EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
iExalt, Inc., a Nevada Corporation, 00000 Xxxxxxxxx Xxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, (the "Seller"), and Kingdom Ventures, Inc.,1045 Xxxxxxxxx
Xxx, Xxxxxx, XX, 00000, a Nevada corporation, (the "Buyer"), hereby enter into
the transaction described below on this the 3rd day of February, 2003 and agree
as follows:
ARTICLE 1. PURCHASE AND SALE OF ASSETS
1.01. ASSETS BEING PURCHASED. Seller shall sell to Buyer and Buyer shall
purchase from Seller on the terms specified in this Agreement all the intangible
and tangible assets of Seller related solely to the assets identified in Exhibit
1.01 attached hereto, generally described as the urls and name likeness and
image of "iExalt" ("Assets").
1.02. PURCHASE PRICE. Buyer shall pay to Seller on Closing (as hereinafter
defined) ten thousand dollars ($10,000), and a contingent payment of forty
thousand dollars ($40,000) ("Contingent") to be paid by Buyer based upon certain
conditions defined below.
1.03. CLOSING. The sale and purchase described in this Agreement shall be
consummated on or before February 15, 2003 ("Closing" or "Closing Date"). The
payment of the Purchase Price shall be one thousand dollars ($1,000) paid at
Closing, nine thousand dollars ($9,000) upon receipt by Buyer from the domain
transfer agent, with an additional forty thousand dollars ($40,000) to be paid
not later than August 31, 2003, based upon either of the following performance
objectives being met:
a. Pageviews not less than 500,000 for the month ending July 31, 2003
or August 31, 2003
b. Unique visitors exceeding 100,000 for the month ending July 31,
2003, or August 31, 2003
ARTICLE 2. REPRESENTATIONS AND WARRANTIES BY SELLER, TO THE BEST KNOWLEDGE OF
THE SELLER
2.01. TITLE TO ASSETS. Seller has good and marketable title to all Assets
covered by this Agreement. Seller's title to all assets is free and clear of
any liens, encumbrances, or other defects.
2.02. AUTHORITY TO SELL. Seller has complied with all the requirements of
any applicable law of the State of Texas, or the State of Nevada relative to the
sale of Assets described in this Agreement and that prior to Closing, all of the
consents and approvals that may be required by law or by agreements to which
Seller may be a party will be obtained.
2.03. LIABILITIES. The Buyer does not accept, acquire or become liable for
any liability of the Seller or any current liability related to any asset
purchased hereunder.
2.04. DEFAULTS AND VIOLATIONS. Seller is not in default or material
violation of any contracts, agreements, leases, or other instruments or
obligations to be sold and transferred to Buyer pursuant to this Agreement, and
this Agreement and the purchase and sale to be consummated pursuant to this
Agreement will not create or cause a default or material violation of any
contract, agreement, lease or other instrument to which Seller may be a party.
2.05. LITIGATION. To the knowledge of the Seller, there is now no
litigation pending against Seller of which Seller or its officers are aware that
will, might, or could affect consummation of the purchase and sale described in
this Agreement or the transfer of title of any of the Assets in good and
marketable condition to Buyer.
2.06. SURVIVAL OF WARRANTIES. Seller agrees that all warranties made by it
in this Agreement shall survive the Closing.
ARTICLE 3. WARRANTIES OF BUYER
Buyer represents and warrants as follows:
3.01. DUE ORGANIZATION. Buyer is a corporation duly organized and existing
under the General Corporation Law of the State of Nevada and that its power as a
corporation has never been and is not now suspended.
3.02. AUTHORITY TO BUY. This Agreement has been approved by Buyer's Board
of Directors and that Buyer has full power and authority to both execute and
perform this contract.
ARTICLE 4. OPERATION OF BUSINESS
4.01. SELLER TO CONTINUE BUSINESS. Seller shall continue to manage the
Assets in the normal course until the Final Closing. Any and all risk of loss
or damages to the Assets during such period from any and all causes shall be the
risk of the Seller.
4.02. PRORATIONS OF COSTS. All expenses paid and incurred related to this
transaction shall be paid by the party incurring the expense. The Parties
anticipate no proration of expenses such as pre-paid expenses or property taxes,
nor do the Parties anticipate that sales or use tax will apply to this
transaction.
4.03. ALLOCATION OF THE PURCHASE PRICE. The Parties agree that the purchase
price shall be allocated as to goodwill.
ARTICLE 5. CONDITIONS TO BUYER'S PERFORMANCE
Absent a waiver in writing, all obligations of the Buyer under this
Agreement are subject to satisfaction of the following conditions on or before
the Closing Date:
5.01. PERFORMANCE BY SELLER. Seller shall have performed, satisfied and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by them, or any of them, on or before
the Closing Date.
5.02. REPRESENTATIONS AND WARRANTIES TRUE AS OF THE CLOSING DATE. Except as
otherwise permitted by this Agreement, all representations and warranties by
Seller in this Agreement shall be true on and as of the Closing Date as though
made at that time.
5.03. THIRD PARTY CONSENTS. All consents and approvals required to be given
by third parties shall have been obtained and Buyer shall have been furnished
with appropriate evidence reasonably satisfactory to it and its counsel of the
granting of such consents and approvals.
5.04. ABSENCE OF LITIGATION. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement, or to its consummation, shall have been
instituted or threatened on or before the Closing Date.
ARTICLE 6. SELLER'S COVENANTS
6.01. COVENANT NOT TO COMPETE. Seller will execute prior to the Closing a
covenant not to compete in the form as set forth in Schedule 6.01.
6.02. RELINQUISHMENT OF NAME. Seller shall cause itself and all others who
currently are using trade names, service marks or other intellectual property
rights related to the operation of the Assets purchased and solely limited to
the Assets, to relinquish the use of any names, as soon as is reasonably
appropriate, but not later than August 31, 2003, by all appropriate acts and
filings as may be required with various state and local authorities, and to
acknowledge that Seller and all other persons have no rights with respect to the
use and exploitation of such trade names. It is understood that the corporate
entity "iExalt, Inc." may continue to use such name until such time as it is
abandoned or replaced via a charter amendment. Seller agrees to execute whatever
documents necessary for the timely transfer of the servicemark, name, likeness
or image.
ARTICLE 7. INDEMNITY AGREEMENT
7.01. SELLER'S INDEMNITY. Except as otherwise expressly provided in this
Agreement or any attachment to this Agreement, Seller shall indemnify and hold
Buyer and the property of Buyer, including the Assets, free and harmless from
any and all claims, liability, loss, damage, or expense resulting from Seller's
ownership of the Assets, including any claim, liability, loss or damage arising
by reason of the injury to or death of any person or persons, or the damage of
any property, caused by Seller's negligent use of the Assets, or the condition
of the Assets when owned by Seller. Provided, however, Seller shall incur no
liability under this section until and unless the aggregate amount of any and
all claims, liability, loss, damage, or expense equals or exceeds $5,000.
7.02. BUYER'S INDEMNITY. Except as otherwise provided in this Agreement or
any attachment to this Agreement, Buyer shall indemnify and hold Seller free and
harmless from any and all claims, liabilities, loss, damage, or expense
resulting from Buyer's acts or omissions to act after the Closing Date as they
relate to the assets Purchased and liabilities assumed by Buyer pursuant to this
Agreement and the negligent operation of the Assets after Closing.
ARTICLE 8. TERMINATION DEFAULT REMEDIES
8.01. TERMINATION. If either Buyer or Seller materially defaults in the
due and timely performance of any of their warranties, covenants or agreements
or in the event of the failure of a party to satisfy or fulfill any of the
conditions in this Agreement, the non-defaulting party may on the Closing Date
give notice of termination. The notice shall specify the default or defaults
upon which the notice is based. The termination shall be effective five days
after the Closing Date, unless the specified default or defaults have been cured
on or before the effective date of the termination.
8.02. DEFAULT; REMEDIES. Notwithstanding Section 8.01, in the event of a
default, the non-defaulting party may seek specific performance of this
Agreement against the defaulting party from a court of competent jurisdiction,
or alternatively, such non-defaulting party may seek damages from the defaulting
party.
8.03. LITIGATION COSTS. If any legal action or other proceeding is brought
for the enforcement of this Agreement or to remedy its breach, the prevailing
party in such action or proceeding shall be entitled to recover its actual
attorney's fees and costs incurred in the action or proceeding, in addition to
such other relief to which it may be entitled.
ARTICLE 9. MISCELLANEOUS
9.01. ENTIRE AGREEMENT. This instrument with its attachments constitutes
the entire agreement between Buyer and Seller respecting the Assets or the sale
of the Assets to Buyer by Seller, and any agreement or representation respecting
the Assets or their sale by Seller to Buyer not expressly set forth in this
instrument is null and void.
9.02. NOTICES. Any and all notices or other communications required or
permitted by this Agreement or by law to be served on or given to either party
hereto, Buyer or Seller, by the other party hereto shall be, unless otherwise
required by law, in writing and deemed duly served and given when personally
delivered to the party to whom directed or any of its officers or, in lieu of
such personal service, when deposited in the United States mail, first-class
postage prepaid, addressed to:
BUYER:
Kingdom Ventures, Inc.
0000 Xxxxxxxxx Xxx
Xxxxxx, XX 00000
SELLER:
iExalt, Inc.
00000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
9.03. ASSIGNMENT. Neither this Agreement nor any right or interest in it
may be assigned by either party to any other person or corporation without the
express written consent of the other party to this Agreement.
9.04. GOVERNING LAW AND VENUE. This Agreement shall be governed and all
rights and liabilities under it determined in accordance with the laws of the
State of Texas. Venue for any dispute resolution or litigation shall be Xxxxxx
county, Texas.
9.05. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which shall
constitute but one Agreement.
9.06. EXPENSES. Each party shall pay all costs and expenses incurred by it
in negotiating and preparing this Agreement and in closing and carrying out the
transactions contemplated herein and hereby.
9.07. FURTHER ASSURANCES. The parties agree that at any time and from time
to time after the Closing Date, they will execute and deliver to any other party
such further instruments or documents as may be reasonably required to give
effect to the transactions contemplated hereunder.
9.08. ARBITRATION. Both parties agree to follow the Rules of Procedure for
Christian Conciliation of the Institute for Christian Conciliation (a division
of Peacemaker Ministries) for any and all disputes concerning or arising out of
this Agreement. Both parties agree that the Bible commands parties to make every
effort to resolve disputes with each other in private and in obedience agree to
proceed to legally binding arbitration before a mutually agreed arbitrator. Both
parties realize that arbitration will be the exclusive remedy for potential
disputes and may not later litigate these or any other related matters in civil
court. The parties agree that Peacemaker Ministries are not required to provide
the exclusive forum, yet any arbitrator determined, must agree to utilize the
Rules as defined above.
BUYER:
Kingdom Ventures, Inc.
By: ______________________________
______________________its:_________________
SELLER:
iExalt, Inc.
By: _____________________________
Xxxxxx X. Xxxxxxx, Chairman/CEO
SCHEDULE 1.01(a)
DESCRIPTION OF THE ASSETS BEING SOLD
Name, likeness and image - iExalt
URLs attached.
EXHIBIT 6.01
COVENANT NOT TO COMPETE
THIS COVENANT NOT TO COMPETE agreement ("Covenant Not To Compete") when
fully executed shall take effect on the _____ day of ____________, 2003, by and
between IEXALT, INC. a Nevada corporation ("Seller") and Kingdom Ventures, Inc.
("Purchaser").
WHEREAS, Seller and Purchaser have entered into an Asset Purchase Agreement
dated on or about ______________, 2003 ("Purchase Agreement"), conveying the
urls and name, likeness and image (as is further defined in Exhibit 1.01 (a)) of
the Seller known as "iExalt,"
NOW THEREFORE, in consideration of the above matters and of the matters set
forth below, the parties agree and acknowledge as follows:
1. In consideration of the sum identified in the Purchase Agreement under
section 1.02, Purchase Price, paid and to be paid to Seller, the receipt of
which initial payment is hereby acknowledged by Seller, and for a period of one
(1) year commencing on the date set forth above, Seller shall NOT, as an owner,
manager, partner, officer, director, shareholder, or sales employee, engage in
any business enterprise that is similar to and/or competitive with that typified
by the iExalt website activities, just prior to this.
2. Purchaser acknowledges that the Business is just one aspect of Seller's
business and that nothing in this Covenant Not to Compete should keep Seller
from engaging in its other businesses.
3. Seller expressly acknowledges that the execution of this Covenant Not To
Compete (with the restrictions imposed herein) is a material inducement for
Purchaser to purchase the Business and its assets, and is not intended by Seller
as, and shall not be considered by Purchaser to be, a restraint of trade in
Purchaser's continuing its normal remaining practice of business under iExalt,
Inc.
4. The parties hereby acknowledge that Seller's obligations under this
Covenant Not To Compete are expressly conditioned on Purchaser not becoming in
material default of Purchaser's obligations to Seller under the Purchase
Agreement or under any closing document executed by Purchaser pursuant to the
Purchase Agreement. In the event Purchaser shall become in material default of
any of such obligations, and after the expiration of the notice provision
required by this sentence, Seller shall be relieved of all restrictions imposed
on Seller by this Covenant Not To Compete unless such default shall be
materially cured within thirty (30) calendar days after written notification of
such default shall have been delivered by Seller to Purchaser in accordance with
the notice provisions set forth in Article 9 of the Purchase Agreement. Such
notice (and subsequent failure to cure) shall be conditions precedent to Seller
being relieved of the restrictions imposed herein.
5. In the event any party shall bring legal action or suit, including
arbitration, against any other party pursuant to this Covenant Not To Compete,
the prevailing party(s) to such proceeding shall be entitled to injunctive
relief and to recover all costs and expenses of such proceeding including,
without limitation, reasonable attorneys' fees.
6. This Covenant Not To Compete shall be binding on the parties hereto and
shall inure to the benefit of the parties and their respective heirs,
beneficiaries, legal representatives, successors, and assigns.
7. WHEREFORE, the parties have signed this Covenant Not To Compete to be
effective as of the date first above written.
"PURCHASER" "SELLER"
KINGDOM VENTURES, INC., IEXALT, INC., a Nevada corporation
a Nevada corporation
By: ______________________________ By: ______________________________
Printed Name: ____________________ Xxxxxx Xxxxxxx, Chairman/CEO
Title: __________________________
