ASSET PURCHASE AGREEMENT
Exhibit
10.12
AGREEMENT
(the "Agreement") made as of this 15th day of
May, 2008 by and among, BPA
ASSOCIATES LLC, a Massachusettes Limited Liability Company having an
address at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxxx 00000 ("Seller") and a
SAHARA MEDIA INC., a
Delaware Corporation, having an address at 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Purchaser").
WHEREAS,
Seller desires to sell and Purchaser desires to buy a database consisting of a
subscription base list of approximately 3,660,000 subscribers in connection with
its media related business (the "Business") on the terms and conditions set
forth in this Agreement;
NOW
THEREFORE, in consideration of the mutual representations, covenants and
agreements hereinafter contained, Purchaser and Seller, each intending to be
legally bound, hereby agree as follows:
1. Purchase and Sale of the
Assets. Subject to the terms and conditions contained herein, upon
execution hereof, Seller agrees to sell and transfer to Purchaser and Purchaser
agrees to purchase from Seller:
(a) all of
Seller's right, title and interest in and a database consisting of a subscriber
list of approximately 3.66 million members and or potential subscribers (the
"Database").
(b) all of
Seller's right; title and interest in the goodwill associated with the
Database (the "Goodwill");
(c) The
Database and Goodwill associated with it are hereinafter collectively
referred to as the "Assets".
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2. Purchase Price and
Allocation.
In
consideration for the sale, assignment, transfer and delivery as well as the
pledging of the Assets as collateral for Purchaser's bridge financing, Purchaser
shall pay to Seller's order, in certified funds, cashies check or money order,
the aggregate amount of Eight Hundred Twenty Five Thousand Dollars ($825,000)
and
One Million Four Hundred Thousand (1,425,000) founder shares at .00001
par value, of which 350,000 shall include piggy back registration rights (the
"Purchase Price"). The Purchase Price shall be payable as follows:
$50,000
upon achieving Bridge Financing which shall occur on or before July 1,
2008;
$775,000
and 1.425 Million founder shares, of which 350,000 shall include piggy back
registration rights, upon closing which shall occur on August 15,
2008.
3. Closing. The Closing
shall occur at the office of Purchaser's counsel on August 15, 2008 or at a
certain date, time and or other location mutually agreed to by the
parties.
3.1 Purchaser
has inspected the Database and agrees that the Database is a valid
asset with value that Purchaser desires to acquire.
4. Intentionally
Omitted.
5. Seller's Representations and
Warranties. Seller hereby represents and warrants
to Purchaser as follows:
(a) Seller is
an entity duly organized, validly existing and in good standing
under the laws of the State of Massachusetts.
(b) Seller
has full corporate power and authority to execute, deliver and perform this
Agreement in accordance with its terms. The execution, delivery and performance
of this Agreement by Seller have been validly authorized by corporate
action on
the part of Seller. This Agreement has been duly executed and delivered by
Seller and constitutes the legal, valid and binding obligation of Seller,
enforceable against it in accordance with its terms.
(c) That
neither the execution and delivery of this Agreement nor compliance with the
terms and provisions of this Agreement will conflict with or result in a breach
of any of the terms, conditions or proAsions of any contract or other instrument
to which
Seller is a party or by which' Seller may be bound or constitutes a default
thereunder.
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(d) This
Agreement constitutes the legal, valid, and binding obligation of the Seller,
enforceable against it in accordance with its terms. Seller has the absolute and
unrestricted right, power, authority, and capacity to execute and deliver this
Agreement and to perform his obligations under this Agreement. Neither the
execution nor delivery of this Agreement will, directly or indirectly (with or
without notice or lapse of time):
(i)
contravene, conflict with, or result in a violation of (a) any provision of the
organizational documents of the Seller, or (b) any resolution adopted by the
board of directors or the stockholders of the Seller;
(ii)
contravene, conflict with, or result in a violation of, or give any person the
right to challenge this Agreement or to exercise any remedy or obtain any relief
under, any legal requirement or any order to which either the Seller or any of
the Assets may be subject.
(e)
Seller is the sole and unconditional owner of, and has good marketable title to
the Assets, and Purchaser is receiving good, marketable and legal title to the
Assets free and clear of any and all liens, security interests or encumbrances.
This Agreement,
and the instruments of transfer to be executed and delivered pursuant thereto,
will effectively vest in Purchaser such title to the Assets free and clear of
all encumbrances.
(f) To the
best of Seller's knowledge, there are no litigations, proceedings,
investigations, suits, judgments, claims or violations pending or threatened
against the Assets, or the Seller which may, in any manner, prevent, curtail or
restrict Seller from completing the transactions contemplated by this Agreement
and Seller is not aware of any facts or circumstances which could result in any
material adverse change in the financial condition, business, operations or
prospects of the Business, the Assets or the Seller.
(g) To the
best of Seller's knowledge, Seller has complied with all laws, ordinances,
regulations, orders or other legal requirements in its ownership of the Assets,
the noncompliance of which could have a material adverse effect on the value of
the Assets.
(h) To the
best of Seller's knowledge, Seller is not aware of any material fact or
circumstance related to these Assets which on the basis of good faith has not
been disclosed in writing and might if so disclosed be reasonably expected to
affect the decision of an intending purchaser of these Assets. The
representations and warranties
herein do not knowingly contain any untrue statement of fact or omit to state
facts
necessary to make such representations and warranties, in light of the
circumstances under
which they have been made, not misleading, and Seller has not knowingly withheld
knowledge of any fact or event that has occurred or is about to occur which has
had or will have an adverse effect on these Assets.
(i) Intentionally
Omitted.
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(j)
Seller represents that, to the best of its knowledge, the Business is being
operated in accordance with all laws, ordinances and rules affecting said
Business, and there are no present litigations against the Seller affecting the
operation of the Business.
(k)
Seller represents that it is not in default with respect to any order or
decree of
any court or governmental agency.
(1)
Seller represents and acknowledges that Purchaser is not assuming any liability
or obligation of any nature of the Seller whether absolute, accrued, contingent
or otherwise, and whether due or to become due, and Purchaser shall not be
subject to any such liabilities or obligations except as otherwise expressly set
forth herein.
(m) Seller
has entered into no collective bargaining agreement with any union
representing its employees in connection with the Business.
(n) Seller
has not employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders' fees in connection with the transaction
contemplated by this Agreement.
6. Purchaser's Representations
and Warranties.Purchaser hereby represents
and warrants to Seller as follows:
(a) Purchaser
is an entity duly organized, validly existing and in good standing under the
laws of the State of Delaware and is duly qualified to conduct business in the
States of Delaware and New York.
(b) Purchaser
has full corporate power and authority to execute, deliver
and perform this Agreement in accOrdance with its terms. The execution, delivery
and performance of this Agreement by Purchaser have been validly authorized
by all
corporate action on the part of Purchaser. This Agreement has been duly executed
and delivered by Purchaser and constitutes the legal, valid and binding
obligation of Purchaser, enforceable against it in accordance with its
terms.
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(c) Neither
the execution nor delivery of this Agreement nor compliance with the terms and
provisions of this Agreement will conflict with or result in a breach of any of
the terms, conditions or provisions of any contract or other instrument to which
Purchaser is a party or by which Purchaser may be bound or constitutes a default
thereunder.
(d) This
Agreement constitutes the legal, valid, and binding obligation of the Purchaser,
enforceable against it in accordance with its terms. Purchaser has the absolute
and unrestricted right, power, authority, and capacity to execute and deliver
this Agreement and to perform its obligations under this Agreement. Neither the
execution nor delivery of this Agreement will, directly or indirectly (with or
without notice or lapse of time):
(i) contravene,
conflict with, or result in a violation of (a) any provision of the
organizational documents of the Company, or (b) any resolution
adopted by the board of directors or the stockholders of the
Company;
(ii) contravene,
conflict with, or result in a violation of, or give any person the right to
challenge this Agreement or to exercise any remedy or obtain any relief under,
any legal requirement or any order to which the Purchaser may be
subject.
(e)
Purchaser has not worked with any broker or finder or incurred any liability for
any brokerage fees, commissions or finders fees in connection with the
transaction contemplated by this Agreement.
7. Survival of Representations
and Warranties and Confidentiality. All of the representations and
warranties made by Seller and Purchaser, respectively, in this Agreement shall
be continuing and shall survive this Agreement for a period of one (1) year from
the Closing Date. Up until the Closing Date, each of the Parties hereto shall
keep the terms of this Agreement confidential and shall not disclose it either
directly or indirectly to a third party, other than their employees and advisors
on a need to know basis, including Seller's employees.
8. Delivery by Seller.
Upon closing of this sale, Seller shall deliver to Purchaser a Xxxx of
Sale, Assignment and Transfer of Assets in the form and substance of a
computerized information database together with such other instruments as may be
necessary and proper to effectuate the conveyance of the Assets contemplated by
this Agreement;
9. Delivery by
Xxxxxxxxx.Xx Closing, Purchaser shall deliver to Seller a
certified, bank cashier's check or money order in the amount of $775,000 and
1.425 Million founder shares at .00001 par value, of which 350,000 shall include
piggy back registration rights, as more fully described below.
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9a. Seller
shall have piggy-back registration rights with respect to the Shares subject to
the following conditions: If the Company participates (whether voluntarily or by
reason of an obligation to a third paAy) in the registration of any shares of
the Company's common stock (except in connection with an offering on Form S-8 or
other inappropriate form), the Company shall give written notice thereof to the
Investor and the Investor shall have the right, exercisable within ten (10)
business days after receipt of such notice, to request inclusion of all or a
portion of the Shares in such registration statement
(the "Registration Statement").If the Investor exercises such election, the
Company
shall use reasonable efforts to include the Shares so designated in the
Registration Statement at no cost or expense to the Investor (other than any
commissions, if any, relating to the sale of the Shares), subject to,registration
limitations (or guidelines) imposed by the Securities and Exchange Commission
pursuant to Rule 415 of the Securities Act. The Investor's rights under this
Section shall expire at such time as the Investor can sell all of the Investor's
remaining Shares under Rule 144 under the Securities Act without volume or other
restrictions or limit.
10. Sales
Tax. Sales tax is due on the sale of certain tangible assets and such tax
shall be paid at Closing by Purchaser. At Closing, Seller's attorney shall
prepare and submit the required tax forms and checks to the appropriate State's
tax agency and simultaneously provide Purchaser's attorney with a copy of all
that was mailed in that regard.
11.
Hold
Harmless. The parties hereby agree that Seller shall be solely
responsible for all claims, liabilities and expenses of any kind or nature
arising prior to July 10, 2008, which shall arise out of, or in connection with,
the ownership of the above Database and Seller agrees to indemnify, defend and
hold Purchaser harmless from and against any such claims, including reasonable
attorney's fees and disbursements.
12.
Except as provided herein, it is understood and specifically agreed that
Purchaser is not assuming any of Seller's liabilities, including but not limited
to acts of omission or commissions alleged to have been committed by Seller
prior to the Closing. Seller hereby agrees to indemnify and hold Purchaser
harmless against any and all such claims asserted against the Business and/or
the Assets and/or Purchaser, or resulting from breach of any representation or
warranty of Seller, including all costs of defense and reasonable attorney's
fees and expenses.
13. Indemnification. Each
of Purchaser and Seller shall indemnify and hold each other harmless from and
against all liabilities, losses, claims, costs and damages, including expenses
and reasonable attorneys fees arising out of, from, or based upon a breach by
either party of any warranty or any inaccuracy of any representation contained
in this Agreement.
14. Expenses. Purchaser
and Seller each bear their own costs and expenses incurred in connection with
the negetiation, execution and performance of this Agreement.
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15 Notices. All notices
or other communications required or permitted to be given pursuant to this
Agreement shall be in writing and shall be considered as duly given on (a) the
date of delivery, if delivered in person or if sent by telecopier with a
confirming
sheet, or (b) two days after mailing, if sent by Federal Express or other
similar overnight delivery service, or (c) three days after mailing if mailed
from within the continental United States by registered or certified mail,
return receipt requested, to the party entitled to receive the same, at the
address provided in this Section. Any party hereto may change its address by
giving notice to the other stating its new address, all in the manner provided
herein. Such newly designated address shall thereafter be such party's address
for the purpose of all notices or other communications required or permitted to
be given pursuant to this Agreement.
16. Successors and Assigns.
This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
17. Assignment. No party
hereto may assign its rights under this Agreement in whole
or in part without the prior written consent of the other party. Any
impermissible assignment of this Agreement without such required prior written
consent shall be deemed void ab initio.
18. Action. This
Agreement, the legal relations between the parties and any action ("Action"),
whether contractual or non contractual, instituted by any party with respect to
matters arising under or growing out of or in connection with or in respect of
this Agreement shall be governed by and construed in accordance with the Laws of
the State of New York applicable to contracts made and performed in such State.
Each party to this Agreement, by its execution hereof, (a) hereby irrevocably
submits to the exclusive jurisdiction of the Federal and State courts of the
State of New York located in The City of New York for the purpose of any Action
arising out of or based upon this Agreement or relating to the subject matter
hereof, (b) hereby waives, to the extent not prohibited by applicable law, and
agrees not to assert by way of motion, as a defense or otherwise, in any such
action, any claim that it is not subject personally to the jurisdiction of the
above named courts, that its property is exempt or immune from attachment or
execution, that any such action brought in one of the above named courts may be
removed to any other court, should be dismissed on grounds of forum non
conveniens, should be transferred to any court other than one of the above named
courts, or should be stayed by reason of the pendency of some other proceeding
in any other court other than one of the above named courts, or that this
Agreement or the subject matter hereof may not be enforced in or by such court
and (c) hereby agrees not to commence any action arising out of or based upon
this Agreement or relating to the subject matter hereof other than before one of
the above named courts nor to make any motion or take any other action seeking
or intending to cause the transfer or removal of any such action to any court
other than one of the above named courts whether on the grounds of forum non
conveniens or otherwise. Each party hereby (i) consents to service of
process in any such action in any manner permitted by law of the State of New
York; (ii) agrees that service of process made in accordance with Paragraph 15
herein (including, without limitation, service made by registered or certified
'Mail, return receipt requested, at its address specified pursuant to the
Section for Notices above) is reasonably calculated to give actual notice of any
such action; and (iii) waives and agrees not to assert (by way of motion, as a
defense, or otherwise) in any such Action any claim that service of process made
in accordance with the terms of this Agreement does not constitute good and
sufficient service of process.
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19. Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, or by
facsimile, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
20. No Waiver. The
failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver to deprive that party of the
right to thereafter insist upon strict adherence to that te or any other term
of this
Agreement. Any waiver of any term of this Agreement by any party must be in
writing.
21. Intentionally
Omitted
22. Severability. If any
provision of this Agreement is deemed invalid or unenforceable, the balance of
this Agreement shall remain in effect. The provisions of this Agreement are
severable, and if any clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction or part thereof, and shall
not in any manner affect such clause or provision in any other jurisdiction or
any other clause or provision in this Agreement in any
jurisdiction.
23. Headings. The
headings used in this Agreement are inserted for convenience only and shall not
constitute a part hereof or affect in any way the meaning or interpretation of
this Agreement.
24.
Third Parties. Except
as specifically set forth or referred to herein, nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any person
or corporation other than the parties hereto and their successors or assigns,
any rights or remedies under or by reason of this Agreement.
25. Entire Agreement.
This Agreement, including the Exhibits and all documents required to be
delivered thereto, sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and supersedes
all prior negotiations, understandings, discussions, agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party hereto
whether written or oral. This Agreement may not be changed or terminated
orally.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above'
written.
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BPA
ASSOCIATES LLC.
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By:
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| Xxxxxx Xxxxxxxx, Member | |||
| SAHARA MEDIA INC. | |||
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By:
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| Xxxxxxxx Xxxxxxxx XX, Principal | |||
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EXHIBIT
A
XXXX
OF SALE, ASSIGNMENT AND TRANSFER OF ASSETS
ASSIGNMENT,
dated July 10, 2008 by BPA
ASSOCIATES LLC, a Massachusetts Limited Liability Company ("Seller") and
SAHARA MEDIA INC.. a
Delaware corporation ("Purchaser").
WITNESSETH
WHEREAS,
on May 15, 2008, Purchaser entered into an Asset Purchase Agreement with Seller
(the "Agreement") pursuant to which Purchaser agreed to purchase from Seller and
Seller agreed to sell, transfer, convey and deliver to Purchaser certain Assets,
as defined in the Agreement.
NOW, THEREFORE, Seller,
pursuant to the Agreement, and for good and valuable consideration, receipt of
which is hereby acknowledged, hereby transfers, assigns, conveys and delivers to
Purchaser and Purchaser hereby receives, accepts and acquires from Seller all of
the Assets, as
defined in the Agreement.
TO HAVE AND TO HOLD, all of
the Assets hereby transferred, assigned, conveyed and delivered unto Purchaser,
its successors and assigns, to its and their own use and behalf,
forever.
SELLER
hereby warrants that it has good and marketable title and is the true and lawful
owner of the Assets and has the power, right and lawful authority to dispose of
the Assets in the manner aforesaid.
THIS
Assignment shall inure to the benefit of Purchaser, its successors and assigns
and shall be binding upon Seller, its successors and assigns.
IN WITNESS WHEREOF, Seller has
executed this instrument on the date hereof.
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BPA ASSOCIATES
LLC
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| By: Xxxxxx Xxxxxxxx, Member | |||
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