AGREEMENT TO PURCHASE ASSETS OF
C2C EXCHANGE, INC.
BY
INDIGINET, INC.
THIS AGREEMENT is entered into this 30th day of December, 2003, by and
between C2C EXCHANGE INC., a California corporation having its principal office
and place of business in Orange County, California (the "Seller"), and
INDIGINET, INC., a Florida corporation having its principal office and place of
business in Orange County, California (the "Purchaser").
WHEREAS, the Seller owns various assets more fully described in Attachment
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A attached hereto (the "Acquired Assets"); and
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WHEREAS, the Purchaser desires to purchase from the Seller the Acquired
Assets as more fully described hereinafter;
NOW, THEREFORE, in consideration of the foregoing, and the following mutual
covenants and agreements, and intending to be legally bound, the parties do
hereby agree as follows:
1. Purchase of Assets. The Purchaser does hereby purchase the Acquired
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Assets, free and clear of all liens, encumbrances, charges, escrows, equities,
and other restrictions. The Seller does hereby sell the Acquired Assets to the
Purchaser.
2. Consideration for Sale of Assets. As consideration for the sale of
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the Assets, the Purchaser has issued to the Seller 5,000,000 shares of the
Series A Preferred Stock of the Purchaser, no par value (the "Stock"). The
shares of the Stock are unregistered, restricted securities, issued pursuant to
customary investment representations contained herein and may not be resold
except in accordance with applicable federal and state securities laws. Each
certificate representing shares of the Stock issued pursuant to this Agreement
shall be endorsed with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING
SUCH SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 OR ITS
SUCCESSOR RULE UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT EXEMPTIONS FROM SUCH
REGISTRATION AND FROM THE PROVISIONS OF ANY APPLICABLE STATE "BLUE
SKY" LAWS ARE AVAILABLE.
3. Conditions Precedent to the Obligations of the Purchaser. All
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obligations of the Purchaser hereunder are subject to the following conditions
(any of which can be waived by the Purchaser):
(a) Approval. The sale of the Acquired Assets and all other
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provisions of this Agreement shall have been approved by the Board of Directors
and shareholders of the Seller.
(b) Bulk Sales Requirements. The Seller agrees to cooperate with
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the Purchaser in complying with the provisions of Article 6 of the California
Uniform Commercial Code relating to bulk transfers in connection with the
transactions contemplated by this Agreement. If the Purchaser shall waive the
provisions of the bulk sales law, the Seller shall indemnify and hold the
Purchaser harmless from any damages, losses or expenses (including reasonable
attorneys' fees) suffered by the Purchaser from any claim which may be asserted
against the Purchaser by creditors of the Seller for obligations not assumed by
the Purchaser hereunder which result from noncompliance with the California Bulk
Transfer Law.
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(c) No Sales or Use Tax. The sale and purchase contemplated
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hereunder shall not be subject to any sales or use tax.
(d) No Untrue Statements. No representation or warranty by the
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Seller in this Agreement or in any writing furnished or to be furnished pursuant
hereto, contains or will contain any untrue statement of a material fact, or
omits, or will omit to state any material fact required to make the statements
herein or therein contained not misleading.
(e) Other Actions. All corporate and other proceedings and
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actions taken in connection with the transactions contemplated herein and all
certificates, opinions, agreements, instruments, and documents mentioned herein
or incident to any such transaction shall be satisfactory in form and substance
to the Purchaser and its counsel, whose approval shall not be unreasonably
withheld.
4. Conditions Precedent to the Obligations of the Seller. All
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obligations of the Seller under this Agreement are subject to the following
conditions (any of which can be waived by the Seller):
(a) Approvals. The Purchaser has delivered to the Seller a copy
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of a resolution by the Board of Directors of the Purchaser, certified to by the
Secretary of the Purchaser that the Board of Directors of the Purchaser has
approved the execution of this Agreement and any other document contemplated
herein.
(b) Other Actions. All corporate and other proceedings and
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actions taken in connection with the transactions contemplated herein and all
certificates, opinions, agreements, instruments, and documents mentioned herein
or incident to any such transaction shall be satisfactory in form and substance
to the Seller and its counsel, whose approval shall not be unreasonably
withheld.
5. Representations and Warranties of the Seller. The Seller represents
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and warrants as follows:
(a) Ownership of the Acquired Assets. The Seller is the record
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owner of the Acquired Assets and is duly authorized and empowered to and has
executed and delivered to the Purchaser a xxxx of sale conveying good, absolute
and indefeasible title to the Acquired Assets being sold to the Purchaser
hereunder, free and clear of all liens, encumbrances, charges, escrows,
equities, and other restrictions.
(b) Condition of the Acquired Assets. As of the date hereof, the
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Acquired Assets are in good operating condition with no known defects, and
suitable for their intended use.
(c) Investigations. There are no investigations, actions, suits,
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charges, complaints or other proceedings of any character pending, threatened or
otherwise asserted against or involving the Acquired Assets at law or in equity
by anyone of which the Seller has knowledge or should have knowledge.
(d) Reliance. The foregoing representations and warranties are
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made by the Seller with the knowledge and expectation that the Purchaser is
placing complete reliance thereon.
6. Survival of Warranties. All representations, covenants, warranties
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and agreements made by the parties in this Agreement or in any agreement,
document, statement or certificate furnished hereunder or in connection with the
negotiation, execution and performance of this Agreement shall survive this
Agreement and any instrument delivered as described herein.
7. No Brokers. Each of the parties represents and warrants to the
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other party that all negotiations relative to this Agreement have been carried
on by such party directly and without the intervention of any person, firm,
corporation or entity who or which may be entitled to any brokerage or finder's
fee or other commission in respect of the execution of this Agreement or the
consummation of the transactions contemplated hereby, and each party shall
indemnify and hold harmless all of the other parties hereto against any and all
claims, losses, liabilities or expenses which may be asserted against any such
other party as a result of the dealings, arrangements or agreements of such
party or any of its affiliates with any such person, firm, corporation or
entity.
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8. Indemnification by the Seller. The Seller agrees to indemnify and
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hold harmless the Purchaser against and in respect to all damages (as
hereinafter defined) in excess of $250. Damages, as used herein shall include
any claim, salary, wage, action, tax, demand, loss, cost, expense, liability
(joint or several), penalty, and other damage, including, without limitation,
counsel fees and other costs and expenses reasonably incurred in investigating
or attempting to avoid same or in opposition to the imposition thereof, or in
enforcing this indemnity, resulting to the Purchaser from any inaccurate
representation made by or on behalf of the Seller in or pursuant to this
Agreement, breach of any of the warranties made by or on behalf of the Seller in
or pursuant to this Agreement, or breach or default in the performance by the
Seller of any of the obligations to be performed by it hereunder.
Notwithstanding the scope of the representations and warranties of the Seller
herein, or of any individual representation or warranty, or any disclosure to
the Purchaser herein or pursuant hereto, or the definition of damages contained
in the preceding sentence, or the Purchaser's knowledge of any fact or facts at
or prior to the date hereof, damages shall also include: all debts, liabilities,
and obligations of any nature whatsoever (whether absolute, accrued, contingent,
or otherwise, and whether due or to become due) of the Seller, as of the date
hereof not reflected in any exhibit furnished hereunder, whether known or
unknown by the Seller; all claims, actions, demands, losses, costs, expenses,
and liabilities resulting from any litigation from causes of action arising
prior to the date hereof involving the Seller or any shareholders thereof,
whether or not disclosed to the Purchaser; all claims, actions, demands, losses,
costs, expenses, liabilities and penalties resulting from the Seller's failure
to own or possess, and have good title to all of the Acquired Assets to be
acquired by the Purchaser hereunder; all claims, actions, demands, losses,
costs, expenses, liabilities or penalties resulting from the failure of the
Seller in any respect to perform any obligation required by them to be performed
at or prior to the date hereof or at or prior to the date hereof, or by reason
of any default of the Seller at the date hereof or at the date hereof, under any
of the contracts, agreements, leases, documents, or other commitments to which
they, or either of them, are a party or otherwise bound or affected; and all
losses, costs, and expenses (including without limitation all fees and
disbursements of counsel) relating to damages. The Seller shall reimburse
and/or pay on behalf of the Purchaser on demand for any payment made or required
to be made by the Purchaser at any time after the date hereof based upon the
judgment of any court of competent jurisdiction or pursuant to a bona fide
compromise or settlement of claims, demands or actions, in respect to the
damages to which the foregoing indemnity relates. The Purchaser shall give the
Seller written notice within 30 days after notification of any litigation
threatened or instituted against the Purchaser which might constitute the basis
of a claim for indemnity by the Purchaser against the Seller. The Seller shall
reimburse and/or pay the Purchaser on demand the balance of any amount of such
indemnity to which the Purchaser is entitled hereunder. Notwithstanding anything
contained in this Agreement to the contrary, the right to indemnification
described in this paragraph shall expire five years after the date hereof,
except in the case of the proven fraud by the Seller, as determined by a court
of competent jurisdiction in connection with any such claim for indemnification,
in which event such right to indemnification shall expire four years after the
discovery of such fraud.
9. Indemnification by the Purchaser. The Purchaser agrees to indemnify
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and hold harmless the Seller against and in respect to all damages incurred by
the Seller after the date hereof and arising out of the transactions hereunder
for which the Purchaser has been determined liable based upon the judgment of
any court of competent jurisdiction or pursuant to a bona fide compromise or
settlement of claims, demands or actions to which the Purchaser is a party, in
respect to the damages to which the foregoing indemnity relates.
Notwithstanding anything contained in this Agreement to the contrary, the right
to indemnification described in this paragraph shall expire five years after the
date hereof, except in the case of the proven fraud by the Purchaser hereunder
as determined by a court of competent jurisdiction in connection with any such
claim for indemnification, in which event such right to indemnification shall
expire four years after the discovery of such fraud.
10. Attorney's Fees. In the event that it should become necessary for
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any party entitled hereunder to bring suit against any other party to this
Agreement for enforcement of the covenants herein contained, the parties hereby
covenant and agree that the party who is found to be in violation of said
covenants shall also be liable for all reasonable counsel's fees and costs of
court incurred by the other parties hereto.
11. Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
12. Construction. Words of any gender used in this Agreement shall be
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held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the
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context requires otherwise. In addition, the pronouns used in this Agreement
shall be understood and construed to apply whether the party referred to is an
individual, partnership, joint venture, corporation or an individual or
individuals doing business under a firm or trade name, and the masculine,
feminine and neuter pronouns shall each include the other and may be used
interchangeably with the same meaning.
13. Waiver. No course of dealing on the part of any party hereto or
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its agents, or any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
14. Cumulative Rights. The rights and remedies of any party under this
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Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
15. Invalidity. In the event any one or more of the provisions
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contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
16. Headings. The headings used in this Agreement are for convenience
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and reference only and in no way define, limit, simplify or describe the scope
or intent of this Agreement, and in no way effect or constitute a part of this
Agreement.
17. No Third-Party Beneficiary. Any agreement to pay an amount and any
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assumption of liability herein contained, express or implied, shall be only for
the benefit of the undersigned parties and their respective successors and
permitted assigns (as herein expressly permitted), and such agreements and
assumptions shall not inure to the benefit of the obligees or any other party,
whomsoever, it being the intention of the parties hereto that no one shall be or
be deemed to be a third-party beneficiary of this Agreement.
18. Law Governing. This Agreement shall be construed and governed by
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the laws of the State of California, and all obligations hereunder shall be
deemed performable in Orange County, California.
19. Perfection of Title. The parties hereto shall do all other acts
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and things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent of
this Agreement.
20. Entire Agreement. This instrument contains the entire Agreement of
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the parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
SELLER:
C2C EXCHANGE, INC.
By
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XXXX XXXXX, Chief Executive Officer
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PURCHASER:
INDIGINET, INC.
By
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XXXX XXXXX, Chief Executive Officer
Attachment:
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Attachment A - The Acquired Assets
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ATTACHMENT A
THE ACQUIRED ASSETS
1. Customer base. This includes all billing information for
current revenue generating accounts and the servers and software used to xxxx
the customer base.
2. Web hosting related assets. This includes all servers,
software and network equipment.
3. Distributor network. This includes all distributor agreements,
compensation plans, marketing material, policies, procedures, training
materials, training systems, all down line information and commissioning
software.
4. Any and all contracts necessary to provide support or services
to the customer base and/or distributor base as well as conducting on-going
business.
5. All intellectual assets. All patents, copyrights, marketing
concepts, etc.
6. All bank accounts and cash in the accounts at the end of the
business day on the date of the Asset Purchase Agreement.
7. All unsettled credit card xxxxxxxx.
8. All accounts receivables or unbilled revenues.
9. All fixed assets including but not limited to computers, desks,
chairs, office equipment, etc.
10. Any other asset paid for by the company.
