ASSET PURCHASE AGREEMENT
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THIS AGREEMENT is made effective this August 31, 2005.
BETWEEN:
IP - COLO, INC., a company incorporated pursuant to the laws of Texas with
an office located at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx,
00000;
(the "Vendor")
OF THE FIRST PART
AND:
ZENO INC., a company incorporated pursuant to the laws of Nevada with an
office at 000 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, XX, Xxxxxx, X0X 0X0;
(the "Purchaser")
OF THE SECOND PART
WHEREAS:
A. The Vendor is the owner of a 100% interest in all the assets necessary to
conduct its current high-speed Internet and website hosting business, which
assets shall include all of the assets disclosed in the Company's financial
statements to be provided by the Vendor to the Purchaser prior to the
Closing Date (as defined herein) (the "Assets");
B. The Vendor has agreed to sell and the Purchaser has agreed to purchase the
Assets upon the following terms and conditions; and
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration
of the premises and mutual agreements and covenants herein contained, the
parties hereby covenant and agree as follows:
1. VENDOR'S REPRESENTATIONS
The Vendor represents and warrants to the Purchaser now and at the Closing
Date that:
(a) the Vendor collectively has good and sufficient right
and authority to enter into this Agreement on the terms and
conditions herein set forth and to transfer the legal title
and beneficial ownership of the Assets to the Purchaser;
(b) the performance of this Agreement will not be in
violation of any of Agreement to which the Vendor is a party
and will not give any person or company any right to terminate
or cancel any agreement or any right enjoyed by the Vendor and
will not result in the creation or imposition of any lien,
encumbrance or restriction of any nature whatsoever in favor
of a third party upon or against the Assets;
(c) the Vendor has good and marketable title to the Assets, all
of which are free and clear of all liens, charges and
encumbrances, and all of which Assets are under the control of
the Vendor;
(d) there has been no act of God, damage, destruction,
loss, labour disruption or trouble, or other event (whether or
not covered by insurance) materially and adversely affecting
any of the Assets or the organization, operations, affairs,
business, properties, prospects or financial condition or
position of the Vendor's business operations;
(e) the Vendor holds, and shall transfer, where applicable,
to the Purchaser at the Closing Date, all permits, licences,
registrations and authorizations necessary to own and operate
the Assets and carry on their business;
(f) the Assets constitute all of the rights, assets and
properties that are usually and ordinarily used or held for
use in connection with or otherwise related to the operation
of the Vendor's business;
(g) the Vendor has not, directly or indirectly, engaged or
entered into any transaction or incurred any liability or
obligation which might materially and adversely affect any of
the Assets or the organization, operations, affairs, business,
properties, prospects or financial condition or position of
the Vendor's business;
(h) there is no indebtedness of the Vendor to any person
which might, by operation of law or otherwise, now or
hereafter constitute or be capable of forming an encumbrance
upon any of the Assets and there is no indebtedness of any
kind whatsoever relating to the business in respect of which
the Purchaser may become liable on or after the Closing Date;
(i) no action, suit, judgment, investigation, inquiry,
assessment, reassessment, litigation, determination or
administrative or other proceeding or arbitration before or of
any court, arbitrator or governmental authority is in process,
or pending or threatened, against or relating to the Vendor'
business or any of the Assets and no state of facts exists
which could constitute the basis therefor;
(j) there is no written, verbal or implied agreement,
option, understanding or commitment or any right or privilege
capable of becoming any of the same, for the purchase from the
Vendor of its business or any of the Assets;
(k) none of the Assets is in any respect infringing the
right of any person under or in respect of any patent, design,
trade xxxx, trade name, copyright or other industrial or
intellectual property; and
(l) the Vendor doe not have any information or knowledge of
any fact relating to the Vendor's business, the Assets or the
transactions contemplated hereby which might reasonably be
expected to affect, materially and adversely, any of the
Assets or the organization, operations, affairs, properties,
prospects or financial condition or position of the business.
2. PURCHASER'S REPRESENTATIONS
The Purchaser represents and warrants to the Vendor now and at
closing that:
(a) the Purchaser is a corporation duly incorporated, validly
existing and in good standing under the laws of Nevada;
(b) as of the date of this Agreement, the Purchaser's authorized
share capital consists of 75,000,000 shares of common
stock with a par value of $0.001;
(c) 5,971,000 shares of common stock are issued and
outstanding in the Purchaser's capital as fully paid and
non-assessable shares. No other person has any written or
verbal agreement or option, understanding or commitment or any
right or privilege capable of becoming an agreement for the
purchase of securities in the capital of the Purchaser;
(d) the Purchaser is a reporting issuer in good standing under
the laws of the United States and has its securities
quoted for trading on the NASD OTC Bulletin Board;
(e) the Vend-In Shares (as defined below) will, upon issuance, be
validly issued, non-assessable and free and clear of
all liens, charges and encumbrances;
(f) the Articles of the Purchaser permit its to carry on its
present and intended businesses, including the business
currently conducted by the Vendor;
(g) The corporate records and minute books of the Purchaser
contain complete and accurate minutes of all meetings of the
directors and shareholders of the Purchaser held since
incorporation;
(h) the Purchaser has no knowledge of any:
(i) actions, suits, investigations or proceedings against
the Purchaser which are in progress, pending or
threatened;
(ii) outstanding judgments of any kind against the
Purchaser; or
(iii) occurrences or events which have, or might reasonably
be expected to have, a material adverse effect on the
Purchaser's intended business; and
(i) There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, arbitrator or
governmental or regulatory body involving the Purchaser. No
suit, action or legal, administrative, arbitration or other
proceeding or reasonable basis therefor, or, to the best of
the Purchaser's knowledge, no investigation by any
governmental agency, pertaining to the Purchaser or its assets
is pending or has been threatened against the Purchaser which
could adversely affect the financial condition or prospects of
the Purchaser or the conduct of the business thereof or any of
the Purchaser's assets or materially adversely affect the
ability of the Purchaser to consummate the transactions
contemplated by this Agreement.
3. EFFECT OF REPRESENTATIONS
3.1 The representations and warranties of the Vendor and the
Purchaser (the "Parties") set out above form a part of this Agreement and are
conditions upon which the Parties have relied in entering into this Agreement
and shall survive the acquisition of the Assets by the Purchaser.
3.2 The Parties will indemnify and save each other harmless from
all loss, damage, costs, actions and suits arising out of or in connection with
any breach of any representation, warranty, covenant, agreement or condition
made by it and contained in this Agreement.
4. PURCHASE AND SALE OF ASSETS
The Purchaser hereby agrees to purchase from the Vendor and
the Vendor hereby agree to sell to the Purchaser an undivided 100% right, title
and interest in and to the Assets in consideration of the Purchaser and
delivering to the Vendor at Closing certificates representing 1,612,520 shares
of common stock (the "Vend-In Shares") in the capital of the Purchaser
registered as follows:
Name of Shareholder Number of Shares
Xxxxxx X. Xxxxxxxx 387,005
Xxxx Xxxx 387,005
Xxxxxxx Xxxxx 387,005
Xxxx Xxxxxx 161,252
Xxxxxx Xxxxxxxxx 48,376
Xxxxxxx Xxxxx 48,376
Xxxxx Xxxxxxxx 48,376
Xxxxx Xxxx 40,313
Xxxx Xxxxxxxx 31,010
Xxxxx Xxxxx 16,125
Xxxx Xxxxxxxx 16,125
Xxxx Xxxxxxxx 16,125
Xxxx Xxxxxxx 32,250
Xxxxx Xxxxx 8,062
5. CLOSING
The sale and purchase of the Assets shall be closed at the
office of the Purchaser at 10:00am on the date that is two business days after
the Parties has satisfied the condition precedents contained in paragraph
7(b)(ii) or on such other date or at such other place as may be agreed upon by
the parties (the "Closing Date" or "Closing"). This Agreement shall be null and
void if Closing does not occur by October 31, 2005.
6. ACTIONS BY THE PARTIES PENDING AND FOLLOWING CLOSING
From and after the date hereof and until the Closing Date, the
Parties covenant and agree that:
(a) the Purchaser, and its authorized representatives,
shall have full access during normal business hours to all
documents of the Vendor relating to the Assets and shall have
full access to inspect any of the Assets, and the Vendor shall
furnish to the Purchaser or its authorized representatives all
information with respect to the Assets as the Purchaser may
reasonably request;
(b) the Vendor, and their authorized representatives, shall
have full access during normal business hours to all documents
relating to the Purchaser's affairs that the Vendor may
reasonably request; and
(c) the Vendor shall not enter into any material contract
or commitment to purchase or sell any interest in the Assets
without the prior written consent of the Purchaser.
7. CONDITIONS PRECEDENT TO THE VENDOR'S OBLIGATIONS
Each and every obligation of the Vendor to be performed on the
Closing Date shall be subject to the satisfaction by the Closing Date of the
following conditions, unless waived in writing by the Vendor:
(a) The representations and warranties made by the
Purchaser in this Agreement shall be true and correct on and
as of the Closing Date with the same effect as though such
representations and warranties had been made or given by the
Closing Date; and
(b) The Purchaser shall deliver to the Vendor:
(i) certificates representing the Vend-In Shares;
(ii) a copy of resolutions of the Purchaser's Board of
Directors authorizing the execution of this
Agreement, the acquisition of the Assets, the
issuance of the Vend-In Shares and the appointment of
two of the Vendor's nominees to the Purchaser's Board
of Directors;
(iii) undated resignations of the current members of the
Company's Board of Directors, namely Xxxxx XxXxxx
and Xxxxx Xxxxx;
(iv) draft pro forma financial statements of the Purchaser,
in a form acceptable to both Parties and in
compliance with the Securities & Exchange
Commission's Form 8-K filing requirements;
(c) The Purchaser completing a forward share split of its
common stock such that each currently issued share of common
stock will be exchanged for 13 post-split shares;
(d) The Purchaser changing its name to HS3 Technologies, Inc.; and
(e) The Purchaser amending its articles of incorporation to
create authorized capital of 10,000,000 shares of
preferred stock.
8. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
Each and every obligation of the Purchaser to be performed on
the Closing Date shall be subject to the satisfaction by the Closing Date of the
following conditions, unless waived in writing by the Purchaser:
(a) The representations and warranties made by the Vendor
in this Agreement shall be true and correct on and as of the
Closing Date with the same effect as though such
representations and warranties had been made or given by the
Closing Date;
(b) The Vendor shall deliver to the Purchaser:
(i) a xxxx of sale evidencing the sale and transfer of
title to the Assets from the Vendor to the Purchaser;
(ii) a copy of resolutions of the Vendor's Board of
Directors authorizing the execution of this Agreement
and the sale of the Assets to the Purchaser; and
(iii) financial statements of the Vendor including, without
limitation, a balance sheet with the recorded value of
the Assets stated.
9. FURTHER ASSURANCES
The parties hereto covenant and agree to do such further acts
and execute and deliver all such further deeds and documents as shall be
reasonably required in order to fully perform and carry out the terms and intent
of this Agreement.
10. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement to date
between the parties hereto and supersedes every previous agreement,
communication, expectation, negotiation, representation or understanding,
whether oral or written, express or implied, statutory or otherwise, between the
parties with respect to the subject of this Agreement.
11. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
12. TITLES
The titles to the respective sections hereof shall not be
deemed a part of this Agreement but shall be regarded as having been used for
convenience only.
13. SEVERABILITY
If any one or more of the provisions contained herein should
be invalid, illegal or unenforceable in any respect in any jurisdictions, the
validity, legality and enforceability of such provisions shall not in any way be
affected or impaired thereby in any other jurisdiction and the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
14. APPLICABLE LAW
The situs of the Agreement is Denver, Colorado, and for all
purposes this Agreement will be governed exclusively by and construed and
enforced in accordance with laws prevailing in the State of Colorado. The
parties agree to attorn to the jurisdiction of the Courts of the State of
Colorado.
15. ENUREMENT
This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF this Agreement has been executed as of the
day and year first above written.
IP - COLO, INC.
per: /s/ Xxxx Xxxx
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Authorized Signatory
ZENO INC.
per: /s/ Xxxxx XxXxxx
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Authorized Signatory
