STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into as
of this 27th day of May, 2009, between OLEKSANDR SHALASH, whose
address is Witellikerstrasse 17, 8702 Zollikon, Switzerland and
IVAN HRUBI, whose address is Friedberger Str. 6, Rodgau, Germany
63110 (collectively referred to as "Purchasers"); NASUS CONSULTING,
INC., a Nevada corporation, whose principal place of business is 83
Fisher Street, Millville, Massachusetts 01504 (the "Company");
RUSSELL R. DESJOURDY, who maintains his address at 83 Fisher
Street, Millville, Massachusetts 01504 ("Russell Desjourdy") and
LYNNE DESJOURDY, who maintains her address at 25 Eastmount Road,
Medfield, Massachusetts 02052-2710 ("Lynne Desjourdy"; Russell
Desjourdy and Lynne Desjourdy collectively referred to as the
"Selling Shareholders").
RECITALS
WHEREAS, the Company is a public company whose common stock is
listed through the OTC Bulletin Board ("OTCBB") quotation service
under the trading symbol "NSUS"; and
WHEREAS, the Selling Shareholders collectively own 800,000
restricted shares of NSUS common stock ("NSUS Shares"), which, on
the Closing Date as hereinafter defined, shall represent
approximately 70.67% of the total issued and outstanding NSUS
Shares, free and clear of any liens, claims or other encumbrances;
and
WHEREAS, the Selling Shareholders are willing to sell,
transfer and deliver all of their NSUS Shares to the Purchasers in
accordance with the terms and conditions as set forth herein; and
WHEREAS, the Purchasers are willing to acquire all of the NSUS
Shares owned by the Selling Shareholders in exchange for the cash
consideration and other obligations to be performed as more fully
described herein.
NOW, THEREFORE, in consideration of the mutual agreements,
covenants and conditions provided herein, the Parties agree as
follows:
ARTICLE I
RECITALS
1.1 Recitals. The Parties hereto agree that the above
recitals are true and correct and are incorporated by reference
herein.
ARTICLE II
DEFINITIONS
2.1 Definitions. As used in this Agreement and the Schedules
hereto, the following terms have the respective meanings set forth
below:
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly controls, is controlled by or is
under common control with the Person in question.
"Assets" shall mean all the business, assets, properties,
goodwill and rights of the Company as a going concern of every
nature, kind and description, tangible and intangible, wherever
located and whether or not carried or reflected on the books and
records of the Company (the "Assets"), including, without
limitation: (i) all right, title and interest in and to the
corporate names of the Company and all variations thereof; (ii)
cash-on-hand and cash in the bank accounts of the Company,
inclusive of cash equivalents, together with the bank account
records relating to all bank accounts of the Company; (iii) all
deposits and all cash, cash equivalents, marketable securities and
other assets (iv) all rights, title and interest in and to all
contracts, licenses or agreements to which the Company is a party
as of the date of this Agreement; (v) all accounts receivable,
checks, negotiable instruments and chattel paper, payable to, or
with respect to bearer instruments in the possession of the
Company; (vi) all inventory and supplies; (vii) all furniture,
fixtures, equipment and machinery; (viii) all leasehold interests
and improvements thereon; (ix) all books and records, files and
operating data relating to any business conducted by the Company;
(x) with respect to each insurance policy or fidelity bond on which
the Company is an insured, all rights of the Company, including the
right to receive any amounts recovered or recoverable from the
insurer after the date of this Agreement resulting from an
occurrence which took place on or prior to the date of this
Agreement and the right to receive any amounts recovered or
recoverable from the insurer after the date of this Agreement, with
respect to any loss resulting from a claim made on or prior to the
date of this Agreement, together with all insurance policies or
fidelity bonds of which the Company is the sole owner; (xi) all
claims, causes of actions, and suits which the Company has or may
have against third parties; and (xii) the business and operations
of the Company as a going concern. Assets do not include "Excluded
Assets," which are identified and set forth on Schedule 4.8 hereto.
"Closing" shall have the meaning as described in Section 3.2
hereof.
"Closing Date" shall have the meaning as described in Section
3.2 hereof.
"Closing Documents" shall mean to all other documents,
agreements, certificates and other instruments contemplated by this
Agreement to carry out and perform the transactions as set forth
herein.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means, with respect to each party,
(a) all information concerning the business and affairs of that
party, including financial information, business plans and
strategies, technology, proprietary information, know-how,
formulae, products, methods and operational information and
techniques, (b) any information that the appropriate party is
required by applicable law to preserve in confidence and (c) any
other information reasonably identified by a party to the other
party as confidential, but excluding (i) information known by the
other party or generally available or in the public domain, (ii)
information that was independently developed by the other party
without the use of the first party's Confidential Information and
(iii) information rightfully provided by a third party without
continuing restrictions on its use.
"Excluded Assets" are defined as those Assets that are
excluded from the transactions contemplated by this Agreement as
identified and set forth on Schedule 4.8 hereto.
"FINRA" means the Financial Industry Regulatory Authority and
the rules and regulations promulgated thereby.
"GAAP" means United States generally accepted accounting
principles, consistently applied.
"Governmental Agency" means any federal, state, local or
foreign government or any court of competent jurisdiction,
administrative agency or commission or other governmental authority
or instrumentality, domestic or foreign including but not limited
to the SEC, FINRA and the OTCBB.
"Irrevocable Stock Power" shall have the meaning as described
in Section 3.2 hereof.
"Material Adverse Effect" means a material adverse effect on
the business, assets, condition (financial or otherwise), results
of operations or prospects of a party to this Agreement or the
ability of a party to consummate the transactions contemplated by
this Agreement.
"NGCL" shall mean the Nevada General Corporation Law.
"NSUS Shareholders" are defined as those shareholders
identified on Schedule 4.6 who as of the Closing shall own 100% of
the NSUS Shares.
"NSUS Shares" shall mean shares of common stock that have been
issued by the Company and are outstanding on the Closing Date.
"OTCBB" means the Over the Counter Bulletin Board market
quotation system.
"Permitted Liens" shall have the meaning as described in
Section 4.8.
"Person" means an individual, any form of business enterprise,
including a corporation, limited liability company, partnership or
limited partnership, and any other legal entity or its
representative, including a trust, trustee, estate, custodian,
administrator, personal representative, nominee or any other entity
acting on its own behalf or in a representative capacity.
"Purchase Investigation" shall have the meaning as described
in Section 6.1.
"SEC" means the Securities and Exchange Commission.
"Seller Breach" shall have the meaning described in Section
3.6 hereof.
"Subsidiary" means each Person of which (a) a majority of the
voting power of the voting equity securities or equity interest is
owned, directly or indirectly, by such Person.
"Tax" or "Taxes" means federal, state, county, local, foreign
or other income, gross receipts, ad valorem, franchise, profits,
sales or use, transfer, registration, excise, utility,
environmental, communications, real or personal property, capital
stock, license, payroll, wage or other withholding, employment,
social security, severance, stamp, occupation, alternative or add-
on minimum, estimated and other taxes of any kind whatsoever
(including, without limitation, deficiencies, penalties, additions
to tax, and interest attributable thereto) whether disputed or not.
"Tax Return" means any return, information report or filing with
respect to Taxes, including any schedules attached thereto and
including any amendment thereof.
2.2 Construction. Whenever the context requires, the gender
of all words used in this Agreement includes the masculine,
feminine and neuter. Unless otherwise expressly provided herein,
all references to Articles, Sections and Schedules refer to
articles, sections and schedules of or to this Agreement. All
Schedules are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. The headings and
captions in this Agreement and the Schedules are for convenience
and identification only and are in no way intended to define, limit
or expand the scope and intent of this Agreement or any provision
hereof.
ARTICLE III
THE STOCK ACQUISITION
3.1 Purchase Price. The total purchase price for 70.67% of
the NSUS Shares shall equal the sum of $212,020 (the "Purchase
Price") and shall be paid by the Purchasers to the Selling
Shareholders in accordance with and subject to the terms and
conditions as set forth in this Article III.
3.2 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing"), will take place at the offices of
the Company, or at any alternative location designated by the
Parties hereto and shall take place five (5) days following the
conclusion of the Purchase Investigation as provided for in Section
6.1 of this Agreement or such earlier date as the Parties may agree
to ("Closing Date"). On the Closing Date, 800,000 NSUS Shares
representing approximately 70.67% of the total issued and
outstanding NSUS Shares shall be sold, transferred and delivered by
the Selling Shareholders to the Purchasers through duly executed
irrevocable stock powers with signature guarantees ("Irrevocable
Stock Power") in a form acceptable to the Purchasers. The NSUS
Shares to be delivered by the Selling Shareholders to the
Purchasers at the Closing shall be validly issued, non-assessable
and free and clear of any clams, liens or encumbrances of any kind.
3.3 The Stock Acquisition.
(a) Subject to the terms and conditions of this
Agreement including the Purchase Investigation as provided
for in Section 6.1 hereof, Purchasers shall, on or before the
Closing Date, deposit the sum of $212,020 with Manhattan
Transfer Registrar Company who the parties have agreed to
appoint as the escrow agent ("Escrow Agent") for the
transactions contemplated by this Agreement.
(b) The Parties acknowledge that the Purchasers have
previously deposited the sum of $10,000 ("Deposit") with the
Escrow Agent, which shall be applied towards the Purchase
Price at Closing provided that if the Closing does not occur
within the time as contemplated by this Agreement or unless
otherwise agreed upon by the Parties, the Deposit shall be
paid by the Escrow Agent to the Selling Shareholders or
retuned to the Purchasers as provided for in Section 3.6 of
this Agreement.
(c) On or before the Closing, the Selling Shareholders
agree and shall deposit duly executed Irrevocable Stock
Powers representing 800,000 NSUS Shares with the Escrow
Agent.
3.4 Cash Released From Escrow. Upon verification that Escrow
Agent is in receipt of Irrevocable Stock Powers from the Selling
Shareholders representing 800,000 NSUS Shares and upon all other
conditions of Closing as set forth in section 7.1 hereof having
been satisfied, Purchasers shall provide Escrow Agent with written
instructions to disburse cash proceeds representing the Purchase
Price to the Selling Shareholders.
3.5 NSUS Shares Released From Escrow. Upon verification that
Escrow Agent is in receipt of cash proceeds representing the
Purchase Price and upon all other conditions of Closing as set
forth in section 7.2 hereof having been satisfied, Selling
Shareholders shall provide Escrow Agent with written instructions
to transfer the 800,000 NSUS Shares to the Purchasers in respective
amounts as Purchasers have requested from the Escrow Agent. The
800,000 NSUS Shares to be transferred to the Purchasers shall be
subject to restrictions on transferability under applicable federal
and state securities laws and may not be resold or transferred by
the Purchasers in the absence of registration or an available
exemption therefrom.
3.6 Deposit Released From Escrow. At Closing and upon the
conditions set forth in sections 3.4 and 7.1 of this Agreement
having been satisfied, Purchasers shall instruct Escrow Agent to
release the Deposit to Selling Shareholders, which shall be
credited towards the Purchase Price. In the event that a Closing
does not take place within the time provided for in this Agreement
or within such other time period as the Parties may agree, as a
result of any misrepresentation or omission of fact made by either
the Company or the Selling Shareholders; or due to the failure by
the Company or the Selling Shareholders to proceed to Closing
(defined as a "Seller Breach"), then Escrow Agent shall be
authorized to return the Deposit to the Purchasers. Alternatively
and in the event that the Purchasers do not proceed to Closing for
any reason other than due to a Seller Breach, then Escrow Agent
shall be authorized to pay the Deposit to the Selling Shareholders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
COMPANY AND SELLING SHAREHOLDERS
Except as otherwise disclosed in the Schedules as attached
hereto, the Company and the Selling Shareholders hereby represent
and warrant to the Purchasers that the statements contained in this
Article IV are complete, true and accurate as of the date of this
Agreement and the Closing Date and shall survive the Closing Date
in accordance with Section 10.2 below.
4.1 Organization and Standing. The Company was duly
incorporated in the State of Nevada as a corporation, (b) is
validly existing and in good standing as a corporation under the
laws of the State of Nevada, (c) has full corporate power and
authority and possesses all governmental franchises, licenses,
permits, authorizations and approvals necessary to enable the
Company to own, lease or otherwise hold its properties and Assets
and to carry on its business as presently conducted and (d) is duly
qualified and in good standing to do business as a foreign
corporation in each jurisdiction in which the conduct or nature of
its business or the ownership, leasing or holding of its properties
makes such qualification necessary, except jurisdictions where the
failure to be so qualified or in good standing, individually or in
the aggregate, would not have a Material Adverse Effect.
4.2 Authority. The Company and the Selling Shareholders have
all requisite power and authority to enter into this Agreement and
the Closing Documents, to perform the obligations hereunder and to
consummate the transactions contemplated hereby. All corporate
acts and other proceedings required to be taken by the Company and
the Selling Shareholders to authorize the execution, delivery and
performance of this Agreement, the Closing Documents and the
consummation of the transactions contemplated hereby have been duly
and properly taken and/or will be undertaken by the Company and the
Selling Shareholders as of the Closing Date. This Agreement and
the Closing Documents have been duly executed and delivered by the
Company and the Selling Shareholders and constitutes the legal,
valid and binding obligation of the Company and the Selling
Shareholders and is enforceable against the Company and the Selling
Shareholders in accordance with its terms.
4.3 Licenses/Permits. The Company has all permits, licenses,
registrations and authorizations required by all necessary
Governmental Agencies for the conduct of its current business and
has fully complied with all Governmental Agencies and any other
industry, governmental, or self regulatory organizations required
by law for the conduct of its present businesses. The Company is a
public reporting company and has filed all reports required to be
filed by Section 12 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the
Company was required to file such reports) and has been subject to
such filing requirements for the past 90 days. In addition, the
Company is and has been a current filer of all reports it either
voluntarily or is obligated to file with the SEC and all other
Governmental Agencies.
4.4 No Conflicts; Consents. The execution and delivery of
this Agreement and the Closing Documents by the Company and the
Selling Shareholders does not, and the consummation of the
transactions contemplated hereby and compliance with the terms
hereof will not conflict with or result in any violation of, or
default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancellation, repurchase,
redemption or acceleration of any obligation or to the loss of a
material benefit to the Company or the Selling Shareholders under,
or to any increased, additional, accelerated or guaranteed rights
or entitlements of any Person other than the Company or the Selling
Shareholders, or result in the creation of any lien, claim,
encumbrance, security interest, option, charge or restriction of
any kind upon any of the Assets of the Company under any provision
of (a) the Articles of Incorporation, By-Laws or any amendments
thereto of the Company, (b) any note, bond, mortgage, indenture,
deed of trust, license, lease, contract, commitment, agreement or
arrangement to which the Company or the Selling Shareholders are a
party or by which any of Company's Assets is subject to or bound or
(c) any judgment, order or decree, or statute, law, ordinance, rule
or regulation applicable to the Company, its Assets or the Selling
Shareholders. Except as otherwise provided for in this Agreement
and as otherwise may be required by federal securities laws, no
consent, approval, license, permit, order or authorization of, or
registration, declaration or filing with, any Governmental Agency
is required to be obtained or made by or with respect to the
Company or the Selling Shareholders in connection with the
execution, delivery and performance of this Agreement and the
Closing Documents or the consummation of the transactions
contemplated hereby.
4.5 Books and Records. The Company has heretofore delivered
or made available for inspection to Purchasers, accurate and
complete copies of its Articles of Incorporation or By-Laws, each
as amended to date; its minute books; its shareholder certificate
ledger, current shareholder list and stock transfer books; and such
other tax returns, financial statements, reports and filings made
with all Governmental Agencies personnel records and all other
documents that Purchasers have requested in connection with the
Purchase Investigation. At the Closing, the Company shall provide
Purchasers with copies of all financial records including checks,
vendor invoices and other documents that support all financial
statements, whether audited or not, that have been filed by the
Company with any Governmental Agency and any other documents
(defined as "Company Documents") pertaining to the Company that
Purchasers may reasonably request.
4.6 Capitalization of the Company. The authorized capital
stock of the Company consists of 200,000,000 shares of common
stock, par value .001 per share ("NSUS Shares") of which 1,132,000
NSUS Shares are issued and outstanding on the date hereof. Each
Selling Shareholder is the beneficial owner of 400,000 NSUS Shares.
All of the outstanding NSUS Shares have been duly authorized and
validly issued and are fully paid and nonassessable. No NSUS Share
has been issued in violation of or is subject to any purchase
option, call, right of first refusal, preemptive, subscription or
similar rights under any provision of applicable law, the
Certificate of Incorporation or Bylaws of the Company or any
contract, agreement or instrument to which the Company is subject,
bound or a party or otherwise affected by. There are no
outstanding warrants, options, rights, "phantom" stock rights,
agreements, preferred, convertible or exchangeable securities or
other instruments or commitments (i) pursuant to which the Company
is or may become obligated to issue, sell, purchase, return or
redeem any NSUS Shares or other securities; or (ii) that give
Person the right to receive any benefits or rights similar to any
rights enjoyed by or accruing to the holders of NSUS Shares or
other interests of the Company. There are no outstanding bonds,
debentures, notes, other indebtedness or any other class or series
of securities having the right to vote on any matters on which the
shareholders of the Company may vote. Schedule 4.6 attached hereto
contains a full and complete list of all shareholders of the
Company as of the date hereof and which shall be adjusted, if
necessary, as of the Closing Date.
4.7 Financial Statements. Set forth in Schedule 4.7 attached
hereto are the following financial statements: audited balance
sheets and statements of income, changes in shareholders' equity
and cash flow as of and for the fiscal years ended December 31,
2006, December 31, 2007 and December 31, 2008 of the Company and
the unaudited balance sheet and statements of income as of March
31, 2009 of the Company (collectively, the "Financial Statements").
The Financial Statements (including the notes thereto) have all
been prepared in accordance with GAAP and applied on a consistent
basis throughout the periods covered thereby, present fairly the
financial condition of the Company as of such dates and the results
of operations of the Company for such periods, are correct and
complete, and are consistent with the books and records of the
Company which books and records are correct and complete, subject
to, in the case of the unaudited balance sheet and statements of
income as of March 31, 2009, the absence of notes and schedules and
normal year end adjustments.
4.8 Assets.
(a) The Company has good and valid title to all Assets
reflected on its Financial Statements or thereafter acquired,
except those sold or otherwise disposed of for fair value
since the dates of the Company's Financial Statements in the
ordinary course of business consistent with past practices and
not in violation of this Agreement, in each case free and
clear of all obligations, debts, liens, security interests or
encumbrances of any kind except (i) as set forth in Schedule
4.8, (ii) mechanics, material men, carriers, workmen,
repairmen or other like liens arising or incurred in the
ordinary course of business and being contested in good faith,
liens arising under original purchase price conditional sales
contracts and equipment leases with third parties entered into
in the ordinary course of business which are reflected on the
Financial Statements and liens for Taxes that are not due and
payable, (iii) mortgages, liens, security interests and
encumbrances that secure debt reflected as a liability on the
Company's Financial Statements and the existence of which is
indicated in the notes thereto and (iv) other imperfections of
title or encumbrances, if any, that do not, individually or in
the aggregate, materially impair the continued use and
operation of the Assets to which they relate to the business
of the Company as presently conducted (the mortgages, liens,
security interests, encumbrances and imperfections of title
described in clauses (ii), (iii) and (iv) above are
hereinafter referred to in this Article IV as "Permitted
Liens").
(b) All the material tangible personal property of the
Company has been maintained in all material respects in
accordance with good commercial practices. Each item of
material tangible personal property of the Company is in all
material respects in good operating condition and repair,
ordinary wear and tear excepted. All leased personal property
of the Company is in all material respects in the condition
required by the terms of the applicable lease during the term
of the lease and upon the expiration thereof.
(c) Schedule 4.8 sets forth a correct and complete list
of any real property owned and leased by the Company. The
Company has good and marketable title to, or valid leasehold
interests in, all of the properties listed on Schedule 4.8 and
all of such properties are held free and clear of all title
defects, liens, encumbrances and restrictions of any kind,
except Permitted Liens. To the best knowledge and belief of
the Company, no material improvements constituting a part of
any real property owned or leased by the Company encroaches on
real property not owned or leased by the Company to the extent
that removal of such encroachment would materially impair the
manner and extent of the current use, occupancy and operation
of such improvements. True, complete and correct copies of
all leases under which the Company leases any real property
have been made available to Purchasers (including any
supplements, amendments or side letters relating thereto) and
such leases are valid and in full force and effect in
accordance with their respective terms. All of the rental and
other payments payable under each such lease by the Company
are current, there is no default under such lease either by
the landlord or by the tenant thereunder, and no event has
occurred which, with the lapse of time or the giving of notice
or both, would constitute a default thereunder. There are
neither any actual, nor, to the best knowledge and belief of
Seller, any threatened or contemplated, condemnation or
eminent domain proceedings that affect any real property owned
or leased by either the Company or any part thereof, and the
Company has not received any notice from any Governmental
Agency of the intention of any public authority or other
entity to take or use all or any part thereof.
(d) Schedule 4.8 sets forth a correct and complete list
of Excluded Assets that the Selling Shareholders shall retain
ownership of following the Closing Date.
4.9 Absence of Undisclosed Liabilities. Except as set forth
on the Financial Statements for the Company or through Schedule
4.9 attached hereto and except for obligations or liabilities
which have arisen since the dates of the Financial Statements in
the ordinary course of business (none of which is a liability
resulting from a breach of contract, breach of warranty, tort,
infringement, claim or lawsuit), the Company has no debts
obligations or liabilities, contingent or otherwise. At or prior
to the Closing, the Company shall cause any and all of its debts,
obligations or liabilities, contingent or otherwise, whether or
not identified on the Financial Statements, to be fully paid,
satisfied or discharged and shall provide the Purchasers with
proof thereof.
4.10 Absence of Changes. Except as set forth in Schedule 4.10
attached hereto or as otherwise contemplated by this Agreement
there has not been any change in the Assets, liabilities,
financial condition or operations of the Company from that
reflected in the Financial Statements, therefore, except changes
in the ordinary course of business that have not resulted, either
individually or in the aggregate, in a Material Adverse Effect.
Except as set forth in Schedule 4.10 or as contemplated by this
Agreement, since March 31, 2009 there has not been: (a) any
extraordinary damage, destruction or loss, whether or not covered
by insurance; (b) any waiver or compromise by the Company of a
valuable right or of a material debt owed to it; (c) any loans or
guarantees made by the Company to or for the benefit of its
shareholders, employees, officers or directors or any shareholder
of their immediate families other than advances made in the
ordinary course of business; (d) any satisfaction or discharge of
any lien, claim or encumbrance or payment of any obligation by the
Company, except in the ordinary course of business; (e) any
material or adverse change or amendment to a Material Contract;
(f) any new hire or resignation or termination of employment of
any key employee or any material change in any compensation
arrangement or other employment terms of any key employee; (g) any
sale, disposition, assignment or transfer of any of the Company's
Assets or properties of the Company except in the ordinary course
of business; (h) any security interest created by the Company,
with respect to any of its respective material properties or
Assets, except statutory liens for taxes not yet due or payable;
(i) any declaration, setting aside or payment or other
distribution in respect of any of the NSUS Shares of the Company,
or any direct or indirect redemption, purchase or other
acquisition of any such NSUS Shares by the Company; (j) any
borrowing of any amount or incurrence or subjection to any
material liabilities, except current liabilities incurred in the
ordinary course of business and liabilities under contracts
entered into in the ordinary course of business; (k) any issuance
of any notes, bonds or other debt securities or any NSUS Shares or
other equity securities or any securities convertible,
exchangeable or exercisable into any NSUS Shares or other equity
securities; (l) any investment in any other entity or steps taken
to incorporate any Subsidiary; (m) any capital expenditures or
commitments therefor; (n) any material change in the accounting
methods, principles or practices used by the Company, (o) any
other material transaction other than in the ordinary course of
business; or (p) any other event or condition that might
reasonably be expected to have a Material Adverse Effect.
4.11 Taxes. Except as set forth on Schedule 4.11, the Company
has filed or obtained presently effective extensions with respect
to all federal, state, county, local and foreign tax returns which
are required to be filed, such returns are complete and accurate
in all material respects and have been prepared in compliance with
all applicable laws and regulations in all material respects. The
Company in all material respects has paid all Taxes due and owing
by it (whether or not such Taxes are shown on a Tax Return) and
have withheld and paid over to the appropriate taxing authority
all Taxes which they are required to withhold from amounts paid or
owing to any employee, shareholder, creditor or other third party.
No Tax Return is now under audit or examination by any foreign,
federal, state or local authority and there are no agreements,
waivers or other arrangements providing for an extension of time
with respect to the assessment or collection of any Tax or
deficiency of any nature against the Company, or with respect to
any of the Tax Returns, or any suits or other actions,
proceedings, investigations or claims now pending or, to the
Company's knowledge, threatened against the Company with respect
to any Tax. The Company has not waived any statute of limitations
with respect to any Taxes; the accrual for Taxes on the Financial
Statements would be adequate to pay all Tax liabilities of the
Company through the date of this Agreement; since the date of the
Financial Statements, the Company has not incurred any liability
for Taxes other than in the ordinary course of business; the
assessment of any additional Taxes for periods for which Tax
Returns have been filed by the Company shall not exceed the
recorded liability therefor on the Financial Statements (excluding
any amount recorded which is attributable solely to timing
differences between book and Tax income). The Company has
delivered to Purchasers true and correct copies of its Federal
income tax returns of the Company for each of the last three (3)
years, together with copies of all amendments, if any, thereto.
4.12 Intellectual Property. Schedule 4.12 sets forth a true
and complete list of (a) all patents and patent applications,
including the status, registration or application numbers thereof,
(b) all trademarks (registered or unregistered), including a list
of all jurisdictions in which they are registered or applied for
and all registration and application numbers thereof, (c) all
service marks and copyrights and applications therefor and (d) all
other material intellectual property and proprietary rights,
whether or not subject to statutory registration or protection
(collectively, "the Company's Intellectual Property"), owned, used,
filed by or licensed to the Company. Except as set forth in
Schedule 4.12, the Company owns and has the right to use, execute,
reproduce, display, perform, modify, enhance, distribute, prepare
derivative works of and sublicense, without payment to any other
person, all the Company's Intellectual Property, and the
consummation of the transactions contemplated hereby will not
conflict with, alter or impair any of those rights. The Company
has not granted any options, licenses or agreements of any kind
relating to the Company's Intellectual Property or the marketing or
distribution thereof, except for nonexclusive licenses to end users
in the ordinary course of business or as otherwise indicated in
Schedule 4.12. Except as set forth in Schedule 4.12, the Company
is not bound by or a party to any options, licenses or agreements
of any kind relating to the Company's Intellectual Property.
Subject to the rights of third parties set forth in Schedule 4.12,
all the Company's Intellectual Property is free and clear of any
third party claims and all liens, security interests and
encumbrances whatsoever, other than Permitted Liens. To the
knowledge of the Company, the conduct of the business of the
Company as presently conducted does not violate, conflict with or
infringe the intellectual property rights of any other Person.
Except as set forth in Schedule 4.14, (i) no claims are pending or,
to the knowledge of the Company, threatened, against the Company by
any Person with respect to the ownership, validity, enforceability,
effectiveness or use of any the Company's Intellectual Property and
(ii) since its inception, the Company has not received any
communications alleging that it has violated any rights relating
thereto.
4.13 Contracts.
(a) Schedule 4.13 sets forth a correct and complete list
of all material contracts to which the Company is a party.
Except as set forth in Schedule 4.13 hereof, the Company is
not a party to or bound by any of the following:
(i) any employment or consulting agreement that is
not terminable by the Company at will without liability;
(ii) covenant of the Company not to compete or
otherwise restricting the operations of the Company;
(iii) agreement, contract or other arrangement with
any current or former officer, director or employee of
the Company or any Affiliate thereof other than
employment and consulting agreements contemplated by
clause (i) above;
(iv) lease or similar agreement with any person
under which (A) the Company is lessee of or holds or uses
any machinery, equipment, vehicle or other tangible
personal property owned by any other Person or (B) the
Company is a lessor or sublessor of, or makes available
for use by any other Person, any tangible personal
property owned or leased by either the Company, which in
any case or in the aggregate have a total future
liability or receivable, as the case may be, in excess of
$5,000;
(v) (A) a continuing contract for the future
purchase of materials, supplies or equipment, (B)
management, service, consulting, or other similar type of
contract or (C) advertising agreement or arrangement,
which in any case or in the aggregate have a total future
liability in excess of $5,000;
(vi) material license, option or other agreement
including any license or other agreement under which
either the Company is a licensee or licensor thereof that
relates, in whole or in part, to any trade secrets,
confidential information or other proprietary rights and
processes of the Company;
(vii) agreement, contract or other instrument under
which either the Company has borrowed any money from, or
issued any note, bond, debenture or other evidence of
indebtedness to, any other Person that is in excess of
$5,000 in the aggregate;
(viii) agreement, contract or other instrument under
which (A) any Person has directly or indirectly
guaranteed indebtedness, liabilities or obligations of
the Company or (B) either the Company has directly or
indirectly guaranteed indebtedness, liabilities or
obligations of any other Person;
(ix) agreement, contract or other instrument under
which either the Company has, directly or indirectly,
made any advance, loan, extension of credit or capital
contribution to, or other investment in, any other
Person;
(x) agreement, contract or other instrument
providing for indemnification of any Person with respect
to liabilities relating to any current or former business
of either the Company; or
(xi) other agreement, contract or other instrument
to which the Company is a party to or by or which it or
any of its Assets or business is bound.
(b) Except as set forth in Schedule 4.13, all
agreements, contracts or other instruments of the Company
listed or required to be listed in the Schedules hereto
(collectively, the "Material Contracts") are valid, binding
and in full force and effect and are enforceable by the
Company in accordance with their terms. Except as set forth
in Schedule 4.13, the Company has performed all material
obligations required to be performed by it to date under the
Material Contracts and is not in breach or default in any
material respect thereunder (with or without the lapse of time
or the giving of notice, or both) nor has any other party to
any of the Material Contracts notified the Company of that
party's belief that either the Company is or is likely to
become in breach or default in any material respect thereunder
or of that party's intention to accelerate or modify in a
manner adverse to the Company any of its obligations or rights
thereunder and, to the knowledge of the Company, no other
party to any of the Material Contracts is in breach or default
in any material respect thereunder (with or without the lapse
of time or the giving of notice, or both).
(c) At or prior to the Closing and as a condition of the
Purchasers' obligations to consummate the transactions
contemplated by this Agreement, the Company shall have
terminated the following material contracts without incurring
any liabilities from the affected third parties to the
respective material contracts and shall provide sufficient
evidence of such termination to Purchasers:
(i) Employment Agreement dated January 1, 2007,
between the Company and Russell R. Desjourdy.
4.14 Litigation. Schedule 4.14 sets forth a list of all
pending and threatened lawsuits, arbitration proceedings or claims
against or that affect the Company, any of its properties, Assets,
operations or business or the Selling Shareholders. None of the
lawsuits or claims listed on Schedule 4.14 could reasonably be
expected to have a determination which could have, if so
determined, individually or in the aggregate, a Material Adverse
Effect, (ii) neither the Company nor the Selling Shareholders are a
party or subject to or in default under any judgment, order,
injunction or decree of any Governmental Agency including the SEC
or arbitration tribunal applicable to it or any of their
properties, the Assets, operations or business, (iii) there is no
lawsuit, arbitration proceeding or claim by the Company or the
Selling Shareholders pending, or which the Company or the Selling
Shareholders intend to initiate, against any other Person and (iv)
to the knowledge of the Company and the Selling Shareholders, there
is no pending or threatened action against, investigation of or
that relates to the Company or the Selling Shareholders by any
Governmental Agency.
4.15 Insurance. The Company maintains policies of fire and
casualty, liability, workman's compensation, surety bonds and other
forms of insurance in amounts, with deductibles and against risks
and losses that are commercially reasonable for the business and
Assets of the Company and which are required by all Governmental
Agencies as a result of the business that the Company is engaged
in. The insurance policies maintained with respect to the Company
and their Assets and properties are listed on Schedule 4.15.
Except as set forth in Schedule 4.15, all of the policies listed
therein are in full force and effect, all premiums due and payable
thereon have been paid (other than retroactive or retrospective
premium adjustments that are not yet, but may be, required to be
paid with respect to any period ending prior to the effective date
under comprehensive general liability and workmen's compensation
insurance policies), and no notice of cancellation or termination
has been received with respect thereto. To the knowledge of the
Company, its activities and operations have been conducted in a
manner conforming in all material respects to all applicable
provisions of its insurance policies.
4.16 Employees and Employee Benefit Matters.
(a) Schedule 4.16 attached hereto identifies all
deferred or incentive compensation agreements, bonus plans,
incentive plans, profit sharing plans, retirement, vacation,
sick leave, hospitalization, termination, severance
agreements, employee benefit plans subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
other employee compensation agreements, written or oral and
other material fringe benefit plans sponsored, maintained or
contributed to or by the Company or with respect to which the
Company has any liability (the "Plans"). None of the Plans
are subject to Title IV of ERISA nor provide for medical or
life insurance benefits to retired or former employees of the
Company (other than as required under Code Section 4980B).
The Company is not a participating or contributing employer in
any "multiemployer plan" (as defined in Section 3(37) of
ERISA) with respect to employees of the Company nor has the
Company incurred any withdrawal liability with respect to any
multiemployer plan or any liability in connection with the
termination or reorganization of any multiemployer plan.
Except as listed on Schedule 4.16, the Company does not
maintain, contribute to or have any liability under (or with
respect to) any employee plan which is a tax-qualified
"defined benefit plan" (as defined in Section 3(35) of ERISA),
whether or not terminated and whether or not tax qualified.
Except as listed on Schedule 4.16, the Company does not
maintain, contribute to or have any liability under (or with
respect to) any employee plan which is a tax-qualified
"defined contribution plan" (as defined in Section 3(34) of
ERISA), whether or not terminated.
(b) The Company does not have any collective bargaining
agreements with any of its employees. There is no labor union
organizing activity pending or, to the knowledge of the
Company, threatened with respect to the business of the
Company. There are no threatened or actual strikes or work
stoppages or grievances pending against the Company. Subject
to applicable law and the terms and conditions of employment
agreements which are included in the Material Contracts, the
employment of each officer and employee of the Company are
terminable at will unless otherwise disclosed on Schedule
4.13. The Company has complied in all material respects with
all laws relating to the employment of labor (including,
without limitation, provisions thereof relating to wages,
hours, equal opportunity, collective bargaining and the
payment of social security and other taxes), and the Company
is not aware that it has any material labor relations problems
(including, without limitation, any union organization
activities, threatened or actual strikes or work stoppages or
material grievances). No employee of the Company is subject
to any noncompete, nondisclosure, confidentiality, employment,
consulting or similar agreements relating to, affecting or in
conflict with the present business activities of the Company,
except for agreements between the Company and its present and
former employees.
(c) The Plans and all related trusts, insurance
contracts and funds have been maintained, funded and
administered in compliance in all material respects with their
terms and the applicable provisions of ERISA, the Code and
other applicable laws. No actions, suits, investigations,
hearings, proceedings or claims with respect to the assets of
the Plans (other than routine claims for benefits) are pending
or threatened against the Plans or the Company.
All contributions, premiums, reimbursements or payments
under or with respect to each Plan which are due on or before
the Closing Date shall be paid and following the Closing, the
Company shall have no further responsibility or obligation to
contribute or pay any amounts to any Plan for its former
employees including, but not limited to the SEP/IRA account
maintained by or for the benefit of Russell R. Desjourdy.
(d) The Company has not incurred and has no reason to
expect that it will incur, any liability to the Pension
Benefit Guaranty Corporation (other than premium payments) or
otherwise under Title IV of ERISA (including any withdrawal
liability) or under the Code with respect to any employee
pension benefit plan that the Company or any other entity
together is treated as a single employer under Section 414 of
the Code, maintains or ever has maintained or to which any of
them contributes, ever has contributed, or ever has been
required to contribute.
(e) Each individual who has received compensation for
the performance of services on behalf of the Company has been
properly classified as an employee or independent contractor
in accordance with applicable laws. Schedule 4.16 identifies
the names and addresses of each employee of the Company as
well as the compensation each employee currently receives from
the Company.
(f) The Company has made available to Purchasers true
and complete copies of all material documents pursuant to
which the Plans are maintained, funded and administered and
the most recent annual reports for the Plans and all related
governmental rulings, determinations and opinions and all
requests for such items.
4.17 Compliance with Applicable Laws. Except as set forth on
Schedule 4.17, the Company is in compliance in all material
respects with all applicable statutes, laws, ordinances, rules,
orders and regulations of any Governmental Agency applicable to its
business and operations, including those relating to occupational
health and safety (for purposes of this Section 4.17, "Applicable
Laws"). Except as set forth in Schedule 4.17, the Company has not
received any communication since its inception from a Governmental
Agency that alleges its failure to comply in any material respect
with any Applicable Laws.
4.18 Disclosure. No representation or warranty of the
Company or the Selling Shareholders as contained in this Agreement,
no statement contained in any document, certificate, exhibit or
Schedule and no data provided prior to the date of this Agreement
furnished or to be furnished by or on behalf of the Company or the
Selling Shareholders to Purchasers or any of their representatives
pursuant to this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any
material fact necessary, in light of the circumstances under which
it was or will be made, in order to make the statements herein or
therein not misleading or necessary to fully and fairly provide the
information required to be provided therein.
4.19 Transactions with Affiliates. Except as set forth in
Schedule 4.19 hereto, and to the best knowledge and belief of the
Company, no shareholder, officer or director of the Company, or any
person with whom any such shareholder, officer or director has any
direct or indirect relation by blood, marriage or adoption, or any
entity in which any of such person, owns any beneficial interest
(other than a publicly-held corporation whose stock is traded on a
national securities exchange or in the over-the-counter market) has
any interest in (i) any contract, arrangement or understanding
with, or relating to, the business or operations of the Company,
(ii) any loan, arrangement, understanding, agreement or contract
for or relating to any indebtedness with the Company, or (iii) any
properties or Assets, tangible or intangible, used or currently
intended to be used in, the business or operations of the Company.
4.20 Survival of Representations and Warranties. The
representations and warranties of the Company and Selling
Shareholders set forth in Article IV of this Agreement shall
survive the Closing Date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as otherwise disclosed herein, the Purchasers hereby
represent and warrant to the Company and the Selling Shareholders
that the statements contained in this Article V are complete, true
and accurate as of the date of this Agreement and the Closing Date
and shall survive the Closing.
5.1 Authority. Purchasers have all requisite power and
authority to enter into this Agreement, to perform the obligations
hereunder and to consummate the transactions contemplated hereby.
All acts and other proceedings required to be taken by Purchasers
to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby have been duly and properly taken. This Agreement has been
duly executed and delivered by the Purchasers and constitutes the
legal, valid and binding obligation of Purchasers, enforceable
against Purchasers in accordance with its terms.
5.2 No Conflicts; Consents. The execution and delivery of
this Agreement by Purchasers does not, and the consummation of the
transactions contemplated hereby and compliance with the terms
hereof will not conflict with or result in any violation of or a
default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancellation, repurchase,
redemption or acceleration of any obligation or loss of a material
benefit to the Purchasers under, or to any increased, additional,
accelerated or guaranteed rights or entitlements of any person
other than Purchasers under, or result in the creation of any lien,
claim, encumbrance, security interest, option, charge or
restriction of any kind upon any of the properties or assets of the
Purchasers under any provision of (a) any note, bond, mortgage,
indenture, deed of trust, license, lease, contract, commitment,
agreement or arrangement to which the Purchasers are a party or by
which any of their properties or assets are bound or (b) any
judgment, order or decree, or statute, law, ordinance, rule or
regulation applicable to Purchasers or their properties or assets.
Except as otherwise provided for in this Agreement or the Schedules
attached hereto, no consent, approval, license, permit, order or
authorization of, or registration, declaration or filing with, any
Governmental Agency is required to be obtained or made by or with
respect to the Purchasers in connection with the execution,
delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby or following the Closing Date
except to report on Form 8-K with the SEC a change of control, new
management and other material items that will affect the Company
after Closing.
5.3 Investment. The Purchasers are acquiring the NSUS
Shares for their own accounts for investment and not with a view
to, or for sale in connection with, any distribution thereof, nor
with any present intention of distributing or selling the same.
The Purchasers understand that the NSUS Shares have not been
registered under the Securities Act by reason of a specific
exemption from the registration provisions thereof which depends
upon, among other things, the bona fide nature of their investment
intent as expressed herein. The Purchasers will not transfer the
NSUS Shares except in compliance with applicable securities laws.
ARTICLE VI
COVENANTS PRIOR TO CLOSINGS
6.1 Purchase Investigation.
(a) From the date of this Agreement until the Closing
Date, the Company and the Selling Shareholders shall provide
the Purchasers and their representatives, consultants, counsel
and accountants (for purposes of this Section 6.1,
"Representatives"), upon request, access to the Company's
personnel, properties, offices, books and records and promptly
provide the Purchasers and their Representatives all available
financial and operating data and other information and
assistance with respect to the Company's business and
properties as may be requested from time to time by the
Purchasers and their Representatives ("Purchase
Investigation"). Without limiting the foregoing, the Company
and the Selling Shareholders shall cooperate with the
Purchasers and their Representatives in their review of the
business and operations of the Company and permit them to
discuss the procedures and review the work papers used by the
Company and its accountants in the preparation of its
financial statements and filings with Governmental Agencies
including filings made with the SEC since the Company's
inception.
(b) Until the Closing Date, the Company and the Selling
Shareholders shall have the continuing obligation to
supplement or amend the Schedules referenced in this Agreement
with respect to any matter hereafter arising or discovered
that, if existing or known on the date of this Agreement,
would have been required to be set forth or described in the
Schedules.
(c) Each party shall promptly notify the other party of,
and furnish any information the other party may reasonably
request with respect to, the occurrence of any event or
condition or the existence to its knowledge of any fact that
would cause any of the conditions to the other party's
obligation to consummate the transactions contemplated hereby
to be unfulfilled.
6.2 Conduct of Business Pending the Stock Acquisition
(a) From the date of this Agreement and until the
Closing Date, the Company will conduct its operations in the
ordinary course of business in a manner consistent with its
past practices.
(b) The Company will not (i) amend its Articles of
Incorporation or By-Laws, (ii) declare or pay any dividend or
make any other distribution to its shareholders upon any of
NSUS Shares, (iii) redeem or otherwise acquire any NSUS Shares
or issue or amend any NSUS Shares or any option, warrant or
right relating thereto or any securities convertible into or
exchangeable for any NSUS Shares, (iv) adopt or amend in any
respect any Benefit Plan or collective bargaining agreement,
except as required by law after providing written notice to
Purchasers, (v) grant to any officer, director, employee or
independent contractor any increase in compensation or
benefits, except as may be required under existing agreements
or as approved by the Purchasers, (vi) incur or assume any
liabilities, obligations or indebtedness, in each case for
borrowed money, or guarantee any liabilities, obligations or
indebtedness, (vii) permit, allow or suffer any of its Assets
to become subject to any mortgage, lien, security interest,
encumbrance or other similar restriction of any nature, (viii)
waive any claims or rights of value, (ix) pay, loan or advance
any amount to, or sell, transfer or lease any of its Assets
to, or enter into any agreement or arrangement with, any of
its Affiliates, (x) make any change in any method of
accounting or accounting practice or policy, (xi) acquire by
merging or consolidating with, or by purchasing a substantial
portion of the Assets of, or by any other means, any business
or any corporation, partnership, association or other business
organization or division thereof or otherwise acquire any
Assets for an aggregate purchase price in excess of $5,000,
(xii) make or incur any capital expenditure that individually
or in the aggregate are in excess of $5,000, (xiii) sell,
lease, license or otherwise dispose of any of its Assets or
enter into any lease of real property, except any renewals of
existing leases on market terms in the ordinary course of
business, (xv) enter into or amend or supplement any Material
Contract or (xvi) or agree, whether in writing or otherwise,
to do any of the foregoing.
6.3 Confidentiality. The Parties (a) acknowledge that the
transactions contemplated by this Agreement will require them to
share Confidential Information and (b) agree that, if the Stock
Acquisition, as contemplated by Article III, is not consummated
within the time prescribed for in this Agreement or within such
other time as may be agreed upon between the Parties, then each
party will (i) hold the other party's Confidential Information in
strict confidence, (ii) not copy the other party's Confidential
Information or disclose any portion thereof to any third party
without the prior written consent of the other party, (iii) not
make any use of the other party's Confidential Information except
for the sole purpose of performing its Purchase Investigation
hereunder and (iv) immediately return to the other party or
destroy, as the other party may direct, all tangible records
embodying the other party's Confidential Information in its
possession, custody or control upon any termination of this
Agreement.
6.4 Further Cooperation. At the request of any party hereto
either before or after the Closing Date, each party shall take all
actions and deliver all documents reasonably necessary or
appropriate to carry out the terms and provisions of this Agreement
including but not limited to the delivery of all Company Documents
by the Company and the Selling Shareholders to the Purchasers as
contemplated by section 4.5 of this Agreement. Each of the Parties
will use all reasonable efforts to obtain any necessary waivers,
consents and approvals from all Governmental Agencies and effect
all necessary filings and take all actions necessary or appropriate
to consummate the transactions contemplated by this Agreement.
6.5 Notice of Developments. Each party will give prompt
written notice to the others of any material adverse development
causing a breach of any of its own representations and warranties
set forth herein or the occurrence of a Material Adverse Event
(financial or otherwise) with respect to any Asset, the Company or
its business. No disclosure by any party pursuant to this Section
6.5, however, shall be deemed to amend or supplement any Schedules
hereto or to prevent or cure any misrepresentation, breach of
warranty, or breach of any covenant.
6.6 Exclusivity. From the date of this Agreement until the
Closing Data, unless this Agreement is earlier terminated in
accordance with Article VIII hereof, the Company and the Selling
Shareholders will not (and will not cause or permit any third party
to): (A) solicit, initiate, or encourage the submission of any
proposal or offer from any person or entity relating to the
acquisition of any NSUS Shares or other voting securities of the
Company; or (B) participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or
attempt by any person or entity to do or seek any of the foregoing.
The Company and the Selling Shareholders will notify the Purchasers
immediately if any third party makes any proposal, offer, inquiry,
or contact with respect to any of the foregoing.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Purchasers' Obligations. In addition to
the conditions set forth in Article III hereof being satisfied, the
obligation of Purchasers to effect the Stock Acquisition, as
contemplated hereby, are subject to the satisfaction or the written
waiver of the following conditions:
(a) No statute, rule, regulation, executive order,
denial, decree, temporary restraining order, preliminary or
permanent injunction or other order enacted, entered,
promulgated, enforced or issued by any Governmental Agency or
other legal restraint or prohibition preventing the
transaction contemplated by the Agreement from being completed
shall be in effect.
(b) The Company and the Selling Shareholders shall have
performed or complied in all material respects with all
obligations and covenants required by this Agreement to be
performed or complied with by them either separately or
collectively.
(c) The representations and warranties of the Company
and the Selling Shareholders made in this Agreement shall be
true and correct in all material respects as of the Closing
Date though made as of that time, except to the extent they
expressly relate to an earlier date, in which case they shall
be true and correct in all material respects on and as of that
earlier date.
(d) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction or Governmental Agency or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree,
award, ruling, or charge would: (1) prevent consummation of
any of the transactions contemplated by this Agreement, (2)
cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, (3) if true, make any
of the representations or warranties set forth in Article IV,
not true or not correct; or (4) have a Material Adverse Effect
on the right of the Purchasers to control and operate the
Company.
(e) On the Closing Date, all of the officers and
directors of the Company shall have resigned from their
respective offices and positions and copies of such
resignations will be provided to the Purchasers.
(f) On the Closing Date, the Employment Agreement dated
January 1, 2007, between the Company and Russell R. Desjourdy
shall be voluntarily terminated by Mr. Desjourdy and
satisfactory evidence of such termination shall be provided to
the Purchasers; Mr. Desjourdy shall also execute a General
Release in favor of the Company in the form attached hereto as
Schedule 7.1(f).
(g) On the Closing Date, the Company and the Selling
Shareholders shall have delivered copies of all Company
Documents to the Purchasers as contemplated by section 4.5 of
this Agreement.
(h) At the Closing, the Purchasers shall have received
written instructions from the Escrow Agent that it has
received and is in possession of executed Irrevocable Stock
Powers representing 100% of the NSUS Shares from all
shareholders of the Company who are identified on Schedule 4.6
of this Agreement.
(i) At the Closing, the Company and the Selling
Shareholders shall deliver satisfactory documentation to the
Purchasers that all debts, obligations or liabilities,
contingent or otherwise, of the Company have been fully paid,
satisfied or discharged as contemplated by section 4.9 of this
Agreement.
(j) At the Closing, the Company shall deliver an Opinion
of Counsel in form and substance acceptable to Purchasers as
to such matters that Purchasers may reasonably require
including but not limited to the validity of the Company's
formation, its authority to enter into this Agreement and the
validity of the Company's capitalization and issuance of the
NSUS Shares.
(k) The Company shall have delivered to Purchasers
certificates dated as of the Closing Date and signed by an
authorized officer for the Company together with the Selling
Shareholders individually confirming that the conditions of
paragraphs (a) (b), (c), (d), (e), (f), (g), (h), (i) and (j)
of this Section 7.1 have been satisfied.
(l) All actions to be taken by the Company and Selling
Shareholders in connection with consummation of the
transactions contemplated hereby and all certificates,
instruments, and other documents required to effect the
transactions contemplated hereby will be satisfactory in form
and substance to Purchasers.
7.2 Conditions to the Obligations of the Company and Selling
Shareholders. In addition to the conditions set forth in Article
III hereof being satisfied, the obligations of the Company and the
Selling Shareholders to effect the transactions contemplated hereby
are subject to the satisfaction or the written waiver of the
following conditions:
(a) Purchasers shall have performed or complied in all
material respects with all obligations and covenants required
by this Agreement to be performed or complied with by the
Purchasers.
(b) The representations and warranties of the Purchasers
made in this Agreement shall be true and correct in all
material respects as of the Closing Date, except to the extent
they expressly relate to an earlier date, in which case they
shall be true and correct in all material respects on and as
of that earlier date.
(c) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction or Governmental Agency or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree,
award, ruling, or charge would: (1) prevent consummation of
any of the transactions contemplated by this Agreement, or (2)
cause any of the transactions contemplated by this Agreement
to be rescinded following consummation.
(d) Purchasers shall file with relevant Governmental
Agencies all required filings necessary to meet federal
securities laws.
(e) Purchasers shall have delivered to the Company and
the Selling Shareholders certificates dated as of the Closing
Date confirming that the conditions of paragraphs (a), (b) and
(c) of this section have been satisfied.
ARTICLE VIII
TERMINATION
The Parties may mutually terminate this Agreement in writing
and may also terminate this Agreement for the following reasons:
8.1 Purchase Investigation Termination. If, for any reason
whatsoever, the Purchasers are not satisfied with the results of
the Purchase Investigation relating to the Company, the Purchasers
may terminate this Agreement by giving written notice to the
Company on or before the twentieth (20th) day after the date of this
Agreement (the "Purchase Investigation Period"); provided, however,
that if the Company or the Selling Shareholders do not comply with
their obligations under this Section 8.1, then the Purchase
Investigation Period shall be extended to the twentieth (20th) day
after the date the Company and the Selling Shareholders comply, in
all respects, with their obligations hereunder. Any extension of
the Purchase Investigation Period, however, shall not be deemed to
relieve the Company or the Selling Shareholders from their
obligations or liabilities on account of their non-compliance.
8.2 Purchasers' Termination Generally. Purchasers may
terminate this Agreement by giving written notice to the Company at
any time prior to the Closing, in the event the Company or the
Selling Shareholders has breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect and Purchasers have provided the Company and the Selling
Shareholders with ten (10) days written notice of such breach and
the breach has not been cured within the notice period.
8.3 Company Termination Generally. The Company or the Selling
Shareholders may terminate this Agreement by giving written notice
to the Purchasers at any time prior to the Closing, in the event
the Purchasers have breached any material representation, warranty,
or covenant contained in this Agreement in any material respect and
the Company, the Selling Shareholders have provided Purchasers with
ten (10) days written notice of such breach and the breach has not
been cured within the notice period.
8.4 Effect of Termination. If a party terminates this
Agreement pursuant to this Article VIII, all rights and obligations
of the parties hereunder shall terminate without any liability of
any party to the other party, except for any liability of a party
then in breach or as otherwise provided for in this Agreement.
ARTICLE IX
INDEMNIFICATION
9.1 The Company and Selling Shareholders, jointly and
severally, shall indemnify and hold Purchasers, their
representatives and assigns, collectively and individually (the
"Purchaser Indemnified Parties") harmless from any and all losses,
claims, liabilities, damages, obligations, liens, encumbrances,
costs and expenses, including reasonable attorney fees,
arbitration, appellate, and court costs, that now exist or may
hereafter arise or be asserted against or suffered by any of the
Purchaser Indemnified Parties, collectively or individually, from
time to time, as a result of: (A) any false or incomplete statement
by the Company or the Selling Shareholders, or any noncompliance or
breach by the Company or the Selling Shareholders, with respect to
any of the terms, covenants, warranties or representations of this
Agreement or the Schedules attached hereto; or (B) the Company's
ownership of the Assets and operation of its business prior to the
Closing Date; or (C) any warranty obligations or other liabilities
or obligations of the Company or the Selling Shareholders satisfied
by Purchasers (provided that this section shall not be deemed to
require Purchasers to satisfy any of the Company or the Selling
Shareholders warranty obligations or other liabilities in any
event).
9.2 Purchasers shall indemnify and hold the Company and the
Selling Shareholders, collectively and individually (the "Company
Indemnified Parties") harmless from any and all losses, claims,
liabilities, damages, obligations, liens, encumbrances, costs and
expenses, including reasonable attorney fees, arbitration and
appellate, and court costs, that now exist or may hereafter arise
or be asserted against or suffered by the Company Indemnified
Parties, collectively or individually as a result of: (A) any false
or incomplete statement by Purchasers, or any non-compliance or
breach by Purchasers with respect to any of the terms, covenants,
warranties or representations of this Agreement or any Schedule
attached hereto; or (B) operation of the business of the Company
after the Closing Date.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Successors and Assigns. The provisions of this Agreement
shall inure to the benefit of, and be binding upon, the permitted
successors, assigns, heirs, executors and administrators of the
parties to this Agreement. The Company and the Selling
Shareholders either separately or collectively may not assign or
transfer any right, duty or obligation under this Agreement.
Purchasers, however, without the consent of the Company or the
Selling Shareholders may assign their rights, duties and
obligations under this Agreement to any Person whether controlled
by Purchasers or not provided that such assignee agrees to assume
the Purchasers' responsibilities and obligations arising under this
Agreement.
10.2 Survival. Notwithstanding any investigation made by the
Purchasers, each of the representations and warranties made by the
Parties herein shall survive the Closing Date for a period of two
years. All covenants made herein shall survive the execution and
delivery of this Agreement and the Closing Date for a period of two
years unless otherwise specified herein.
10.3 Expenses. Each party will bear its own expenses and
costs of the transactions contemplated hereby, including, but not
limited to, the fees of attorneys, consultants and financial
advisors.
10.4 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
10.5 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the internal laws of
the State of Nevada (without reference to the conflicts of law
provisions thereof).
10.6 Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall
be deemed delivered (i) three (3) business days after being sent by
registered or certified mail, return receipt requested, postage
prepaid, (ii) one (1) business day after being sent via a reputable
nationwide overnight courier service guaranteeing next business day
delivery, (iii) via facsimile, or (iv) by e-mail transmission, in
each case to the intended recipient as set forth below:
If to the Company:
NASUS Consulting, Inc.
83 Fisher Street
Millville, Massachusetts 01504
Telephone: (508) 883-6803
Facsimile: (508) 883-6812
If to Selling Shareholders:
Russell R. Desjourdy
83 Fisher Street
Millville, Massachusetts 01504
Telephone: (508) 883-6803
Facsimile: (508) 883-6812
Lynne Desjourdy
25 Eastmount Road
Medfield, Massachusetts 02052-2710
Telephone: (508) 359-5722
Facsimile: (508) 620-7111
With a copy to:
Paul Desjourdy, Esquire
37 Loring Drive
Framingham, Massachusetts 01702
Telephone: (508) 631-0599
Facsimile: (508) 620-7111
If to Purchasers:
Oleksandr Shalash
Witellikerstrasse 17
8702 Zollikon, Switzerland
Telephone: 011-41-798220489
Facsimile: 407-647-1522
Ivan Hrubi
Friedberger Str. 6
Rodgau, Germany 63110
Telephone: 011-49-6106-286881
Facsimile: 407-647-1522
With a copy to:
Snyderburn, Rishoi & Swann, LLP
258 Southhall Lane, Suite 420
Maitland, Florida 32751
Telephone: (407) 647-2005
Facsimile: (407) 647-1522
Attention: K. Michael Swann, Esquire
Any party may give any notice, request, consent or other
communication under this Agreement using any other customary means
(including, without limitation, personal delivery, messenger
service, telecopy, first class mail, facsimile or electronic mail),
but no such notice, request, consent or other communication shall
be deemed to have been duly given unless and until it is actually
received by the party for whom it is intended. Time is of the
essence in giving notice. Any party may change the address to which
notices, requests, consents or other communications hereunder are
to be delivered by giving the other parties notice in the manner
set forth in this Section.
10.7 Complete Agreement. This Agreement (including its
Schedules) constitutes the entire agreement and understanding of
the parties hereto with respect to the subject matter hereof and
supersedes and replaces all prior agreements and understandings,
whether oral or written, relating to such subject matter.
10.8 Amendments and Waivers. This Agreement may be amended or
terminated and the observance of any term of this Agreement may be
waived with respect to all Parties to this Agreement (either
generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Parties. Any
amendment, termination or waiver effected in accordance with this
Section 10.8 shall be binding on all Parties hereto. No waivers of
or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term,
condition or provision.
10.9 Construction. The Parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state,
local or foreign statute or law shall be deemed also to refer to
all rules and regulations promulgated thereunder and any applicable
common law, unless the context requires otherwise. The word
"including" shall mean including without limitation and is used in
an illustrative sense rather than a limiting sense. Terms used with
initial capital letters will have the meanings specified,
applicable to singular and plural forms, for all purposes of this
Agreement. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine
or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
10.10 Counterparts; Facsimile Signatures. This Agreement
may be executed in any number of counterparts, each of which shall
be deemed to be an original, and all of which shall constitute one
and the same document. This Agreement may be executed by facsimile
signatures of the Parties, which shall be deemed to be original
signatures.
10.11 Section Headings and References. The section headings
are for the convenience of the parties and in no way alter, modify,
amend, limit or restrict the contractual obligations of the
Parties. Any reference in this Agreement to a particular
section or subsection shall refer to a section or subsection of
this Agreement, unless specified otherwise.
10.12 Delays or Omissions. No delay or omission to
exercise any right, power or remedy accruing to the respective
Parties hereunder shall impair any such right, power or remedy of
the Parties, nor shall it be construed to be a waiver of any breach
or default under this Agreement, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall
any delay or omission to exercise any right, power or remedy or any
waiver of any single breach or default be deemed a waiver of any
other right, power or remedy or breach or default theretofore or
thereafter occurring. All remedies, either under this Agreement,
or by law otherwise afforded to the Parties shall be cumulative and
not alternative.
10.13 Effect of Investigation. Any due diligence review,
audit or other investigation or inquiry undertaken or performed by
or on behalf of the Purchasers shall not limit, qualify, modify or
amend the representations, warranties or covenants of, or
indemnities by the Company and the Selling Shareholders made or
undertaken pursuant to this Agreement, irrespective of the
knowledge and information received (or which should have been
received) therefrom by Purchaser.
10.14 No Third Party Beneficiaries. This Agreement shall
not confer any rights or remedies upon any person other than the
parties hereto and their successors and permitted assigns.
10.15 Further Cooperation. The parties hereto agree (a)
to furnish upon request to each other such further information, (b)
to execute and deliver to each other such other documents, and (c)
to do such other acts and things, all as any other party to this
Agreement may reasonably request either before or after the Closing
Date, for the purpose of carrying out the intent of this Agreement
and the documents referred to herein.
10.16 Arbitration. Any controversy arising between the
Parties to this Agreement or any person claiming through or on
behalf of them as it relates to this Agreement or the performance
or breach thereof shall be resolved through arbitration in the
State of Florida in accordance with the then governing commercial
arbitration rules of the American Arbitration Association in the
City of Orlando, Florida, and judgment or decree may be entered
upon the award made by any court of competent jurisdiction. The
parties agree that any dispute between them shall be determined by
one (1) arbitrator to be selected in accordance with the then
governing commercial arbitration rules of the American Arbitration
Association.
10.17 Attorneys' Fees. In the event of litigation
regarding this Agreement or the parties' relationship hereunder,
the prevailing party shall be entitled to recover its reasonable
attorneys' fees from and against the non-prevailing party through
and including any arbitration proceedings and all appeals and/or
post-judgment proceedings.
In Witness Whereof, the parties have executed this Agreement
as if the date first above written.
PURCHASERS:
/s/ Oleksandr Shalash
____________________________________
OLEKSANDR SHALASH
/s/ Ivan Hrubi
____________________________________
IVAN HRUBI
COMPANY:
NASUS CONSULTING, INC.
/s/ Russell R. Desjourdy
By__________________________________
RUSSELL R. DESJOURDY, President
SELLING SHAREHOLDERS:
/s/ Russell R. Desjourdy
_________________________________
RUSSELL R. DESJOURDY
/s/ Lynne Desjourdy
_________________________________
LYNNE DESJOURDY