Exhibit 10.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
AA ENTERPRISE CORP.
AND
ITALK, INC
MAY 2, 2013
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS...................................................... 1
1.1 Certain Definitions......................................... 1
1.2 Other Definitional Provisions............................... 2
ARTICLE II. PURCHASE AND SALE............................................... 2
2.1 Purchase Price.............................................. 2
2.2 Transfer of Assets.......................................... 2
ARTICLE III. CLOSING........................................................ 2
3.1 Closing..................................................... 2
3.2 Closing Deliveries.......................................... 2
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER........................ 3
4.1 Organization; Capitalization................................ 3
4.2 Authorization............................................... 3
4.3 No Conflict or Violation; Default........................... 3
4.4 Consents.................................................... 3
4.5 Assets...................................................... 3
4.6 Solvency; Fair Value........................................ 3
4.7 Litigation.................................................. 4
4.8 Tax Matters................................................. 4
4.9 Intellectual Property....................................... 4
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER.......................... 4
5.1 Organization................................................ 4
5.2 Authorization............................................... 4
5.3 No Conflict or Violation; Default........................... 4
5.4 Consents.................................................... 4
ARTICLE VI. INDEMNIFICATION................................................. 4
6.1 Settlement of Disputes...................................... 4
ARTICLE VII. MISCELLANEOUS.................................................. 5
7.1 Expenses.................................................... 5
7.2 Notices..................................................... 5
7.3 Counterparts................................................ 6
7.4 Entire Agreement............................................ 6
7.5 Headings.................................................... 6
7.6 Assignment; Amendment of Agreement.......................... 6
7.7 Non Waiver.................................................. 6
7.8 Severability................................................ 6
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of May 3rd 2012,
is entered into by and among AA Enterprise Corp. a Nevada corporation ("Buyer"),
and ITalk, Inc., a Nevada corporation ("Seller").
RECITALS
WHEREAS, Seller currently owns a brand called "RocketVoIP Customer of
Record rights in URL's listed below (ARTICLE I) useful for the marketing of
voice-over-internet telephone connectivity (the "Assets");
WHEREAS, Seller desires to sell all of Seller's "RocketVoIP" Assets as
listed under exhibit "A" excluding the physical switching and routing equipment
housed within the companies data center but including all rights and interests
associated therewith to Buyer as it pertains to the domain, the business, the
customer base and associated intellectual property; and
WHEREAS, Buyer desire to purchase from Seller, upon the terms and
conditions set forth herein, such Assets, rights and interests;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. The following terms have the following meanings
when used herein:
(a) "Assets" includes the following assets of Seller, all rights and
interests associated therewith, and, without limiting the generality of the
foregoing, shall expressly include the following assets, rights and interests of
Seller:
(i) all rights of the Customer of Record in the domain names:
XXXXXXXXXX.XXX XXXXXXXXXXXX.XXX, XXXXXXXXXXXX.XXX, XXXXXXXXXX.XXX,
XXXXXXXXXX.XXX, XXXXXXXXXX.XXX
(ii) any and all business plans, financial projections, and similar
information pertaining to the Assets;
(iii) any and all other intellectual property pertaining to the
Assets, including trademarks, service marks, proprietary rights in trade
names, brand names, internet domain names, trade dress, labels, logos,
slogans and other indications of origin, and copyrighted works (including
any registrations or applications for registration of the foregoing in any
jurisdiction and any extensions, modifications or renewals thereof) (the
"Intellectual Property");
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(iv) except as otherwise provided herein, any and all customer and
supplier lists pertaining to the Assets (including principal contacts,
addresses and telephone numbers, purchasing history, payment information
and any other documented information) and other business files and
information;
(v) except as otherwise provided herein, all rights, benefits and
interests in and to any and all licenses, leases, contracts, agreements,
commitments and undertakings pertaining to the Assets; and
(viii) all goodwill of Seller pertaining to the Assets.
(b) Other capitalized terms included in this Agreement shall have the
meaning ascribed to herein.
1.2 Other Definitional Provisions. The language in all parts of this
Agreement shall be construed, in all cases, according to its fair meaning.
(a) Terms defined in the singular shall have a comparable meaning when used
in the plural, and vice versa.
ARTICLE II.
PURCHASE AND SALE
2.1 Purchase Price. Upon the terms and subject to the conditions set forth
herein, Buyer shall, and hereby does, purchase from Seller the Assets for an
aggregate purchase price consisting of the following: Fifty thousand dollars
($50,000) and 500,000 common restricted shares of iTalk Inc. (the "Purchase
Price"):
a) Cash in the amount of $50,000
b) 500,000 common restricted shares of iTalk Inc.
2.2 Transfer of Assets. Upon the terms and subject to the conditions set
forth herein, Seller shall, and hereby does, sell and transfer to Buyer all
right, title and interest of Seller in and to the Assets, free and clear of all
encumbrances of any kind known to Seller.
2.3 Continued Operations of Assets. Upon the terms and subject to the
conditions set forth herein, Seller shall, and hereby does, agree to continue to
manage and operate as directed by buyer the xxxxxxxxxx.xxx domain and associated
business until such time as directed by the buyer to transition customer
support, online sales and other operations to buyers new management team.
ARTICLE III.
CLOSING
3.1 Closing. The closing of the transactions contemplated herein (the
"Closing") is occurring on the date hereof (the "Closing Date") and shall be
deemed effective upon the execution and delivery of this Agreement.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
4.1 Organization; Capitalization.
(a) Seller is a Florida corporation duly organized, validly existing and in
good standing under the laws of the State of Florida and has all requisite power
and authority to own or lease the properties used in its business and to carry
on such business as presently conducted.
(b) Seller is duly qualified to do business and is in good standing as a
foreign limited liability company in each jurisdiction in which the ownership of
the Assets requires such qualification.
4.2 Authorization. This Agreement has been duly authorized, executed and
delivered by Seller, and this Agreement is the legal, valid and binding
obligation of Seller enforceable against it.
4.3 No Conflict or Violation; Default. Neither the execution and delivery
of this Agreement nor the consummation of the transactions contemplated hereby
or thereby will violate, conflict with or result in a breach of or constitute a
default under or result in the termination or the acceleration of, or the
creation in any party of any right (whether or not with notice or lapse of time
or both) to declare a default, accelerate, terminate, modify or cancel (a) any
indenture, contract, lease, sublease, loan agreement, note or other obligation
or liability to which Seller is a party or by which it is bound, (b) any
provision of the articles of organization or regulations or articles of
incorporation or bylaws (or similar organizational or governing documents) of
Seller, (c) any judgment, order, decree, rule or regulation of any court or
governmental agency to which Seller or the Business is subject or (d) any
applicable laws or regulations.
4.4 Consents. No notice to or consent, approval, authorization, order,
filing, registration or qualification of or with any court, governmental
authority or third party is required to be made or obtained by Seller in
connection with the execution and delivery of this Agreement or the consummation
by Seller of the transactions contemplated herein and therein.
4.5 Assets. Seller has or will transfer to Buyer, good, valid and
marketable title to the Assets, free and clear of any claims, security
interests, liens, pledges, charges, escrows, options, proxies, rights of first
refusal, prior assignments remaining in effect, indentures or any other
encumbrances of any kind known to Seller, including licenses of intellectual
property. The delivery to Buyer of the instruments of transfer contemplated
hereby will vest, indefeasible and exclusive title to the Assets in Buyer, free
and clear of all encumbrances of any kind known to Seller.
4.6 Solvency; Fair Value. Seller is solvent. The consummation of the
transactions contemplated hereby will not affect Seller's solvency subsequent to
the Closing Date. Seller hereby acknowledges that the Purchase Price received
pursuant to this Agreement constitutes reasonably equivalent value for the
Assets that Buyer is acquiring pursuant hereto.
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4.7 Litigation. There is no claim, action, suit, proceeding, or
investigation pending or threatened against Seller or its respective directors,
officers, agents or employees (in their capacity as such) pertaining to the
Assets or any properties or rights associated with the Assets or that is
reasonably likely to adversely affect the Assets or the transactions
contemplated hereby. There are no orders, writs, injunctions or decrees
currently in force against Seller or its respective directors, officers, agents
or employees (in their capacity as such) pertaining to the Assets.
4.8 Tax Matters Seller has duly and timely filed, or caused to be duly and
timely filed all Tax Returns required to be filed by it with the appropriate
governmental authorities, or requests for extensions to file such Tax Returns
have been timely filed and granted and have not expired. All such Tax Returns
were at the time of filing and are as of the date hereof true, correct and
complete in all respects. All Taxes owed by Seller relating to the Assets
(whether or not shown on any Tax Return) have been paid within the time and in
the manner prescribed by law. All deficiencies for any Taxes relating to
Seller's Assets that have been proposed, asserted or assessed against Seller
have been fully paid. 4.9 Intellectual Property. Article I sets forth a true,
correct and complete list and description of all registered Intellectual
Property and applications therefor owned by Seller pertaining to the Assets (the
"Seller Intellectual Property"). The Seller Intellectual Property constitutes
all intellectual property of Seller pertaining to the Assets. Seller is the sole
owner of the Seller Intellectual Property, free and clear of any payment,
restriction or known encumbrance. No claims have been asserted by any person or
entity that challenge Seller's exclusive rights in the Seller Intellectual
Property. To Seller's knowledge, the Seller Intellectual Property does not
infringe on, misappropriate, or otherwise violate a valid and enforceable
intellectual property right of any other person or entity.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represent and warrant to Seller as follows:
5.1 Organization. Buyer is an individual and has all requisite power and
authority to enter into this Agreement.
5.2 Authorization. This Agreement has been duly authorized, executed and
delivered by Buyer, and this Agreement is the legal, valid and binding
obligation of, enforceable against Buyer in accordance with their respective
terms.
ARTICLE VI.
INDEMNIFICATION
6.1 Settlement of Disputes. (a) Arbitration. All disputes with respect to
any claim for indemnification under this Article VII and all other disputes and
controversies of every kind and nature between the parties hereto arising out of
or in connection with this Agreement shall be submitted to arbitration pursuant
to the following procedures:
(i) After a dispute or controversy arises, either party may, in a
written notice delivered to the other party, demand such arbitration. Such
notice shall include a statement of the matter in controversy;
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(ii) Within 30 days after receipt of such demand, an arbitrator shall
be chosen by the American Arbitration Association ("AAA").
(iii) The arbitration hearing shall be held within 30 days of
appointment of the arbitrator in Miami Florida, at a location designated by
the arbitrator. The Commercial Arbitration Rules of the AAA shall be used
and the substantive laws of the State of Florida (excluding conflict of
laws provisions) shall apply;
(iv) An award rendered by the arbitrator appointed pursuant to this
Agreement shall be final and binding on all parties to the proceeding,
shall deal with the question of costs of the arbitration and all related
matters, shall not award punitive damages, and judgment on such award may
be entered by either party in a court of competent Jurisdiction; and
(v) Except as set forth in subsection (b) below, the parties stipulate
that the provisions of this Section 6.1 shall be a complete defense to any
suit, action or proceeding instituted in any federal, state, or local court
or before any administrative tribunal with respect to any controversy or
dispute arising out of this Agreement. The arbitration provisions hereof
shall, with respect to such controversy or dispute, survive the termination
or expiration of this Agreement.
(b) Emergency Relief. Notwithstanding anything in this Section 6.1 to the
contrary, either party may seek emergency relief from a court for any remedy
that may be necessary to protect any rights or property of such party pending
the establishment of the arbitral tribunal or its determination of the merits of
the controversy.
ARTICLE VII.
MISCELLANEOUS
7.1 Expenses. Buyer shall pay all costs and expenses incurred by it on its
behalf, and Seller shall pay all costs and expenses incurred by Seller or on its
behalf, in connection with this Agreement and the transactions contemplated
hereby, including fees and expenses of their financial consultants, accountants
and legal counsel.
7.2 Notices. All notices, requests, demands and other communications given
hereunder (collectively, "Notices") shall be in writing and delivered personally
or by overnight courier to the parties at the following addresses or sent by
telecopier or telex, with confirmation received, to the telecopy specified
below:
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If to Buyer: AA Enterprise Corp.
0000 Xxxxxx xx
Xxxxx 000
Xxxxxx Xx 000000
If to Seller ITALK, INC 0000 X Xxxxxxx Xxxxx Xx.
Xxxxx 000
Xx Xxxxxxxxxx Xx 00000
All Notices shall be deemed delivered when actually received if delivered
personally or by overnight courier, sent by telecopier or telex (promptly
confirmed in writing), addressed as set forth above. Each of the parties shall
hereafter notify the other in accordance with this Section 8.2 of any change of
address or telecopy number to which notice is required to be mailed.
7.3 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, and by different parties hereto in separate counterparts,
each of which when executed shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
7.4 Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersede all prior
negotiations, agreements and understandings, whether written or oral, of the
parties.
7.5 Headings. The headings contained in this Agreement and in the Schedules
and Exhibits hereto are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
7.6 Assignment; Amendment of Agreement. This Agreement shall be binding
upon the respective successors and assigns of the parties hereto. This Agreement
may not be assigned by any party hereto without the prior written consent of the
other party hereto which consent shall not be unreasonably withheld. This
Agreement may be amended only by written agreement of the parties hereto, duly
executed and delivered by an authorized representative of each of the parties
hereto.
7.7 Non Waiver. The failure in any one or more instances of a party hereto
to insist upon performance of any of the terms, covenants or conditions of this
Agreement, to exercise any right or privilege in this Agreement conferred, or
the waiver by said party of any breach of any of the terms, covenants or
conditions of this Agreement shall not be construed as a subsequent waiver of
any such terms, covenants, conditions, rights or privileges, but the same shall
continue and remain in full force and effect as if no such forbearance or waiver
had occurred.
7.8 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
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the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to affect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the day and year first above written.
AA Enterprise Corp.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
President
ITalk, INC.
By: /s/ Xxxxx Xxxxxxxx Xxxx
--------------------------------------
Xxxxx Xxxxxxxx Xxxx, CEO / President
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