ASSET PURCHASE AGREEMENT
EXHIBIT
10.1
This
Asset Purchase Agreement is entered into as of August 14, 2008 (the “Agreement
Date”) by and between Zeezoo Software Corp., a Nevada corporation (the
“Purchaser”) and Enhance Skin Products Inc., a Province of Ontario, Canada
corporation (the “Seller).
WHEREAS,
the Purchaser desires to purchase and acquire from the Seller and the Seller
desires to sell and assign to the Purchaser all of the Seller’s rights, title
and interest in certain assets and certain listed liabilities that belong to
the
Seller specifically set forth in Schedule A attached hereto (the “Assets
and Liabilities”);
and
WHEREAS,
the parties desire to enter into this Agreement to set forth their mutual
agreements concerning the above matter;
NOW,
THEREFORE, in consideration of the mutual promises of the parties hereto, and
of
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually agreed by and between the parties hereto as
follows:
ARTICLE
1
SALE
AND TRANSFER OF ASSETS AND LIABILITIES; CLOSING
1.1. Sale
of Assets and Liabilities.
Subject
to the terms and conditions of this Agreement and in reliance upon the
representations, warranties, covenants and agreements contained herein, at
the
closing of the transactions contemplated hereby, the Seller will sell, convey,
assign and transfer the Assets and Liabilities to the Purchaser, and the
Purchaser will purchase and acquire the Assets and Liabilities from the
Seller.
1.2. Consideration. In
consideration of the sale, transfer and assignment to the Purchaser of the
Assets and Liabilities, the Purchaser shall, at Closing, issue in the name
of
the Seller or in such other name as the Seller may otherwise direct, an
aggregate of 27,500,000 shares of common stock of the Purchaser (the
“Shares”)
equal
to approximately 57.6% of the shares of common stock of the Purchaser on a
fully
diluted basis (hereinafter referred to as the “Purchase
Price”)
as of
the Closing Date and the transaction set forth in this Agreement.
1.3. The
Closing.
The
transfer and delivery of the documents transferring the Assets and Liabilities
to the Purchaser and the Shares to the Seller and the exchange and delivery
by
the parties of the other documents and instruments contemplated by this
Agreement, (the “Closing”)
will
take place on the date hereof, subject to the satisfaction or waiver (by the
party receiving the benefit thereof) of the conditions precedent set forth
in
Section 5 of this Agreement (the “Closing
Date”)
at the
offices of Ellenoff Xxxxxxxx & Schole LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or at such other place upon which the parties shall
agree.
1.4. Deliveries.
At the
Closing on the Closing Date:
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(a)
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The
Purchaser shall deliver or cause to be delivered to the Seller a
certificate issued in the name of the Seller, or in such other name
as the
Seller may otherwise direct, evidencing the
Shares.
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(b)
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The
Seller shall deliver to the Purchaser executed and duly acknowledged
assignments in the forms set forth in Exhibit A hereto conveying
all
right, title and interest of the Seller to the Assets and Liabilities
to
the Purchaser or as otherwise modified in a manner to comply with
Nevada
law.
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(c)
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The
Seller and the Purchaser shall each execute and deliver such other
instruments and take such other action as may be necessary to carry
out
its obligations under this Agreement; including, without limitation,
working together to cause the title to any assets to be transferred
into
the name of the Purchaser in the applicable governmental
records.
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1.5. Expenses
of Seller.
Any
liability or obligation of the Seller arising or incurred in connection with
the
negotiation, preparation and execution of this Agreement and the transactions
contemplated hereby and any fees and expenses of counsel, accountants and other
experts employed by Seller shall be paid by the Purchaser following the
Closing.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
To
induce
the Purchaser to execute, deliver and perform this Agreement, and in
acknowledgement of the Purchaser’s reliance on the following representations and
warranties (in addition to the representations and warranties in Section 1.1),
the Seller represents and warrants to the Purchaser as follows as of the date
hereof and as of the Closing Date:
2.1. Organization.
The
Seller is a corporation duly organized, validly existing and in good standing
under the applicable laws of the Province of Ontario, Canada, with the power
and
authority to conduct its business as it is now being conducted and to own its
assets.
2.2. Power
and Authority.
The
Seller has the power and authority to execute, deliver, and perform this
Agreement and the other agreements and instruments to be executed and delivered
by it in connection with the transactions contemplated hereby, and the Seller
will have taken all necessary action to authorize the execution and delivery
of
this Agreement and such other agreements and instruments and the consummation
of
the transactions contemplated hereby, including but not limited to the receipt
of all necessary regulatory approvals. The execution, delivery and performance
by the Seller of the Agreement have been duly authorized. This Agreement is,
and
the other agreements and instruments to be executed and delivered by the Seller
in connection with the transactions contemplated hereby, when such other
agreements and instruments are executed and delivered, shall be, the valid
and
legally binding obligations of the Seller enforceable against the Seller in
accordance with their respective terms.
2.3. Directors
and Officers of Seller.
The
duly elected or appointed directors and the duly appointed officers of Seller
are as set out in Schedule 2.3.
2.4. Non-Contravention.
Except
as disclosed in Schedule 2.4, to the Seller’s knowledge, neither the execution,
delivery and/or performance of this Agreement, nor the consummation of the
transactions contemplated hereby, will:
(a) conflict
with, result in a violation of, cause a default under (with or without notice,
lapse of
time
or both) or give rise to a right of termination, amendment, cancellation or
acceleration of any obligation contained in or the loss of any material benefit
under, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the material properties or assets of Seller under any
term, condition or provision of any loan or credit agreement, note, debenture,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Seller, or any of its material property or assets;
(b)
violate
any provision of the articles or bylaws of Seller; or
(c)
violate
any order, writ, injunction, decree, statute, rule, or regulation of any court
or governmental or regulatory authority in the Province of Ontario, Canada
that
would result in a Material Adverse Effect (defined below).
2.5. Actions
and Proceedings.
Except
as disclosed in Schedule 2.5 hereto, to the knowledge of Seller, (i) there
is no
basis for and there is no action, suit, judgment, claim, demand or proceeding
outstanding or pending, or threatened against or affecting Seller or which
involves any of the business, or the properties or assets of Seller that, if
adversely resolved or determined, would have a material adverse effect on the
business, operations, assets, properties, or conditions of an entity such as
Seller or Purchaser, as the case may be, taken as a whole (a “Material
Adverse Effect”),
and
(ii) there is no reasonable basis for any claim or action that, based upon
the
likelihood of its being asserted and its success if asserted, would have such
a
Material Adverse Effect.
2.6. Compliance.
(a)
To
the
knowledge of Seller, Seller is in compliance with, is not in default or
violation in any material respect under, and has not been charged with or
received any notice at any time of any material violation of any statute, law,
ordinance, regulation, rule, decree or other regulation in the Province of
Ontario, Canada that would constitute a Material Adverse Effect;
(b) To
the
knowledge of Seller, Seller is not subject to any judgment, order or decree
entered in any lawsuit or proceeding applicable to its business and operations
that would result in a Material Adverse Effect; and
(c) To
the
knowledge of Seller,
Seller
has duly filed all reports and a return required to be filed by it with
governmental authorities in the Province of Ontario, Canada and has obtained
all
governmental permits and other governmental consents, except as may be required
after the execution of this Agreement. To the knowledge of Seller, all of such
permits and consents are in full force and effect, and no proceedings for the
suspension or cancellation of any of them, and no investigation relating to
any
of them, is pending or to the knowledge of Seller, threatened, and none of
them
will be adversely affected by the consummation of this Agreement.
2.7. Filings,
Consents and Approvals.
Except
as set forth in Schedule 2.7, to the knowledge of Seller, no filing or
registration with, no notice to and no permit, authorization, consent, or
approval of any public or governmental body or authority or other person or
entity is necessary for the consummation by Seller of the transactions
contemplated by this Agreement.
2.8. Intellectual
Property.
(a) As
of
Closing Date, to the knowledge of Seller, except as set forth in Schedule
2.8(a), it exclusively owns, or is authorized to use, legally enforceable
intellectual property rights in and to all of Seller’s intellectual
property.
(i) Schedule
2.8(a)(i)
hereto
sets forth, among other things, all United States and foreign: (i) patents
and patent applications, (ii) registered or applied for trademarks, trade
names, brand names and corporate names, and service marks, (iii) Internet
domain name registrations and applications and (iv) copyright registrations
and applications owned or licensed by Seller in each case described in clauses
(i) through (iv), that are material to the operations of the Business as
presently conducted, specifying as to each item, as applicable: (A) the
title of the item; (B) the jurisdictions in which the item is issued or
registered or in which an application for issuance or registration has been
filed; and (C) the issuance, registration or application numbers and
dates.
(ii) Schedule
2.8(a)(ii) hereto further sets forth all material licenses, sublicenses and
other agreements or permissions under which the Seller is a licensor or licensee
or otherwise is authorized to use or practice any intellectual property. Seller
has provided to Purchaser a true and complete copy of all such licenses,
sublicenses and other agreements or permissions listed on Schedule A.
(iii) Schedule
2.8(a)(iii) hereto further sets forth and describes the status of any material
agreements involving intellectual property currently in negotiation or proposed
by the Seller.
(b) Except
as
set forth on Schedule 2.8(b) hereto, the Seller owns, free and clear of all
liens or has the right to use all intellectual property used in the business
of
Seller or that is necessary for the operation of the Seller’s
business.
(c) Except
as
set forth on Schedule 2.8(c) hereto, the Seller has not been, during the three
years preceding the date of this Agreement, a party to any claim, nor, to the
knowledge of the Seller, is any claim threatened in writing, that challenges
the
validity, enforceability, ownership or right to use, sell or license any
intellectual property, except for claims that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Seller, no third party is infringing upon any intellectual
property except for infringements that, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(d) The
Seller has taken all commercially reasonable precautions to protect the secrecy,
confidentiality, and value of its trade secrets and the proprietary nature
and
value of the technology included in the intellectual property, except for
failures to take such precautions that, individually or in the aggregate, have
not resulted and could not reasonably be expected to have a Material Adverse
Effect.
(e) The
Seller is not, and, as a result of the execution and delivery of this Agreement
or its performance of its obligations hereunder, will not be, in violation
of
any agreement relating to any intellectual property used in the Seller’s
business, except for violation that, individually or in the aggregate, could
not
reasonably be expected to result in a Material Adverse Effect. After the
completion of the transactions contemplated by this Agreement, the Purchaser
will own all right, title and interest in and to or have a license to use all
intellectual property of Seller as of the Closing Date, except for failures
to
own or have available for use that, individually or in the aggregate, have
not
resulted and could not reasonably be expected to result in a Material Adverse
Effect.
2.9. Tax
Matters. All
Federal, provincial and other tax returns and reports of the Seller required
by
law to be filed have been duly filed, and all federal, provincial and other
taxes, assessments, fees and other governmental charges upon the Seller with
respect to its properties, assets, incomes, franchises or business which are
due
and payable have been paid or a reasonable reserve for such payment established
on the Seller’s balance sheet.
2.10. Investor
Representations.
The
Seller acknowledges and agrees that the Shares representing the Purchase Price
will be offered and sold to the Seller without such offers and sales being
registered under the United States Securities Act of 1933, as amended (the
“Securities
Act”).
As
such, the Seller further acknowledges and agrees that all Shares will, upon
issuance, be “restricted securities” within the meaning of the Securities
Act.
2.11. Share
Certificates.
The
Seller acknowledges and agrees that legend in substantially the following form
will be placed on any certificate(s) evidencing the Shares:
THE
SHARES OF COMMON STOCK EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
'ACT'),
OR UNDER ANY STATE SECURITIES LAWS. THE
SHARES MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF UNLESS A REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS WITH RESPECT TO SUCH DISPOSITION IS THEN IN EFFECT OR UNLESS
THE PERSON PROPOSING TO MAKE THE DISPOSITION SHALL FURNISH,
WITH
RESPECT TO SUCH DISPOSITION, AN OPINION OF COUNSEL (BOTH COUNSEL
AND
OPINION TO BE SATISFACTORY TO THE CORPORATION) TO THE EFFECT THAT
SUCH
SALE, TRANSFER, ASSIGNMENT OR OTHER DISPOSITION WILL NOT INVOLVE
ANY
VIOLATION OF THE REGISTRATION PROVISIONS OF THE ACT (OR ANY
SUPERSEDING
STATUTE) OR ANY APPLICABLE STATE SECURITIES LAWS.
2.12. Issuance
of Shares.
The
Seller represents and warrants to the Purchaser as follows, and acknowledges
that the Purchaser is relying upon such covenants, representations and
warranties in connection with the issuance of the Shares to the
Seller:
(a) the
Seller has such knowledge, sophistication and experience in business and
financial matters such that it is capable of evaluating the merits and risks
of
the investment in the Shares. The Seller has evaluated the merits and risks
of
an investment in the Shares. The Seller can bear the economic risk of this
investment, and is able to afford a complete loss of this
investment;
(b) the
Seller acknowledges that the Purchaser’s success is subject to a number of
significant risks, including the risk that the Purchaser will not be able to
finance its plan of operations. The Seller further acknowledges that (i) the
Purchaser has limited cash and working capital, (ii) the Purchaser will have
to
raise additional capital in order to finance its plan of operations which
capital may be raised by the issuance of additional shares of its common stock
which will result in dilution to the Seller, and (iii) the Purchaser is working
on the Financing (defined below) but there is no assurance that the Financing
will be completed;
(c) the
Shares will be acquired by the Seller for investment for the Seller's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and, except for possible transfers of a
portion of the Shares to officers, directors, agents, shareholders and up to
five creditors of the Seller, that the Seller does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or
grant
participations to such person or to any third person, with respect to any of
the
Shares;
(d) the
Seller has been afforded access to information about the Purchaser and the
Purchaser’s financial condition, results of operations, business, properties,
management and prospects sufficient it to evaluate its investment in the Shares.
The Seller further represents that it has had an opportunity to ask questions
and receive answers from representatives of the Purchaser regarding the terms
and conditions of the offerings completed by the Purchaser and the business,
properties, prospects and financial condition of the Purchaser, each as is
necessary to evaluate the merits and risks of investing in the Shares. The
Seller believes it has received all the information it considers necessary
or
appropriate for deciding whether to purchase the Shares. The Seller has had
full
opportunity to discuss this information with the Seller’s legal and financial
advisers prior to execution of this Agreement;
(e) the
Seller acknowledges that the Purchaser will rely on these representations in
completing the issuance of the Shares to the Seller;
(f) the
Seller acknowledges that the offering of the Shares by the Purchaser has not
been reviewed by the United States Securities and Exchange Commission or any
state securities regulatory authority; and
(g) this
Agreement has been duly authorized, validly executed and delivered by the
Seller.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
To
induce
the Seller to execute, deliver and perform this Agreement, and in
acknowledgement of Seller’s reliance on the following representations and
warranties, the Purchaser hereby represents and warrants to the Seller as
follows as of the date hereof and as of the Closing Date:
3.1. Organization.
The
Purchaser is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada, with the power and authority
to
conduct its business as it is now being conducted and to own and lease its
properties and assets.
3.2. Share
Capital.
The
Purchaser has authorized capital consisting of 100,000,000 shares of Common
Stock, of which 68,160,000 shares of Common Stock are issued and outstanding
prior to the completion of the transactions contemplated hereby. Upon the
completion of the transactions contemplated by this Agreement, the Purchaser
will have 47,750,000 shares of Common Stock issued and outstanding. There are
no
options, warrants, calls, rights, commitments or agreements of any character,
written or oral, to which the Purchaser is a party or by which it is obligated
to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered,
sold, repurchased or redeemed, any shares of the capital stock of the Purchaser
or obligating the Purchaser to grant, extend, accelerate the vesting of, change
the price of, otherwise amend or enter into any such option, warrant, call,
right, commitment or agreement. The Purchaser has no outstanding or authorized
stock appreciation, phantom stock, profit participation, or other similar rights
or plans.
3.3. Issuance
of the Shares.
The
Shares are duly authorized and, when issued and paid for in accordance with
this
Agreement, will be duly and validly issued, fully paid and nonassessable, free
and clear of all liens.
3.4. Listing.
The
Purchaser is a reporting company under the United States Securities and Exchange
Act of 1934, as amended, and its shares of Common Stock are registered for
sale
and are quoted for trading on the OTC Bulletin Board under the symbol
ZEEZ.
3.5. SEC
Reports; Financial Statements.
The
Purchaser has filed all reports required to be filed by it under the Securities
Act and the Securities Exchange Act of 1934, as amended, including pursuant
to
Section 13(a) or 15(d) thereof, since inception (or such shorter period as
the
Purchaser was required by law to file such material) (the foregoing materials,
including the exhibits thereto, being collectively referred to herein as the
“SEC
Reports”)
on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such extension. As
of
their respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Purchaser
included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods involved
(“GAAP”),
except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Purchaser and its consolidated subsidiaries as of
and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments. Except (A) to the extent reflected
in
the balance sheet of the Purchaser included in the SEC Report last filed prior
to the date hereof or (B) incurred in the ordinary course of business since
the
date of the balance sheet referred to in the preceding clause (A), Purchaser
does not have any liabilities or obligations of any nature, whether known or
unknown, absolute, accrued, contingent or otherwise and whether due or to become
due, that is or would reasonably be expected to be, individually or in the
aggregate, in excess of $10,000.00.
3.6. Power
and Authority.
The
Purchaser has the power and authority to execute, deliver, and perform this
Agreement and the other agreements and instruments to be executed and delivered
by it in connection with the transactions contemplated hereby, and the Purchaser
will have taken all necessary action to authorize the execution and delivery
of
this Agreement and such other agreements and instruments and the consummation
of
the transactions contemplated hereby, including but not limited to the receipt
of all necessary regulatory approvals. The execution, delivery and performance
by the Purchaser of the Agreement have been duly authorized. This Agreement
is,
and the other agreements and instruments to be executed and delivered by the
Purchaser in connection with the transactions contemplated hereby, when such
other agreements and instruments are executed and delivered, shall be, the
valid
and legally binding obligations of the Purchaser enforceable against the
Purchaser in accordance with their respective terms.
3.7. No
Conflict.
Neither
the execution and delivery by the Purchaser of this Agreement and of the other
agreements and instruments to be executed and delivered by the Purchaser in
connection with the transactions contemplated hereby or thereby, nor the
consummation by the Purchaser of the transactions contemplated hereby, will
or
do violate or conflict with: (a) violate any provision of the certificate of
incorporation or by-laws (or other governing instrument) of Purchaser, or (b)
violate, be in conflict with, or constitute a default (or an event that, with
notice or lapse of time or both, would constitute a default) under any
agreement, instrument, document or commitment to which Purchaser is party or
by
which any of the Assets or any of its assets or properties are bound, or (c)
violate any law, statute, regulation, rule or ordinance (collectively,
“Laws”),
or
any judgment, decree, order, injunction, or rule of any court or other
governmental body (collectively an “Order”)
applicable to Purchaser, any of the Assets or any of its assets or
properties.
3.8. Required
Consents.
Other
than with respect to the Current Report on Form 8-K to be filed with the
Securities and Exchange Commission after the Closing Date, no permit or
approval, authorization, consent, permission, or waiver to or from any person,
or notice, filing, or recording to or with, any person is necessary for the
execution and delivery of this Agreement and the other agreements and
instruments to be executed and delivered by the Purchaser in connection with
the
transactions contemplated hereby, or the consummation by the Purchaser of the
transactions contemplated hereby.
3.9. Actions
and Proceedings.
(i)
There is no basis for and there is no action, suit, judgment, claim, demand
or
proceeding outstanding or pending, or threatened against or affecting Seller
or
which involves any of the business, or the properties or assets of Seller that,
if adversely resolved or determined, would have a Material Adverse Effect,
and
(ii) there is no reasonable basis for any claim or action that, based upon
the
likelihood of its being asserted and its success if asserted, would have such
a
Material Adverse Effect.
3.10. Tax
Matters. All
Federal, state and other tax returns and reports of the Purchaser required
by
law to be filed have been duly filed, and all federal, state and other taxes,
assessments, fees and other governmental charges upon the Purchaser with respect
to its properties, assets, incomes, franchises or business which are due and
payable have been paid or a reasonable reserve for such payment established
on
the Purchaser’s balance sheet.
3.11. Non-Contravention.
Neither
the execution, delivery and/or performance of this Agreement, nor the
consummation of the transactions contemplated hereby, will:
(a) conflict
with, result in a violation of, cause a default under (with or without notice,
lapse of
time
or both) or give rise to a right of termination, amendment, cancellation or
acceleration of any obligation contained in or the loss of any material benefit
under, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the material properties or assets of Purchaser under
any
term, condition or provision of any loan or credit agreement, note, debenture,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Purchaser, or any of its material property or assets;
(b)
violate
any provision of the articles or bylaws of Purchaser; or
(c)
violate
any order, writ, injunction, decree, statute, rule, or regulation of any court
or governmental or regulatory authority in Nevada that would result in a
Material Adverse Effect (defined below).
3.12. Compliance.
(a)
Purchaser
is in compliance with, is not in default or violation in any material respect
under, and has not been charged with or received any notice at any time of
any
material violation of any statute, law, ordinance, regulation, rule, decree
or
other regulation in the Nevada that would constitute a Material Adverse
Effect;
(b) Purchaser
is not subject to any judgment, order or decree entered in any lawsuit or
proceeding applicable to its business and operations that would result in a
Material Adverse Effect; and
(c) Purchaser
has duly filed all reports and a return required to be filed by it with
governmental authorities in the United States and has obtained all governmental
permits and other governmental consents, except as may be required after the
execution of this Agreement. All of such permits and consents are in full force
and effect, and no proceedings for the suspension or cancellation of any of
them, and no investigation relating to any of them, is pending or threatened,
and none of them will be adversely affected by the consummation of this
Agreement.
3.13 Certain
Transactions.
Purchaser is not a guarantor or indemnitor of any indebtedness of any third
party, including any person, firm or corporation.
ARTICLE
4
COVENANTS
OF THE SELLER PRIOR TO CLOSING
4.1. Required
Approvals.
As
promptly as practicable after the date of this Agreement, the Seller shall
make
all filings required by foreign or local law to be made by them in order to
consummate the transactions contemplated hereby. The Seller shall cooperate
with
the Purchaser with respect to all filings that the Purchaser elects to make
or
is required by law to make in connection with the transactions contemplated
hereby.
4.2. Prohibited
Actions.
Except
as provided herein below, in no event, without the prior written consent of
the
Purchaser, shall the Seller:
(a) permit
any of the Assets and Liabilities to be subjected to any claim or encumbrance,
except claims or encumbrances that the Seller believes, in its sole judgment,
are necessary to continue development of the Assets and Liabilities in the
ordinary course of business and consistent with past practice;
(b) waive
any
claims or rights of substantial value respecting the Assets and Liabilities,
or
sell, transfer, or otherwise dispose of any of the Assets and Liabilities,
except in the ordinary course of business and consistent with past practice;
or
(c) dispose
of any interest in any of the Assets and Liabilities, or permit any rights
in
any of the Assets and Liabilities to lapse into default or in non-compliance
with all and any regulatory or governmental requirement.
4.3. Access.
Seller
shall provide the Purchaser with such information and access as the Purchaser
may from time to time reasonably request regarding the Assets and
Liabilities.
ARTICLE
5
CONDITIONS
TO THE SELLER’S OBLIGATIONS
Each
of
the obligations of the Seller to be performed hereunder shall be subject to
the
satisfaction (or waiver by the Seller) at or prior to the Closing Date of each
of the following conditions:
5.1. Representations
and Warranties; Performance.
The
Purchaser shall have performed and complied in all respects with the covenants
and agreements contained in this Agreement required to be performed and complied
with by it at or prior to the Closing Date, the representations and warranties
of the Purchaser set forth in this Agreement shall be true and correct in all
respects as of the date hereof and as of the Closing Date as though made at
and
as of the Closing Date (except as otherwise expressly contemplated by this
Agreement), and the execution and delivery of this Agreement by the Purchaser,
and the consummation of the transactions contemplated hereby shall have been
duly and validly authorized by the Purchaser’s Board of Directors, and the
Seller shall have received a certificate to that effect signed by the President
and Chief Executive Officer of the Purchaser.
5.2. Consents.
Except
as set forth on Schedule 5.2 attached hereto, all required approvals, consents
and authorizations shall have been obtained.
5.3. Litigation.
No
Litigation shall be threatened or pending against the Purchaser, the Seller
or
any of their assets and properties that, in the reasonable opinion of counsel
for the Seller, could result in the restraint or prohibition of any such party,
or the obtaining of damages or other relief from such party, in connection
with
this Agreement or the consummation of the transactions contemplated
hereby.
5.4. Documents
Satisfactory in Form and Substance.
All
agreements, certificates, and other documents delivered by the Purchaser to
the
Seller hereunder shall be in form and substance satisfactory to counsel for
the
Seller, in the exercise of such counsel’s reasonable judgment.
5.5. Appointment
of Officers and Directors.
The
board of directors of the Purchaser shall have appointed (i) Xxxxxx Xxxxxxx,
Ph.D., Xx. Xxxxx X. Noon and Mr. Frode Botnevik as directors of the Purchase
and
(ii) Xxxxxx Xxxxxxx, Ph.D., Xx. Xxxxx Xxxxx and Xx. Xxxxx Xxxxxx as President
and Chief Executive Officer, Vice President—Operations and Chief Financial
Officer and Secretary of Purchaser, respectively.
5.6. Resignation
of Officers and Directors.
The
officers and directors of the Purchaser immediately prior to the Closing shall
have resigned as officers and directors of the Purchaser effective as of the
Closing.
5.7. Schedule
14-F Filing.
Purchase shall have filed with the SEC a Form 14F-1 reflecting the applicable
changes in the Purchaser’s board of directors as a result of the transactions
contemplated.
5.8. Due
Diligence.
The
Seller shall have completed its due diligence review of the Purchaser (including
its assets and liabilities) and shall have been satisfied with the findings
thereof.
5.9. Cancellation
of Insider Shares.
Xxxx
Xxxxx and Xxxxxxxx Xxxxxxx (collectively the “Purchaser Insiders”) shall have
tendered to the Purchaser for cancellation all of the shares of Purchaser’s
common stock held by them (except for 45,000 shares of common stock each, which
they shall retain) and the total outstanding shares of common stock of the
Purchaser on a fully diluted basis prior to the issuance of the Shares pursuant
to this Agreement shall be 20,250,000.
ARTICLE
6
CONDITIONS
TO THE PURCHASER’S OBLIGATIONS
Each
of
the obligations of the Purchaser to be performed hereunder shall be subject
to
the satisfaction (or the waiver by the Purchaser) at or prior to the Closing
Date of each of the following conditions:
6.1. Representations
and Warranties; Performance.
The
Seller shall have performed and complied in all respects with the covenants
and
agreements contained in this Agreement required to be performed and complied
with by them at or prior to the Closing Date, the representations and warranties
of the Seller set forth in this Agreement shall be true and correct in all
respects as of the date hereof and as of the Closing Date as though made at
and
as of the Closing Date (except as otherwise expressly contemplated by this
Agreement), and the execution and delivery of this Agreement by the Seller
and
the consummation of the transactions contemplated hereby shall have been duly
and validly authorized by the Seller’s Board of Directors, and the Purchaser
shall have received a certificate to that effect signed by the secretary of
the
Seller.
6.2. Consents.
All
required approvals, consents and authorizations shall have been
obtained.
6.3. No
Litigation.
No
Litigation shall be threatened or pending against the Purchaser or the Seller
that, in the reasonable opinion of counsel for the Purchaser, could result
in
the restraint or prohibition of any such party, or the obtaining of damages
or
other relief from such party, in connection with this Agreement or the
consummation of the transactions contemplated hereby.
6.4. Due
Diligence.
The
Purchaser shall have completed its due diligence review of the Assets and
Liabilities and shall have been satisfied with the findings
thereof.
6.5. Proof
of Ownership of the Assets.
The
Seller shall have delivered to the Purchaser copies of instruments evidencing
its ownership of the Assets.
ARTICLE
7
COVENANTS
OF THE SELLER, THE PURCHASER FOLLOWING CLOSING
7.1. Allocation
of Purchase Price; Transfer Taxes.
(a) Consistent
with applicable tax rules, the Purchaser shall allocate the Purchase Price
to
the Assets. The Purchaser shall prepare and file, in a timely fashion, forms
in
a manner consistent with such allocation with the relevant tax authority. All
tax returns and reports filed or prepared by the Purchaser and/or the Seller
with respect to the transactions contemplated by this Agreement shall be
consistent with the allocation made by the Purchaser under this Section 7.1(a).
(b) All
sales, transfer, and similar taxes and fees (including all recording fees,
if
any) incurred in connection with this Agreement and the transactions
contemplated hereby shall be borne by the Purchaser and the Purchaser shall
file
all necessary documentation with respect to such taxes.
7.2. Further
Assurances.
Subject
to the terms and conditions of this Agreement, each party agrees to use all
of
its reasonable efforts to take, or cause to be taken, all actions and to do
or
cause to be done, all things necessary and proper or advisable to consummate
and
make effective the transactions contemplated by this Agreement (including the
execution and delivery of such further instruments and documents) as the other
party may reasonably request.
7.3. Nondisclosure
of Proprietary Data.
The
Parties shall hold in a fiduciary capacity for the benefit of each other all
secret or confidential information, knowledge or data relating to each other
or
any of their affiliated companies, and their respective businesses, which shall
not be or become public knowledge. Neither Party, without the prior written
consent of the other, or as may otherwise be required by law or legal process,
shall communicate or divulge either before or after the Closing Date any such
information, knowledge or data to anyone other than the other Party and those
designated by the other Party in writing, or except as required by applicable
law.
ARTICLE
8
SURVIVAL
AND INDEMNITY
8.1. Survival
of Representations, Warranties, etc.
Each of
the representations, warranties, agreements, covenants and obligations herein
is
material and shall be deemed to have been relied upon by the other party or
parties and shall survive for a period of twelve (12) months after the Closing
and shall not merge in the performance of any obligation by any party hereto.
All rights to indemnification contained in this Agreement shall survive the
Closing indefinitely.
8.2. Indemnification
by the Seller and Purchaser.
The
parties shall indemnify, defend, and hold harmless each other, and the each
others representatives, stockholders, controlling persons and affiliates, at,
and at any time after, the Closing, from and against any and all demands, claim,
actions, or causes of action, assessments, losses, damages (but not including
incidental or consequential damages), liabilities, costs, and expenses,
including reasonable fees and expenses of counsel, other expenses of
investigation, handling, and litigation , and settlement amounts, together
with
interest and penalties (collectively, a “Loss”
or
“Losses”),
asserted against, resulting to, imposed upon, or incurred by the either party,
directly or indirectly, by reason of, resulting from, or arising in connection
with: (i) any breach of any representation, warranty, or agreement of either
party contained in or made pursuant to this Agreement, including the agreements
and other instruments contemplated hereby; (ii) any breach of any
representation, warranty, or agreement of either party contained in or made
pursuant to this Agreement, including the agreements and other instruments
contemplated hereby, as if such representation or warranty were made on and
as
of the Closing Date; (iii) any claim by any person for brokerage or finder’s
fees or commissions or similar payments based upon any agreement or
understanding alleged to have been made by any such person with either party
in
connection this Agreement or any of the transactions contemplated hereby; and
(iv) to the extent not covered by the foregoing, any and all demands, claims,
actions or causes of action, assessments, losses, damages, liabilities, costs,
and expenses, including reasonable fees and expenses of counsel, other expenses
of investigation, handling, and litigation and settlement amounts, together
with
interest and penalties, incident to the foregoing.
The
remedies provided in this Section 8.2 will not be exclusive of or limit any
other remedies that may be available to the either party to this
Agreement.
ARTICLE
9
MISCELLANEOUS
9.1. Entire
Agreement.
This
Agreement, and the other certificates, agreements, and other instruments to
be
executed and delivered by the parties in connection with the transactions
contemplated hereby, constitute the sole understanding of the parties with
respect to the subject matter hereof and supersede all prior oral or written
agreements with respect to the subject matter hereof.
9.2. Parties
Bound by Agreement; Successors and Assigns.
The
terms, conditions, and obligations of this Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns.
9.3. Amendments
and Waivers.
No
modification, termination, extension, renewal or waiver of any provision of
this
Agreement shall be binding upon a party unless made in writing and signed by
such party. A waiver on one occasion shall not be construed as a waiver of
any
right on any future occasion. No delay or omission by a party in exercising
any
of its rights hereunder shall operate as a waiver of such rights.
9.4. Severability.
If for
any reason any term or provision of this Agreement is held to be invalid or
unenforceable, all other valid terms and provisions hereof shall remain in
full
force and effect, and all of the terms and provisions of this Agreement shall
be
deemed to be severable in nature. If for any reason any term or provision
containing a restriction set forth herein is held to cover an area or to be
for
a length of time which is unreasonable, or in any other way is construed to
be
too broad or to any extent invalid, such term or provision shall not be
determined to be null, void and of no effect, but to the extent the same is
or
would be valid or enforceable under applicable law, any court of competent
jurisdiction shall construe and interpret or reform this Agreement to provide
for a restriction having the maximum enforceable area, time period and other
provisions (not greater than those contained herein) as shall be valid and
enforceable under applicable law.
9.5. Attorneys’
Fees.
Should
any party hereto retain counsel for the purpose of enforcing, or preventing
the
breach of, any provision hereof including, but not limited to, the institution
of any action or proceeding, whether by arbitration, judicial or quasi-judicial
action or otherwise, to enforce any provision hereof or for damages for any
alleged breach of any provision hereof, or for a declaration of such party’s
rights or obligations hereunder, then, whether such matter is settled by
negotiation, or by arbitration or judicial determination, the prevailing party
shall be entitled to be reimbursed by the losing party for all costs and
expenses incurred thereby, including, but not limited to, reasonable attorneys’
fees for the services rendered to such prevailing party.
9.6. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original and all of which shall constitute
the
same instrument.
9.7. Headings.
The
headings of the sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement
or
to affect the construction hereof.
9.8. Notices.
All
notices, requests, demands, claims, and other communications which are required
or may be given under this Agreement shall be in writing and shall be deemed
to
have been duly given five business days after such notice, request, demand,
claim or other communication is sent, if sent by registered or certified mail,
return receipt requested, postage prepaid; and, in any case, all such
communications must be addressed to the intended recipient at the address set
forth on the first page of this Agreement. Any party may send any notice,
request, demand, claim, or other communication hereunder to the intended
recipient at the address set forth above using any other means, but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
9.9. Governing
Law.
This
Agreement shall be construed in accordance with and governed by the laws of
the
State of Nevada without giving effect to the principles of choice of law
thereof.
9.10. Arbitration.
Any
dispute arising under or in connection with any matter related to this Agreement
or any related agreement shall be resolved exclusively by arbitration in the
City of Las Vegas, Nevada. The arbitration shall be in conformity with and
subject to the applicable rules and procedures of the American Arbitration
Association. All parties agree to be (1) subject to the jurisdiction and venue
of the arbitration in the State of Nevada, (2) bound by the decision of the
arbitrator as the final decision with respect to the dispute, and (3) subject
to
the jurisdiction of the Superior Court of the State of Nevada for the purpose
of
confirmation and enforcement of any award made by the arbitrator or for any
actions seeking injunctive relief.
9.11. References,
etc.
(a) Whenever
reference is made in this Agreement to any Article, Section, or paragraph,
such
reference shall be deemed to apply to the specified Article, Section or
paragraph of this Agreement.
(b) Wherever
reference is made in this Agreement to a Schedule, such reference shall be
deemed to apply to the specified Schedule attached hereto, which are
incorporated into this Agreement and form a part hereof. All terms defined
in
this Agreement shall have the same meaning in the Schedules attached
hereto.
(c) Any
form
of the word “include” when used herein is not intended to be exclusive (e.g.,
“including” means “including, without limitation”).
9.12. No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any person.
9.13. No
Third Party Beneficiary Rights.
No
provision in this Agreement is intended or shall create any rights with respect
to the subject matter of this Agreement in any third party.
9.14. Such
Other Acts.
The
parties hereto shall do all things, take such acts and execute such documents
as
are necessary to give effect to the intention herein contemplated.
9.15. Electronic
Means.
Delivery
of an executed copy of this Agreement by electronic facsimile transmission
or
other means of electronic communication capable of producing a printed copy
will
be deemed to be execution and delivery of this Agreement as of the date first
indicated above.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf as of the date first indicated above.
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By:
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/s./
Xxxxxx Xxxxxxx
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Name:
Xxxxxx Xxxxxxx, Ph.D.
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Title:
President and Chief Executive Officer
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PURCHASER
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ZEEZOO
SOFTWARE CORP.
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By:
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/s/
Xxxx Xxxxx
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Name:
Xxxx X. Xxxxx
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Title:
President and Chief Executive
Officer
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