EXHIBIT 10.2 - MATERIAL CONTRACT - ASSET PURCHASE AGREEMENT
-----------------------------------------------------------
ASSET PURCHASE AGREEMENT
------------------------
ASSET PURCHASE AGREEMENT, dated as of May 1, 2001 (this
"Agreement"), by and between
(1) DENMANS JEWELRY (CANADA) INC., a British Columbia Canada
corporation ("Purchaser"); and
(2) BRANSON JEWELRY (USA) INC., a Nevada corporation ("Seller").
WITNESSETH:
WHEREAS, Seller was in the business of operating a website known as
xxx.xxxxxxx.xxx which was, until January 16, 2001, in the business of retailing
---------------
jewelry and related products over the Internet;
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, certain of the business assets of the Seller utilized in
the operation of the xxx.xxxxxxx.xxx (the "Website"), together with the goodwill
---------------
associated with the Website, as are identified to be purchased by Purchaser
under this Agreement (collectively, the Purchased Assets", upon the terms and
subjects to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual benefits to be derived and
the representations and warranties, conditions and promises herein contained,
and intending to be legally bound hereby, Seller and Purchaser hereby agree as
follows:
ARTICLE I
---------
GENERAL
-------
1.01. Purchased Assets. (a) As of the date hereof, Seller shall convey,
sell, transfer, assign and deliver unto Purchaser, and its successors and
assigns forever, the Purchased Assets as set on Exhibit 1.01 hereof, together
with all other intangible assets which derive from the Website together with
copies of all files, books and records relating to the Purchased Assets.
(b) From and after the date hereof, Seller shall give to Purchaser its
representatives free and unrestricted access to the books, files and records of
Seller relating to the Website. Prior to destroying or disposing of such books,
files and records, Seller shall give 30-days notice to Purchaser of the intended
destruction or disposition, and Purchaser shall have the right to take
possession of the same or to make copies of the same at its expense.
1.02. Excluded Assets. The Purchased Assets shall not include any right,
title, interest and claims of Seller in, to or under any of the following
assets: cash and cash equivalents; tax returns; articles of incorporation and
by-laws of Seller; corporate minutes; seals and stock books of Seller; bank
1
deposits or accounts of Seller; refunds or claims for refunds of taxes payable
by Seller; and any of the assets tangible or intangible, which do not relate to
the Website.
1.03. No Liabilities Assumed by Purchaser. Purchaser shall not assume any
liabilities, payments or obligations of the Seller (absolute, contingent or
otherwise) arising out of the Website, the ownership or operation of any of the
Purchased Assets, or the consummation of the transactions under this Agreement
or otherwise.
1.04. Purchase Price. (a) The purchase price (the "Purchases Price") for
the Purchased Assets shall be $10,000, payable to Seller in cash upon execution
of this Agreement.
ARTICLE II
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
2.01. Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as follows, and acknowledges and confirms that Purchaser
is relying upon such representations and warranties in connection with the
execution, delivery and performance of this Agreement:
(a) Organization and Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the Province
of British Columbia.
(b) Consents, Authorizations, Binding Effect, Etc. Seller may execute,
deliver and perform this Agreement without the necessity of any consent,
approval, authorization or waiver or giving any notice or otherwise (including
without limitation any consent of or notice to any other stockholder of Seller),
except for such consents, approvals, authorizations, waivers and notices which
have been obtained and are unconditional and remain in full force and effect and
such notices which have been given. This Agreement has been duly authorized,
executed and delivered by Seller and this Agreement constitutes the legal, valid
and binding obligation of Seller, enforceable against Seller in accordance with
its terms. The execution, delivery and performance of this Agreement by Seller
will not (1) constitute a violation of the certificate of information or the
by-laws of Seller, as amended and in effect on the date hereof (2) conflict
with, result in the breach of or constitute a default under any contract, lease,
agreement, license, commitment or order of, or binding upon, Seller, (3)
constitute a violation of any statute, judgment, order, decree or regulation or
rule of any court, governmental authority or arbitrator applicable or relating
to Seller or the Purchased Assets, or (4) result in the creation of any lien
upon any of the Purchased Assets pursuant to the provisions of any of the
foregoing. Each tangible and intangible Purchased Asset owned or used by Seller
immediately prior hereto will be owned or available for use by Purchaser
immediately subsequent to the Closing hereunder on the same basis as the Seller
used such asset or right.
(c) Litigation and Compliance. There are no actions, suits, claims or
proceedings, whether in equity or at law, pending or threatened, and to the best
knowledge of Seller, there are no governmental or administrative investigations
pending or threatened, against Seller with respect to the Purchased Assets.
To the best of its knowledge, Seller has duly filed all reports and
returns required to be filed by it with governmental authorities and has
obtained all governmental permits and licenses and other governmental consents
which are required in connection with the operation of the Business by Seller.
2
(d) Intellectual Property. To the best of its knowledge, Seller owns
or has the right to use pursuant to written license, sublicense, agreement or
permission all intellectual property necessary for the operation of the Business
as presently conducted. As used in this Agreement, intellectual property means
and includes (a) patents, patent applications, patent disclosures and
improvements thereto; (b) trademarks, service marks, trade dress, logos, trade
names and corporate names (including without limitation all brand names and
trade style), and registrations and applications for registration thereof and
all rights related thereto, including all good will; (c) copyrights and
registrations and applications for registration thereof; (d) computer software,
data and documentation; (e) trade secrets and confidential business information
(including ideas, know-how, inventions, drawings, specifications, manuals,
designs, plans, proposals, technical data, copyrightable works, financial,
marketing and business data, pricing and cost information, business and
marketing plans and customer and supplier lists and information and all other
proprietary information); and (f) license agreements or other rights related to
the foregoing and any rights or causes of action resulting from any infringement
or violation of any of the foregoing.
Seller is not aware of any basis for any claim by any third party that
Seller's operation of the Business infringes the patents, trademarks,
copyrights, trade secrets or other intellectual property rights of any third
party. Seller has made no claims that a third party has violated or infringed
any of Seller's patents, trademarks, copyrights, trade secrets or other
proprietary rights.
Exhibit 1.01 sets forth all patents and patent applications,
trademarks, service marks, trade names and registrations and applications for
registrations, copyright registrations and license agreements or other rights
related to the foregoing and any rights or causes of action resulting from any
infringement or violation of any of the foregoing. Except as disclosed on
Exhibit 1.01 Seller has not made any registration or application with respect to
any of the intellectual property transferred to Purchaser hereunder. All of
patents, trademark and service xxxx registrations, and copyright registrations
listed in Exhibit 1.01 are in full force, are held of record in Seller's name
free and clear of all liens and encumbrances, and are not the subject of any
cancellation or reexamination proceeding or any other proceeding challenging
their extent or validity. Seller is the applicant of record in all patent
applications, and applications for trademark, service xxxx, and copyright
registration listed in Exhibit 1.01, and no opposition, extension of time to
oppose, interference, rejection, or refusal to register has been received in
connection with any such application. No order, holding, decision or judgment
has been rendered by any governmental authority, and no agreement, consent or
stipulation exists, which would limit Seller's use of any intellectual property
included in the Purchased Assets.
Exhibit 1.01 also identifies each material item of intellectual
property that any third party owns and that Seller uses pursuant to license,
sublicense, agreement or permission. Seller has made available to
representatives of Purchaser correct and complete copies of all such licenses,
sublicenses, agreements and permissions (as amended to date). With respect to
each such item of intellectual property, the license, sublicense, agreement or
permission covering the item is legal, valid, binding, enforceable and in full
force and effect and will continue to be legal, valid, binding, enforceable and
in full force and effect following the consummation of the transactions
contemplated by this Agreement.
(a) Contracts, Etc. All contracts, leases, instruments, licenses,
commitments, orders and other agreements relating to the Business to which
Seller is party or by which Seller is bound or which relate to the Purchased
Assets are listed on Exhibit 2.01(h) hereto. Each of such agreements remain in
3
full force and effect, and, to the best of Seller's knowledge, there are no
existing defaults by Seller under any of such agreements.
2.02. Representations and Warranties of Purchaser. Purchaser represents and
warrants to Seller as follows, and acknowledges and confirms that Seller is
relying upon such representations and warranties in connection with the
execution, delivery and performance of this Agreement:
(a) Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada.
(b) Consents, Authorizations, Binding Effect, Etc. Purchaser may
execute, deliver and perform this Agreement without the necessity of any
consent, approval, authorization or waiver or giving any notice or otherwise
(including without limitation any consent of or notice to any other stockholder
of Purchaser), except for such consents, approvals, authorizations, waivers and
notices which have been obtained and are unconditional and remain in full force
and effect and such notices which have been given. This Agreement has been duly
authorized, executed and delivered by Purchaser and this Agreement constitutes
legal, valid and binding obligation of Purchaser, enforceable against Purchaser
in accordance with its terms. The execution, delivery and performance of this
Agreement by Purchaser will not (1) constitute a violation of the certificate of
incorporation or the by-laws of Purchaser, as amended and in effect on the date
hereof (2) conflict with, result in the breach of or constitute a default under
any contract, lease, agreement, license, commitment or order of, or binding
upon, Purchaser, or (3) constitute a violation of any statute, judgment, order,
decree or regulation or rule of any court, governmental authority or arbitrator
applicable or relating to Purchaser.
ARTICLE III
-----------
CLOSING
-------
Deliveries at the Closing. Simultaneously with the execution of this
Agreement, (i) Seller shall execute, acknowledge (if appropriate) and deliver to
Purchaser the Xxxx of Sale and such other instruments of sale, transfer,
conveyance and assignment as Purchaser reasonably may request, in each case
sufficient to convey, transfer and deliver to Purchaser good and marketable
title to all the Purchased Assets; (ii) Purchaser shall execute, acknowledge (if
appropriate) and deliver to Seller such instruments of assumption as Seller
reasonably may request; and (iii) Purchaser shall deliver the cash Purchase
Price.
ARTICLE IV
----------
MISCELLANEOUS
-------------
4.01. Further Actions. From time to time, as and when requested by
Purchaser or Seller, Seller (if requested by Purchaser) , and Purchaser (if
requested by Seller) , shall execute and deliver, or cause to be executed and
delivered, such documents and instruments and shall take, or cause to be taken,
such further or other actions as may be deemed necessary or desirable to carry
out the intent and purposes of this Agreement, to convey, transfer, assign and
deliver to Purchaser, and its successors and assigns, the Purchased Assets (or
to evidence any of the foregoing) and to consummate and give effect to the other
transactions, covenants and agreements contemplated hereby.
4
4.02. Broker's Fees. Seller and Purchaser represent and warrant to the
other that each has no obligation or liability to any broker or finder by reason
of the transactions which are the subject of this Agreement.
4.03. Expenses. Except as otherwise specifically provided herein, Seller
and Purchaser shall each bear its own costs and expenses in connection with the
negotiation, execution and the delivery of this Agreement and the consummation
of the transactions hereunder. Seller shall pay all sales taxes and any other
transfer fees and taxes arising out of the transactions contemplated by this
Agreement.
4.04. Entire Agreement. This Agreement, which includes Exhibits hereto and
the other documents, agreements and instruments executed and delivered pursuant
to or in connection with this Agreement, contains the entire agreement among the
parties hereto with respect to the transactions contemplated by this Agreement
and supersedes all prior arrangements or understandings with respect thereto.
4.05. Descriptive Headings. The headings of this Agreement are descriptive
and are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
4.06. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if sent by registered or
certified mail (receipt requested), facsimile transmission (with receipt
confirmed), or receipted courier or delivery service, addressed as follows, and
shall be deemed given when received at the office indicated below:
If to Seller: Denmans Jewelry (Canada), Inc.
Xxxxx 0000- 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx
Attention: Xxxxxxx X. Xxxxx
President
If to Purchaser: Branson Jewelry (USA), Inc.
0000 0xx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx
XXX, 00000
Attention: Xxxxxx Xxxxxx
President
Any party may by notice change the address to which notice or other
communications to it are to directed.
4.07. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada (other than the choice of law
principles thereof).
Any action, suit or other proceeding initiated by a Seller or
Purchaser against the other under or in connection with, this Agreement may be
brought only in any Federal or state court in the State of New York, as the
party bringing such action, suit or proceeding shall elect, having jurisdiction
5
over the subject matter thereof. Seller and Purchaser hereby submit themselves
to the jurisdiction of any such court, and agree to refrain from initiating or
maintaining any legal proceeding in any other forum or jurisdiction. Seller and
Purchaser further agree to waive any right to trial by jury in connection with
any such proceeding, or any claim in connection therewith.
4.08. Survival of Representations and Warranties. All representations and
warranties contained herein or made pursuant hereto shall survive the closing of
the transactions hereunder and the delivery of the Xxxx of Sale for a period of
eighteen months after the closing.
4.09. Waivers and Amendments. Any waiver of any term or condition of this
Agreement, or any amendment or supplementation of this Agreement, shall be
effective only if in writing. A waiver of any breach or failure to enforce any
of the terms or conditions of this Agreement shall not in any way affect, limit
or waive a party's rights hereunder at any time to enforce strict compliance
thereafter with every term or condition of this Agreement.
4.10. Third Party Rights. Notwithstanding any other provision of this
Agreement, this Agreement shall not create benefits on behalf of any third party
or other person, and this Agreement shall be effective only as between the
parties hereto, their successors and permitted assigns.
4.11. Illegalities. In the event that any provision contained in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and the remaining provisions of this Agreement
shall not, at the election of the party for whose benefit the provision exists,
be in any way impaired.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on and as
of the date first above written.
DENMANS JEWELRY (CANADA), INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
BRANSON JEWELRY (USA), INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: President
6
Assets Purchase Agreement
Exhibit 1.01 - Purchased Assets
SOFTWARE LICENCES
1. Microsoft Windows NT Server 4.0 (6)
2. Microsoft Site Server 3.0 (Commerce Edition) (2)
3. Microsoft SQL Server 7.0 (2)
4. Microsoft Exchange 5.5 (1)
5. Microsoft Proxy 2.0 (1)
HARDWARE COMPONENTS
1. Hewlett-Packard Pro Curve Switch 224M
2. Hewlett-Packard Pro Curve Switch 2424M
3. Keyboard rack
4. File Server (FS1)
5. Development Server (DMS2_DEV)
6. Mail Server (DOMCTRL1)
7. Proxy Server (MSPROXY1)
8. APC Smart UPS 1400
9. 4 Port KVM (Keyboard/Video/Mouse) Switch
10. 15" Monitors (2)
11. Standing Frame Rack
12. Web/Database Server
MISCELANEOUS
1. The URL xxx.xxxxxxx.xxx
---------------
2. Any and all Goodwill associated with said URL.
