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.
2.1 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.
3.1 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 order to make
the statements
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