ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered
into as of this 24th of OCTOBER, 2002, by and between BUSINESS ADVANTAGE
NO.12, INC., a Nevada Corporation, hereinafter referred to as "Buyer"
and "XXXXXXX X. XXXXXX", hereinafter referred to as "Seller".
RECITALS
WHEREAS, Seller has assets, patents, and or trademarks as reflected in
Exhibit A that the Buyer wishes to purchase.
WHEREAS, Seller desires to sell and Buyer desires to purchase the
assets, patents, and or trademarks, as described in Exhibit A, subject
to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the Recitals and the mutual
covenants, conditions, representation and warranties hereinafter set
forth, the parties agree as follows:
1. Purchase and Sales of Assets. On the terms and subject to the
conditions set forth in this Agreement. Seller agrees to sell, convey,
assign, transfer and deliver to Buyer and Buyer agrees to purchase from
Seller, at the Closing Date of October 24, 2002 the assets, patents, and
or trademarks (referred to as "Acquired Assets") as described in the
attached Exhibit A, on the Closing Date or then used by it in its
business, whether or not specifically referred to in this Agreement,
unless specifically excluded in this Agreement.
2. Purchase Price. As consideration for the sale, conveyance,
assignment, transfer and delivery of the Acquired Assets. Buyer agrees
to deliver to XXXXXXX X. XXXXXX (The Seller) 2, 500,000 shares of
Buyer's common stock (restricted from resale Under Rule 144) along with
750,000 common shares of Rule 144k common stock, to XXXXXXX X. XXXXXX or
Designees.
3. Closing. The closing shall take place on the Closing Date at the
office of BUSINESS ADVANTAGE NO.12, INC. Corporation on October 24,
2002, or such other time and place as the parties may agree upon in
writing.
4. Representations and Warranties of Seller. Seller hereby represents
and warrants to Buyer that:
(a ) Seller has the requisite power and authority to own and operate
its assets, properties, and business and to carry on its business as now
conducted.
(b) The execution and deliver of this Agreement and the consummation
of this transaction is hereby authorized and executed by an authorized
representative of the Seller, and constitutes a legal, valid and binding
agreement of Seller.
(c) Seller has good and marketable title to all the Acquired Assets
and that said Acquired Assets are free and clear from any liens,
charges, and/or encumbrances other than described in Schedule A as a
part of this Agreement.
(d) To seller's knowledge, there is no suit, claim, action or
proceeding now pending or threatened before any court, administration or
regulatory agency or any basis for such a claim which may result in any
judgment, order, decree, liability or other determination which could
have an adverse effect, financial or otherwise, upon Seller or any of
the Acquired Assets. No such judgment, order or decree has been entered
which has or could have such effect.
(e) Neither this Agreement nor any Exhibit hereto delivered by
Seller pursuant to this Agreement contains an untrue statement of a
material fact or omits to state a fact that is necessary in order to
make the statements contained herein and therein, in light of the
circumstances under which they are made not materially misleading.
5. Representations and Warranties of Buyer. Buyer hereby represents
and warrants to Seller that:
(a) Buyer is a corporation duly organized and validly existing and
in good standing under the laws of the State of Nevada. Seller has the
requisite power and authority to own and operate its assets properties
and business and to carry on its obligations hereunder.
(b) The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly
authorized and approved by the Board of Directors of Buyer, and, when
executed by the authorized representative of the Buyer, this Agreement
will constitute legal, valid and binding Agreement of Buyer.
(c) The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby ill not violate the
Certificate of Incorporation or the Bylaws of Buyer or any agreement,
contract or other instrument to which Buyer is a party, or any statute,
rules, regulation, order, judgment, award or decree.
(d) Neither this Agreement, nor any Exhibit to this Agreement, nor
any written statement or certificate or certificate furnished by Buyer
in connection with this Agreement, contains an untrue statement of a
material fact or omits to state a fact that is necessary in order to
which they are made, not materially misleading.
6. Conditions Precedent to the Obligation Buyer. All obligation of
Buyer under this Agreement are, at its option, subject to fulfillment of
each of the following conditions prior to or at the closing:
(a) All representations and warranties of Seller made in this
Agreement or in any Exhibit hereto delivered by Seller shall be true and
correct of the Closing Date with the same force and effect as if made on
and as of that date.
(b) Seller shall have performed and compiled with all Agreements,
covenants and conditions required by this Agreement to be performed or
compiled with by Seller prior to or at the Closing Date.
7. Conditions Precedent to the Obligations of Seller. All obligation
of Seller under this Agreement are, at its option, subject to
fulfillment of each of the following conditions prior to or at the
closing.
(a) All representation and warranties of Buyer made in this
Agreement or in any Exhibit hereto delivered by Buyer shall be true and
correct on and as of the Closing Date with the same force and effect as
if made on and as of that date.
(b) Buyer shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with
by Buyer prior to or at the Closing Date.
8. Further Assurance. Following the closing. Seller agrees to take
such actions and execute, acknowledge and deliver to Buyer such further
instruments of assignment, conveyance and transfer and take any other
action as buyer may reasonably request in order to more effectively
convey, sell, transfer and assign to Buyer any of the Acquired Assets,
to confirm the title of Buyer thereto, and to assist Buyer in exercising
rights with respect to the Acquired Assets.
9. Survival of Representations and Warranties. All representation and
warranties made by each of the parties hereto shall survive the closing
for a period of three (3) years after the Closing Date.
10. Indemnification.
(a) Seller agrees to indemnify, defend and hold harmless Buyer
against any and all claims, demands, losses, costs, expenses,
obligations, liabilities and damages, including interest, penalties, and
reasonable attorney's fees, incurred by Buyer arising, resulting from,
or relating to any patent infringement and reasonable attorney's fees
incurred by Buyer arising, resulting from or relating to any breach of,
or failure by Seller to perform, any of its representations, warranties,
covenants or agreements in this Agreement or in any Exhibit or other
document furnished or to be furnished by Seller under this Agreement.
(b) Buyer agrees to indemnify, defend and hold harmless Seller
against any and all claims demands, losses, costs, expenses, obligation
and damages, penalties, and reasonable attorney's fees, incurred by
Seller arising, resulting from, or relating to any breach of, or failure
by Buyer to perform, any of its representations, warranties, covenants
or agreements in this Agreement or in any Exhibit or other document
furnished or to be furnished by Buyer under this Agreement, or by reason
of any act or omission of Buyer of any of its successors or assigns
after the Closing Date that constitutes a breach of default under, or a
failure to perform, any obligation, duty, or liability of Seller under
any contract, lease, license or other agreement to which it is a party
or by which it is bound at the Closing Date, but only to the extent to
which Buyer expressly assumes these obligations, duties and liabilities
under this Agreement.
11. General Provision.
1. Construction This Agreement shall be construed and enforced in
accordance with the laws of the State of Nevada.
2. Notices All notices, requests, demands and other communications
contemplated under this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or when mailed
by United States express, certified or registered mail, postage prepaid,
addressed to the following parties, their successors in interest or
their permitted assignees at the following address, or such addresses as
the parties may designate by written notice in this manner aforesaid.
Seller XXXXXXX X. XXXXXX
Buyer BUSINESS ADVANTAGE NO.12, INC.
3. Assignments This Agreement shall not be assignable by any party
without the prior written consent of the other parties. Nothing
contained in this Agreement, express or implied, is intended to confer
upon any person or entity other than the parties to this Agreement and
their successors and assigns, any rights or the parties to this
Agreement and their successors and assigns, any rights or remedies under
this Agreement unless expressly so stated to the contrary.
4. Remedies Except as otherwise expressly provided herein, none of
the remedies set forth in this Agreement in intended to be exclusive,
and each party shall have all other remedies now or hereafter existing
at law, in equity, by statute or otherwise. The election or any one or
more remedies shall not constitute a waiver of the right to pursue other
available remedies.
5. Entire Agreement This Agreement and the Exhibits and other
documents specifically referred to herein or required to be delivered
pursuant to the terms of this Agreement represent the entire agreement
of the parties hereto with respect to the subject matter hereof, and
supersede all prior Agreements, understandings, discussions,
negotiations and commitments of any kind. This Agreement may not be
amended or supplement, nor may any rights hereunder be waived, except in
writing signed by each of the parties affected thereby.
6. Section Headings The section headings in the Agreement are
conveniences only, are not a part of this Agreement and shall not be
used in construing it.
7. Severability In the event that any provision or any part of
this Agreement is held to be illegal, invalid or unenforceable, such
illegality, invalidity or enforceability of any other provision or part
of this Agreement.
8. Counterparts This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
Seller: XXXXXXX X. XXXXXX Attest:
/s/Xxxxxxx X. Xxxxxx
--------------------------------
XXXXXXX X. XXXXXX
Sole Owner / Individual
Buyer: BUSINESS ADVANTAGE NO.12, INC. Attest:
/s/Xxxxxx X. Xxxxxx
--------------------------------
XXXXXX X. XXXXXX
President
EXHIBIT A
The assets acquired were television production equipment that consisted
of the following:
SONY DSR 80 DVCAM DIGI EDITING RECORDER
SONY DSR 60 DVCAM DIGI EDITING PLAYER
SONY TIME CODE BOARD
SONY RACK MOUNT KIT
SONY DSR 300 CAMERA PACKAGE
DISCREET COMPLETE EDITING SYSTEM
The assets were valued at the fair market value of the common shares
issued which approximates the historical cost of the assets to Xx.
Xxxxxx.
