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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is entered into
as of the 27th day of November, 2006, by and between James Kaufman
("Seller"), and I Crystal, Inc., a Delaware corporation
("Buyer").
WHEREAS, Seller is the owner of certain Internet web sites and
Internet web pages associated therewith; and
WHEREAS, Seller desires to sell to Buyer, upon the terms and
subject to the conditions hereinafter set forth, those certain
Internet web sites and Internet web pages associated therewith, and
Buyer desires to purchase and acquire those certain Internet web
sites and Internet web pages associated therewith from Seller;
and
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged by the parties hereto, Buyer and Seller, on
the basis of, and in reliance upon, the representations,
warranties, covenants, obligations and agreements set forth in this
Agreement, and upon the terms and subject to the conditions
contained herein, hereby agree as follows:
1. PURCHASE AND SALE OF ASSETS.
1.1 Purchase and Sale of Assets. Seller shall, and hereby does,
effective as of the date of mutual execution hereof (the "Effective
Time"), subject to the provisions of Section 4.1(c), sell, assign,
transfer and deliver to Buyer, free and clear of all liens and
encumbrances and Buyer shall, and hereby does, effective as of the
Effective Time, purchase and acquire from Seller, those assets
listed in Schedule 1.1 attached hereto and made a part hereof, such
assets being hereinafter referred to collectively as the "Acquired
Assets".
1.2 Liabilities. Buyer shall not assume or be liable for, and
Seller shall retain, discharge and perform, any and all liabilities
and obligations of Seller attributable to the Acquired Assets.
Seller hereby covenants and agrees to perform and discharge fully
or indemnify Buyer from any and all such liabilities.
1.3 Purchase Price. The consideration (the "Purchase Price") to
be paid for the Acquired Assets shall be 600,000 shares of the
$.001 par value common stock of Buyer.
2. FURTHER AGREEMENTS.
2.1 Notification of Certain Matters. Seller shall give prompt
notice to Buyer, and Buyer shall give prompt notice to Seller, of
(a) the occurrence or non-occurrence of any event, the occurrence
or non-occurrence of which would be likely to cause any
representation or warranty contained in this Agreement to be untrue
or inaccurate, and (b) any failure of Buyer and Seller, as the case
may be, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this
Section 2.1 shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
2.2 Further Action. Upon the terms and subject to the conditions
hereof, each of the parties hereto shall use its best efforts to
take, or cause to be taken, all actions and to do, or cause to be
done, all other things necessary, proper or advisable to consummate
and make effective as promptly as practicable the transactions
contemplated by this Agreement.
3.EFFECTIVE TIME.
3.1 Effective Time. The Effective Time of the transactions
contemplated by this Agreement shall be upon the mutual execution
of this Agreement.
3.2 Conditions to Buyer’s Obligation to Close. The
following obligations of Seller are conditions precedent to
Buyer’s obligations to close and must be satisfied by Seller
or waived by Buyer:
(a) All representations and warranties of Seller contained in
this Agreement will be true in all material respects on and as of
the Effective Time;
(b) Seller will have complied in all material respects with the
covenants and agreements set forth herein to be performed by it
before the Effective Time;
(c) The parties to this Agreement shall have obtained, prior to
the Effective Time, all consents required for the consummation of
the transactions contemplated by this Agreement from any party to
any commitment, agreement, instrument, lease, license, arrangement
or understanding to which any of them is a party, or to which any
of their respective businesses, properties or assets are
subject;
(d) There shall not be any injunction, judgment, order, decree,
ruling or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
(e) No statute, rule or regulation or order or decree of any
court or Governmental Authority will be in effect which prohibits
the consummation of the transactions contemplated by this
Agreement; and
(f) Buyer will have received from Seller the deliveries of
Seller listed in Section 3.4 below.
3.3 Conditions to Seller’s Obligation to Close. The
following obligations of Buyer are conditions precedent to
Seller’s obligations to close and must be satisfied by Buyer
or waived by Seller:
(a) The representations and warranties of Buyer contained in
this Agreement will be true in all material respects as of the
Effective Time;
(b) Buyer will have complied in all material respects with the
covenants and agreements set forth herein to be performed by it
before the Effective Time;
(c) The parties to this Agreement shall have obtained, prior to
the Effective Time, all consents required for the consummation of
the transactions contemplated by this Agreement from any party to
any commitment, agreement, instrument, lease, license, arrangement
or understanding to which any of them is a party, or to which any
of their respective businesses, properties or assets are
subject;
(d) There shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
(e) No statute, rule or regulation or order or decree of any
court or Govemmental Authority will be in effect which prohibits
Seller from consummating the transactions contemplated by this
Agreement; and
(f) Seller will have received from Buyer the deliveries of Buyer
listed in Section 3.5 below.
3.4 Seller’s Deliveries. At the Closing, and subject to
the terms and conditions herein contained, Seller shall deliver to
Buyer the following:
(a) A duly executed Bill of Sale and Assignment, in the form of
Exhibit 3.4(a) attached hereto, to transfer, assign and vest in
Buyer all of Seller’s right, title and interest in and to the
Acquired Assets;
(b) A duly executed Assignment, in the form of Exhibit 3.4(b)
attached hereto, to transfer, assign and vest in Buyer all of
Seller’s right, title and interest in and to certain
intellectual property of Seller;
(c) All of the agreements, contracts, commitments, leases,
plans, bids, quotations, proposals, instruments, computer programs
and software, data bases, whether in the form of computer tapes or
otherwise, related object and source codes, manuals and guidebooks,
price books and price lists, customer and subscriber lists,
supplier lists, sales records, files, correspondences, legal
opinions, rulings issued by governmental authorities, and other
documents, books records, papers, files, office supplies and data
belonging to Seller which are part of the Acquired Assets;
(d) Applicable third party consents to assignments and
assumptions;
(e) All schedules to be provided to Buyer hereunder; and
(k) Such other documents as Buyer may reasonably request
hereunder.
3.5 Buyer’s Deliveries. At the Effective Time, and subject
to the terms and conditions herein contained, Buyer will execute
and/or deliver to Seller the following:
(a) the payment to be made pursuant to Section 1.3; and
(b) Such other documents as Seller may reasonably request
hereunder.
3.6 Further Assurances. Each of the parties to this Agreement
shall, from time to time after the Effective Time, at the other
party’s request and at their own expense, promptly execute,
acknowledge and deliver to the other party such other instruments
of conveyance and transfer and will take such other actions and
execute and deliver such other documents, certifications and
further assurances as the other party may reasonably require in
order to vest more effectively in such party, or to put such party
more fully in possession of, any of the Acquired Assets. Each of
the parties hereto will cooperate with the other and execute and
deliver to the other parties hereto such other instruments and
documents and take such other actions as may be reasonably
requested from time to time by any other party hereto as necessary
to carry out, evidence and confirm the intended purposes of this
Agreement. Seller, at no fee, agrees to cooperate with Buyer in
connection with Buyer’s application for the transfer or
re-issuance in the name of Buyer of all authorizations or to
satisfy any regulatory requirements involving the transfer of the
Acquired Assets. If any authorization is not transferable or
assignable, Seller agrees to cooperate with Buyer, at Buyer’s
sole cost, in obtaining the issuance of any new authorization(s)
required by Buyer.
4. REPRESENTATIONS AND WARRANTIES.
4.1 Representations and Warranties of Seller. Seller hereby
represents and warrants to Buyer as follows:
(a) No Legal Disability. Seller is under no disability with
respect to entering into, and performing under, this Agreement.
(b) Conflicts; Defaults; Consents. Except as set forth on
Schedule 4.1(b) attached hereto and made a part hereof, neither the
execution and delivery of this Agreement and the other agreements
and instruments executed in connection herewith by Seller nor the
performance by Seller of the transactions contemplated hereby or
thereby will (with or without the giving of notice or the lapse of
time or both) (i) violate, conflict with, or constitute a default
under, any provisions of, or result in the acceleration of any
obligation under, any material contract, sales or service
commitment, license, purchase order, security agreement, mortgage,
note, deed, lien, lease, agreement, instrument, order, judgment or
decree relating to Seller to which Seller is a party or to which
Seller or the Acquired Assets may be bound or subject; (ii) result
in the creation or imposition of any liens on the Acquired Assets;
(iii) violate any statute, law, ordinance or regulation of any
jurisdiction, as such statute, law, ordinance or regulation relates
to Seller, the violation of which would have a material adverse
effect on the Acquired Assets in the hands of Buyer; (iv)
constitute an event which, after notice or lapse of time or both,
would result in such violation, conflict, default, acceleration, or
creation or imposition of any liens; or (v) require any consent,
approval authorization or other action by, or filing with or
notification to any governmental or regulatory authority.
(c) Title to the Acquired Assets. Except as set forth on
Schedule 4.1(c) attached hereto and made a part hereof, Seller has
good and marketable title to, and, at the Effective Time will have
the right to transfer to Buyer, each of the Acquired Assets free
and clear of all mortgages, liens, pledges, security interests,
charges, claims, restrictions and encumbrances of any nature
whatsoever (collectively, the "Encumbrances"). Subject to the
foregoing, Seller will transfer the Acquired Assets to Buyer with
good, marketable and insurable title, free and clear of all
Encumbrances.
(d) Condition of Acquired Assets. No person other than Seller
owns any of the Acquired Assets.
(e) Compliance with Laws, Permits and Licenses. Except as
disclosed on Schedule 4.1(e) attached hereto and made a part
hereof, Seller has complied with all applicable laws, rules,
regulations, codes, plans, injunctions, judgments, orders, decrees,
rulings, and charges thereunder (collectively "Laws") of federal,
state, local, and foreign governments (and all agencies thereof),
with respect to the Acquired Assets. Except as set forth on
Schedule 4.1(e), there exists no fact, condition, situation or
circumstance, which individually or in the aggregate, and after
notice or lapse of time or both, would constitute material
non-compliance with or give rise to material future liability with
respect to any such Laws.
(f) No Third Party Options. There are no existing agreements,
options, commitments or rights with, of or to any person other than
Buyer to acquire any of Seller’s assets, properties or rights
included in the Acquired Assets or any interest therein.
(g) Litigation. Except as set forth on Schedule 4.1(g) attached
hereto and made a part hereof, no litigation, including any
arbitration, investigation, or other proceeding of or before any
court, arbitrator or governmental or regulatory official, body, or
authority is pending or, to Seller’s Knowledge, is threatened
against Seller or which relates to the Acquired Assets or the
transactions contemplated by this Agreement, which, singly or in
the aggregate, could have a Material Adverse Effect on the Acquired
Assets or the transactions contemplated hereby. Seller is not a
party to or subject to the provisions of any judgment, order, writ,
injunction, decree, or award of any court, arbitrator, or
governmental or regulatory official body or authority which may
adversely affect Seller, the Acquired Assets or the transactions
contemplated hereby.
(h) Contracts and Commitments. Except as disclosed
in Schedule 4.1(h) attached hereto and made a part hereof, Seller
is not a party to or bound by any oral or written contract,
agreement, plan, understanding, commitment or arrangement, relating
to the Acquired Assets (collectively, the "Commitments").
Seller has delivered to Buyer a correct and
complete copy of each Commitment (as amended to date) listed on
Schedule 4.1(h). Except as specifically disclosed on Schedule
4.1(h), Seller has performed all obligations required to be
performed by it to date under all such Commitments. Seller is not,
nor to the Seller’s Knowledge, is any other party to any such
Commitment, agreement, instrument, lease, or license in violation
or breach of, or in default with respect to complying with, any
material provision thereof, and each such Commitment, agreement,
instrument, lease, or license is in full force and is the legal,
valid, and binding obligation Seller and is enforceable as to it in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws in effect relating
to creditors rights generally, and that the remedy of specific
performance and injunctive and other forms of equitable relief may
be subject to general principles of equity.
(i) Brokers, Finders, and Agents. The parties
acknowledge that no broker, finder or investment banker is, or will
be, entitled to any brokerage, finder's or other fee or commission
in connection with the transactions contemplated by this
Agreement.
(j) General Representation. None of the information
contained in this Agreement nor any of the related documents or
schedules attached or related hereto is or will be materially false
or misleading or contains any misstatement of fact or omits any
fact necessary to be stated in
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