ASSET PURCHASE AGREEMENT
Exhibit10.2
This
Asset Purchase Agreement ("Agreement") is entered into this 15th
day of
August 2006 (ASigning
Date@)
by and
between Gold Fusion Laboratories, Inc. ("Buyer"), a Nevada corporation with
a
mailing address of 59 West 000 Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000,
and Diversified Holdings X, Inc., a corporation (hereinafter "DHX"), with a
business address of 59 West 000 Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx
00000.
WHEREAS,
Buyer
desires to acquire from DHX its one hundred percent (100%) ownership interest
in
the assets, inventory and receivables of the fashion operations of Diversified
Holdings X, Inc. that currently owns and operates the Black Chandelier clothing
operations (the “BC Interest” as more fully set forth in Exhibit “A” hereto) in
exchange for a promissory note in the sum of Three Hundred Thousand dollars
($300,000), bearing interest at the rate of twenty four percent (24%) per annum,
secured by the stock ownership of Gold Fusion Laboratories, Inc. and Seventy
Thousand (70,000) shares of the Class A Preferred Stock of Nexia Holdings,
Inc.
NOW,
THEREFORE
with the
above being incorporated into and made a part hereof for the mutual
consideration set out herein and, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Exchange.
DHX
will transfer the BC Interest to Buyer and Buyer will deliver to DHX the above
set forth promissory note in the face amount of Three Hundred Thousand dollars
($300,000) made payable to DHX and Seventy Thousand (70,000) shares of Class
A
Preferred Stock of Nexia Holdings, Inc. on or before September 30,
2006.
2. Termination.
This
Agreement may be terminated at any time prior to the Closing Date:
A. By
Buyer or DHX:
(1) If
there
shall be any actual or threatened action or proceeding by or before any court
or
any other governmental body which shall seek to restrain, prohibit, or
invalidate the transactions contemplated by this Agreement and which, in the
judgment of Nexia=s
Board
of Directors or Buyer or DHX and made in good faith and based upon the advice
of
legal counsel, makes it inadvisable to proceed with the transactions
contemplated by this Agreement; or
(2) If
the
Closing shall have not occurred prior to September 30, 2006, or such later
date
as shall have been approved by parties hereto, other than for reasons set forth
herein.
B. By
Buyer:
(1) If
DHX
shall fail to comply in any material respect with any of his covenants or
agreements contained in this Agreement or if any of the representation or
warranties of DHX contained herein shall be inaccurate in any material respect;
or
C. By
DHX:
(1) If
Buyer
shall fail to comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the representation or
warranties of Buyer contained herein shall be inaccurate in any material
respect;
In
the
event this Agreement is terminated pursuant to this Paragraph, this Agreement
shall be of no further force or effect, no obligation, right, or liability
shall
arise hereunder, and each party shall bear its own costs as well as the legal,
accounting, printing, and other costs incurred in connection with negotiation,
preparation and execution of the Agreement and the transactions herein
contemplated.
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3. Representations
and Warranties of DHX.
DHX
hereby represents and warrants that effective this date and the Closing Date,
the representations and warranties listed below are true and
correct:
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A.
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Legal
Authority.
DHX has the full legal power and authority to enter into this Agreement
and to carry out the transactions contemplated by this Agreement
and will
obtain any necessary consents required to complete the
transaction.
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B.
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No
Conflict With Other Instruments.
The execution of this Agreement will not violate or breach any document,
instrument, agreement, contract, or commitment material to the business
of
DHX to which DHX is a party and has been duly authorized by all
appropriated and necessary action.
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C.
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Deliverance
of BC Interest.
As of the Closing Date, the BC Interest to be delivered to Buyer
will
constitute valid and legally issued ownership rights in all assets,
inventory and receivables of Black Chandelier, fully paid and
non-assessable.
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4. Representations
and Warranties of Buyer.
Buyer
hereby represents and warrants that, effective this date and the Closing Date,
the representations and warranties listed below are true and
correct.
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A.
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Legal
Authority.
Buyer has the full legal power and authority to enter into this Agreement
and to carry out the transactions contemplated by this
Agreement.
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B.
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No
Conflict With Other Instruments.
The execution of this Agreement will not violate or breach any document,
instrument, agreement, contract, or commitment material to the business
of
Buyer to which Buyer is a party and has been duly authorized by all
appropriated and necessary action.
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C.
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Deliverance
of Shares.
As of the Closing Date, the provided for compensation to DHX will
be
delivered to it.
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5. Closing.
The
Closing as herein referred to shall occur upon such date as the parties hereto
may mutually agree upon, but is expected to be on or before September 30,
2006.
6. Conditions
Precedent of DHX to Effect Closing.
All
obligations of DHX under this Agreement are subject to fulfillment prior to
or
as of the Closing Date, of each of the following conditions:
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A.
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The
representations and warranties by or on behalf of Buyer contained
in this
Agreement or in any certificate or documents delivered to DHX pursuant
to
the provisions hereof shall be true in all material respects at and
as of
the time of Closing as though such representations and warranties
were
made at and as of such time.
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| B. |
Buyer
shall have performed and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with
by
Buyer prior to or at the Closing.
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| C. |
All
instruments and documents delivered to DHX pursuant to the provisions
hereof shall be reasonably satisfactory to DHX=s
legal counsel.
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7. Conditions
Precedent of Buyer to Effect Closing.
All
obligations of Buyer under this Agreement are subject to fulfillment prior
to or
as of the date of Closing, of each of the following conditions:
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A.
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The
representations and warranties by or on behalf of DHX contained in
this
Agreement or in any certificate or documents delivered to Buyer pursuant
to the provisions hereof shall be true in all material respects at
and as
of the time of Closing as though such representations and warranties
were
made at and as of such time.
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B.
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DHX
shall have performed and complied with all covenants, agreements
and
conditions required by this Agreement to be performed or complied
with by
him prior to or at the Closing.
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C.
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All
instruments and documents delivered to Buyer pursuant to the provisions
hereof shall be reasonably satisfactory to Buyer=s
legal counsel.
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8. Damages
and Limit of Liability.
Each
party shall be liable, for any material breach of the representations,
warranties, and covenants contained herein which results in a failure to perform
any obligation under this Agreement, only to the extent of the expenses incurred
in connection with such breach or failure to perform Agreement.
9. Nature
and Survival of Representations and Warranties.
All
representations, warranties and covenants made by any party in this Agreement
shall survive the Closing hereunder. All of the parties hereto are executing
and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement or at the Closing of the transactions herein provided for and not
upon
any investigation which it might have made or any representations, warranty,
agreement, promise, or information, written or oral, made by the other party
or
any other person other than as specifically set forth herein.
10. Indemnification
Procedures.
If any
claim is made by a party which would give rise to a right of indemnification
under this paragraph, the party seeking indemnification (Indemnified Party)
will
promptly cause notice thereof to be delivered to the party from whom is sought
(Indemnifying Party). The Indemnified Party will permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting from the
claims. Counsel for the Indemnifying Party which will conduct the defense must
be approved by the Indemnified Party (whose approval will not be unreasonably
withheld), and the Indemnified Party may participate in such defense at the
expense of the Indemnified Party. The indemnifying Party will not in the defense
of any such claim or litigation, consent to entry of any judgment or enter
into
any settlement without the written consent of the Indemnified Party (which
consent will not be unreasonably withheld). The Indemnified Party will not,
in
connection with any such claim or litigation, consent to entry of any judgment
or enter into any settlement without the written consent of the Indemnifying
Party (which consent will not be unreasonably withheld). The Indemnified Party
will cooperate fully with the Indemnifying Party and make available to the
Indemnifying Party all pertinent information under its control relating to
any
such claim or litigation. If the Indemnifying Party refuses or fails to conduct
the defense as required in this Section, then the Indemnified Party may conduct
such defense at the expense of the Indemnifying Party and the approval of the
Indemnifying Party will not be required for any settlement or consent or entry
of judgment.
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11. Default
at Closing.
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A.
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By
DHX:
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(1)
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Notwithstanding
the provisions hereof, if DHX shall fail or refuse to deliver any
of the
BC Interest, or shall fail or refuse to consummate the transaction
described in this Agreement prior to the Closing Date, such failure
or
refusal shall constitute a default by DHX and Buyer at its option
and
without prejudice to its rights against such defaulting party, may
either
(a) invoke any equitable remedies to enforce performance hereunder
including, without limitation, an action or suit for specific performance,
or (b) terminate all of its obligations hereunder with respect to
DHX.
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B.
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By
Buyer:
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(1)
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Notwithstanding
the provisions hereof, if Buyer shall fail or refuse to deliver any
of the
promised consideration, or shall fail or refuse to consummate the
transaction described in this Agreement prior to the Closing Date,
such
failure or refusal shall constitute a default by Buyer and DHX at
its
option and without prejudice to its rights against such defaulting
party,
may either (a) invoke any equitable remedies to enforce performance
hereunder including, without limitation, an action or suit for specific
performance, or (b) terminate all of its obligations hereunder with
respect to Buyer.
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12. Costs
and Expenses.
Buyer
and DHX shall bear their own costs and expenses in the proposed exchange and
transfer described in this Agreement. Buyer and DHX have been represented by
their own attorney in this transaction, and shall each pay the fees of its
attorney, except as may be expressly set forth herein to the
contrary.
13. Notices.
Any
notice under this Agreement shall be deemed to have been sufficiently given
if
sent by registered or certified mail, postage prepaid, addressed as
follows:
To
DHX:
DHX To
Buyer: Gold
Fusion Laboratories, Inc.
00
Xxxx
000 Xxxxx 59
West
000 Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
Xxxx
Xxxx
Xxxx, XX 00000 Xxxx
Xxxx
Xxxx, XX 00000
Telephone:
(000) 000-0000 Telephone:
( 000) 000-0000
Telefax:
(000)
000-0000
Telefax:
(000) 000-0000
14. Miscellaneous.
A. Further
Assurances.
At any
time and from time to time, after the effective date, each party will execute
such additional instruments and take such action as may be reasonably requested
by the other party to confirm or perfect title to any property transferred
hereunder or otherwise to carry out the intent and purposes of this
Agreement.
B. Waiver.
Any
failure on the part of any party hereto to comply with any of its obligations,
agreements, or conditions hereunder may be waived in writing by the party to
whom such compliance is owed.
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C. Headings.
The
section and subsection headings in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this
Agreement.
D. Counterparts.
This
Agreement may be executed simultaneously 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.
E. Governing
Law.
This
Agreement was negotiated and is being contracted for in the State of Utah,
and
shall be governed by the laws of the State of Utah, notwithstanding any
conflict-of-law provision to the contrary.
F. Binding
Effect.
This
Agreement shall be binding upon the parties hereto and inure to the benefit
of
the parties their respective heirs, administrators, executors, successors,
and
assigns.
G. Entire
Agreement.
The
Agreement contains the entire agreement between the parties hereto and
supersedes any and all prior agreements, arrangements or understandings between
the parties relating to the subject matter hereof. No oral understandings,
statements, promises or inducements contrary to the terms of this Agreement
exist. No representations, warranties covenants, or conditions express or
implied, other than as set forth here, have been made by any party.
H. Severability.
If any
part of this Agreement is deemed to be unenforceable the balance of the
Agreement shall remain in full force and effect.
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IN
WITNESS WHEREOF, the parties have executed this Agreement the day and year
first
above written.
GOLD
FUSION LABORATORIES, INC.
By:
/s/ Xxxxx Xxxx
Office:
President
Printed
Name: Xxxxx Xxxx, President
DIVERSIFIED
HOLDINGS X, INC.
By:
/s/ Xxxxxxx Xxxxxx
Office:
President
Printed
Name: Xxxxxxx Xxxxxx, President
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