ASSET PURCHASE AGREEMENT
Exhibit 10.25
This Asset Purchase Agreement (this "Agreement"), dated as of October 2, 2017 is entered into
between Xxxxx Xxxxxxxxx, a Pennsylvania resident, GIP International
Ltd, a Hong Kong corporation and DPR International LLC, a
Pennsylvania limited liability corporation (collectively, the
"Seller") and Growlife, Inc., a Delaware corporation (the
"Buyer").
RECITALS
WHEREAS,
Seller wishes to sell to Buyer, and Buyer wishes to purchase from
Seller (the “Transaction”) the rights of Seller to the
Purchased Assets (as defined in Schedules A and B of this
Agreement), subject to the terms and conditions set forth
herein;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
TERMS
1.
Purchase and Sale of Assets.
1.1. Effective
as of the Closing Date (as defined below), Seller hereby sells,
assigns, transfers, and sets over unto Buyer 51% rights, title and
interest in and to the Intellectual Property and Purchased Assets
as defined herein (together, the “Assigned Intellectual Property
and Purchased Assets” and
each an “Item”), subject to the limitations set forth in
section 3.2E below and as set forth on Schedule A attached
hereto, for Buyer’s own use and for the use of its
assigns, successors, and legal representatives, to the full end of
the term of each Item of the Assigned Intellectual Property and
Purchased Assets.
1.2. Together
with the Assigned Intellectual Property and Purchased Assets,
Seller hereby sells, assigns, transfers and set over unto Buyer all
past and future rights, title and interest in the assets, subject
to the limitations set forth in section 3.2E below and as set forth
on Schedule A attached hereto, free and clear of any mortgage,
pledge, lien, charge, security interest, claim or other encumbrance
("Encumbrance").
1.3. No
Liabilities/Assumption of Liabilities. Buyer shall not assume any liabilities or
obligations of Seller of any kind, whether known or unknown,
contingent, matured or otherwise, whether currently existing or
hereinafter created.
2.
Purchase Price.
The aggregate purchase price for the
Purchased Assets shall be $400,000 (the "Purchase
Price") payable as set forth in
Section 2.1.
2.1. Buyer
shall fund $75,000 (the “Deposit”) of the Purchase Price by September 30,
2017 for the down payment for the purchase of EFI Vutek H2000
Printer and a Tech Lighting UV Coater and funding of the rent and
security deposit of an office lease located at 0000 X. Xxx Xxxxxxxx
Xxxx Xxxx 000, Xxx Xxxxxxx XX 00000Xx the event the Transaction
does not close, and upon demand of Buyer, the Deposit shall be
immediately refundable. The balance of the Purchase Price shall be
payable to Seller between October 1, 2017 and December 31, 2017 in
accordance with Exhibit 2.1.
2.2.
Option to Purchase
Additional Assets. Buyer shall
have the option (the “Option”) to purchase the rights,
title, and interest in and to the additional assets set forth on
Schedule B attached hereto (the “Additional
Assets”), free and clear
of any Encumbrances on or before December 31, 2017, In the event
Buyer exercises the Option, Buyer shall pay Seller an additional
purchase price of $350,000 (the “Option Purchase
Price”) in
in seven monthly payments of $50,000
per month beginning on January 31, 2018, after the Option is
exercised and completed on July 31, 2018.
2.3. Withholding
Tax and Expenses. Buyer shall
be entitled to deduct and withhold from the Option Purchase Price
any taxes or expenses paid by Buyer. All such withheld amounts
shall be treated as delivered to Seller
hereunder.
3.
CLOSING
3.1.
Closing. The
closing of the transactions contemplated by this Agreement (the
"Closing")
shall take place simultaneously with the execution of this
Agreement on the date of this Agreement (the "Closing
Date") at the offices of
Xxxxxxx + Xxxxxxxxx, PLC, 00 Xxxxxxx Xxxxx 000, Xxxx Xxxxxx, XX
00000.
3.2.
Closing
Deliverables of Seller. At the
Closing, Seller shall deliver to Buyer the
following:
A. A
xxxx of sale in the form of Exhibit A hereto (the
"Xxxx of
Sale") and duly executed by
Seller, transferring the Purchased Assets to
Buyer;
B. Assignments
in the form of Exhibit B hereto (the “Intellectual Property
Assignments”) and duly
executed by Seller, transferring all of
Seller's right, title and interest in and to the Intellectual
Property (as defined in Section 4.7 herein) included in the
Purchased Assets to Buyer.
C.
A certificate of the Secretary (or
equivalent officer) of Seller certifying as to (A) the resolutions
of the board of directors of Seller, duly adopted and in effect,
which authorize the execution, delivery and performance of this
Agreement and the transactions contemplated hereby, and (B) the
names and signatures of the officers of Seller authorized to sign
this Agreement and the documents to be delivered
hereunder;
D. Such
other customary instruments of transfer, assumption, filings or
documents, in form and substance reasonably satisfactory to Buyer,
as may be required to give effect to this Agreement;
and
E. Xxxxx
Xxxxxxxxx will maintain operational control of the Assigned
Intellectual Property and Purchased Assets, which are owned 51% by
Growlife Inc. at Closing, in accordance with the plans approved in
writing by the Chief Executive Officer of Buyer. The Assigned
Intellectual Property and Purchased Assets are expected to be a
Custom On-Demand Flooring and Decorative Surfacing Materials
Factory located in the Los Angeles Area which is expected to
manufacture and sell FreeFit Branded Products throughout North
America.
3.3.
Closing
Deliverables of Buyer: At the Closing, Buyer
shall deliver to Seller the following:
A. The
Purchase Price;
B.
A
certificate of the Secretary (or equivalent officer) of Buyer
certifying as to (A) the resolutions of the board of directors of
Buyer, duly adopted and in effect, which authorize the execution,
delivery and performance of this Agreement and the transactions
contemplated hereby, and (B) the names and signatures of the
officers of Buyer authorized to sign this Agreement and the
documents to be delivered hereunder;
C. Such
other customary instruments of transfer, assumption, filings or
documents, in form and substance reasonably satisfactory to Seller,
as may be required to give effect to this Agreement;
and
3.4.
Conditions to
Obligations of All Parties. The
obligations of each party to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment,
at or prior to the Closing, of each of the following
conditions:
A.
Buyer and Seller shall have entered
into the certain compensation agreement (the
“Compensation
Agreement”) whereby Xxxxx
Xxxxxxxxx shall be entitled to 10% of any gross profit solely
generated by the Assigned Intellectual Property and Purchased
Assets and a reasonable and customary compensation package for the
services performed by Xxxxx Xxxxxxxxx;
B.
No claim, lawsuit,
investigation, audit, or action shall have been commenced against
Buyer or Seller, which would prevent the Closing. No injunction or
restraining order shall have been issued by any court,
administrative body, or governmental authority, and be in effect,
which restrains or prohibits any transaction contemplated hereby;
and
3.5.
Conditions to
Obligations of Buyer. The
obligations of Buyer to consummate the transactions contemplated by
this Agreement shall be subject to the fulfillment or Buyer's
waiver, at or prior to the Closing, of each of the following
conditions:
A. Buyer
shall have completed its due diligence review of the business,
assets and affairs of Seller;
B. Seller
shall have duly performed and complied in all material respects
with all agreements, covenants and conditions required by this
Agreement to the satisfaction of Buyer;
C. From
the date of this Agreement, there shall not have occurred any
material adverse effect, nor shall any event or events have
occurred that, individually or in the aggregate, with or without
the lapse of time, could reasonably be expected to result in a
material adverse effect.
D. Buyer
shall have perfected its UCC Filing securing a first lien on the
EFI Vutek H2000 Printer;
E. Buyer
shall own all New Products developed by Xxxxx Xxxxxxxxx while he is
employed by Buyer.;
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F. Buyer
shall have received a certificate of the Secretary or an Assistant
Secretary (or equivalent officer) of Seller certifying that
attached thereto are true and complete copies of all resolutions
adopted by the board of directors of Seller authorizing the
execution, delivery and performance of this Agreement and the other
documents reasonably required for the consummation of the
Transaction, and that all such resolutions are in full force and
effect and are all the resolutions adopted in connection with the
Transaction contemplated hereby and thereby;
and
G. Seller
shall have delivered to Buyer such other documents or instruments
as Buyer reasonably requests and are reasonably necessary to
consummate the Transaction contemplated by this
Agreement.
3.6.
Conditions to
Obligations of Seller. The
obligations of Seller to consummate the transactions contemplated
by this Agreement shall be subject to the fulfillment or Seller's
waiver, at or prior to the Closing, of each of the following
conditions:
A.
Buyer shall
have duly performed and complied in all material respects with all
agreements, covenants and conditions required by this Agreement and
the other Transaction to be performed or complied with by it prior
to or on the Closing Date; provided,
that, with respect to
agreements, covenants and conditions that are qualified by
materiality, Buyer shall have performed such agreements, covenants
and conditions, as so qualified, in all
respects;
B.
Seller shall have received a
certificate of the Secretary (or equivalent officer) of Buyer
certifying that attached thereto are true and complete copies of
all resolutions adopted by the board of directors of Buyer
authorizing the execution, delivery and performance of this
Agreement and the other documents reasonably required for the
consummation of the Transaction, and that all such resolutions are
in full force and effect and are all the resolutions adopted in
connection with the Transaction contemplated hereby and thereby;
and
C.
Buyer shall have delivered to Seller
such other documents or instruments as Seller reasonably requests
and are reasonably necessary to consummate the Transaction
contemplated by this Agreement.
4.
REPRESENTATIONS AND WARRANTIES OF SELLER
4.1.
Seller represents and warrants to
Buyer that the statements contained in this Section 4 are true and
correct as of the date hereof. For purposes of this Section 4,
"Seller's knowledge," "knowledge of Seller" and any similar phrases
shall mean the actual or constructive knowledge of any director or
officer of Seller, after due inquiry.
4.2.
Organization and
Authority of Seller; Enforceability. Seller is an
individual duly organized and validly existing and in good standing
under the laws of the state Pennsylvania. GIP International Ltd is
a corporation duly organized and validly existing and in good
standing under the laws of Hong Kong. DPR International LLC is a
limited liability corporation duly organized and validly existing
and in good standing under the laws of the state Pennsylvania.
Seller has full corporate power and authority to enter into this
Agreement and the documents to be delivered hereunder, to carry out
its obligations hereunder and to consummate the transactions
contemplated hereby. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the state
Pennsylvania. Seller has full corporate power and authority to
enter into this Agreement and the documents to be delivered
hereunder, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. The execution, delivery and
performance by Seller of this Agreement and the documents to be
delivered hereunder and the consummation of the transactions
contemplated hereby have been duly authorized by all requisite
corporate action on the part of Seller. This Agreement and the
documents to be delivered hereunder have been duly executed and
delivered by Seller, and (assuming due authorization, execution and
delivery by Buyer) this Agreement and the documents to be delivered
hereunder constitute legal, valid and binding obligations of
Seller, enforceable against Seller in accordance with their
respective terms.
4.3.
No Conflicts;
Consents. The execution,
delivery and performance by Seller of this Agreement and the
documents to be delivered hereunder, and the consummation of the
transactions contemplated hereby, do not and will not: (a) violate
or conflict with the certificate of incorporation, by-laws or other
organizational documents of Seller; (b) violate or conflict with
any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Seller or the Purchased Assets; (c)
conflict with, or result in (with or without notice or lapse of
time or both) any violation of, or default under, or give rise to a
right of termination, acceleration or modification of any
obligation or loss of any benefit under any contract or other
instrument to which Seller is a party or to which any of the
Purchased Assets are subject; or (d) result in the creation or
imposition of any Encumbrance on the Purchased Assets. No consent,
approval, waiver or authorization is required to be obtained by
Seller from any person or entity (including any governmental
authority) in connection with the execution, delivery and
performance by Seller of this Agreement and the consummation of the
transactions contemplated hereby.
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4.4.
Title to Purchased
Assets. Seller owns and has
good title to the Assigned Intellectual Property and Purchased
Assets, free and clear of Encumbrances and free from any licenses,
authorizations that dilute the ownership and title in any
manner.
4.5.
Condition of
Assets. The tangible personal
property included in the Assigned Intellectual Property and
Purchased Assets are in good condition and are adequate for the
uses to which they are being put, and none of such tangible
personal property are in need of maintenance or repairs except for
ordinary, routine maintenance and repairs that are not material in
nature or cost. All inventory,
finished goods, raw materials, work in progress, packaging,
supplies, parts and other inventories included in the Assigned
Intellectual Property and Purchased Assets consist of a quality and
quantity usable and salable in the ordinary course of
business.
4.6.
Conduct of
Business. Seller shall conduct
its operations in the ordinary course consistent with past practice
and will not issue any capital stock or grant any options or
warrants with respect to its capital stock, nor will it make any
distributions, dividends or other payments to any affiliate or
shareholders
4.7.
Intellectual
Property.
A.
"Intellectual
Property" means any and all of
the following in any jurisdiction throughout the world: (i)
trademarks and service marks, including all applications and
registrations and the goodwill connected with the use of and
symbolized by the foregoing; (ii) copyrights, including all
applications and registrations related to the foregoing; (iii)
trade secrets and confidential know-how; (iv) patents and patent
applications; (v) websites and internet domain name registrations;
and (vi) other intellectual property and related proprietary
rights, interests and protections (including all rights to xxx and
recover and retain damages, costs and attorneys' fees for past,
present and future infringement and any other rights relating to
any of the foregoing).
B.
Schedule A lists all the Assigned
Intellectual Property included as the Assigned Intellectual
Property and Purchased Assets. Seller owns or has adequate, valid
and enforceable rights to use the Assigned Intellectual Property,
and such is free and clear of all Encumbrances. Seller is not bound
by any outstanding judgment, injunction, order or decree
restricting the use of the Assigned Intellectual Property, or
restricting the licensing thereof to any person or
entity.
C.
Seller's prior and current use of the
Assigned Intellectual Property has not and does not infringe,
violate, dilute or misappropriate the Intellectual Property of any
person or entity and there are no claims pending or threatened by
any person or entity with respect to the ownership, validity,
enforceability, effectiveness or use of the Assigned Intellectual
Property. No person or entity is infringing, misappropriating,
diluting or otherwise violating any of the Assigned Intellectual
Property, and neither Seller nor any affiliate of Seller has made
or asserted any claim, demand or notice against any person or
entity alleging any such infringement, misappropriation, dilution
or other violation.
4.8.
Full
Disclosure. No representation
or warranty by Seller in this Agreement and no statement contained
in the Disclosure Schedules to this Agreement or any certificate or
other document furnished or to be furnished to Buyer pursuant to
this Agreement contains any untrue statement of a material fact, or
omits to state a material fact necessary to make the statements
contained therein, in light of the circumstances in which they are
made, not misleading.
4.9.
Claims.
There is no
claim, action, suit, proceeding or governmental investigation
("Action")
of any nature pending or, to Seller's knowledge, threatened against
or by Seller (a) relating to or affecting the
Purchased Assets [or the Assumed
Liabilities]; or (b) that challenges or seeks to prevent, enjoin or
otherwise delay the transactions contemplated by
this Agreement. No event has occurred
or circumstances exist that may give rise to, or serve as a basis
for, any such Action.
5.
REPRESENTATIONS AND WARRANTIES OF BUYER
5.1.
Buyer represents and warrants to
Seller that the statements contained in this Section 5 are true and
correct as of the date hereof. For purposes of this Section 5,
"Buyer's knowledge," "knowledge of Buyer" and any similar phrases
shall mean the actual or constructive knowledge of any director or
officer of Buyer, after due inquiry.
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5.2.
Organization and
Authority of Buyer; Enforceability. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the state Delaware.
Buyer has full corporate power and authority to enter into this
Agreement and the documents to be delivered hereunder, to carry out
its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by
Buyer of this Agreement and the documents to be delivered hereunder
and the consummation of the transactions contemplated hereby have
been duly authorized by all requisite corporate action on the part
of Buyer. This Agreement and the documents to be delivered
hereunder have been duly executed and delivered by Buyer, and
(assuming due authorization, execution and delivery by Seller) this
Agreement and the documents to be delivered hereunder constitute
legal, valid and binding obligations of Buyer enforceable against
Buyer in accordance with their respective
terms.
5.3.
No Conflicts;
Consents. The execution,
delivery and performance by Buyer of this Agreement and the
documents to be delivered hereunder, and the consummation of the
transactions contemplated hereby, do not and will not: (a) violate
or conflict with the certificate of incorporation, by-laws or other
organizational documents of Buyer; or (b) violate or conflict with
any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Buyer. No consent, approval, waiver or
authorization is required to be obtained by Buyer from any person
or entity (including any governmental authority) in connection with
the execution, delivery and performance by Buyer of this Agreement
and the consummation of the transactions contemplated
hereby.
5.4.
Legal
Proceedings. There is no Action
of any nature pending or, to Buyer's knowledge, threatened against
or by Buyer that challenges or seeks to prevent, enjoin or
otherwise delay the transactions contemplated by this Agreement. No
event has occurred or circumstances exist that may give rise to, or
serve as a basis for, any such Action.
6.
COVENANTS
6.1.
Public
Announcements. Unless otherwise
required by applicable law, neither party will make any public
disclosure concerning the matters set forth in this Agreement or
the negotiation of the Transaction without the prior written
consent of the other party, which consent shall not be unreasonably
withheld. If and when either party desires to make such public
disclosure, after receiving such prior written consent, the
disclosing party will give the other party an opportunity to review
and comment on any such disclosure in advance of public release.
Notwithstanding the above, to the extent that either party is
advised by counsel that disclosure of this Agreement or the
Transaction is ordered by a court of competent jurisdiction or is
otherwise required by law, then such disclosing party will provide
the other party, if reasonably possible under the circumstances,
prior notice of such disclosure as well as an opportunity to review
and comment on such disclosure in advance of the public
release.
6.2.
Each party and its representatives,
officers, employees and advisors, including accountants and legal
advisors, as applicable, will provide the other party and its
representatives, officers, employees and advisors, including
accountants and legal advisors, as applicable, with all
information, books, records and property (collectively,
“Transaction Information”) that such other party
reasonably considers necessary or appropriate in connection with
its due diligence inquiry. Each of the parties will use its
commercially reasonable efforts to maintain the confidentiality of
the Transaction Information, unless all or part of the Transaction
Information is required to be disclosed by applicable securities
laws or to the extent that such disclosure is ordered by a court of
competent jurisdiction.
7.
INDEMNIFICATION
7.1.
Survival.
All representations, warranties,
covenants and agreements contained herein and all related rights to
indemnification shall survive the Closing.
7.2.
Indemnification By
Seller. Seller shall
defend, indemnify and hold harmless Buyer, its affiliates and their
respective stockholders, directors, officers and employees from and
against all claims, judgments, damages, liabilities, settlements,
losses, costs and expenses, including attorneys' fees and
disbursements, arising from or relating to: (a) any inaccuracy in
or breach of any of the representations or warranties of Seller
contained in this Agreement or any document to be delivered
hereunder; and (b) any breach or non-fulfillment of any covenant,
agreement or obligation to be performed by Seller pursuant to this
Agreement or any document to be delivered
hereunder.
7.3.
Indemnification by
Buyer. Buyer shall defend,
indemnify and hold harmless Seller, its affiliates and their
respective stockholders, directors, officers and employees from and
against all claims, judgments, damages, liabilities, settlements,
losses, costs and expenses, including attorneys' fees and
disbursements, arising from or relating to: (a) any inaccuracy in
or breach of any of the representations or warranties of Buyer
contained in this Agreement or any document to be delivered
hereunder; and (b) any breach or non-fulfillment of any covenant,
agreement or obligation to be performed by Buyer pursuant to this
Agreement or any document to be delivered
hereunder.
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7.4.
Effect of
Investigation. Buyer's
right to indemnification or other remedy based on the
representations, warranties, covenants and agreements of Seller
contained herein will not be affected by any investigation
conducted by Buyer with respect to, or any knowledge acquired by
Buyer at any time, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant or
agreement.
8.
MISCELLANEOUS
8.1.
Expenses.
All costs and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and
expenses.
8.2.
No Brokers.
Each party represents and warrants to
the other that there are no brokers or finders entitled to any
compensation with respect to this Transaction and each agrees to
indemnify and hold the other harmless from and against any expenses
or damages incurred as a result of a breach of this representation
and warranty.
8.3.
Choice of
Law. This Agreement shall be
governed by and construed in accordance with the internal
substantive laws of the State of Washington within such State,
without regard to any principles of conflicts of law. Each of the
parties hereby irrevocably consents and agrees that any legal or
equitable action or proceeding arising under or in connection with
this Agreement shall be brought in the federal or state courts
located in Washington, by execution and delivery of this Agreement,
irrevocably submits to and accepts the jurisdiction of said courts,
(iii) waives any defense that such court is not a convenient forum,
and (iv) consent to any service of process method permitted by
law.
8.4.
Counterparts.
This letter of intent may be executed
in counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Fax
or PDF copies of signatures shall be treated as originals for all
purposes.
8.5.
Notices.
All notices, requests, consents,
claims, demands, waivers and other communications hereunder shall
be in writing and shall be deemed to have been given (a) when
delivered by hand (with written confirmation of receipt); (b) when
received by the addressee if sent by a nationally recognized
overnight courier (receipt requested); or (c) on the date sent by
facsimile or e-mail of a PDF document (with confirmation of
transmission) if sent during normal business hours of the
recipient, and on the next business day if sent after normal
business hours of the recipient. Such communications must be sent
to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given
in accordance with this Section 8.5):
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IF TO SELLER:
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Xxxxx Xxxxxxxxx
Address:
208 ½ X Xxxxxxxxxx Xxxxx
Xxx
Xxxxxxx, XX 00000
Fax:
Attention:
Xxxxx Xxxxxxxxx
Email:
xxxxxxxxxxxxxxxx@xxxxx.xxx
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GIP International LTD
Address:
208 ½ Poinsettia Place,
Xxx
Xxxxxxx XX 00000
Fax:
Attn:
Xxxxx Xxxxxxxxx
Attention:
(Officer/Agent)
Email:xxxxxxxxxxxxxxxx@xxxxx.xxx
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DPR International LLC
Address:
208 ½ Poinsettia Place
Xxx
Xxxxxxx XX 00000
Fax:
Attn:
Xxxxx Xxxxxxxxx
Attention:
(Officer/Agent)
Email:xxxxxxxxxxxxxxxx@xxxxx.xxx
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with
a copy to:
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Seller’s Law Firm
Address:
Xxxxx Xxxxxx LLP
00 X 00xx
Xxxxxx,
Xxxxxxxxxxxx XX
Fax:
Attention
Xxx Apacelli
Email:
xxxxxxxxxx@xxxxxxxxxxx.xxx
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IF TO BUYER:
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Address:
0000 Xxxxxxxx Xxxxx,
Xxxxxxxx,
XX 00000
Fax:
(000) 000-0000
Attention:
Xxxxx Xxxxx, CEO
Email:
xxxxxx@xxxxxxxxxxx.xxx
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with
a copy to:
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Xxxxxxx + Xxxxxxxxx
Address:
00 Xxxxxxx Xxxxx 000,
Xxxx
Xxxxxx, XX 00000
Fax:
(000) 000-0000
Attention:
Xxxxxxx Xxxxxxx
Email:
xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
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8.6. Headings.
The headings in this Agreement are for
reference only and shall not affect the interpretation of this
Agreement.
8.7.
Severability.
If any term or provision of this
Agreement is invalid, illegal or unenforceable in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect
any other term or provision of this Agreement or invalidate or
render unenforceable such term or provision in any other
jurisdiction.
8.8.
Entire
Agreement. This Agreement and
the documents to be delivered hereunder constitute the sole and
entire agreement of the parties to this Agreement with respect to
the subject matter contained herein, and supersede all prior and
contemporaneous understandings and agreements, both written and
oral, with respect to such subject matter. In the event of any
inconsistency between the statements in the body of this Agreement
and the documents to be delivered hereunder, the Exhibits and
Disclosure Schedules (other than an exception expressly set forth
as such in the Disclosure Schedules), the statements in the body of
this Agreement will control.
8.9.
Successors and
Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Neither party may assign its rights or obligations hereunder
without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed. No assignment shall
relieve the assigning party of any of its obligations
hereunder.
8.10.
No Third-party
Beneficiaries. This Agreement
is for the sole benefit of the parties hereto and their respective
successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person or
entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this
Agreement.
8.11.
Amendment and
Modification. This Agreement
may only be amended, modified or supplemented by an agreement in
writing signed by each party hereto.
8.12.
Waiver.
No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in
writing and signed by the party so waiving. No waiver by any party
shall operate or be construed as a waiver in respect of any
failure, breach or default not expressly identified by such written
waiver, whether of a similar or different character, and whether
occurring before or after that waiver. No failure to exercise, or
delay in exercising, any right, remedy, power or privilege arising
from this Agreement shall operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power
or privilege.
8.13.
Specific
Performance. The parties agree
that irreparable damage would occur if any provision of this
Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy to which they are
entitled at law or in equity.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first written above by their
respective officers thereunto duly authorized.
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By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
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Xxxxx Xxxxxxxxx
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By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
GIP International Ltd
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Its: Sole
Shareholder
DPR International LLC
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Its: Sole
Shareholder
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8
SCHEDULE A
Listing of Assigned Intellectual Property and Assets to be
Acquired
1.
Rights
to Lumi Reflective Floor and Wall Tiles inclusive of existing and
future Patents, Trademarks, and Copyrights.
2.
All
Intellectual Property associated with FreeFit Flooring including
Patents, Trademarks, and Copyrights.
3.
All
Intellectual Property associated with Gecko Brand Adhesives and
Coatings.
4.
All
Intellectual Property associated with Cordoba Wood Flooring
including Patents, Trademarks, and Copyrights.
5.
51%
Ownership of the asset
6.
XxxxXxxXxxxxx.xxx
and XxxxXxxxXxxxxx.xxx Websites.
7.
Any
required permits and licenses.
Other
assets to be determined.
9
SCHEDULE B
1. US Patent 8,298,650 B2 10/30/2012.
2. US Patent 8,512,848 B2 8/20/2013.
3. US 2013/0025216 A1 1/31/2013.
4. Canadian Patent 2,796,927 11/27/2012.
5. US 2013/0326990 A1 12/12/2013.
6. US D680239S 4/16/2013.
7. US D680240S 4/16/2013.
8. US D689241S 4/16/2013.
9. US D689242S 4/16/2013.
10. US D689243S 4/16/2013.
11. US D689244S 4/16/2013.
12. US D689245S 4/16/2013.
13. US D681237S 4/30/2013.
14. US D681238S 4/30/2013.
15. Trademark FREEFIT HDCT 85438998.
16. Trademark FREEFIT EIR 85439006.
17. Trademark FREEFIT HD 85438891.
18. Trademark FreeForm 85636854.
19. Trademark Intaglio 85368877.
20. Trademark Gecko 85379882.
21. Trademark Gecko 85379857.
22. Trademark FREEFIT 77830662.
23. US680666S 4/23/2013
24. US680667S 4/23/20132
25. US680668S 4/23/2013 00.XX
26. 680669S 4/23/2013
10
EXHIBIT A
XXXX OF SALE
XXXX OF SALE AND GENERAL ASSIGNMENT
October 2, 2017
For good and valuable consideration, including
consideration under the Asset Purchase Agreement dated
approximately the same date as this instrument (that agreement, the
“Purchase
Agreement”), Xxxxx
Xxxxxxxxx, a Pennsylvania resident, GIP International Ltd, a Hong
Kong corporation and DPR International LLC, a Pennsylvania limited
liability corporation (collectively, the "Seller"), hereby transfers the Assigned Intellectual
Property and Purchased Assets (as defined in the Purchase
Agreement) to Growlife, Inc., a Delaware corporation (the
“Company”). This instrument is subject to and
construed in accordance with the Purchase
Agreement.
On one or more occasions after the date of this
instrument, the Seller, at the request of the
Company, shall execute and deliver further instruments of
transfer and assignment and take any other action as the Company
may reasonably require to more effectively transfer to the Company
each of the Assigned Intellectual Property and Purchased Assets and
to assist the Company in exercising all rights with respect to the
Assigned Intellectual Property and Purchased
Assets.
The Sellers are signing this Xxxx of Sale and General Assignment on
the date stated in the heading.
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Xxxxx Xxxxxxxxx
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By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
GIP International Ltd
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Its: Sole Shareholder
DPR International LLC
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Its: Sole Shareholder
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11
EXHIBIT B
INTELLECTUAL PROPERTY ASSIGNMENT
TRADEMARK ASSIGNMENT AGREEMENT
October 2, 2017
For good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged and paid to: Xxxxx
X. Xxxxxxxxx, an individual/corporation, located at 208 ½ X.
Xxxxxxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000. (hereinafter
“Assignor” or “Applicant”)
hereby
sells and assign to:
GROWLIFE,
INC., a Delaware corporation,
with its principal place of business located at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx, XX 00000 (hereinafter “Assignee”), as the majority owner of
Applicant’s business to which the xxxx pertains, which is
ongoing and existing, all right, title and interest in the United
States, and throughout the world, in and to the trademark
application and registration of the “Xxxx” detailed below:
Xxxx: ( See Schedule B )
Serial Number:
NOA Issue Date:
The undersigned hereby authorizes the law firm Xxxxxxx + Xxxxxxxxx, A
Professional Law Corporation (“Law Firm”), to correct any errors in this
assignment, insert any further identification or other information
necessary or desirable to make this assignment suitable for
recordation with United States Patent and Trademark Office and
throughout the world. Further, the undersigned hereby authorize Law
Firm to file a Statement of Use and any other application
amendments that may be required to register the Xxxx in the name of
Assignee.
IN WITNESS
WHEREOF, the undersigned have
duly executed this Trademark Assignment Agreement as of the date
first written above.
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ASSIGNOR
Xxxxx Xxxxxxxxx
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ASSIGNEE
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By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
GIP International Ltd
By /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Its: Sole Shareholder
DPR International LLC
By Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Its; Sole Shareholder
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By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx, CEO
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12
Exhibit 2.1
Funding Schedule
None.
13
