ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT
(the
"Agreement") is executed as of December 2, 2008, by and among GRUPO
GRANDIOSO, LLC,
a
limited liability company organized in California ("Seller"), Xxxxxxx
Xxxx Xxxxxxxx,
the
managing member of Seller ("XXX"), and ASIANADA,
INC.,
a
Delaware corporation ("Buyer") (collectively, the "Parties").
RECITALS
WHEREAS,
the
Seller is the owner and operator of various sites currently accessible at the
information resource locations set forth on Schedule 1B attached hereto (the
“Sites”) on the World Wide Web (as defined below) part of the Internet and
certain software programs related to the operation of such Sites as more
particularly described herein; and
WHEREAS,
the Seller has the current registrations with eNom, Inc. (“eNom”) to the domain
names of the Sites reflected on Schedule 1B attached hereto (the “Domain
Names”); and
WHEREAS,
the Seller desires to sell and the Buyer desires to purchase the Purchased
Assets (as defined below) and Seller desires to transfer its rights to the
Purchased Assets to the Buyer and Buyer desires to acquire such rights from
Seller upon the terms and conditions set forth herein;
and
WHEREAS,
in order to induce Buyer to purchase such assets, properties and rights of
Seller, XXX, who has served as the principal manager of Seller and who will
receive a direct, tangible and material benefit from the transactions
contemplated by this Agreement by virtue of the fact that XXX, and/or a
revocable trust established by XXX for the benefit of his family, owns all
of
the issued and outstanding membership or other equity interests of Seller,
and
is willing to be party to this Agreement as set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Parties hereto agree as
follows:
ARTICLE
1
DEFINITIONS
For
purposes of this Agreement, the following terms shall have the following
meanings:
"Accounts
Receivable" shall mean the amounts owing to Seller as of the Closing Date for
goods sold or services provided prior to Closing, whether or not Seller has
submitted an invoice for such goods or services, or for goods to be sold or
services to be provided after the Closing for which Seller has submitted an
invoice.
"Assumed
Liabilities" shall mean only the duties, liabilities or obligations of Seller,
if any, arising after the Closing Date in connection with the items identified
on Schedule
1A,
except
as otherwise noted on Schedule
1A,
and
shall specifically exclude, among other things, (i) any liabilities for
employment, income, sales, property or other Taxes incurred or accrued by Seller
or XXX, including without limitation as a result of this transaction;
(ii) any fees or expenses incurred by Seller or XXX in connection with this
transaction; (iii) any liabilities for sums borrowed from banks or other
Persons (other than term notes for trade payables), including any interest
thereon or expenses related thereto; (iv) any debt, payables or other
liabilities to Related Persons other than as set forth on Schedule
1A;
(v) any
liabilities related to any employee benefit plan, including, without limitation,
any 401(k), profit sharing or pension plan, whether or not sponsored by Seller;
and (vi) any litigation pending against Seller.
"Closing"
shall mean the consummation of the purchase and sale transaction described
herein.
"Closing
Date" shall mean the date on which the Closing occurs, as specified in Section
2.4.
"Customer
List" shall mean the list of the names and addresses of the customers of the
Seller.
"Governmental
Entity" shall mean any court, administrative agency, commission, state,
municipality or other governmental authority or instrumentality, domestic or
foreign, national or international.
"Liens"
shall mean, with respect to the Purchased Assets, all liabilities, claims,
liens, charges, pledges, security interests, options, restrictions or other
encumbrances of any kind.
"Material
Adverse Effect" shall mean a material adverse effect on the results of
operations, financial condition or prospects of the Seller or the Purchased
Assets.
"Person"
shall be construed broadly and shall include an individual, a partnership,
a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization or a Governmental
Entity (or any department, agency or political subdivision thereof).
"Purchased
Assets" shall mean the Domain Names and all of the other assets, if any,
identified on Schedule
1B,
including, but not limited to (i) the Vendor List; (ii) all uniform resource
locators associated with the Domain Names of the Seller, including, without
limitation, the Sites together with all content of such Sites; (iii)
all
right, title and interest of Seller in and to all intellectual property rights
relating to the Purchased Assets, including without limitation patents, patent
applications, patent rights, trademarks, trademark applications, trade names,
service marks, service xxxx applications, copyrights, copyright applications,
franchises, licenses, databases, domain names, pages on the World Wide Web,
computer programs and other computer software, including the software program
further described on Schedule 1B (the “Software Program”), secrets, customer
lists, proprietary technology, processes and formulae, source code, object
code,
algorithms, architecture, structure, display screens, layouts, development
tools, instructions, templates, marketing materials, inventions, trade dress,
logos and designs, and all documentation and all media constituting, describing
or relating to the foregoing including but not limited to recommended product
features; (iii) all books, payment records; accounts; correspondence; production
records; technical, accounting and procedural manuals; development and design
data; and other useful business records utilized in the conduct of or relating
to the Purchased Assets (collectively “Records”).
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"Related
Person" shall mean any officer, director, manager, member, employee or
consultant of Seller, or any holder of five percent (5%) or more of any class
of
capital stock of Seller, or any member of the immediate family of any such
officer, director, manager, member employee, consultant, owner or shareholder,
or any entity controlled by any such officer, director, manager, member,
employee, consultant, owner or shareholder, or a member of the immediate family
of any such officer, director, manager, member, employee, consultant, owner
or
shareholder.
"Taxes"
(or "Tax" where the context requires) shall mean all federal, state, county,
city, local, foreign and other taxes (including,
without
limitation, premium, excise, value added, sales, use, occupancy, gross receipts,
franchise, ad valorem, severance, capital levy, production, transfer,
withholding, employment, unemployment compensation, payroll-related and property
taxes, import duties and other governmental charges and assessments), whether
or
not measured in whole or in part by net income, including deficiencies,
interest, additions to tax or interest or penalties with respect
thereto.
“Vendor
List” shall mean those vendors set forth on Schedule 1C.
“World
Wide Web” means
the
specific part of the Internet that contains, among other things, documents
written in HTML and from which a World Wide Web document can provide links
to
other documents on the Internet.
ARTICLE
2
SALE
OF ASSETS; CLOSING
Section
2.1.
Sale
of Assets.
At the
Closing, Seller shall sell, assign, transfer, convey and deliver to Buyer,
free
and clear of all Liens, good and marketable title to all of the Purchased
Assets.
Section
2.2.
Consideration.
In
addition to the assumption of the Assumed Liabilities, the aggregate
consideration to be paid by Buyer to Seller at Closing will be (a) a warrant
to
purchase 1,800,000 shares of common stock of Buyer at an exercise price of
$1.25
per share, which warrant shall be in substantially the form attached hereto
as
Exhibit
A
(the
“Warrant”) and (b) an unsecured contingent promissory note of Seller, with an
initial principal balance of $1,000,000, in substantially the form attached
hereto as Exhibit
B
(the
“Note”).
Section
2.3.
Buyer's
Assumption of Liabilities.
On the
terms and subject to the conditions set forth in this Agreement, and in further
consideration of the transfer of the Purchased Assets, at the Closing Buyer
shall assume only those duties, liabilities or obligations of Seller included
in
the Assumed Liabilities, if any.
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Section
2.4.
Closing.
The
Closing shall take place (via facsimile, telephone, mail and other mutually
acceptable means of communication and delivery) on the date hereof or at such
other time and location as the Parties hereto shall agree in
writing.
Section
2.5.
Deliveries
by Seller and XXX at Closing.
At the
Closing, Seller shall convey, transfer, assign and deliver to Buyer all of
the
Purchased Assets, including good and merchantable title to all personal property
included therein, free and clear of all Liens. Seller and XXX shall deliver
to
Buyer:
(a) A
certificate of Seller and XXX, dated as of the Closing Date, certifying in
such
detail as Buyer may specify to the fulfillment of the conditions specified
in
Section 6.1;
(b) Evidence
of the assignment of the name “Recycler Publishing Network” to Buyer and
documents sufficient to effectuate such change and to convey all rights in
such
name to Buyer;
(c) Xxxx
of
Sale in the form of Exhibit
C,
and
such assignments and other instruments of transfer as may be reasonably
satisfactory to Buyer's counsel, and with such consents to the conveyance,
transfer and assignment thereof as may be necessary to effect the conveyance,
transfer, assignment and delivery of the Purchased Assets and to vest in Buyer
the title specified in this Section and to assure to Buyer the full benefit
of
the Purchased Assets, including without limitation:
(i) the
transfer of all registered Intellectual Property rights (as the term
Intellectual Property is defined in Section 3.12 hereof) and applications
therefor,
(ii) the
transfer of the Domain Names to the Buyer, by execution and delivery to the
Buyer of an Assignment of Domain Names, Trademarks and Related Rights,
substantially in the form attached hereto as Exhibit
D,
and any
other documents necessary to facilitate the transfer of the Domain Names to
the
Buyer, and
(iii) the
proper notification to eNom with respect to the transfer of the Domain Names
to
the Buyer, and delivery to the Buyer of evidence of eNom’s receipt of such
notification;
(d) Assignment
of the d/b/a Recycler Publishing Network;
(e) An
employment agreement between XXX and Buyer, in the form attached hereto as
Exhibit
E
(the
“Employment Agreement”);
(f) Good
Standing Certificates of recent date for Seller from the Secretary of State
of
the State of California; and
(g) The
lock-up agreement referred to in Section 6.10 hereof.
Simultaneously
with the delivery referred to in this Section, Seller and XXX shall take or
cause to be taken all such actions as may reasonably be required to put Buyer
in
actual possession and operating control of the Purchased Assets.
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Section
2.6.
Deliveries
by Buyer at Closing.
At the
Closing, Buyer shall deliver to Seller:
(a) the
Assumption Agreement in the form attached hereto as Exhibit
F,
fully
executed by Buyer, pursuant to which Buyer assumes, as of the Closing Date,
the
future payment and performance of the Assumed Liabilities;
(b) the
Warrant;
(c) the
Note;
and
(d) the
Employment Agreement.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF SELLER
AND
XXX
Seller
and XXX hereby jointly and severally represent and warrant to Buyer as
follows:
Section
3.1.
Organization
and Power.
Seller
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of California. Seller has full power and
authority to own its properties and conduct the business presently being
conducted by it. Seller and XXX have full legal power, authority and capacity
to
execute this Agreement and to consummate the transactions contemplated by this
Agreement.
Section
3.2.
Authorization.
The
execution, delivery and performance of this Agreement by Seller have been duly
authorized and approved by all requisite action on the part of its managers
or
Board of Directors, as applicable, and members. This Agreement constitutes
the
valid and binding obligation of Seller and XXX and is enforceable against Seller
and XXX in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, and other similar
laws relating to or limiting creditors' rights generally and by equitable
principles.
Section
3.3.
No
Conflict.
The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and the compliance with the terms hereof will
not, (a) violate any law, judgment, order, decree, statute, ordinance, rule
or regulation applicable to Seller or XXX, or any permit, license or approval
of
any Governmental Entity, (b) conflict with any provision of Seller's
articles of organization or operating agreement, (c) result in any
violation of, and will not conflict with, or result in a breach of any terms
of,
or constitute a default under, any mortgage, instrument or agreement to which
any of XXX or Seller is a party or by which Seller or any of the Purchased
Assets is bound, or create any Lien upon any of the Purchased Assets, or
(d) require any notice to, or consent, approval, order or authorization of,
or the registration, declaration or filing with, any Governmental Entity or
other third party, except as set forth on Schedule
3.3.
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Section
3.4.
Title
to Purchased Assets.
Except
as stated on Schedule 3.4,
Seller
has good, valid and marketable title to all of the Purchased Assets, free and
clear of all Liens. No other party has any rights or claims to possession of
any
of the Purchased Assets. None of the Purchased Assets are subject to any option,
contract, arrangement or understanding that would restrict Seller's ability
to
transfer the Purchased Assets to Buyer as contemplated herein. Seller
has a valid registration with eNom to the Domain Name free and clear of any
liens, claims or encumbrances and such registrations are in full force and
effect. None of the Seller’s registration and use of the Domain Names has been
disturbed or placed “on hold” by eNom and no claim (oral or written) has been
asserted against the Seller adverse to its rights to such Domain
Names.
Section
3.5.
Condition
of Purchased Assets.
All of
the Purchased Assets are in good operating condition and repair, ordinary wear
and tear excepted, and in the state of maintenance, repair and operating
condition required for the proper operation and use thereof.
Section
3.6.
Litigation.
There is
no suit, action or proceeding pending against or affecting Seller or XXX or
the
employees of Seller relating to the Purchased Assets, or the transactions
contemplated hereby, nor is there any such suit, action or proceeding threatened
against Seller, XXX or any of the employees of Seller. Seller is not subject
to
any order of a Governmental Entity.
Section
3.7.
Insurance.
The
Purchased Assets are insured for Seller's benefit and will continue to be so
insured through the Closing, in amounts and against risks that are commercially
reasonable.
Section
3.8.
Brokers.
There
are no claims for brokerage commissions, finder's fees or similar compensation
arising out of or due to any act of or on behalf of Seller or XXX in connection
with the transactions contemplated by this Agreement.
Section
3.9.
Compliance:
Business Practices.
Seller
has all necessary licenses, permits and other approvals of Governmental Entities
necessary to own and operate the Purchased Assets as now conducted, each of
which is in good standing, and Seller has owned and operated the Purchased
Assets and properly filed all necessary reports in accordance with applicable
laws and regulations.
Section
3.10.
Absence
of Undisclosed Liabilities.
Seller
does not have any liabilities or obligations, either accrued, contingent or
otherwise, which are not reflected in this Agreement or the Schedules hereto.
All liabilities of Seller at the Closing Date are listed on Schedule
3.10
hereto.
Section
3.11.
Pre-Xxxx.
Seller
has not pre-billed or received prepayment for products to be sold, services
to
be rendered, or expenses to be incurred subsequent to the Closing Date.
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Section
3.12.
Intellectual
Property.
(a)
Schedule
3.12
attached
hereto contains a description of all U.S. and foreign patents, pending patent
applications, trademarks, trademark registrations, pending applications for
trademark registration, service marks, service xxxx registrations, pending
applications for service xxxx registration, trade names, copyrights, pending
copyright applications and any other intellectual property rights or licenses
(collectively, the "Intellectual Property") owned or used by Seller in
connection with the Purchased Assets. Schedule
3.12
separately discloses all Intellectual Property under license, all of which
licenses are assignable to Buyer. No Intellectual Property rights not described
on Schedule
3.12
are
necessary in connection with the ownership or operation of the Purchased Assets.
Seller owns the entire right, title and interest in and to, and has the
exclusive perpetual royalty-free right to use, the Intellectual Property, free
and clear of all Liens. There are no pending or, to the knowledge of Seller
and
XXX, threatened claims against Seller or XXX by any Person with respect to
any
of the items, or their use, listed on Schedule
3.12.
No
Person is infringing upon nor has any Person misappropriated the Intellectual
Property and Seller is not infringing upon the Intellectual Property rights
of
any other Person.
(b) Seller
employs procedures to maintain the proprietary nature of, and owns and has
the
unrestricted right to use all, trade secrets, including know-how, inventions,
designs, processes, computer software and documentation for such software and
technical data required for or incident to the development, manufacture,
operation and sale of all products and services sold or proposed to be sold
by
Seller, free and clear of any Liens, including without limitation, all claims
of
current and former employees, consultants, officers, directors, owners and
shareholders of Seller. Each employee and officer of Seller has executed an
agreement with Seller regarding confidentiality and proprietary information.
Seller and XXX, after reasonable investigation, are not aware that any of
Seller’s employees are in violation thereof, and Seller and XXX will use their
best efforts to prevent any such violation.
(c) Schedule
3.12
contains
a complete and accurate list of all computer software owned by Seller (the
"Owned Software"), and identifies all contracts and agreements pursuant to
which
computer programming services for Seller were performed. Seller has exclusive
title to the Owned Software, free and clear of all claims, including claims
or
rights of employees, agents, consultants, customers, licensees or other parties
involved in the development, creation, marketing, maintenance, enhancement
or
licensing of such computer software. The Owned Software is not dependent on
any
Licensed Software (as defined in paragraph (d) below) in order to fully operate
in the manner in which it is intended. No Owned Software has been published
or
disclosed to any other parties, except pursuant to contracts requiring such
other parties to keep the Owned Software confidential. No such other party
has
breached any such obligation of confidentiality.
(d) Schedule
3.12
contains
a complete and accurate list of all software under which Seller is a licensee,
lessee or otherwise has obtained the right to use such software (the "Licensed
Software"). Schedule
3.12
also
sets forth a list of all license fees, rents, royalties or other charges that
Seller is required or obligated to pay with respect to the Licensed Software.
Seller is in full compliance with all provisions of any license, lease or other
similar agreement pursuant to which it has rights to use the Licensed Software.
None of the Licensed Software has been incorporated into or made a part of
any
Owned Software or any other Licensed Software. Seller has not published or
disclosed any Licensed Software to any other party.
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(e) The
Owned
Software and Licensed Software constitute all software currently used in or
necessary for the ownership and operation of the Purchased Assets (the "Seller
Software"). The transactions contemplated herein will not cause a breach or
default under any licenses, leases or similar agreements relating to the Seller
Software or impair Buyer's ability to use the Seller Software in the same manner
as such computer software is currently used by Seller. Seller is not infringing
any intellectual property rights of any other Person with respect to the Seller
Software, and no other Person is infringing any intellectual property rights
of
Seller with respect to the Seller Software or is claiming any right, title
or
interest in the Seller Software or any infringement by Seller of any
intellectual property right which such other Person may possess.
(f) Seller
has not taken or failed to take any actions under the law of any applicable
foreign jurisdictions where Seller has marketed or licensed the Seller Software
that would restrict or limit the ability of Seller to protect, or prevent it
from protecting, its ownership interests in, confidentiality rights of, and
rights to market, license, modify or enhance, the Seller Software.
Section
3.13.
Contracts.
Schedule
3.13
lists
all of the contracts, leases, arrangements and understandings including, without
limitation, sales orders, purchase orders and distribution agreements, which
relate to the Purchased Assets (the "Contracts"), each of which was entered
into, arrived at or conducted on behalf of Seller with appropriate authority
and
in accordance with Seller's customary practices. None of the sales orders has
been pre-billed to, or prepaid by, the customer, except in the ordinary course
of business and consistent with Seller's past practices, nor does any sales
order contain or entitle the customer to any discount, credit, rebate or
allowance of any kind or nature that reflects prepayment made by a customer.
Neither Seller nor the other parties to such Contracts, arrangements and
understandings are in default thereof and all Contracts are valid and in effect.
Neither Seller nor XXX has received notice of default under any Contract, and
neither Seller nor XXX know of any event that has occurred or that is expected
to occur which (after notice and lapse of time or both) would become a breach
or
default under, or otherwise permit unilateral modification, cancellation,
acceleration or termination of any such Contract. No customer, supplier or
vendor of Seller has given any notice or made any threat or otherwise revealed
an intent to cancel or otherwise terminate its relationship with Seller, to
materially and adversely change the relationship, to substantially reduce the
volume of business it currently does with Seller or to refuse to renew any
Contract when it expires.
Section
3.14.
Labor.
Seller
has no employees and, except as set forth on Schedule
3.14,
Seller
is not, and, as of the Closing Date will not be, a party to any employment
or
consulting agreement or to any collective bargaining agreement.
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Section
3.15.
Taxes.
(a) Seller
has prepared and filed all federal, state, local and foreign returns, estimates,
information statements and reports ("Returns") relating to any and all Taxes
concerning or attributable to Seller or the Purchased Assets which Seller is
required to file on or before the Closing and such Returns were true and
accurate and were completed in accordance with applicable law when
filed.
(b) Seller
has (i) paid all Taxes it is required to pay and (ii) withheld with respect
to
its employees all federal and state income taxes, FICA, FUTA and other Taxes
required to be withheld.
(c) Seller
has not been delinquent in the payment of any Tax nor is there any Tax
deficiency outstanding, proposed or assessed against Seller.
(d) No
audit
or other examination of any Return of Seller is presently in progress, nor
has
Seller been notified of any request for such an audit or other
examination.
(e) Seller
does not have any liabilities for unpaid Taxes whether asserted or unasserted,
contingent or otherwise, and neither Seller nor XXX has any knowledge of any
basis for the assertion of any such liability attributable to Seller or the
Purchased Assets.
(f) There
are
(and as of immediately following the Closing there will be) no Liens on the
Purchased Assets relating to or attributable to Taxes.
(g) The
transactions contemplated herein are not subject to the tax withholding
provisions of Code Section 3406 or Subchapter A of Chapter 3 of the Code or
any
other provision of law.
(h) Seller
has not made any payments, is not obligated to make any payments, and is not
a
party to any agreement that could obligate it to make any payments, that will
not be fully deductible under Code Section 162(m) or 280G of the Code (or any
similar provision of foreign, state or local law).
Section
3.16.
Powers
of Attorney.
No
Person
has any power of attorney to act on behalf of Seller in connection with any
of
its properties or business affairs other than such powers to so act as normally
pertain to the officers of Seller.
Section
3.17. Relationships
with Related Persons.
Neither
Seller or XXX nor any Related Person of Seller or XXX has any interest in any
property (whether real, personal, or mixed and whether tangible or intangible)
used in or pertaining to the Purchased Assets. No Seller or XXX or any Related
Person of Seller or XXX, is, or has owned (of record or as a beneficial owner)
an equity interest or any other financial or profit interest in, a Person that
has (a) had business dealings or a material financial interest in any
transaction with the Seller or (b) engaged in competition with Seller with
respect to any line of the products or services of Seller (a "Competing
Business") in any market presently served by Seller, except for less than one
percent (1%) of the outstanding capital stock of any Competing Business that
is
publicly traded on any recognized exchange or in the over-the-counter market.
No
Related Person of Seller or XXX is a party to any Contract.
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Section
3.18.
Statements
not Misleading.
Seller
and XXX have disclosed all facts, events or transactions which are material
to
the Purchased Assets. No representation or warranty of Seller or XXX or document
furnished by Seller or XXX hereunder is false or inaccurate in any material
respect or contains or will contain any untrue statement of a material fact
or
omits or will omit to state any fact necessary to make the statements contained
herein or therein not misleading.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
hereby represents and warrants to Seller, as of the Closing Date, as
follows:
Section
4.1.
Organization
and Power of Buyer.
Buyer
is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Buyer has full corporate power and authority
to
own its properties and conduct the business presently being conducted by it,
to
execute this Agreement, and to consummate the transactions contemplated by
this
Agreement.
Section
4.2.
Authorization.
The
execution, delivery and performance of this Agreement by Buyer have been duly
authorized and approved by all requisite action on the part of Buyer, and this
Agreement constitutes the valid and binding obligation of Buyer and is
enforceable against Buyer in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, and other similar laws relating to or limiting creditors' rights
generally and by equitable principles.
Section
4.3.
No
Conflict.
The
execution and delivery of this Agreement does not, and the consummation of
the
transactions contemplated hereby and the compliance with the terms hereof will
not, (a) violate any law, judgment, order, decree, statute, ordinance, rule
or
regulation applicable to Buyer, or any permit, license or approval of any
Governmental Entity, (b) conflict with any provision of Buyer's certificate
of
incorporation or by-laws, (c) result in any violation of, and will not conflict
with, or result in a breach of any terms of, or constitute a default under,
any
mortgage, instrument or agreement to which Buyer is a party or by which Buyer
is
bound, or (d) require any notice to, or consent, approval, order or
authorization of, or the registration, declaration or filing with, any
Governmental Entity or other third party, which, in the case of clause (c)
or
(d), would have a material adverse effect on Buyer’s ability to consummate the
transactions contemplated by this Agreement.
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ARTICLE
5
COVENANTS
Section
5.1. Ownership
of Purchased Assets.
During
the period from the date of this Agreement and continuing until the Closing,
Seller and XXX agree (except as expressly provided in this Agreement or the
Schedules hereto or to the extent that Buyer shall otherwise consent in writing)
that:
(a) Seller
shall not sell, lease or otherwise dispose of, or agree to sell, lease or
otherwise dispose of, any of the Purchased Assets;
(b) Seller
shall not enter into or assume any pledge or other title retention agreement,
or
permit any Lien to attach upon any of the Purchased Assets;
(c) Seller
shall maintain and keep in good order and repair in a manner consistent with
Seller's existing practice, subject to reasonable wear and tear, all of the
Purchased Assets;
(d) Seller
shall not solicit or accept advance payments from customers for services or
goods which are to be performed or delivered by Buyer subsequent to the Closing
Date, except in the ordinary course of business consistent with prior
practices;
(e) Seller
shall not enter into any contract, commitment or agreement which either
individually or in the aggregate would have a Material Adverse Effect upon
the
Purchased Assets, or amend, modify adversely, cancel, rescind, revoke or
terminate any of the contracts or agreements to be transferred to Buyer
hereunder;
(f) Seller
shall take no action that would or might result in any of its representations
and warranties set forth in this Agreement becoming untrue (including the
accuracy of the Schedules), any of the conditions to Closing set forth in
Article 6 not being satisfied, or any of the Purchased Assets becoming
materially less valuable;
(i) Seller
shall comply with all laws, rules and regulations of any Governmental Entity
applicable to the Purchased Assets, own and operate the Purchased Assets and
shall maintain its good standing under all permits and licenses necessary to
own
and operate the Purchased Assets; and
(j) Seller
shall promptly advise Buyer in writing of the occurrence of any matter or event
that is material to the Purchased Assets, the Closing conditions or the
representations and warranties in this Agreement.
Section
5.2. Access
to Information.
From and
after the date of this Agreement until the Closing Date, Seller and XXX shall
afford to Buyer and to Buyer's counsel, accountants and other authorized
representatives, full access to the facilities, properties, contracts, books,
records, key personnel, customers and suppliers of the Seller and shall allow
them to examine and obtain copies of any and all documents pertaining or
relating to the Purchased Assets and Assumed Liabilities in order that Buyer
and
its authorized representatives, in conducting the due diligence review, may
have
full opportunity to make such reasonable investigations as they shall desire
to
make of the affairs of Seller.
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11 -
Section
5.3.
Further
Assurances.
Seller
and XXX will provide such other information, and execute and deliver all such
other and additional instruments, notices, releases, undertakings, consents
and
other documents, and will do all such other acts and things, as may be
reasonably requested by Buyer as necessary to assure to Buyer all the rights
and
interests granted or intended to be granted under this Agreement. Seller and
XXX
shall take or shall cause to be taken such other reasonable actions as Buyer
may
require more effectively to transfer, convey and assign to, and vest in, Buyer,
and put Buyer in possession of, the Purchased Assets as contemplated by this
Agreement. In the event that any of the Purchased Assets cannot be fully and
effectively transferred to Buyer without the consent of a third party or
parties, and if at the Closing Buyer shall have waived its right to receive
at
the Closing such consent, Seller and XXX shall thereafter be obligated to use
their best efforts to assure to Buyer the benefits of such contract, commitment,
other arrangement or other Purchased Asset.
Section
5.4.
Passage
of Title and Risk of Loss.
Legal
title, equitable title, and risk of loss with respect to the property and rights
to be transferred hereunder shall not pass to Buyer until the property or right
is transferred at the Closing and possession thereof is delivered to
Buyer.
Section
5.5.
Transfer
of Goodwill and Purchased Assets.
From
and
after the Closing Date, Seller and XXX shall, when requested to do so by Buyer,
provide reasonable good faith assistance to effectuate a smooth transfer of
the
Purchased Assets to Buyer.
Section
5.6.
Expenses;
Transfer Taxes.
All
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense. Any sales, use, franchise, conveyance or other transfer Tax which
becomes payable by any of the parties to this Agreement as a result of the
conveyance and transfer from Seller to Buyer of the Purchased Assets or
otherwise as a result of the transactions contemplated hereby and any other
transfer or documentary Taxes or any filing or recording fees applicable to
such
conveyance and transfer shall be paid by Seller and XXX, and Seller and XXX
shall promptly provide Buyer with proof of payment of such Taxes.
Section
5.7.
Covenants
not to Compete.
(a) Non-Competition.
For the
Non-Compete Period (as that term is defined below), within the territories
in
which Buyer conducts its business at Closing (the "Territory"), neither Seller
nor XXX shall, directly or indirectly, engage in competition with Buyer or
an
affiliate thereof, in any manner or capacity (e.g., as an advisor, principal,
agent, partner, member, officer, director, stockholder, employee, member of
any
association, or otherwise), in any business relating to the Purchased Assets
to
be conducted by Buyer or any other business associated therewith and conducted
by Buyer during the Non-Compete Period (together, the "Competitive Activities"),
including the design, development, manufacture, distribution, marketing, leasing
or selling of products, services or systems which are competitive with the
products, services or systems being sold, marketed or produced by, or which
are
under development by, Buyer or an affiliate thereof at the time of the Closing
or during the Non-Compete Period. Neither Seller nor XXX shall own, participate
in the ownership of, lend money, guarantee loans, make gifts of money or other
property, or otherwise lend financial or other assistance in any form to any
Person, firm, association, partnership, venture, corporation or other business
entity which is engaged in, or will within the Non-Compete Period engage in,
any
of the activities prohibited by this Section 5.7.
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12 -
(b) Limitation
on Covenant.
Ownership by Seller or XXX, as a passive investment, of less than one percent
(1%) of the outstanding shares of capital stock of any corporation listed on
a
national securities exchange or publicly traded in the over-the-counter market
shall not constitute a breach of this Section 5.7.
(c) Employees.
During
the Non-Compete Period, neither Seller nor XXX shall, either on its, his or
her
own account or in conjunction with or on behalf of any other Person, firm or
company, employ, solicit, entice away or attempt to employ, solicit or entice
away from Buyer any person who at the date hereof is, or at the date of or
within the year preceding such employment, solicitation, enticement or attempt
shall have been, an officer, manager, consultant or employee of
Buyer.
(d) Confidentiality.
Neither
Seller nor XXX will at any time hereafter make use of or disclose or divulge
to
any Person (other than to officers or employees of Buyer whose province it
is to
know the same) any information (other than any information properly available
to
the public or disclosed or divulged pursuant to an order of a court of competent
jurisdiction) relating to Buyer or the Purchased Assets, the identity of the
customers and suppliers of Buyer, or the products, finances, contractual
arrangements, business or methods of business of Buyer and shall use his, her
or
its best endeavors to prevent the publication or disclosure of any such
information. Seller and XXX acknowledge that many of the Purchased Assets are
trade secrets which Buyer has purchased and which Seller and XXX are forever
restricted from using or disclosing. If, in connection with the business or
affairs of Seller, Seller or XXX shall have obtained trade secrets or other
confidential information belonging to any third party under an agreement which
contained restrictions on disclosure by Seller or XXX, Seller or XXX, as the
case may be, will not at any time infringe such restrictions.
(e) Injunctive
Relief.
Seller
and XXX acknowledge that any violation of any provision of this Section 5.7
will
cause irreparable harm to Buyer, that damages for such harm will be incapable
of
precise measurement and that, as a result, Buyer will not have an adequate
remedy at law to redress the harm caused by such violations. Therefore, in
the
event of a violation of Section 5.7 by Seller or XXX, Seller and XXX agree
that, in addition to its other remedies, Buyer shall be entitled, without the
necessity of either proof of actual damage or the posting of a bond, to
injunctive relief, including but not limited to an immediate temporary
injunction, temporary restraining order and/or preliminary or permanent
injunction to restrain or enjoin any such violation.
(f) Severability.
The
Parties understand and agree that the covenant set forth in this Section 5.7
shall be construed as a series of separate covenants not to compete, one
covenant for each country, state and province within the Territory, one for
each
separate line of the Competitive Activities, and one for each month of the
non-competition period. Should any clause, portion or paragraph of this Section
5.7 be unenforceable or invalid for any reason, such unenforceability or
invalidity shall not affect the enforceability or validity of the remainder
of
this Section 5.7. Should any particular covenant or restriction, including
but
not limited to the covenants and restrictions of Section 5.7(a), 5.7(c) and
5.7(d), be held to be unreasonable or unenforceable for any reason, including
without limitation the time period, geographical area and scope of activity
covered by such covenant, then a court may modify any such covenant or
restriction in order to give it effect and allow it to be enforced to the
greatest extent that would be reasonable and enforceable.
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13 -
(g) Acknowledgment.
Seller
and XXX acknowledge that this covenant not to compete is a mandatory condition
precedent to the Closing of the transactions contemplated by this Agreement,
and
that, in the absence of the preceding covenant not to compete, Buyer would
not
have consented to the Closing.
(h) Non-Compete
Period.
(i) The
Non-Compete Period for Seller shall be two (2) years after the Closing Date
or,
if ordered by a court of competent jurisdiction, one of the periods of time
listed in clause (iii).
(ii) The
Non-Compete Period for XXX shall be the longer of two (2) years from the Closing
Date or two (2) years following termination of employment with Buyer or an
affiliate thereof, or, if ordered by a court of competent jurisdiction, one
of
the periods of time listed in clause (iii).
(iii) If
ordered by a court of competent jurisdiction, the Non-Compete Period for Seller
or XXX shall be one of the following periods of time:
(A) two
(2)
years from the Closing Date;
(B) one
(1)
year and six (6) months from the Closing Date;
(C) one
(1)
year from the Closing Date; or
(D) six
(6)
months from the Closing Date.
Notwithstanding
anything in this Section 5.7 to the contrary, in the event that the conditions
for payment under the Note have been met and the Buyer fails to make any
required payments under the Note when due, pursuant to the terms and subject
to
the conditions of the Note, then the Buyer shall be deemed to have automatically
waived in full any non-competition and non-solicitation restrictions imposed
on
Seller and XXX pursuant to this Agreement.
Section
5.8.
Consent
of Third Parties.
Seller
and XXX shall obtain, as soon as practicable after the date hereof, but in
any
event prior to the Closing Date, the consent in writing of all necessary Persons
to the transactions contemplated by this Agreement and/or such amendments or
modifications of such documents as may be required in order that the transfer
of
the Purchased Assets hereunder will not result in the termination of, or any
default under, any contracts, agreements, obligations, leases, permits or
licenses.
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14 -
Section
5.9.
Use
of Name " Recycler Publishing Network."
From and
after the Closing Date, Seller shall cease to use the name "Recycler Publishing
Network" or any similar name without the prior written consent of
Buyer.
Section
5.10.
No
Contemporaneous Negotiations.
Pending
the Closing, neither Seller nor XXX shall discuss or negotiate with any other
Person or entertain or consider any inquiries or proposals relating to the
possible disposition of the Purchased Assets or sale or merger of Seller or
any
other transaction that would cause a change of control of Seller. Seller and
XXX
will promptly notify Buyer of any inquiry or proposal received by Seller or
XXX,
including information as to the identity of the parties making such inquiry
or
proposal and the specified terms of such inquiry or proposal, as the case may
be.
Section
5.11.
Taxes.
(a) Continuing
Obligation.
Seller
and XXX shall be responsible for and pay when due all of Seller's Taxes
attributable to, levied or imposed upon or incurred in connection with the
Purchased Assets or the Seller relating or pertaining to the period (or that
portion of any period) ending on or prior to the Closing Date. Seller and XXX
shall continue to timely file within the time period for filing, or any
extension granted with respect thereto, all of Seller's Tax Returns required
to
be filed in connection with the Purchased Assets and such Tax Returns shall
be
true and correct and completed in accordance with applicable laws. Seller shall
provide Buyer with copies of such Tax Returns for its review and comment at
least five (5) business days before such Tax Returns must be filed.
(b) Status
at Closing.
At
Closing, Seller shall have (i) paid all Taxes it is required to pay as of such
time, and (ii) withheld with respect to its employees all federal and state
income taxes, FICA, FUTA and other Taxes required to be withheld as of such
time, if any.
(c) Tax
Elections.
No new
elections with respect to Taxes, or any changes in current elections with
respect to Taxes, affecting the Purchased Assets shall be made after the date
of
this Agreement without the prior written consent of Buyer.
(d) Nonforeign
Affidavit.
Seller
shall furnish Buyer with an affidavit, stating, under penalty of perjury, the
transferor’s United States taxpayer identification number and that the
transferor is not a foreign person pursuant to Section 1445(b)(2) of the
Code.
(e) Cooperation
and Records Retention.
Seller
and Buyer shall each (i) provide the other with such assistance as may
reasonably be requested by any of them in connection with the preparation of
any
Return, audit or other examination by any taxing authority or judicial or
administrative proceeding relating to liability for Taxes, (ii) retain and
provide the other with any records or other information which may be relevant
to
such Return, audit or examination, proceeding or determination, and (iii)
provide the other with any final determination of any such audit or examination,
proceeding or determination that affects any amount required to be shown on
any
Return of the other for any period. Without limiting the generality of the
foregoing, Buyer and Seller shall retain, until the applicable statutes of
limitations (including any extensions) have expired, copies of all Returns,
supporting work schedules and other records or information which may be relevant
to such Returns for all tax periods or portions thereof ending before or
including the Closing Date and shall not destroy or otherwise dispose of any
such records without first providing the other party with a reasonable
opportunity to review and copy the same.
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15 -
ARTICLE
6
CONDITIONS
PRECEDENT TO BUYER'S OBLIGATIONS
All
obligations of Buyer under this Agreement are subject to the fulfillment, prior
to or at the Closing Date, of each of the following conditions:
Section
6.1.
Representations
and Warranties Accurate.
All
representations and warranties of Seller and XXX contained in this Agreement
shall have been true when made and shall be true at and as of the Closing Date,
except as otherwise specifically contemplated by this Agreement. Seller and
XXX
shall have complied with all covenants and conditions required to be performed
or complied with by them prior to or at the Closing Date. Seller and XXX shall
furnish Buyer with an appropriate certificate to the foregoing effect as of
the
Closing Date.
Section
6.2.
Litigation
Affecting Closing.
No
action, suit or proceeding shall be pending or threatened by or before any
court
or Governmental Entity in which it is sought to restrain or prohibit or to
obtain damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby.
Section
6.3.
Instruments
of Sale, Etc.
Seller
shall have executed and delivered to Buyer such instruments of sale, conveyance,
transfer and assignment satisfactory to counsel for Buyer as are necessary
or
desirable to vest in Buyer title to all of the Purchased Assets or to confirm
the status of title to the Purchased Assets, including, without limitation,
documents sufficient to effectuate the change in Seller's corporate name as
required by Section 2.5(b) and the assignment of the Purchased Assets listed
in
Section 2.5(c).
Section
6.4.
Consents.
All
authorizations, approvals, permits or consents of any Governmental Entity or
third Person necessary for the consummation of the transactions contemplated
by
this Agreement shall have been duly obtained by Seller and XXX in writing,
shall
be effective on the Closing Date, and shall have been delivered to
Buyer.
Section
6.5.
No
Material Adverse Effect.
There
shall not have occurred any event listed in Section 3.16 that would have a
Material Adverse Effect on the Purchased Assets or the Assumed
Liabilities.
Section
6.6.
Deliveries
at Closing.
Seller
and XXX shall have delivered to Buyer, fully executed by all applicable parties,
each of the items specified in Section 2.5 of this Agreement.
Section
6.7.
Update
of Schedules.
Seller
and XXX shall have updated all of the Schedules hereto as of the Closing
Date.
Section
6.8.
Approval
by Board of Buyer.
The
Board of Directors of Buyer shall have approved this Agreement and the
transactions contemplated hereby.
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16 -
Section
6.9. Due
Diligence.
Buyer
shall be satisfied with the results of its due diligence investigation of
Seller, the Purchased Assets and the Assumed Liabilities.
Section
6.10. Lock-Up
Agreement.
Buyer
shall have received an executed lock-up agreement from the Seller and XXX,
to
the effect that for a period of three years following the Closing, neither
Seller nor XXX shall, without the written consent of Seller, sell, transfer,
grant an option to, make a gift of or otherwise dispose of the Warrant or any
of
the shares of Buyer common stock acquired in connection with the exercise of
the
Warrant or make any short sale of such Buyer common stock.
ARTICLE
7
CONDITIONS
PRECEDENT TO SELLER'S
AND
JAS’S OBLIGATIONS
All
obligations of Seller and XXX under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following
conditions:
Section
7.1.
Representations
and Warranties Accurate.
All
representations and warranties of Buyer contained in this Agreement shall have
been true when made and shall be true in all material respects at and as of
the
Closing Date, except as otherwise specifically contemplated by this Agreement.
Buyer shall have performed and complied in all material respects with all
covenants and conditions required to be performed or complied with by it prior
to or at the Closing Date.
Section
7.2.
Litigation
Affecting Closing.
No
action, suit or proceeding shall be pending or threatened by or before any
court
or Governmental Entity in which it is sought to restrain or prohibit or to
obtain damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby.
Section
7.3.
Deliveries
at Closing.
Buyer
shall have delivered to Seller or XXX, as applicable, fully executed by Buyer,
each of the items specified in Section 2.6 of this Agreement.
ARTICLE
8
TERMINATION
Section
8.1.
Termination
Events.
This
Agreement may be terminated by written notice on or before the Closing
Date:
(a) by
the
mutual consent of the parties hereto; or
(b) by
Buyer,
if the conditions set forth in Article 6 are not satisfied (or are incapable
or
being satisfied) on or before December 31, 2008, without fault of Buyer;
or
(c) by
Seller, if the conditions set forth in Article 7 are not satisfied (or are
incapable of being satisfied) on or before December 31, 2008 without fault
of
Seller.
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17 -
Section
8.2.
Effect
of Termination.
In the
event of termination of this Agreement as provided in Section 8.1 hereof, this
Agreement shall forthwith become void and there shall be no liability on the
part of Buyer, Seller, their respective officers or directors, or XXX, except
that the agreements contained in Section 8.3 hereof and in paragraphs 6(b),
10,
11 and 12 of the letter of intent dated October 24, 2008 among Seller, XXX
and
Buyer shall survive the termination hereof.
Section
8.3.
Return
of Documents.
In the
event that the sale of the Purchased Assets is not consummated for any reason
whatsoever, or if this Agreement is terminated for any reason whatsoever, each
party will return to the other party on a timely basis all documents,
agreements, instruments or other written information concerning the other party
that was obtained from such other party.
ARTICLE
9
INDEMNIFICATION
Section
9.1.
Indemnification.
Seller
and XXX jointly and severally on the one hand, and Buyer on the other hand,
shall hold harmless and indemnify one another from and against any and all
liability, loss or damage, including attorneys' fees and other expenses,
resulting from the breach by the indemnifying party of its representations,
warranties and covenants under this Agreement. Seller and XXX, jointly and
severally, shall hold harmless and indemnify Buyer from and against any and
all
liability, loss or damage, including attorneys' fees and other expenses,
resulting from any liability or obligation of Seller or the Purchased Assets
as
owned and operated by Seller through the Closing Date (other than the Assumed
Liabilities), whether or not such liability or obligation was disclosed to
Buyer.
Section
9.2.
Set-Off.
Buyer’s
obligation to make payments under the Note are subject to reduction or
non-payment due to any claim that Buyer may have against Seller and XXX under
Section 9.1.
Section
9.3.
Survival.
The
representations, warranties and covenants of indemnification contained in this
Agreement shall survive the Closing, regardless of any investigation or due
diligence inquiry that may have been made on behalf of the party for whose
benefit the representations, warranties and covenants were made;
ARTICLE
10
MISCELLANEOUS
Section
10.1.
Notices.
All
notices, demands, consents, requests and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed conclusively to have been duly given (a) when hand delivered to the
other
party; (b) three business days after such notice has been sent by United States
mail via pre-paid registered mail, return receipt requested, postage prepaid,
and addressed to the other party as set forth below; or (c) the next business
day after such notice has been deposited with a national overnight delivery
service reasonably approved by the parties (Federal Express and Airborne Express
are deemed approved by the parties), postage prepaid, addressed to the party
to
whom notice is being sent as set forth below with next-business-day delivery
guaranteed, provided that the sending party receives a confirmation of delivery
from the delivery service provider; or (d) when received by the recipient party
when sent by facsimile transmission at the address and number set forth below
(provided, however, that notices given by facsimile shall not be effective
unless either (i) a duplicate copy of such facsimile notice is promptly sent
by
United Stated Mail with first-class postage prepaid and addressed to the parties
as set forth below; or (ii) the receiving party delivers a written confirmation
of receipt for such notice either by facsimile or any other method permitted
under this Section. Any notice given by facsimile transmission shall be deemed
received on the next business day if such notice is received after 5:00 p.m.
(recipient’s time) or on a Saturday, Sunday or national holiday. Unless
otherwise provided in writing, all notices hereunder shall be addressed as
follows:
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18 -
To
Buyer:
Asianada,
Inc.
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attention:
CFO
With
a
copy to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxx
To
Seller
or XXX:
Grupo
Grandioso, LLC
00000
Xxxxxxxxx Xxxx - Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxx
With
a
copy to: Xxxxx X. Xxxxxxxxx, Esq.
00000
Xxxxxxx Xxxxxx #000
Xxxxxxx
Xxxxxxxxx, XX. 90272
Section
10.2.
Entire
Agreement.
This
Agreement (including the schedules and exhibits hereto) constitutes the sole
understanding of the parties with respect to the subject matter
hereof.
Section
10.3.
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
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19 -
Section
10.4.
Parties
in Interest; Assignment.
This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors and assigns, and any assignment of this
Agreement or the rights hereunder by Seller or XXX without the prior written
consent of Buyer shall be void.
Section
10.5.
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without reference to its conflicts of laws
principles.
Section
10.6.
Schedules
and Headings.
All of
the schedules and exhibits attached hereto are a part of this Agreement and
all
of the matters contained therein are incorporated herein by reference. The
descriptive headings of the several Articles and Sections of this Agreement
are
inserted for convenience only and do not constitute part of this
Agreement.
Section
10.7.
Amendment.
This
Agreement may be amended only by the parties hereto by any instrument in writing
signed by or on behalf of each of the parties hereto.
Section
10.8.
Waiver.
Any
term
or provision of this Agreement may be waived only in writing by the party or
parties who are entitled to the benefits being waived.
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20 -
Section
10.9.
Arbitration.
In
the
event of any dispute or controversy arising out of, or relating to, this
Agreement, the parties hereto agree to submit such dispute or controversy to
binding arbitration. A sole arbitrator shall be selected from the list (the
“List”) of arbitrators supplied by J.A.M.S. (“JAMS”) Los Angeles County,
California office, or any successor entity, or if it no longer exists, from
a
List supplied by the American Arbitration Association (“AAA”) following written
request by any party hereto. If the parties hereto after notification of the
other party(ies) to such dispute cannot agree upon an arbitrator within thirty
(30) days following receipt of the List by all parties to such arbitration,
then
either party may request, in writing, that JAMS or AAA, as appropriate, appoint
an arbitrator within ten (10) days following receipt of such request (the
“Arbitrator”). The arbitration shall take place in Los Angeles County,
California, at a place and time mutually agreeable to the parties or if no
such
agreement is reached within ten (10) days following notice from the Arbitrator,
at a place and time determined by the Arbitrator. Such arbitration shall be
conducted in accordance with the Streamlined Arbitration Rules and Procedures
of
JAMS then in effect, and Section 1280 et seq. of the California Code of Civil
Procedure, or if applicable, the Commercial Arbitration Rules of AAA then in
effect. The parties hereto agree that all actions or proceedings arising in
connection with this Agreement shall be arbitrated exclusively in Los Angeles
County, California. The aforementioned choice of venue is intended by the
parties to be mandatory and not permissive in nature, thereby precluding the
possibility of litigation between the parties with respect to or arising out
of
this Agreement in any jurisdiction other than that specified in this Section.
Each party hereby waives any right it may have to assert the doctrine of
forum
non conveniens
or
similar doctrine or to object to venue with respect to any proceeding brought
in
accordance with this Section, and stipulates that the Arbitrator shall have
in
personam
jurisdiction and venue over each of them for the purpose of litigating any
dispute, controversy, or proceeding arising out of or related to this Agreement.
Each party hereby authorizes and accepts service of process sufficient for
personal jurisdiction in any action against it as contemplated by this Section
by registered or certified mail, return receipt requested, postage prepaid,
to
its address for the giving of notices as set forth in this Agreement. The
decision of the Arbitrator shall be final and binding on all the parties to
the
arbitration, shall be non-appealable and may be enforced by a court of competent
jurisdiction. In addition to attorneys fees as provided herein, the prevailing
party shall be entitled to recover from the non-prevailing party reasonable
costs and expenses. The costs and fees of the arbitration shall be paid by
the
non-prevailing party. The Arbitrator may grant any remedy appropriate including,
without limitation, injunctive relief or specific performance. Prior to the
appointment of the Arbitrator, any party may seek a temporary restraining order
or a preliminary injunction from the Los Angeles County Superior Court which
shall be effective until a final decision is rendered by the Arbitrator.
[The
remainder of this page is intentionally left blank; the next succeeding page
is
a signature page.]
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Asset Purchase
Agreement as of the date first above written.
|
GRUPO
GRANDIOSO, LLC
|
ASIANADA,
INC.
|
||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxx
|
By:
|
/s/
Xxxxxxx Xxxxx
|
||
|
Xxxxxxx
X. Xxxxxxxx
|
Name:
Xxxxxxx Xxxxx
|
||||
|
Title:
Its Managing Member
|
Title:
Chief Financial Officer
|
||||
|
/s/
Xxxxxxx Xxxxx Xxxxxxxx
|
|||||
|
Individually
|
|||||
