ASSET ACQUISITION AGREEMENT
This
Asset Acquisition Agreement (“Agreement”) is entered into by and between YNOT
Education, Inc. (“Seller”) and Benacquista Galleries, Inc., a Nevada corporation
(“BENACQUISTA” or “Buyer”) as of September 29, 2005. This Agreement specifies
the terms and conditions surrounding the acquisition by BENACQUISTA of the
website assets listed on Schedule 1 attached hereto (the “Assets”).
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1.
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Acquisition.
Seller immediately transfers all right, title and interest to the
Assets
to Buyer. In consideration for the transfer of the Assets, Buyer
agrees to
pay Seller $150,000 in the form of a Promissory Note, to be executed
contemporaneously with this Agreement. There are no warranties
express or
implied in the sale and physical delivery of the Assets and execution
of
any other instruments necessary to transfer title of the Assets
to Buyer
constitute the sole obligations of Seller hereunder, except as
specifically enumerated elsewhere in this Agreement.
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2.
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Seller’s
Representations.
.
Seller hereby represents and warrants with respect to each Assets
that:
(a) the Assets is an original Asset of Seller or that Seller has
obtained
all rights necessary to use it in performance under this Agreement;
(b) to
the best of Seller’s knowledge, neither the Assets nor any element thereof
will infringe any applicable intellectual property rights (including,
without limitation, copyrights, trademarks, trade secrets, moral
rights,
contract and licensing rights) of any third party; (c) Seller has
full
right and power to enter into and perform the obligations under
this
Agreement without the consent of any third party; (d) by transfer
of the
Assets, Buyer obtains all rights necessary to use and exploit the
Assets
for use on or in connection with Buyer’s products and services or
promotion or marketing of such products or services; (e) except
as
disclosed by Seller to Buyer, the Assets have not been previously
published, broadcast or otherwise distributed elsewhere in whole
or in
part by the Seller; (f) the Assets do not violate any right of
privacy or
publicity of any person, whether contractual, statutory, common
law or
otherwise; and (g) the Assets do not contain any libel or slander
of any
person, thing, or enterprise. If Seller uses third parties to create
any
products or to perform any services related to the Assets, then
Seller
represents and warrants that Seller has obtained all of the necessary
rights to the Assets from all such third parties to the same extent
as
warranted above. Contributor will indemnify and hold harmless Buyer,
its
parents, stockholders, officers, directors, employees, sub-licensees,
customers and agents (collectively the “Indemnified Parties”) from any and
all claims, losses, liabilities, damages, expenses and costs (including
attorneys’ fees and court costs) that result from a breach of any
representation or warranty of Contributor (a “Claim”) set forth in Section
2 of this Agreement.
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3.
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Buyer’s
Representations.
Benacquista is a Nevada corporation in good standing and has the
authority
to enter into this Agreement, which does not violate the contractual
rights of any party.
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4.
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Notices.
Any notice, demand, claim or other communication under this Agreement
shall be in writing and delivered personally or sent by certified
mail,
return receipt requested, postage prepaid, or sent by facsimile
or prepaid
overnight courier to the parties at the addresses as follows (or
at such
other addresses as shall be specified by the parties by like
notice):
Such notice shall be deemed delivered upon receipt against acknowledgment
thereof if delivered personally, on the third business day following
mailing if sent by certified mail, upon transmission against confirmation
if sent by facsimile and on the next business day if sent by overnight
courier.
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5.
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Entire
Agreement; Incorporation.
This Agreement and the documents and instruments and other agreements
among the parties hereto as contemplated by or referred to herein
contain
every obligation and understanding between the parties relating
to the
subject matter hereof and merges all prior discussions, negotiations,
agreements and understandings, both written and oral, if any, between
them, and none of the parties shall be bound by any conditions,
definitions, understandings, warranties or representations other
than as
expressly provided or referred to herein. All schedules, exhibits
and
other documents and agreements executed and delivered pursuant
hereto are
incorporated herein as if set forth in their entirety herein.
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6.
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Binding
Effect.
This Agreement shall be binding upon and inure to the benefit of
the
parties hereto and their respective successors, heirs, personal
representatives, legal representatives, and permitted
assigns.
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7.
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Assignment.
This Agreement may not be assigned by any party without the written
prior
consent of the other parties, except with respect to the Promissory
Note,
which may be freely assigned by Seller.
Subject to the preceding sentence, this Agreement shall be binding
upon
and shall inure to the benefit of the parties hereto and their
respective
successors
and permitted assigns.
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8.
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Waiver
and Amendment.
Any representation, warranty, covenant, term or condition of this
Agreement which may legally be waived, may be waived, or the time
of
performance thereof extended, at any time by the party hereto entitled
to
the benefit thereof, and any term, condition or covenant hereof
(including, without limitation, the period during which any condition
is
to be satisfied or any obligation performed) may be amended by
the parties
thereto at any time. Any such waiver, extension or amendment shall
be
evidenced by an instrument in writing executed on behalf of the
party
against whom such waiver, extension or amendment is sought to be
charged.
No waiver by any party hereto, whether express or implied, of its
rights
under any provision of this Agreement shall constitute a waiver
of such
party’s rights under such provisions at any other time or a waiver of
such
party’s rights under any other provision of this Agreement. No failure
by
any party thereof to take any action against any breach of this
Agreement
or default by another party shall constitute a waiver of the former
party’s right to enforce any provision of this Agreement or to take action
against such breach or default or any subsequent breach or default
by such
other party.
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9.
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Severability.
In the event that any one or more of the provisions contained in
this
Agreement, or the application thereof, shall be declared invalid,
void or
unenforceable by a court of competent jurisdiction, the remainder
of this
Agreement shall remain in full force and effect and the application
of
such provision to other Persons or circumstances will be interpreted
so as
reasonably to effect the intent of the parties hereto.
The parties further agree to replace such invalid, void or unenforceable
provision with a valid and enforceable provision that will achieve,
to the
extent possible, the economic, business and other purposes of such
invalid, void
or unenforceable provision.
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10.
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Counterparts.
This
Agreement may be executed in any number of counterparts, each of
which
shall be deemed an original but all of which together shall constitute
one
and the same instrument. Facsimile signatures shall be deemed valid
and
binding.
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11.
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Choice
of Law.
This Agreement shall be subject to the laws of the State of Nevada
without
regard to conflicts of laws provision and each party agrees to
be bound to
the jurisdiction of the courts of Xxxxx County, Nevada and venue
shall be
proper therein.
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[Signature
Page to Follow]
IN
WITNESS WHEREOF,
the
parties hereto have each executed and delivered this Agreement as of the
day and
year first above written.
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BENACQUISTA
GALLERIES, INC.
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By:/s/
Xxxxx
Xxxxx
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Xxxxx
Xxxxx
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President
and CEO
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YNOT
Education, inc.
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By:/s/
Xxx
Xxxxxx
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Xxx
Xxxxxx
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President
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