ASSET PURCHASE AGREEMENT
EXHIBIT 2.1
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE ISSUER.
THIS AGREEMENT is made and entered into this 29th day of October, 2004, by and between SNOCONE SYSTEMS INC., a Nevada corporation (the ”ISSUER”), and RISKEBIZ INTERNET SERVICES INC., a corporation formed under the laws of British Columbia, Canada (“RISKEBIZ ”).
WHEREAS, ISSUER desired to acquire certain assets of RISKEBIZ, as defined in Paragraph 1, herein (the “Acquired Assets”), all on the terms and subject to the conditions hereinafter set forth, and;
WHEREAS, RISKEBIZ desires to sell such assets to ISSUER, on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, INTENDING TO BE LEGALLY BOUND, and in consideration of the premises and mutual representations, warranties, covenants and agreements contained herein, ISSUER and RISKEBIZ hereby agree as follows:
| 1. | Acquired Assets. ISSUER shall acquire
the assets, known as RISKeye, owned by RISKEBIZ as listed in Exhibit A
attached hereto (the “Assets”). RISKEBIZ agrees to sell the
Assets to Issuer. |
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| 2. | No Liabilities Assumed. ISSUER shall not assume any liabilities of RISKEBIZ. | |
| 3. | Purchase Price and Payment.
In consideration for the transfer to ISSUER of the Assets, ISSUER shall
deliver to RISKEBIZ and/or its assigns, one million (1,000,000) shares
of restricted common stock (the “Purchase Price”). ISSUER understands
and acknowledges that said shares may be issued to the RISKEBIZ. |
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| 4. | Closing and Delivery of Acquired Assets.
The closing of the transaction (the “Closing”) and delivery
of the Assets, will take place upon execution of this Agreement (the “Closing
Date”), and at such date or s agreed to by the parties hereto. |
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| 5. | Conveyance of Acquired Assets. The
sale, conveyance, transfer, assignment and delivery to ISSUER of the Assets,
as herein provide, shall be effected by the execution of this Agreement,
and if requested, by such bills of sale, endorsements, assignments and
other instruments of transfer and conveyance as may be necessary to vest
in ISSUER the right, title and interest in and to the assets, free and
clear of all liens, claims, charges and encumbrances, except as otherwise
provided in this Agreement. Such documents may include, without limitation,
a Xxxx of Sale and an Assignment of rights. RISKEBIZ shall, at Closing
or at any time or from time to time after the Closing, upon request, perform
or cause to be performed such acts, and execute, acknowledge and deliver
or cause to be executed, acknowledged and delivered such documents as
may be reasonably required or requested to effectuate the sale, conveyance,
transfer, assignment and delivery to ISSUER of any of the Assets or for
the performance by RISKEBIZ of any of its obligations hereunder. |
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| 6. | RISKEBIZ ’s Representations and Warranties. RISKEBIZ represents and warrants to ISSUER the following: | |
| a. | Organization. RISKEBIZ is a corporation
duly organized, validly existing, and in good standing under the laws
of British Columbia, Canada, and has all necessary corporate powers to
own properties and carry on a business, and is duly qualified to do business
and is in good standing in British Columbia. All actions taken by the
incorporators, directors, officers and shareholders of RISKEBIZ have been
valid and in accordance with the laws of the Province of British Columbia.
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| b. | Ability to Carry Out Obligations. RISKEBIZ
has the right, power, and authority to enter into and perform its obligations
under this Agreement. The execution and delivery of this Agreement by
RISKEBIZ and the performance by RISKEBIZ of its obligations hereunder
will not cause, constitute, or conflict with or result in (a) any breach
or violation or any of the provisions of or constitute a default under
any license, indenture, mortgage, charter, instrument, articles of incorporation,
bylaw, or other agreement or instrument to which RISKEBIZ or its shareholders
are a party, or by which they may be bound, nor will any consents or authorizations
of any party other than those hereto be required, (b) an event that would
cause RISKEBIZ to be liable to any party, or (c) an event that would result
in the creation or imposition or any lien, charge or encumbrance on any
asset of RISKEBIZ or upon the securities of RISKEBIZ to be acquired by
the ISSUER and or its assigns. |
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| c. | Title to Assets. RISKEBIZ is
the sole and exclusive owner or licensee of, with all right, title and
interest in and to (free and clear of any liens and encumbrances) the
Assets, and has sole and exclusive rights to use of the Assets. RISKEBIZ
is not contractually obligated to pay any compensation to any third party,
nor is any third party otherwise entitled to any compensation, with respect
to RISKEBIZ’s |
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use of RISKEBIZ ’s Intellectual Property. The
use of any product or process as now used or offered by RISKEBIZ does
not infringe any copyright, trade secret, trademark, service xxxx, trade
names, firm names, logo, trade dress or any patent of any person. No adverse
claims with respect to the RISKEBIZ’s Intellectual Property have
been asserted or, to the knowledge of RISKEBIZ, threatened by any person,
nor are there any valid grounds for any bona fide claims; (I) to the effect
that the manufacture, sale or issue of any product or process as now used
or offered for sale by RISKEBIZ infringes or will infringe on any copyright,
trade secret, trademark, service xxxx, logo, trade dress or patent of
any person, (ii) against the use by RISKEBIZ of any trade secrets, copyrights,
trademarks, trade names, firm names, logos, trade dress patents, technology,
know-how, processes or computer software programs and applications used
in the business of RISKEBIZ relating the RISKEBIZ’s Intellectual
Property as currently conducted or; (iii) challenging the ownership, validity
or effectiveness of any of RISKEBIZ’S Intellectual Property. To RISKEBIZ’S
knowledge, there is and has been no material unauthorized use, infringement
or misappropriation of any of RISKEBIZ’S Intellectual Property by
any third party, employee or former employee. |
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| d) | Exclusive Grant of Rights by RISKEBIZ. RISKEBIZ grants ISSUER an exclusive, perpetual, worldwide right to publish, market, advertise, promote, distribute, manufacture, sublicense, vend and otherwise use the Assets, beginning from the Closing Date. However, it is understood and agreed that RISKEBIZ is an independent contractor, and is in the business of developing programming applications for a variety of clients in various industries. As such, certain elements of the programming code (“Engine”) used in the development of the Assets may be required for RISKEBIZ to continue its business activities. Both RISKEBIZ and ISSUER both agree that the base software, code, logic, and related intellectual property created by RISKEBIZ to support the development of the Assets remain the intellectual property of RISKEBIZ. |
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| e) | Competing Products. RISKEBIZ and ISSUER
agree that the Engine, upon which the Assets were developed, can be used
to create different programming services; however, RISKEBIZ agrees not
to create another program based on the Assets after the Closing Date.
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| f) | Non-exclusive Grant of Rights by RISKEBIZ.
RISKEBIZ grants ISSUER a non-exclusive, perpetual, worldwide right
to use RISKEBIZ’s name in connection with the exploitation of the
Assets and other related products developed within the scope of this Agreement.
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| 7. | Disclosure.
No representation or warranty made by RISKEBIZ in this Agreement, nor
any document, written information, statement, financial statement, certificate
or exhibit prepared and furnished by Seller or its representatives pursuant
hereto or in connection with the transactions contemplated hereby, when
taken together, contain any untrue |
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statements of a material fact, or omit to state a
material fact necessary to make the statements or facts contained herein
or therein not misleading in light of the circumstances under which they
were furnished. |
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| 8. | Representations and Warranties of Issuer. ISSUER represents and warrants to RISKEBIZ the following: | |
| a. | Organization. ISSUER is a corporation
duly organized, validly existing, and in good standing under the laws
of Nevada, and has all necessary corporate powers to own properties and
carry on a business, and is duly qualified to do business and is in good
standing in Nevada. All actions taken by the incorporators, directors,
officers and shareholders of ISSUER have been valid and in accordance
with the laws of the State of Nevada. |
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| b. | OTC Bulletin Board. The Company is
a reporting company, and is current in all its filings with the Securities
and Exchange Commission. The Company is currently trading on the OTC Bulletin
Board. |
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| c. | Ability to Carry Out Obligations. ISSUER
has the right, power, and authority to enter into and perform its obligations
under this Agreement. The execution and delivery of this Agreement by
ISSUER and the performance by ISSUER of its obligations hereunder will
not cause, constitute, or conflict with or result in (a) any breach or
violation or any of the provisions of or constitute a default under any
license, indenture, mortgage, charter, instrument, articles of incorporation,
bylaw, or other agreement or instrument to which ISSUER or its shareholders
are a party, or by which they may be bound, nor will any consents or authorizations
of any party other than those hereto be required, (b) an event that would
cause ISSUER to be liable to any party, or (c) an event that would result
in the creation or imposition or any lien, charge or encumbrance on any
asset of ISSUER or upon the securities of ISSUER to be acquired by the
RISKEBIZ and or its assigns. |
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| d. | Full Disclosure. None of representations
and warranties made by the ISSUER, or in any certificate or memorandum
furnished or to be furnished by the ISSUER, contains or will contain any
untrue statement of a material fact, or omit any material fact the omission
of which would be misleading under the circumstances by which it was made.
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| e. | Compliance with Laws. To the best of its knowledge, ISSUER has substantially complied with, and is not in material violation of any federal, state, or local statute, law, rule and/or regulation. |
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| f. | Title to Shares. The shares
to be issued pursuant to this Agreement will be, at closing, free and
clear of all liens, security interests, pledges, charges, claims, encumbrances
and restrictions of any kind. None of such shares are or will be subject
to any voting trust or agreement. No person holds or has the right to
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receive any proxy or similar instrument with respect
to such shares and, except as provided in this Agreement, ISSUER is not
a party to any agreement, which offers or grants to any person the right
to purchase or acquire any securities of ISSUER. There is no applicable
local, state or federal law, rule, regulation, or decree which would,
as a result of the issuance of the shares, impair, restrict or delay any
voting rights with respect to the shares. |
| 9. | Closing. The closing of this transaction
shall take place at the ISSUER’s office no later than October 29,
2004, or at such other time and place as the parties shall mutually agree.
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| 10. | Documents to be delivered at Closing by ISSUER: | |
| a. | Certificate representing 1,000,000 restricted shares of Purchaser’s common stock registered in the name of an escrow lawyer in trust for RISKEBIZ. | ||
| 11. | Documents to be delivered at Closing by RISKEBIZ: | |
| a. | A Xxxx of Sale transferring title to the Acquired Assets to Purchaser; | ||
| 12. | Captions and Headings. The Article
and paragraph headings throughout this Agreement are for convenience and
reference only, and shall in no way be deemed to define, limit, or add
to the meaning of any provision of this Agreement. |
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| 13. | No oral Change. This Agreement and
any provision hereof, may not be waived, changed, modified, or discharged
orally, but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, or discharge is
sought. |
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| 14. | Non Waiver. Except as otherwise expressly
provided herein, no waiver of any covenant, condition, or provision of
this Agreement shall be deemed to have been made unless expressly in writing
and signed by the party against whom such waiver is charged; and (I) the
failure of any party to insist in any one or more cases upon the performance
of any of the provisions, covenants, or conditions of this Agreement or
to exercise any option herein contained shall not be construed as a waiver
or relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by
this Agreement to be performed with knowledge of the breach or failure
of a covenant, condition, or provision hereof shall not be deemed a waiver
of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver with respect to any other
or subsequent breach. |
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| 15. | Entire Agreement. This Agreement
contains the entire Agreement and understanding between the parties hereto,
and supersedes all prior agreements and understandings. |
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| 16. | Counterparts. This Agreement may be
executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall |
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| constitute one and the same instrument. |
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date first above written.
| SNOCONE SYSTEMS INC. | RISKEBIZ INTERNET SERVICES INC. |
| By: /s/ Xxxxxx Xxxx | By: /s/ Xxxxx Xxx |
| XXXXXX XXXX | XXXXX XXX |
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EXHIBIT “A”
Application Summary “RISKeye”
The program is installed on the server that is accepting feeds from a camera. The program takes images as they are being fed from the camera, converts them to formats compatible with the particular devices that will be viewing them, and installs the images on a WAP 2.0 web service either locally or on a remote server. Clients can then use their WAP 2.0 phone to access the images in sequence. The refresh rate and image quality can be adjusted based on the requirements of the client.
Deliverables
Application files for server side application. Application files are defined to be .asp, .html, .htm, all java related and database files.
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