EXHIBIT 10
ASSET PURCHASE
AGREEMENT
THIS ASSET PURCHASE AGREEMENT
is made as of the ___
th day of August, 2008, by and between HNY
Acquisition Corp., (the “ Buyer ”), and Ckrush
Digital Media, Inc. (the “ Seller ”).
The Seller and the Buyer may sometimes be referred to herein
individually as a “ Party ” or collectively as
“ Parties .”
RECITALS:
A. The Seller owns certain assets
which include, but are not limited to, the websites
www.audiostreet.net , www.mixstreet.net and
www.livemansion.com (the “ Websites ”)
including all copyrights (and renewals and extensions of copyright)
and trademarks, whether such assets consist of literary, dramatic,
or any other form of works exclusive of the movie rights to
“livemansion” (collectively the “ Assets
”).
B. Seller agrees to sell and Buyer
agrees to purchase the Assets in accordance with the terms and
conditions set forth in this Agreement.
C. The Parties to this Agreement
desire to establish their mutual rights and obligations with regard
to the transactions by this Agreement.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained in this Agreement, and other
good and valuable consideration, the Parties hereto agree as
follows:
I. DEFINITIONS
. As used herein, the
following terms shall have the meaning set forth:
A. “ Assets ”
shall have the definition set forth in Section II.
B. “ Closing ”
shall have the meaning set forth in Section VI.
C. “ Closing Date
” shall have the meaning set forth in Section VI.
D. “ Customer List
” shall have the meaning set forth in Section
II.A.1.
II.
PURCHASE, SALE AND DELIVERY OF ASSETS.
A. Subject to and in accordance with
the terms and conditions of this Agreement and in consideration of
the Purchase Price stated in Section III below, Buyer agrees to
purchase, and Seller agrees to sell, transfer, convey and assign
all of their respective right, title, and interest in and good and
marketable title, free and clear of all security interests, liens
(including tax liens), encumbrances and rights of others of any
kind whatsoever to the Assets listed on Schedule A, that are used
in the operation of the Websites:
1. A list of any and all customers of
the Websites. (the “ Customer List ”) in
electronic format at Closing.
2. All accounts receivable, if any,
of Seller from Customers from the Customer List prior to Closing
(the “ Accounts Receivable ”). At Closing Seller
will provide Buyer with a true and correct listing of the Accounts
Receivable, if any, as of the Closing Date.
3. All equipment, if any, from the
Seller that is listed in Schedule A.
4. All intangible personal property
specifically relating to the Assets, including without limitation,
Customer contracts and agreements.
5. Certain Domain Names needed to
provide internet and email services and web hosting to the Customer
List which includes the following domain names:
www.audiostreet.net
, www.mixstreet.net and
www.livemansion.com
B. The Seller shall provide Buyer
with a list of all expenses, debts, deficiencies, obligations,
liabilities, assessments, claims, demands, fines or penalties
related to any of the Assets prior to the Closing Date.
Seller represents and warrants that there are no amounts
outstanding or owed by Ckrush Digital Media, Inc., regarding the
Assets and there are not any liens or UCC filings currently on the
Assets. The only carrying costs to maintaining the Websites
in their current condition are $864 per month payable to Arcadia
Networks, Inc. for hosting on their servers and $609.10 per month
payable to ValueWeb for hosting on their servers. Any
additional changes or modifications to the Websites would require
the hiring of a website designer/tech to make such additional
changes or modifications.
III. PURCHASE
PRICE; ADJUSTMENT AND PAYMENT.
A. Purchase Price .
Subject to and in accordance with the terms and conditions of
this Agreement, Seller agrees to sell to the Buyer, and Buyer
agrees to purchase from the Seller, all of the Seller’s
rights, title, and interest in and to the Assets, for an aggregate
purchase price equal to TWO HUNDRED THOUSAND AND NO/dollars
($200,000.00) (the “ Purchase Price ”), to be
paid as provided in Subsection C below of this Section III.
B. Adjustments to Purchase
Price . The Purchase Price is subject to adjustment as
follows:
1. Liens and Encumbrances . If,
as of the Closing, any of the Assets are subject to or encumbered
by any security interests or liens the outstanding aggregate
balance (including any accrued interest or other charges) of the
total debts or liabilities underlying such liens or security
interests shall be deducted from the Purchase Price and paid
directly to the applicable creditor of the Seller at the Closing.
2. A/R adjustment. There will be no adjustment for actual
Accounts Receivable being assumed by Buyer.
C. Payment of Purchase Price
. The Buyer will pay the total Purchase Price to the Seller
as follows:
1. Cash Payment at Closing.
The sum of TWO HUNDRED
THOUSAND AND NO/dollars ($200,000.00) shall be paid on the Closing
Date estimated to be September 1, 2008, which amount, subject to
the adjustments set forth herein, will be wired directly to Seller
per Seller’s written instructions.
2. Assumption of
Liabilities . Buyershall assume no
liabilities.
IV.
REPRESENTATIONS AND WARRANTIES OF SELLER.
The Seller represents and warrants, to the best
of its knowledge and belief, to the Buyer, its successors and
assigns, that the following facts are true, complete, and correct
as of the date of this Agreement and will be true, correct, and
complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement
throughout this Section IV, with the knowledge that Buyer is
purchasing the Assets in full reliance thereon):
A.
Organization of the Seller . Seller is corporation
duly organized, validly existing, and in good standing as a
domestic corporation under the laws of the State of Delaware and
has the corporate power to carry on its business as now conducted
and to perform its obligations hereunder.
B. Authorization of
Transaction . The Seller has full power and authority
(including full corporate power and authority) to execute and
deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation
of the Seller, enforceable in accordance with its terms and
conditions.
C. Noncontravention .
Neither the execution and the delivery of this Agreement, nor
the consummation of the transactions contemplated hereby (including
the assignments and assumptions referred to in Section II above),
will violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which the Seller is subject.
D.
Legal Compliance . The Seller has complied with all
applicable laws (including rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of federal, state, local, and foreign governments (and
all agencies thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against the Seller alleging any failure so to
comply.
E. Brokers’ Fees
. The Seller has no liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Buyer
could become liable or obligated and Seller agrees to pay the
broker upon closing.
F. Title to Assets .
The Seller has good and marketable title to the Assets being
sold to Buyer. Without limiting the generality of the foregoing,
Seller has good and marketable title to all of the Assets, free and
clear of any security interest or restriction on transfer.
Seller owns all right and title to the assets free of liens,
claims or encumbrances of any kind or nature, other than the
security interest in favor of Buyer.
This Agreement
and all of the documents, instruments and agreements related hereto
have been duly and validly executed and delivered by the Seller, as
appropriate, and are valid and binding obligations of each of the
Seller, enforceable in accordance with their terms.
G. Intentionally left
blank.
H. Contracts and
Agreements . The Seller has delivered to the Buyer a
correct and complete copy of each written contract being
transferred and assigned to the Buyer as part of the Assets and
referred to in Section II.A.1. and a written summary setting forth
the material terms and conditions of each oral agreement being
transferred and assigned to the Buyer as part of the Assets and
referred to in Section II.A.1. With respect to each such agreement:
(A) the agreement is legal, valid, binding, enforceable, and in
full force and effect in all material respects; (B) no party is in
material breach or default, and no event has occurred which with
notice or lapse of time would constitute a material breach or
default, or permit termination, modification, or acceleration,
under the agreement; and (C) no party has repudiated any material
provision of the agreement. Seller may assign all accounts,
contracts, agreements, and service agreements related in any way to
the Dial-Up Customers to Buyer without any requirement for written
or oral consent of the Dial-Up Customers. It is up to the
Buyer’s discretion whether or not to accept the contracts or
agreements as an asset, should the buyer term such contracts or
agreements as a liability, and they do not fall within the buyers
business model, buyer may reject such contracts or agreements, and
as a result of such rejection seller will be required to cancel the
contracts or agreements as needed.
I. Accounts Receivable
. All Accounts Receivable of the Seller which are part of the
Assets, as referred to in Section II.A.2. hereof, are reflected
properly on their books and records of the Seller.
J.
Asset Warranties . Substantially all of the Assets
being sold provided by the Seller have conformed in all material
respects with all applicable contractual commitments and all
express and implied warranties, and the Seller has no material
liability (whether known or unknown, whether asse
