EXHIBIT 10.17
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into
this 9th day of August 2001, by and among XXXXXXXXXXXXXXXX.XXX CORP, a Texas
corporation, ("Purchaser"), and COMPUTER HARDWARE CORPORATION, a Panamanian
corporation ("Seller").
Explanatory Statement
A. Seller owns Online Asset Courtesy. Inc ("OACI") located at Cuba
Avenue, 34th Street East, Building Number 34-20, Panama City, Panama 5.
B. Purchaser desires to purchase and Seller desires to sell the sole
Assets on all terms and conditions slated herein.
(1) 24,250 UNITS of AdServersOnline, LLC
(2) 100% ownership of OACI
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Purchase and Sale of Assets.
1.1 Purchaser shall purchase the Assets of Seller as itemized
Clause D.
1.2 Purchase AND SALE. Upon closing on the terms and subject to the
conditions set forth in this Agreement, at the Closing (as defined herein) the
Seller shall sell, assign, transfer and deliver to the Purchaser and the
Purchaser shall purchase from the Seller all of the rights, title and interest
of Seller in and to the assets of the Seller (the "Assets"):
1.3 All of the Seller's goodwill and copies of all of Seller's books
and records relating or pertaining to OACI including all banking records
(hereinafter collectively referred to as the "Records"). The Seller shall
deliver to the Purchaser copies of the Records upon closing
1.4 Purchase Price for Assets;. The purchase price for the Assets shall
be in the form of an equity, whereby Seller shall receive 31,250 Common shares
of MKCT and a Three-Year Warrant to purchase five hundred thousand (500,000)
shares of MKCT common stock at ten cents ($0.10 cents) (the "Purchase Price").
1.5. Payment of Aggregate Price. On the terms and subject to the
conditions of this Agreement, at Closing the Purchaser shall deliver to Seller
32,250 shares of MKCT common Stock and a warrant to purchase 500,000 shares.
2. Liabilities of Seller. Anything contained in this Agreement to the
contrary notwithstanding, the Seller shall be and remain solely liable and
responsible for all debts, obligations, duties, and liabilities of the Seller
and the Business incurred prior to Closing, The Purchaser does not and shall not
assume, agree to pay any debts, obligations, duties or liabilities of any nature
of the Seller or the Business INCURRED prior to Closing, including, but not
limited to, any debts, obligations, duties or liabilities relating to the
Seller, regardless of whether any such debt, obligation, duties or liability
arises under any contract, agreement, practice. arrangement, statute, law,
ordinance, rule, regulation or otherwise, and nothing in this Agreement or
otherwise is intended or shall be construed to the contrary.
3. CREDITOR MATTERS; PRESENT AND Reasonably Equivalent Value. The
transactions contemplated by this Agreement are intended by the parties to be a
contemporaneous exchange between the Seller and the Purchaser and will be
accomplished at Closing. The transactions contemplated by this Agreement
represent a regularly conducted, noncollusive sale, and have been negotiated by
the panics in an arms-length manner with due regard for the respective
obligations of the parties and value of the assets transferred,
4. Assembly of Assets. Seller shall assemble all of the Assets for
delivery to Purchaser at Closing
5. Approvals; Permits, Licenses and Authorizations. Promptly after the
execution of this Agreement, the Seller and Purchaser shall use their best
efforts to obtain SUCH APPROVALS, consents, permits, licenses and
authorizations, if any, of all (Governments and Governmental Agencies (as
hereinafter defined) as may be required to complete lawfully the transactions
contemplated hereby and to enable the Purchaser to acquire the Assets and
operate the Business as operated by Seller and in full compliance with any and
all applicable laws, rules and regulations. The Seller agrees to cooperate
fully, execute, acknowledge, swear to, seal and deliver such instruments and
documents and take all such other and further actions as may be necessary or
desirable in order to obtain such approvals, consents, permits, licenses and
authorizations.
6. Representations AND WARRANTIES.
6.1. Representations and Warranties of Sellers and Stockholders. THE
SELLER represents and warrants to the Purchaser as of the date hereof and as of
THE Closing on the Closing Date that:
6.2 DUE ORGANIZATION; NAME AND ADDRESS; Good STANDING Authority OF Seller.
THE SELLER IS A CORPORATION DULY organized, VALIDLY EXISTING and in good
standing under the laws OF PANAMA.
7. AUTHORIZATION AND Validity Agreements. The Seller has the full
right, power and authority to execute, acknowledge, seal and deliver this
Agreement and to perform the transactions contemplated by this Agreement. The
execution, acknowledgment, sealing and delivery of this Agreement by the Seller,
and the performance by the Seller of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action.
This Agreement has been duly executed, acknowledged, sealed and delivered
by the Seller and is the legal, valid and binding obligation of the Seller,
enforceable against the Seller and in accordance with its terms.
8. Agreement Not in Conflict with Other Instruments: Required Approvals
Obtained The execution, acknowledgment, sealing, delivery, and performance of
this Agreement and the Consulting and Noncompetition Agreements by the Seller,
and the consummation of the transactions contemplated by this Agreement and the
Consulting will not (a) violate or require any consent, approval, or filing
under, (i) any common law, law, statute, ordinance, rule or regulation
(collectively referred to throughout this Agreement as "Laws") of any federal,
state or Local government (collectively referred to throughout this Agreement as
"Governments") or any agency, bureau, commission, instrumentality or judicial
body of any Governments (collectively referred to throughout this Agreement as
"Governmental Agencies"), or (ii) any judgment, injunction, order, writ or
decree of any court, arbitrator, Government or Governmental Agency by which the
Seller, any of the Assets or any of the Stockholders are bound; (b) conflict
with, require any consent, approval, or filing under, result in the breach or
termination of any provision of, constitute a default under, or result in the
creation of any claim, security interest, lien, charge, or encumberance upon any
of the Assets pursuant to, (i) the Seller's Articles or Bylaws, (ii) any
indenture, mortgage, deed of trust, license, permit, approval, consent,
franchise, lease, contract, or other instrument, document or agreement to which
the Seller is a party or by which the Seller's Assets are bound, or (iii) any
judgment, injunction, order, writ or decree of any court, arbitrator, Government
or Governmental Agency by which the Seller or any of the Assets is bound; and
all permits, licenses and authorizations of any Government or Governmental
Agency required to be obtained prior to the Closing, shall have been obtained
and shall be in full force and effect as of the Closing Date,
8.1. CONDUCT OF BUSINESS IN COMPLIANCE WITH Regulatory and CONTRACTUAL
Requirements. The Seller has conducted and is conducting its business in
compliance with all applicable Laws of all Governments and Governmental
Agencies. The Seller (i) is in compliance with all laws of all Governments and
Governmental Agencies applicable with respect thereto, and (ii) are in
compliance with all restrictions, covenants, agreements, contracts, commitments,
understandings and arrangements applicable with respect thereto.
8.2. Legal PROCEEDINGS. There is no action, suit, proceeding, claim or
arbitration, or any investigation by any person or entity, including, but not
limited to, any Government or Governmental Agency, (I) pending, to which the
Seller is a party, or to the knowledge of the Seller or any of the Stockholders,
threatened against or relating to the Seller, the Business or any of the Assets,
or (ii) challenging the Seller's right to execute, acknowledge, seal, deliver,
perform under or consummate the transactions contemplated by this Agreement,
(iii) asserting any right with respect to any of the Assets, and, in each such
case, There is no basis for any such action, suit, proceeding, claim,
arbitration or investigation.
8.3. Tax Matters. All information reported on the Tax Returns and in
the Tax Documents is true, accurate, and complete. The Seller is not a party to,
ard is not aware of, any pending or threatened action, suit, proceeding, or
assessment against it for the collection of taxes by any Government or
Governmental Agency. The Seller has duly and timely filed with all appropriate
Governments and Governmental Agencies, all tax returns, information returns, and
reports required to be filed by the Seller
9.0. Records. The Records have been delivered by the Seller to the
Purchaser or that shall be delivered by the Seller to the Purchaser are true,
complete and correct.
10.0. Absence of Certain Changes or Events Since January 4, 2002 the
Seller has not:
10,1. Incurred any indebtedness, obligation, duty or liability (contingent
or otherwise) or acted as a guarantor or surety of any debt, except normal trade
or business obligations incurred in the ordinary course of the Seller's
business, as such business has been operated historically, or incurred any debt.
10.2 Subjected to pledge, lien, charge, claim, security interest,
agreement, deed of trust or encumbrance any of the Assets.
10.3. Adverse Conditions. Seller has no knowledge of any past, present
or future condition, state of facts or circumstances which has affected or which
might affect adversely the Business or prevent the Purchaser from carrying on
the Business in the manner Seller historically has conducted the Business.
10.4 Pull Disclosure. This Agreement (including the Exhibits hereto)
does not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements contained herein not misleading.
There is no fact known to the Seller or to any of the Stockholders which is not
disclosed in this Agreement which does or may materially adversely affect the
accuracy of the representations and warranties contained in this Agreement or
the Seller's financial condition, operations, business, earnings, assets, or
liabilities.
10.5 Disclaimer of Fraudulent Intent The transactions described in this
Agreement have been undertaken by Seller in good faith, considering their
obligations to any person or entity to whom the Seller owes a right to payment,
whether or not the right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured (collectively such persons with such claims are called
"Creditors" under this paragraph), and have undertaken these transactions
without any intent to hinder, delay or defraud any such Creditors, and either
have disclosed in the ordinary course of business or will undertake to disclose
to all such Creditors the existence of this transaction, and have not and will
not conceal this
transaction or the proceeds of this transaction from any such Creditors. Seller
and the Stockholders further represent and warrant that: (1) they will not
retain possession or control of any of the property transferred under this
Agreement following the closing; (ii) the Seller and the has not been sued or
threatened with suit by any Creditor prior to the execution of this Agreement;
(iii) the Seller have not removed or concealed any assets from any Creditors;
(iv) the Seller has not incurred any individual or aggregate substantial debt
that is significantly greater than the normal and customary debts of the Seller
and the Stockholders in the ordinary course of business; and (v) the Seller, at
closing believes in good faith that Seller will receive consideration reasonably
equivalent to the value of the assets transferred under this Agreement.
10.6. Representations and Warranties a/the Purchaser. The Purchaser
represents and warrants to the Seller, as of the date hereof and as of the
Closing on the Closing Date that:
10.7. Due Organization; Good Standing; Power. Purchaser is a
corporation duly incorporated, validly existing, and in good standing under the
laws of the State of Texas. The Purchaser has full right power and authority to
enter into this Agreement and to perform its obligations hereunder.
10.8. AUTHORIZATION AND Validity OF DOCUMENTS. This Agreement has been
duly executed, acknowledged, sealed and delivered by the Purchaser and is a
legal, valid and binding obligation of the Purchaser.
10.9. No Brokerage. The Purchaser has not incurred any obligation or
liability, contingent or otherwise, for brokerage fees, finder's fees, agent's
commissions, or the like in connection with this Agreement or the transactions
contemplated hereby.
11. CLOSING
11.1. Time, Date and Place, The closing of the purchase and sale of the
Assets and the other transactions contemplated by this Agreement (referred to
throughout this Agreement as the "Closing") shall take place at the offices of
MarketCentral, net Corp. at 10:00 o'clock AM., Mountain Time, on a date to be
determined by the parties hereto. The time, place and date of the Closing are
referred to throughout this Agreement as the "Closing Date."
11.2. Seller's Conditions to Close. The Seller's obligation to close
the transactions contemplated hereby at the Closing shall be subject to the
complete satisfaction and fulfillment of all of the following conditions
precedent, any or all of which way be waived in whole or in part by the Seller
(but no such waiver of any such condition precedent shall be or constitute a
waiver of any covenant, promise, agreement, representation or warranty made by
the Purchaser in this Agreement):
11.3 All representations and warranties made by the Purchaser in this
Agreement shall be complete and accurate at and as of the Closing on the Closing
Date.
11.3. All covenants, promises and agreements made by the Purchaser in
this Agreement and all other actions required to be performed or complied with
by the Purchaser under this Agreement prior to or at the Closing shall have been
fully performed or complied with by the Purchaser.
11.4. All representations and warranties made by the Seller and the
Stockholders in this Agreement shall be complete and accurate at and as of the
Closing on the Closing Date.
11.5. Actions to Be Taken at the Closing. At the Closing, the following
actions, among others, shall occur:
11.6. The Seller shall deliver to the Purchaser the Ownership of OACI,
and 24,250 UNITS of AdserversOnline, LLC.
11.7. The Seller shall execute and deliver to the Purchaser a Xxxx of
Sale assigning, transferring and conveying the Assets to Purchaser with
warranties of merchantable title to the Assets.
11.8 The Purchaser shall deliver to the Shares to Seller.
12. CONTEMPORANEOUS TRANSFER. All transfers, assignments, conveyances,
and transactions under this Agreement shall be effected contemporaneously and
shall be a contemporaneous exchange for present value between the Seller and the
Stockholders and the Purchaser.
13. Effective Date of Transfer AND CLOSING Notwithstanding anything to
the contrary in this Agreement, the Purchaser may extend and postpone the
closing, and the delivery of consideration hereof, and the closing as extended
shall be regarded as contemporaneous and simultaneous, until (i) all deeds and
conveyances of real property have been so far perfected that a good faith
purchaser of the real property from the Seller and the Stockholders against whom
applicable law permits the transfer to be perfected cannot acquire an interest
in the real properties superior to the interests of the Purchaser; (ii) with
respect to assets that are not real property, or that are fixtures, when the
transfer to the Purchaser is so far perfected that a creditor on a simple
contract cannot acquire a judicial lien against the Seller and the Stockholders
superior to the interests of the Purchaser; and (iii) until the Purchaser has
physical possession of all other such assets.
14. OPERATION OF BUSINESS. From and after the close of business on the
day immediately preceding the Closing Date, the Seller shall cease to operate
the Business and shall thereafter not take any action with respect to any of the
Assets or the Business, except as expressly provided herein.
15. LNDEMNIFICATION
15.1. lndemntlication by Seller and Stockholders. The Seller shall
defend, indemnify and hold harmless the Purchaser, its officers, directors,
stockholders, agents, servants and employees and their respective heirs,
personal and legal representatives, guardians. successors and assigns, from and
against any and all claims, treats, liabilities, taxes, interest, fines,
penalties, suits, actions, proceedings, demands, damages, losses, costs and
expenses (including attorneys' and experts fees and court costs) of every kind
and nature arising out of, resulting from, or in connection with:
15.2. Any misrepresentation or breach by the Seller or by any of the
Stockholders of any representation or warranty contained in this Agreement.
15.3. Any nonperformance, failure to comply or breach by Seller or by
any of the Stockholders of any covenant, promise or agreement of the Seller or
of any of the Stockholders contained in this Agreement.
15.4. Any debts, obligations, duties and liabilities of the Seller or any
of the Stockholders.
15.5. Any matter, act, thing or occurrence caused by or resulting from
any act & omission of Seller or of any of the Stockholders prior to the Closing.
16. Indemnification by Purchaser. Purchaser shall defend, indemnify and
hold harmless the Seller, its officers, directors, stockholders, agents,
servants and employees, and the Stockholders and their respective heirs,
personal and legal representatives, guardians, successors and assigns, from and
against any and all claims, threats, liabilities, taxes, interest, fines,
penalties, suits, actions, proceedings, demands, damages, losses, costs and
expenses (including attorneys' and experts' fees and court costs) of every kind
and nature arising out of, resulting from, or in connection with:
16.1, Any misrepresentation, omission or breach by Purchaser of any
representation or warranty contained in this Agreement.
16.2. Any nonperformance, failure to comply or breach by the Purchaser
of any covenant, promise or agreement of the Purchaser contained in this
Agreement.
17. Expenses of Transactions. All sales, transfer and use taxes
incurred in connection with the sale, assignment, transfer and delivery of the
Assets shall be paid by the Seller.
18. Miscellaneous.
18.1. Survival of Representations, Warranties and Agreements All of the
representations, warranties, covenants, promises and agreements of the parties
contained in this Agreement (or in any document delivered or to be delivered
pursuant to this Agreement or at or in connection with the Closing) shall
survive the execution, acknowledgment, sealing and delivery of this Agreement
and the consummation of the transactions contemplated hereby.
18.2. Notices All notices, requests, demands, consents, and other
communications which are required or may be given under this Agreement
(collectively, the "Notices") shall be in writing and shall be given either (a)
by personal delivery against a receipted copy, or (b) by certified or registered
United States mail, return receipt requested, postage prepaid, to the following
addresses:
(i) If to Seller, to:
Computer Hardware Corp
Cuba Avenue, 34"' Street East,
Building Number 34-20,
Panama City, Panama 5.
Attn: Xxxxx Adameikova
(iii) If to the Purchaser:
XxxxxxXxxxxxx.xxx Corp
0000 Xxxxx Xxxxxx Xxxxxx
Q205
Englewood Colorado 8011.1
Attn: Xxxx Xxxxxx
or to such other address of which written notice in accordance with this Section
shall have been provided by such party. Notices may only be given in the manner
hereinabove described in this Section and shall be deemed received when given in
such manner.
19. ENTIRE Agreement This Agreement constitutes the full, entire and
integrated agreement between the parties hereto with respect to the subject
matter hereof, and supersedes all prior negotiations, correspondence,
understandings and agreements among the parties hereto respecting the subject
matter hereof.
20. Assignability This Agreement shall not be assignable by any party
hereto without the prior written consent of the other parties hereto; provided,
however, the Purchaser may assign this Agreement to any corporation or other
entity owned or controlled by the present stockholders of the Purchaser or
either of them without notice to or the consent of the Seller or the
Stockholders and, upon such assignment, shall be released and relieved from any
further duty, liability or obligation hereunder.
21. BINDING EFFECT; BENEFIT This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, personal and
legal representatives, guardians, successors and permitted assigns. Nothing in
this Agreement, express or implied, is intended to confer upon any other person
any rights, remedies, obligations, or liabilities
22. Severability. Any provision of this Agreement which is held by a
court of competent jurisdiction to be prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability, without
invalidating or rendering unenforceable the remaining provisions of this
Agreement.
23. Amendment; Waiver. No provision of this Agreement may be amended,
waived or otherwise modified without the prior written consent of all of the
parties hereto. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement herein contained. The waiver by any party hereto
of a breach of any provision or condition contained in this Agreement shall not
operate or be construed as a waiver of any subsequent breach or of any other
conditions hereof.
24. SECTION Headings. The section and other headings contained in this
Agreement are FOR reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
25. Counterparts. This Agreement may be executed in any number OF
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
26. Applicable Law; Jurisdiction and Venue; Service of PROCESS This
Agreement was made in the State of Texas, and shall be governed by, construed,
interpreted and enforced in accordance with the laws of the State of Texas
27. Remedies. The parties hereto acknowledge that in the event of a breach
of this Agreement, any claim for monetary damages hereunder may not constitute
an adequate remedy, and that it may therefore be necessary for the protection of
the parties and to carry out the terms of this Agreement to apply for the
specific performance of the provisions hereof It is accordingly hereby agreed by
all parties that no objection to the form of the action or the relief prayed for
in any proceeding for sped tic performance of this Agreement shall be raised by
any party, in order that such relief may be expeditiously obtained by an
aggrieved party. All parties may proceed to protect and enforce their rights
hereunder by a suit in equity, transaction at law or other appropriate
proceeding, whether for specific performance or for an injunction against a
violation of the terms hereof or in aid of the exercise of any right, POWER OR
REMEDY granted hereunder or by law, equity or statute or otherwise. No course of
dealing and no delay on the part OF any party hereto in exercising any right,
power or remedy shall operate as a waiver thereof or otherwise prejudice its
rights, powers or remedies, and no tight, power OR REMEDY CONFERRED HEREBY shall
be exclusive of ANY OTHER tight, power or remedy referred to herein or now or
hereafter available at law, in equity, by statute OR otherwise.
28. FURTHER Assurances. The Seller agrees to execute, acknowledge, sea] and
deliver, after the date hereof without additional consideration, such further
assurances, instruments and documents, and to take such further actions, as the
Purchaser may reasonably request in order to fulfill the intent of this
Agreement and the transactions CONTEMPLATED hereby.
29. Use of Genders. Whenever used in this Agreement, the singular shall
INCLUDE the plural and vice versa, and the use of any gender shall include all
genders and the neuter.
IN WITNESS WHEREOF, the parties hereto HAVE executed and delivered this
Agreement under seal, with the intention of making it a sealed instrument, on
the date first above written.
SELLER:
COMPUTER HARDWARE CORPORATION,
a Panamanian corporation
By: /s/ Xxxxx Adaincikova
_____________________________
Name: Xxxxx Adaincikova
Its: President and Director
Purchaser:
Xxxxxxxxxxxxx.xxx Corp. Inc.
A Texas corporation
By: /s/ Xxxx Xxxxxx
_______________
NAME:XXXX XXXXXX
Chairman
