ASSET PURCHASE AND LIABILITYASSUMPTION AGREEMENT
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Identica
Holdings Corporation.
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Identica
Corp.
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This
Agreement entered into this the 18th
day of
November, 2005
by
Identica
Corp.,
an
Ontario, Canada corporation (hereinafter "Seller"), and Identica
Holdings Corporation,
a
Nevada, USA corporation (hereinafter "Buyer").
WHEREAS,
Seller
operates a business engaged primarily in the selling of security devices;
and
WHEREAS,
Seller
owns equipment, inventory, contract rights, and miscellaneous assets used in
connection with the operations of its business; and
WHEREAS,
Buyer
desires to acquire substantially all of the assets used or useful, or intended
to be used in the operation of Seller’s business and Seller desires to sell such
assets to Buyer; and
WHEREAS,
all
monies referenced and described herein are expressed as United States Currency;
and
NOW,
THEREFORE,
in
consideration of mutual covenants contained herein and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
the
parties agree as follows:
SECTION
1.ASSETS
PURCHASED; LIABILITIES ASSUMED
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1.1
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ASSETS
PURCHASED. Seller
agrees to sell to Buyer and Buyer agrees to purchase from Seller,
on the
terms and conditions set forth in this Agreement the following assets
("Assets"): All Assets listed in Schedule “A” attached
hereto.
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1.2
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ASSUMPTION
OF CERTAIN LIABILITIES.
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Buyer
shall assume all liabilities (“Liabilities”): All listed in Schedule “B”
attached hereto.
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Initial(s)
_________
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Initial(s)
_________
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Page
1
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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SECTION
2. EXCLUDED
ASSETS
Excluded
from this sale and purchase are Seller's cash, notes receivable, prepaid
accounts and any and all other Assets except those listed in Schedule
"A".
SECTION
3. EXCLUDED
LIABILITIES
Excluded
from this sale and purchase are any Liabilities not listed in Schedule
“B”.
SECTION
4. PURCHASE
PRICE FOR ASSETS
The
purchase price for the Assets shall be the dollar values of the Assets listed
in
Schedule “A”
SECTION
5. PAYMENT
OF PURCHASE PRICE
The
purchase price of the Assets listed in Schedule “A” shall be the assumption of
Liabilities in Schedule “B”.
The
Seller shall issue shares as provided in Schedule “C”. and upon closing the sum
of Two (2) US dollars the sufficiency of which is acknowledged by both Buyer
and
Seller.
SECTION
6. SELLER'S
REPRESENTATIONS AND WARRANTIES
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6.1
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CORPORATE
EXISTENCE.
Seller is now and on the date of closing will be a corporation duly
organized and validly existing and in good standing under the laws
of the
Province of Ontario. Seller has all requisite corporate power and
authority to own, operate and/or lease the assets, as the case may
be, and
to carry on its business as now being
conducted.
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| 6.2 |
AUTHORIZATION.
The execution, delivery and performance of this Agreement have been
duly
authorized and approved by the Board of Directors of Seller and this
Agreement constitutes a valid and binding agreement of Seller in
accordance with its terms.
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Initial(s)
_________
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Initial(s)
_________
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Page 2
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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| 6.3 |
TITLE
TO ASSETS.
Except as described in this Agreement, Seller holds good and marketable
title to the Assets, free and clear of restrictions on or conditions
to
transfer or assign, and free and clear of liens, pledges, charges
or
encumbrances.
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6.4
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BROKERS
AND FINDERS.
Seller has not employed any broker or finder in connection with the
transaction contemplated by this Agreement nor taken action that
would
give rise to valid claims against any party for a brokerage commission,
finder's fee or other like payment.
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6.5
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TRANSFER
NOT SUBJECT TO ENCUMBRANCES OR THIRD PARTY APPROVAL. The
execution and delivery of this Agreement by Seller and the consummation
of
the contemplated transactions, will not result in the creation or
imposition of any valid lien, charge or encumbrance on any of the
assets,
and will not require the authorization, consent, or approval of any
third
party, including any governmental division or regulatory agency,
except
that Seller shall provide an agreement from TechSphere Co., Ltd.
(“TechSphere”) for the assignment to Buyer of the all rights currently
within the TechSphere distribution agreement with
Seller.
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6.6
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LABOR
AGREEMENTS AND DISPUTES.
Seller is neither a party to, nor otherwise subject to any collective
bargaining or other agreement governing the wages, hours, in terms
of
employment of Seller's employees. Seller is not aware of any labor
dispute(s) or labor trouble(s) involving employees of
Seller.
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6.7
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NONCANCELABLE
CONTRACTS.
At
the time of closing, there will be no material leases, employment
contracts, contracts for services, or maintenance, or other similar
contracts, existing or related to or connected with the operation
of
Seller's business not cancelable within ninety (90)
days.
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Initial(s)
_________
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Initial(s)
_________
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Page 3
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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6.8
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LITIGATION.
Seller has no knowledge of any claim, litigation, proceeding, or
investigation pending or threatened against Seller that might result
in
any material adverse change in the business or condition of the assets
being conveyed under this
Agreement.
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6.9
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ACCURACY
OF REPRESENTATIONS AND WARRANTIES. None
of the representations or warranties of Seller contain or will contain
any
untrue statements of a material fact or omit or will omit or misstate
a
material fact necessary in order to make statements in this Agreement
not
misleading. Seller knows of no fact that has resulted, or that in
the
reasonable judgment of Seller will result in material change in the
business, operations, or assets of Seller that has not been set forth
in
this Agreement or otherwise disclosed to
Buyer.
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SECTION
7. REPRESENTATIONS
OF BUYER
Buyer
represents and warrants as follows:
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7.1
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CORPORATE
EXISTENCE.
Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Nevada, USA. Buyer has all
requisite corporate power and authority to enter into this Agreement
and
perform its obligations hereunder.
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| 7.2 |
AUTHORIZATION.
The execution, delivery and performance of this Agreement have been
duly
authorized and approved by the Board of Directors of Buyer, and this
Agreement constitutes a valid and binding agreement of Buyer in accordance
with its terms.
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7.3
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BROKERS
AND FINDERS.
Buyer has not employed any broker or finder in connection with the
transactions contemplated by this Agreement and has taken no action
that
would give rise to a valid claim against any party for a brokerage
commission, finder(s)’ fee or other like
payment.
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Initial(s)
_________
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Initial(s)
_________
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Page 4
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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7.4
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ACCURACY
OF REPRESENTATIONS AND WARRANTIES.
None of the representations or warranties of Buyer contain or will
contain
any untrue statements(s) of a material fact or omit or will omit
or
misstate a material fact necessary in order to make the statements
contained herein not misleading.
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SECTION
8. COVENANTS
OF SELLER
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8.1
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SELLER'S
OPERATION OF BUSINESS PRIOR TO CLOSING.
Seller agrees that between the date of this Agreement and the date
of
closing, Seller will:
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8.1.1
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Use
its best efforts to preserve its business organization and preserve
the
continued operation of its business with its customers, suppliers,
and
others having business relations with
Seller;
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8.1.2
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Not
assign, sell, lease or otherwise transfer or dispose of any of the
assets
listed in Schedule "A", except to
Buyer;
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8.1.3
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Maintain
all of its purchased Assets other than inventories in their present
conditions, reasonable wear and tear and ordinary usage excepted
and
maintain the inventories at levels normally
maintained.
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8.2
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ACCESS
TO INFORMATION.
At
reasonable times prior to the closing date, Seller will provide Buyer
and
its representatives with reasonable access during business hours
to the
assets, titles, contracts and records of Seller and furnish such
additional information concerning Seller's business as Buyer may
from time
to time reasonably request.
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Initial(s)
_________
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Initial(s)
_________
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Page 5
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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8.3
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EMPLOYEE
MATTERS.
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Prior
to
the closing date, Seller will not, without Buyer's prior written consent, enter
into any material agreements with its employees or contractors, increase the
rate of compensation or bonus payable to or to become payable to any employee
or
effect any change in the management, personnel policies, or employee benefits,
except in accordance with existing employment practices.
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8.4
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CONDITIONS
AND BEST EFFORTS.
Seller will use its best efforts to effectuate the transactions
contemplated by this Agreement and to fulfill all the conditions
of the
obligations of Seller under this Agreement, and will do all acts
and
things as may be required to carry out its respective obligations
under
this Agreement and to consummate and complete this
Agreement.
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SECTION
9. COVENANTS
OF BUYER
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9.1
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CONDITIONS
AND BEST EFFORTS.
Buyer will use its best efforts to effectuate the transaction contemplated
by this Agreement and to fulfill all the conditions of Buyer's obligations
under this Agreement, and shall do all acts and things as may be
required
to carry out Buyer's obligations and to consummate this
Agreement.
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9.2
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CONFIDENTIAL
INFORMATION.
If
for any reason the sale of Assets is not closed, Buyer will not disclose
to third parties any confidential information received from Seller
in the
course of investigating, negotiating, and performing the transactions
contemplated by this Agreement.
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Initial(s)
_________
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Initial(s)
_________
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Page 6
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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SECTION
10. CONDITIONS
PRECEDENT TO BUYER'S OBLIGATIONS
The
obligation of Buyer to purchase the Assets and assume the listed Liabilities
is
subject to the fulfillment, prior to or at the closing date, of each of the
following conditions, any one or portion of which may be waived in writing
by
Buyer:
Seller
shall not have violated nor shall have failed to perform in accordance with
any
covenant contained in this Agreement.
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10.1
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CONDITIONS
OF THE BUSINESS.
There shall have been no material adverse change in the manner in
operation of Seller's business prior to the closing
date.
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10.2
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NO
SUITS OR ACTIONS.
At
the closing date, no suit, action or other proceeding shall have
been
threatened or instituted to restrain, enjoin or otherwise prevent
the
consummation of this Agreement or the contemplated
transactions.
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SECTION
11. CONDITIONS
PRECEDENT TO OBLIGATIONS OF SELLER
The
obligations of Seller to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, prior to or on the closing date,
of
the following condition, which may be waived in writing by Seller:
All
representations and warranties made in this Agreement by Buyer shall be true
as
of the closing date as fully as though such representations and warranties
have
been made on and as of the closing date, and Buyer shall not have violated
nor
failed to perform in accordance with any covenant contained in this
Agreement.
SECTION
12. BUYER'S
ACCEPTANCE
Buyer
represents and acknowledges that it has entered into this Agreement on the
basis
of its own examination, personal knowledge, and opinion the value of the
business. Buyer has not relied on any representations made by Seller other
than
those specified in this Agreement. Buyer further acknowledges that Seller has
made no agreement or promise to repair or improve any equipment or other
personal property being sold to Buyer under this Agreement, and that Buyer
takes
all such property in the condition existing on the date of this Agreement,
except as otherwise provided in this Agreement.
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Initial(s)
_________
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Initial(s)
_________
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Page 7
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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SECTION
13. INDEMNIFICATION
AND SURVIVAL
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13.1
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SURVIVAL
OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made in this Agreement shall survive
the closing of this Agreement, except that any party to whom a
representation of warranty has been made in this Agreement shall
be deemed
to have waived any misrepresentation or breach of representation
or
warranty which such party had knowledge prior to closing. Any party
learning of a misrepresentation or breach of representation or warranty
under this Agreement shall immediately give notice thereof to all
other
parties to this Agreement. The representations and warranties in
this
Agreement shall terminate three (3) years from the closing date,
and such
representations or warranties shall thereafter be without force or
effect,
except any claim with respect to which notice has been given to the
party
to be charged prior to such expiration
date.
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13.2
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SELLERS
INDEMNIFICATION.
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| 13.2.1 |
Seller
hereby agrees to indemnify and hold Buyer, its successors and assigns
harmless from and against:
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(1)
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Any
and all claims, liabilities and obligations of every kind and description,
contingent or otherwise, arising out of or related to the operation
of
Seller's business prior to the close of business on the day before
the
closing date, except for claims, liabilities and obligations of Seller
expressly assumed by Buyer under this Agreement or paid by insurance
maintained by Seller or Buyer.
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(2)
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Any
and all damage or deficiency resulting from any material misrepresentation
or breach of warranty or covenant, or nonfulfillment of any agreement
on
the part of Seller under this
Agreement.
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Initial(s)
_________
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Initial(s)
_________
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Page 8
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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13.3
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BUYER’S
INDEMNIFICATION.
Buyer agrees to defend, indemnify and hold harmless Seller from and
against:
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13.3.1
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Any
all claims, liabilities and obligations of every kind and description
arising out of or related to the operation of the business following
closing or arising out of Buyer’s failure to perform obligations of Seller
assumed by Buyer pursuant to this
Agreement.
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13.3.2
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Any
all damage or deficiency resulting from any material misrepresentation,
breach of warranty or covenant, or nonfulfillment of any agreement
on the
part of Buyer under this Agreement.
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SECTION
14. CLOSING
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14.1
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TIME
AND PLACE.
This Agreement shall be closed at the offices of Identica Corp. 000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0 on
or before
the 19th
day of November 2005,
or such other time as the parties may agree in writing. If, however,
the
closing has not occurred because of a breech of contract by one or
more of
the parties, the breaching party or parties shall remain liable for
breech
of contract.
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14.2
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OBLIGATIONS
OF SELLER AT CLOSING.
At
closing, Seller shall deliver to buyer the
following:
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14.2.1
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Bills
of Sale, Assignments, properly endorsed Certificates of Title, and
other
instruments of transfer, and form and substance reasonably satisfactory
to
Buyer, necessary to transfer and convey all of the Assets to
Buyer.
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Initial(s)
_________
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Initial(s)
_________
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Page
9
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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14.2.3
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Such
other certificates and documents as may be called for by the provisions
of
this Agreement.
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14.3
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OBLIGATIONS
OF BUYER AT CLOSING. At
closing Buyer shall deliver to Seller the
following:
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14.3.2
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All
consideration described herein.
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14.3.3
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Such
other certificates and documents as may be called for by the provisions
of
this Agreement.
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SECTION
15. RIGHTS
AND OBLIGATIONS SUBSEQUENT TO CLOSING
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15.1
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BOOKS
AND RECORDS.
This sale does include the books of account and records of Seller's
business. Seller or its agents shall have access to such books and
records
and may make copies thereof. Buyer will exercise reasonable care
in the
safekeeping of such records.
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15.2
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SELLER'S
RIGHT TO PAY.
In
the event Buyer fails to make any payment of taxes, assessments,
insurance
premiums, or other charges that Buyer is required to pay to third
parties
under this Agreement, Seller shall have the right, but not the obligation,
to pay the same. Buyer will reimburse Seller for any such payment
immediately upon Seller's demand, together with interest at the same
rate
provided in the Note from the date of Seller's payment until Buyer
reimburses Seller. Any such payment by Seller shall not constitute
a
waiver by Seller of any remedy available by reason of Buyer's default
for
failure to make the payments.
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Initial(s)
_________
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Initial(s)
_________
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Page
10
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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SECTION
16. BULK SALES ACT.
Buyer
waives compliance by Seller with the Bulk Sales Act, if any (the “Act”). In the
event any creditor of Seller claims the benefit of the Bulk Sales Act as against
Buyer or any of the Assets being conveyed to Buyer under this Agreement, Seller
shall immediately pay or otherwise satisfy such claim or undertake its defense.
Seller shall indemnify and hold Buyer harmless from and against any and all
loss, expense, or damage resulting from the failure to comply with the Bulk
Transfer law. If Seller fails to comply with the provision of this Section
16
and Buyer is required to pay any creditor of Seller in order to protect the
property purchased under this Agreement from claims or liens of Seller's
creditors, except those assumed by Buyer, the Buyer may offset the amount it
pays against the balance due Seller by furnishing to the Seller proof of such
payment in the form of a receipt from the creditor involved.
SECTION
17. TERMINATION OF AGREEMENT
| 17.1 |
BY
MUTUAL CONSENT. This
Agreement may be terminated by mutual written consent of Buyer and
Seller.
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17.2
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BREACH
OF REPRESENTATIONS AND WARRANTIES; FAILURE OF
CONDITIONS.
Buyer may elect by notice to Seller, and Seller may elect by notice
to
Buyer, to terminate this Agreement
if;
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17.2.1
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The
terminating party shall have discovered a material error, misstatement,
or
omission in the representations and warranties made in this Agreement
by
the other party which shall not have been cured by such other party
within
fifteen (15) days after written notice to such other party specifying
in
detail such asserted error, misstatement, or omission, or by the
closing
date, whichever first occurs.
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Initial(s)
_________
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Initial(s)
_________
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Page
11
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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17.2.2
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All
of the conditions precedent of the terminating party's obligations
under
this Agreement as set forth in either Section 10 or 11, as the case
may
be, have not occurred and have not been waived by the terminating
party on
or prior to the closing date.
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17.3
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CLOSING
NOTWITHSTANDING THE RIGHT TO TERMINATE.
The party with a right to terminate this Agreement pursuant to Section
16.2.1 or 16.2.2 shall not be bound to exercise such right, and its
failure to exercise such right shall not constitute a waiver of any
other
right it may have under this Agreement, including but not limited
to
remedies for breach of a representation, warranty, or
covenant.
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SECTION
18. MISCELLANEOUS
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18.1
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The
provisions of this Agreement shall be binding upon and inure to the
benefit of the heirs, personal representatives, successors, and assigns
of
the parties.
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18.2
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Any
notice or other communication required or permitted to be given under
this
Agreement shall be in writing and shall be mailed by certified mail,
return receipt requested, postage prepaid, addressed to the parties
as
follows:
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BUYER:
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SELLER:
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Identica
Holdings Corporation
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Identica
Corp.
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0000
X. Xxxx Xxxxx Xxxx.
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000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxx,
Xxxxxxx 00000 XXX
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Xxxxxxx,
Xxxxxxx X0X 0X0 Xxxxxx
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All
notices and other communications shall be deemed to be given at the expiration
of three (3) days after the date of mailing. The addresses to which notices
or
other communications shall be mailed may be changed from time to time by giving
written notice to the other parties as provided above.
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18.3
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In
the event of a default under this Agreement, the defaulting party
shall
reimburse the non-defaulting party or parties for all costs and expenses
reasonably incurred by the non-defaulting party or parties in connection
with the default, including without limitation attorney fees.
Additionally, in the event a suit or action is filed to enforce this
Agreement or with respect to this Agreement, the prevailing party
or
parties shall be reimbursed by the other party for all costs and
expenses
incurred in connection with the suit or action, including without
limitation reasonable attorney fees at the trial level and on
appeal.
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Initial(s)
_________
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Initial(s)
_________
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Page
12
of 13
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Identica
Holdings Corporation.
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Identica
Corp.
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18.4
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No
waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar,
nor
shall any waiver constitute a continuing waiver. No waiver shall
be
binding unless executed in writing by the party making the
waiver.
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18.5
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This
Agreement shall be governed by and shall be construed in accordance
with
the laws of the Province of
Ontario.
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18.6
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This
Agreement constitutes the entire agreement between the parties pertaining
to its subject matter and it supersedes all prior contemporaneous
agreements, representations, and understandings of the parties. No
supplement, modification, or amendment of this Agreement shall be
binding
unless executed in writing by all
parties.
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Witness
the signatures of the parties this 18th day
of
November, 2005.
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Identica
Holdings Corporation:
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Identica
Corp.:
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BY:
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BY:
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Xxxxxx
A, Xxxxxx, CEO
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Xxxxx
Xxxxxxx, President
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Name
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Name
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| /s/ Xxxxxx Xxxxxx | /s/ Xxxxx Xxxxxxx | |
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Signature
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Signature
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Initial(s)
_________
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Initial(s)
_________
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Page
13
of 13
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