror
in its sole discretion) of each of the following conditions:
5.2.1 All representations and warranties of Transferor set forth in
this Agreement shall have been accurate as of the Effective Date and shall be
accurate as of the Closing Date, as if made on the Closing Date.
5.2.2 All of the covenants and obligations that Transferor are
obligated to perform or comply with pursuant to this Agreement prior to or at
the Closing shall have been performed and complied with; and (ii) Transferor
shall have made the deliveries of documents required to be made pursuant to
Section 6.2.1.
5.2.3 To the extent, if any, that Acquiror is required to obtain any
Governmental Authorizations that relate to the Businesses or the ownership, use,
and operation of the Purchased Assets, Acquiror shall have obtained such
Governmental Authorizations and such Governmental Authorizations shall be in
full force and effect as of the Closing Date or subject to issuance to Acquiror
upon consummation of this transaction.
5.2.4 As of the Closing Date, there shall not be in effect any legal
requirement or any injunction or other order that prohibits the transfer of any
portion of the Purchased Assets by Transferor to Acquiror.
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5.2.5 Between the Effective Date and the Closing Date, there shall
have been no damage to or destruction of any of the Purchased Assets (excluding
damage or destruction (i) caused by Acquiror or any of its affiliates; or (ii)
that does not have a material adverse effect on the Businesses), nor any taking
of any material portion of the Purchased Assets by eminent domain.
5.2.6 Since the Effective Date, there shall not have been commenced
or threatened against Acquiror or Transferor or any related person of Acquiror
or Transferor any proceeding (i) seeking damages or other relief in connection
with, any aspect of this transaction, or (ii) that could reasonably be expected
to have the effect of preventing this transaction or making this transaction
illegal.
(a) Transferor shall have executed all documents necessary to
transfer and assign any of the Transferor's Intellectual Property
which is being transferred pursuant to this Agreement.
(b) Transferor shall have delivered to Acquiror a true and
complete listing of the Purchased Assets, which listing shall be
acceptable to Acquiror.
(c) Transferor shall have delivered to Acquiror a true and
complete listing of the Assumed Liabilities, including evidence of
the liabilities acceptable to Acquiror.
(d) Transferor shall have delivered to Acquiror a true and
complete listing of all Consents.
5.2.7 At Closing, Acquiror and MaxxPlay Enterprises, Inc. a Nevada
corporation ("MaxxPlay"), and Roland Becker, individually, shall have entered
into an agreement (the "MaxxPlay Agreement"), the principal terms of which shall
provide that (i) MaxxPlay shall, effective immediately subsequent to Closing,
purchase substantially all of the assets and assume all of the liabilities of
Acquiror immediately prior to Closing in exchange for debt owed by Acquiror to
MaxxPlay, and (ii) MaxxPlay and Roland Becker, individually, release and waive
any claims, known or unknown, they may have against Acquiror. The MaxxPlay
Agreement shall be substantially in the form attached hereto as EXHIBIT D.
6. CLOSING.
6.1 TIME AND PLACE OF CLOSING. The Closing shall take place at the offices
of The Otto Law Group, PLLC, 900 Fourth Avenue, Suite 3140, Seattle, Washington,
or at such other location as the parties may mutually agree. Subject to the
provisions of Section 7, the Closing shall take place commencing at 10:00 a.m.
(Pacific Standard Time) on May 20, 2004, unless Transferor, in its sole
discretion, determines that shareholder approval of the transactions
contemplated by this Agreement is necessary or desirable, in which case Closing
shall take place on May 20, 2004 or, in either case, on such other date as is
mutually acceptable to the parties.
6.2 CLOSING DELIVERIES.
6.2.1 At the Closing, Transferor shall deliver, or cause to be
delivered, to Acquiror:
(a) A fully executed Bill of Sale and Assignment and
Assumption in the form of EXHIBIT C to this Agreement (the "BILL OF
SALE") conveying to Acquiror all personal property to be acquired by
Acquiror pursuant to this Agreement and providing for (i) the
assignment to Acquiror of the contract rights, and all other
intangible personal property included in the Purchased Assets and
(ii) Acquiror's assumption of the Assumed Liabilities;
(b) A Certificate of an officer of Transferor certifying to
the attached resolutions of the board of directors and shareholders,
if the board of directors deems it necessary, of Transferor
authorizing this transaction;
(c) A Certificate of an authorized officer of the Transferor
certifying as to the accuracy of the Transferor's representations
and warranties under Section 7.1;
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(d) All Consents necessary to permit Transferor to transfer
the Purchased Assets to Acquiror;
(e) All necessary documents to transfer and assign any
Intellectual Property which is being transferred pursuant to this
Agreement;
(f) A true and complete listing of the Purchased Assets; and
(g) A true and complete listing of the Assumed Liabilities.
(h) A true and complete listing of all Consents required by
Section 4.2.1.
6.2.2 At the Closing, Acquiror shall deliver, or cause to be
delivered, to Transferor:
(a) A counterpart copy of the Bill of Sale, executed by
Acquiror;
(b) A Certificate of an authorized officer of Acquiror
certifying attached resolutions of the boards of directors and
shareholders of Acquiror authorizing this transaction;
(c) A Certificate of an authorized officer of the Acquiror
certifying as to the accuracy of the Acquiror's representations and
warranties under Section 7.2;
(d) A Certificate of an authorized officer of the Acquiror
certifying the number of shares that Transferor shall be entitled to
in accordance with the terms and conditions of this Agreement;
(e) Certificates representing the Shares in accordance with
SCHEDULE 3.1 hereto; and
(f) A counterpart copy of necessary documents to transfer and
assign any Intellectual Property which is being transferred pursuant
to this Agreement.
6.3 CLOSING COSTS. Transferor and Acquiror shall each pay one-half
(1/2) of the following costs associated with the Closing: (i) recording fees
with respect to the assignment of any Intellectual Property and (ii) all sales
and excise taxes due in connection with this transaction.
6.4 POSSESSION. Acquiror shall be entitled to possession of the
Purchased Assets on the Possession Date as that term is defined in Section 1.
7. REPRESENTATIONS AND WARRANTIES.
7.1 TRANSFEROR'S REPRESENTATIONS AND WARRANTIES. Transferor represents and
warrants to Acquiror as follows:
7.1.1 ORGANIZATION AND GOOD STANDING. Transferor is a corporation,
duly formed, validly existing and in good standing under the laws of the State
of Delaware.
7.1.2 TITLE TO PURCHASED ASSETS. Transferor has good and marketable
title to the Purchased Assets, free and clear of all mortgages, pledges, liens,
encumbrances, security interests, equities, charges and restrictions of any
nature whatsoever, except such Permitted Encumbrances, as that term is defined
in Section 1. By virtue of the deliveries made at the Closing, Acquiror will
obtain good and marketable title to the Purchased Assets, free and clear of all
liens, mortgages, pledges, encumbrances, security interests, equities, charges
and restrictions of any nature whatsoever, except any Permitted Encumbrances.
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7.1.3 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Transferor, enforceable against Transferor in accordance
with its terms. Upon its execution and delivery by Transferor at the
Closing, the Transferor's closing documents will constitute the legal,
valid, and binding obligations of Transferor, enforceable against
Transferor in accordance with its respective terms. Transferor has full
corporate power, authority, and capacity to execute and deliver this
Agreement and Transferor's closing documents and to perform its
obligations hereunder and thereunder. Without limiting the generality of
the foregoing, the Boards of Directors, and shareholders, if the Boards of
Directors deems it necessary, of Transferor has approved this Agreement
and the transactions contemplated hereby.
(b) Neither the execution and delivery of this Agreement, nor the
performance of any of Transferor's obligations hereunder, nor the
consummation of the transactions contemplated by this Agreement will,
directly or indirectly (with or without notice, lapse of time, or both),
(i) contravene, conflict with or result in a violation of any provision of
Transferor's Organizational Documents or any resolution adopted by the
Boards of Directors or shareholders of Transferor; (ii) contravene,
conflict with, or result in a violation of, or give any Governmental
Authority or other person the right to challenge this transaction or to
exercise any remedy or obtain any relief under, any legal requirement or
any order to which Transferor or any of the Purchased Assets is subject;
(iii) contravene, conflict with, or result in a violation of any of the
terms or requirements of any governmental authorization; (iv) contravene,
conflict with, or result in a violation or breach of any provision of, or
give any person the right to declare a default or exercise any remedy
under, or to accelerate the maturity or performance of, or to cancel,
terminate, or modify, any Contract; or (v) result in the imposition or
creation of any lien upon or with respect to any of the Purchased Assets;
except, in the case of clauses (i), (ii) and (iii) above, for
contraventions, conflicts or violations which do not have a material
adverse effect on the ability of Transferor to consummate the transactions
contemplated hereby.
(c) Transferor represents and warrants that it is not and will not
be required to give any notice to, make any filing with, or obtain any
material Consent from any person in connection with the execution and
delivery of this Agreement, the performance of its obligations hereunder,
or the consummation of this transaction, other than the Consents described
on SCHEDULE 4.2.1. except, for Consents, the failure of which to obtain
would not have a material adverse effect on the ability of the Transferor
to consummate the transactions contemplated hereby.
7.1.4 BOOKS AND RECORDS. The Books and Records are complete and
correct in all material respects and have been maintained in accordance with
sound business practices.
7.1.5 POSSESSION OF PURCHASED ASSETS. The Purchased Assets are
assets of the Transferor as of the Effective Date and are in Transferor's
possession as of the Effective Date, and that Transferor has all requisite title
or license to convey the Purchased Assets to Acquiror as contemplated by the
Agreement.
7.1.6 NO MATERIAL ADVERSE CHANGES. There have been no material
adverse changes to Transferor's business, operations or financial condition
other than as disclosed in filings heretofore made with the Securities and
Exchange Commission.
7.1.7 CERTAIN PROCEEDINGS. No proceeding is pending or, to
Transferor's knowledge, has been threatened against Transferor that challenges,
or could reasonably be expected to have the effect of preventing, making
illegal, or otherwise materially interfering with, this transaction.
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7.1.8 ASSUMED LIABILITIES.
(a) The individuals and/or entities, as the case may be, listed in
EXHIBIT B as having certain debts owed to such individual and/or entity by
the Transferor have agreed to convert all or a portion of the debt owed to
such individual and/or entity by Transferor in the amounts set forth in
EXHIBIT B into certain shares of the Acquiror's Common Stock in accordance
with the following formula:
No. Shares = TOTAL DEBT
0.____
7.1.9 INVESTMENT.
(a) KNOWLEDGE OF INVESTMENT AND ITS RISKS. Transferor has knowledge
and experience in financial and business matters as to be capable of
evaluating the merits and risks of Transferor's investment in the Shares.
Transferor understands that an investment in Acquiror represents a high
degree of risk and there is no assurance that Acquiror's business or
operations will be successful. Transferor has considered carefully the
risks attendant to an investment in Acquiror, and that, as a consequence
of such risks, Transferor could lose Transferor's entire investment in
Acquiror.
(b) INVESTMENT INTENT. Transferor hereby represents and warrants
that (i) it is acquiring the Shares for investment for Transferor's own
account, and not as a nominee or agent and not with a view to the resale
or distribution of all or any part of the Shares, and Transferor has no
present intention of selling, granting any participation in or otherwise
distributing any of the Shares within the meaning of the Act, and (ii)
Transferor does not have any contracts, understandings, agreements or
arrangements with any person and/or entity to sell, transfer or grant
participations to such person and/or entity, with respect to any of the
Shares.
(c) ACCREDITED INVESTOR. Transferor, being a corporation with total
assets in excess of $5,000,000 is an "Accredited Investor" as that term is
defined by Rule 501 of Regulation D promulgated under the Securities Act.
(d) DISCLOSURE. Transferor has reviewed information provided by
Acquiror in connection with the decision to purchase the Shares, including
Acquiror's publicly-available filings with the SEC. Acquiror has provided
Transferor with all the information that Transferor has requested in
connection with the decision to purchase the Shares. Transferor further
represents that Transferor has had an opportunity to ask questions and
receive answers from Acquiror regarding the business, properties,
prospects and financial condition of Acquiror. All such questions have
been answered to the full satisfaction of Transferor.
(e) NO REGISTRATION. Transferor understands that it must bear the
economic risk of its investment in Acquiror for an indefinite period of
time. Transferor further understands that (i) neither the offering nor the
sale of the Shares has been registered under the Securities Act or any
applicable State Acts or securities laws of other applicable jurisdictions
in reliance upon exemptions from the registration requirements of such
laws, (ii) the Shares must be held by Transferor indefinitely unless the
sale or transfer thereof is subsequently registered under the Securities
Act and any applicable State Acts, or an exemption from such registration
requirements is available, (iii) Acquiror is not hereby under an
obligation to register any of the Shares on Transferor's behalf or to
assist Transferor in complying with any exemption from registration, and
(iv) Acquiror will rely upon the representations and warranties made by
Transferor in this Agreement in order to establish such exemptions from
the registration requirements of the Securities Act and any applicable
State Acts or securities laws of other applicable jurisdictions.
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(f) TRANSFER RESTRICTIONS. Transferor will not transfer any of the
Shares unless such transfer is exempt from registration under the
Securities Act and such State Acts and securities laws of other applicable
jurisdictions, and, if requested by Acquiror, Transferor has furnished an
opinion of counsel satisfactory to Acquiror that such transfer is so
exempt. Transferor understands and agrees that (i) the certificates
evidencing the Shares will bear appropriate legends indicating such
transfer restrictions placed upon the Shares, (ii) Acquiror shall have no
obligation to honor transfers of any of the Shares in violation of such
transfer restrictions, and (iii) Acquiror shall be entitled to instruct
any transfer agent or agents for the securities of Acquiror to refuse to
honor such transfers.
7.2 ACQUIROR'S REPRESENTATIONS AND WARRANTIES. Acquiror represents and
warrants to Transferor as follows:
7.2.1 ORGANIZATION AND GOOD STANDING. Acquiror is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Nevada.
7.2.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Acquiror, enforceable against Acquiror in accordance with
its terms. Upon their execution and delivery by Acquiror at the Closing,
the Acquiror's closing documents will constitute the legal, valid, and
binding obligations of Acquiror, enforceable against Acquiror in
accordance with their respective terms. Acquiror has full corporate power,
authority, and capacity to execute and deliver this Agreement and the
Acquiror's closing documents and to perform its obligations hereunder and
thereunder. Without limiting the generality of the foregoing, the Board of
Directors of the Acquiror has approved this Agreement and the transactions
contemplated hereby.
(b) Neither the execution and delivery of this Agreement, nor the
performance of any of Acquiror's obligations hereunder, nor the
consummation of this transaction will, directly or indirectly (with or
without notice, lapse of time, or both), (i) contravene, conflict with, or
result in a violation of any provision of Acquiror's Organizational
Documents or any resolution adopted by the Board of Directors or the
shareholders of Acquiror; or (ii) give any Person the right to prevent or
otherwise interfere with this transaction pursuant to any legal
requirement or order to which Acquiror is subject or any Contract to which
Acquiror is a party or by which it or any of its assets is bound.
7.2.3 CERTAIN PROCEEDINGS; NO LIABILITIES ON BOOKS. No proceeding is
pending or, to Acquiror's knowledge, has been threatened against Acquiror that
challenges, or could reasonably be expected to have the effect of preventing,
making illegal, or otherwise materially interfering with, this transaction.
Immediately prior to Closing, Acquiror shall have no liabilities on its books,
and any liabilities disclosed in its Annual Report on Form 10-KSB, filed with
the Securities and Exchange commission on March 29, 2004, shall have been paid
or settled.
7.2.4 TRANSFEROR SHARES. The Shares to be issued in connection with
the payment of the Purchase Price, when issued and delivered in accordance with
this Agreement, shall be duly authorized, validly issued, fully paid, and
non-assessable.
8. ADDITIONAL COVENANTS.
8.1 COVENANTS BY EACH PARTY.
8.1.1 COOPERATION. Each of the parties hereto shall cooperate with
the other parties in every reasonable way in carrying out the transactions
contemplated herein, and in delivering all documents and instruments deemed
reasonably necessary or useful by counsel for each party hereto.
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8.1.2 EXPENSES. Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
or expenses.
8.1.3 FURTHER ASSURANCES. From time to time after the Closing,
Transferor will, at its own expense, execute and deliver, or cause to be
executed and delivered, such documents to Acquiror as Acquiror may reasonably
request in order to more effectively vest in Acquiror good title to the
Purchased Assets and otherwise to consummate the transactions contemplated by
this Agreement, and from time to time after the Closing, Acquiror will, at its
own expense, execute and deliver such documents to Transferor as Transferor may
reasonably request in order more effectively to consummate the assumption of the
Assumed Liabilities by Acquiror and otherwise to consummate the transactions
contemplated by this Agreement.
8.2 INDEMNIFICATION.
8.2.1 BY ACQUIROR. In the event the Acquiror (i) breaches or is
deemed to have breached any of the representations and warranties contained in
this Agreement or (ii) fails to perform or comply with any of the covenants and
agreements set forth in this Agreement, then the Acquiror shall hold harmless,
indemnify and defend Transferor, and each of its directors, officers,
shareholders, attorneys, representatives and agents, from and against any
Damages incurred or paid by Transferor to the extent such Damages arise or
result from a breach by the Acquiror of any such representations and warranties
or a violation of any covenant in this Agreement.
8.2.2 BY TRANSFEROR. In the event Transferor (i) breaches or is
deemed to have breached any of the representations and warranties contained in
this Agreement or (ii) fails to perform or comply with any of the covenants and
agreements set forth in this Agreement, Transferor shall hold harmless,
indemnify and defend Acquiror, and each of its directors, officers,
shareholders, attorneys, representatives and agents, from and against any
Damages incurred or paid by the acquirer to the extent such Damages arise or
result from a breach by Transferor of any such representations or warranties or
a violation of any covenant in this Agreement. For purposes of this Section 8.2,
"DAMAGES" shall mean any and all costs, losses, damages, liabilities, demands,
claims, suits, actions, judgments, causes of action, assessments or expenses,
including interest, penalties, fines and attorneys' fees and expenses incident
thereto, incurred in connection with any claim for indemnification arising out
of this Agreement, and any and all amounts paid in settlement of any such claim.
8.3 RETENTION OF AND ACCESS TO BOOKS AND RECORDS. Transferor agree to
retain the Books and Records for a period of five (5) years after the Closing
Date and to make them available to Acquiror for the purpose of making copies
thereof at Acquiror's expense of.
9. TERMINATION.
9.1 TERMINATION EVENTS. Except as otherwise provided for, this Agreement
may, by notice given prior to or at the Closing (which notice shall specify the
grounds for termination), be terminated by mutual written agreement of both
Transferor and Acquiror.
9.2 EFFECT OF TERMINATION. Each party's right of termination under Section
9.1 is in addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination shall not constitute an
election of remedies. If this Agreement is terminated pursuant to Section 9.1,
all further obligations of the parties under this Agreement shall thereupon
terminate, except that Sections 10 and 12 shall survive; PROVIDED, HOWEVER, that
if this Agreement is terminated by a party because of a material Breach of this
Agreement by any of the parties or because one or more of the conditions to the
terminating party's obligations under this Agreement is not satisfied as a
result of any party's failure to comply with its obligations under this
Agreement, the terminating party's right to pursue all legal remedies shall
survive such termination unimpaired.
10. DEFAULT; REMEDIES.
10.1 TIME OF ESSENCE. Time is of the essence of the parties'
obligations under this Agreement.
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10.2 REMEDIES. If any party fails to perform its obligations under
this Agreement, the other party shall be entitled to pursue all remedies
available at law or in equity, including, in the case of a failure to consummate
this transaction following satisfaction (or waiver) of the conditions set forth
in Section 6.2, as applicable, the remedy of specific performance; PROVIDED,
HOWEVER, that except with respect to a failure to close this transaction as
provided herein, a party shall not be in default hereunder unless (i) the
non-Breaching party has given the Breaching party notice specifying the nature
of the Breach in reasonable detail, and (ii) the Breaching party either (a) has
failed to cure such Breach within ten (10) Business Days after such notice is
given, or (b) if such Breach cannot be cured solely by the payment of money and
cannot reasonably be cured within ten (10) Business Days despite the exercise of
Best Efforts, has failed to commence curative action within ten (10) Business
Days after such notice is given or thereafter fails to complete the cure of such
Breach as soon as practicable.
11. CONSTRUCTION AND INTERPRETATION.
11.1 The headings or titles of the sections of this Agreement are
intended for ease of reference only and shall have no effect whatsoever on the
construction or interpretation of any provision of this Agreement. References
herein to sections are to sections of this Agreement unless otherwise specified.
11.2 Meanings of defined terms used in this Agreement are equally
applicable to singular and plural forms of the defined terms. The masculine
gender shall also include the feminine and neutral genders and vice versa.
11.3 As used herein, (i) the term "party" refers to a party to this
Agreement, unless otherwise specified, (ii) the terms "hereof," "herein,"
"hereunder," and similar terms refer to this Agreement as a whole and not to any
particular provision of this Agreement, (iii) the term "this transaction" refers
to the transaction contemplated by this Agreement, (iv) the term "including" is
not limiting and means "including without limitation," (v) the term "documents"
includes all instruments, documents, agreements, certificates, indentures,
notices, and other writings, however evidenced, and (vi) the term "property"
includes any kind of property or asset, real, personal, or mixed, tangible or
intangible.
11.4 In the event any period of time specified in this Agreement
ends on a day other than a Business Day, such period shall be extended to the
next following Business Day. In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including," the words "to" and "until" each mean "to but excluding," and the
word "through" means "to and including."
11.5 This Agreement is the product of arm's length negotiations
among, and has been reviewed by counsel to the parties and is the product of all
the parties. Accordingly, this Agreement shall not be construed for or against
any party by reason of the authorship or alleged authorship of any provision
hereof.
12. MISCELLANEOUS PROVISIONS.
12.1 SURVIVAL OF COVENANTS. Each covenant or agreement of the
parties set forth in this Agreement which by its terms expressly provides for
performance after the Closing Date shall survive the Closing and be fully
enforceable thereafter.
12.2 EXPENSES. Except as otherwise provided, each party shall bear
its own expenses incurred in connection with the preparation, execution, and
performance of this Agreement and this transaction, including all fees and
expenses of its own Representatives or any other similar payment in connection
with this transaction.
12.3 BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties and, subject to the
restrictions on assignment set forth herein, their respective successors and
assigns.
12.4 ASSIGNMENT. Neither party shall assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party. No assignment of this Agreement shall release the assigning party from
its obligations under this Agreement.
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12.5 NOTICES. All notices under this Agreement shall be in writing.
Notices may be (i) delivered personally, (ii) transmitted by facsimile, (iii)
delivered by a recognized national overnight delivery service, or (iv) mailed by
certified United States mail, postage prepaid and return receipt requested.
Notices to any party shall be directed to its address set forth below, or to
such other or additional address as any party may specify by notice to the other
party. Any notice delivered in accordance with this Section 13.5 shall be deemed
given when actually received or, if earlier, (a) in the case of any notice
transmitted by facsimile, on the date on which the transmitting party receives
confirmation of receipt by facsimile transmission, telephone, or otherwise, if
sent during the recipient's normal business hours or, if not, on the next
Business Day, (b) in the case of any notice delivered by a recognized national
overnight delivery service, on the next Business Day after delivery to the
service or, if different, on the day designated for delivery, or (c) in the case
of any notice mailed by certified U.S. mail, two (2) Business Days after deposit
therein.
If to ACS American Card Services, Inc.
7658 Municipal Drive
Orlando, Florida 32819
Attn: President
Telephone No.: (925) 518-6321
Facsimile No.: (925) 254-0557
With a copy to: Frohling and Hudak
17 Fulton Street
Newark, NJ 07102
Attn: John C. Frohling, Esq.
Telephone No.: (973) 622 2800
Facsimile No.: (973) 622 2865
If to MaxxZone: MaxxZone.com, Inc.
1770 N. Green Valley Parkway, Suite 3214
Henderson, Nevada 89014
Attn: President
Telephone No.: (408) 379-3822
Facsimile No.: (408) 379-3822
With a copy to: The Otto Law Group, PLLC
900 Fourth Avenue, Suite 3140
Seattle, WA 98164
Attn: Thomas E. Puzzo, Esq.
Telephone No.: (206) 262-9545
Facsimile No.: (206) 262-9513
12.6 WAIVER. Any party's failure to exercise any right or remedy under
this Agreement, delay in exercising any such right or remedy, or partial
exercise of any such right or remedy shall not constitute a waiver of that or
any other right or remedy hereunder. A waiver of any Breach of any provision of
this Agreement shall not constitute a waiver of any succeeding Breach of such
provision or a waiver of such provision itself. No waiver of any provision of
this Agreement shall be binding on a party unless it is set forth in writing and
signed by such party.
12.7 AMENDMENT. This Agreement may not be modified or amended except by
the written agreement of the parties.
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12.8 SEVERABILITY. If any provision of this Agreement is held invalid,
illegal, or unenforceable, then (i) such provision shall be enforceable to the
fullest extent permitted by applicable law, and (ii) the validity and
enforceability of the other provisions of this Agreement shall not be affected
and all such provisions shall remain in full force and effect.
12.9 INTEGRATION. This Agreement, including the Exhibits and Schedules
hereto, and the MaxxPlay Agreement, contain the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements with respect thereto. The
parties acknowledge and agree that there are no agreements or representations
relating to the subject matter of this Agreement, either written or oral,
express or implied, that are not set forth in this Agreement, in the Exhibits
and Schedules to this Agreement.
12.10 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (without regard to the
principles thereof relating to conflicts of laws).
12.11 ARBITRATION. All disputes or claims arising out of or relating to
this Agreement, or the breach hereof, including disputes as to the validity
and/or enforceability of this Agreement or any portion thereof, and any claims
for indemnification under the provisions of this Agreement, shall be resolved by
arbitration conducted in New York, New York. The prevailing party in the
arbitration shall be entitled as a part of the arbitration award to the costs
and expenses (including reasonable attorneys' fees and the fees of the
arbitrator) of investigating, preparing, and pursuing or defending the
arbitration claim as such costs and expenses are awarded by the arbitrator. The
duty to arbitrate shall survive a termination or cancellation of this Agreement
and shall be specifically enforceable under applicable federal law and the
prevailing arbitration law of the State of New York. The decision of the
arbitrator shall be final and binding upon the parties and enforceable in any
court of competent jurisdiction.
12.12 EXECUTION. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one and the same agreement.
Each party may rely upon the signature of each other party on this Agreement
that is transmitted by facsimile as constituting a duly authorized, irrevocable,
actual, current delivery of this Agreement with the original ink signature of
the transmitting party.
12.13 INCORPORATION OF RECITALS, EXHIBITS, AND SCHEDULES. The Recitals to
this Agreement, all Exhibits and Schedules to this Agreement and the MaxxPlay
Agreement are incorporated herein by this reference.
12.14 FURTHER ASSURANCES. Each party agrees to execute and deliver such
additional documents and instruments as may reasonably be required to effect
this transaction fully, so long as the terms thereof are consistent with the
terms of this Agreement.
12.15 NO THIRD PARTY BENEFICIARIES. This Agreement is made and entered
into for the sole protection and legal benefit of Transferor and Acquiror, and,
subject to the restrictions on assignment set forth herein, their respective
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
ACS: AMERICAN CARD SERVICES, INC.,
a Delaware corporation
By: _______________________
Name: __________________________
Its: _______________________
MAXXZONE: MAXXZONE, INC,
a Nevada corporation
By: _______________________
Name: __________________________
Its: _______________________
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