WEBSITE AND DOMAIN NAME ACQUISITION AND TRANSFER AGREEMENT
Exhibit
10.1
WEBSITE
AND DOMAIN NAME
ACQUISITION
AND TRANSFER AGREEMENT
This
Website and Domain Name Acquisition and Transfer Agreement (“Agreement”) is made and
entered into as of November 4, 2009, by and between, EnzoTen Media Inc., located
at, 000 Xxxxx Xxxxx, Xxx X, Xxxxxxxxx, XX 00000 (the “Seller”) and CrowdGather, Inc.
located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxx,
XX 00000 (the “Buyer”) (each a “Party” or “Parties”).
WHEREAS,
the Seller operates a certain online forum communities located at the urls as
set forth on Exhibit
A (“Domain
Names”);
WHEREAS,
the Buyer desires to purchase and the Seller desires to sell the Domain Names on
the terms and subject to the conditions of this Agreement;
NOW
THEREFORE, in consideration of the mutual covenants, terms and conditions
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged it is hereby agreed by and
between the parties as follows:
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1.
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Sale,
Assignment and Transfer. Subject to
the provisions of this Agreement, Buyer agrees to purchase, and Seller
agrees to sell, all Seller's rights, title and interest, to: a) the
completed websites as represented by Seller (the “Websites”), including,
any and all associated software used in building the Websites and Website
users lists and Website data bases containing any Website user or Website
information; b) Domain Names; c) name registrations; d) any goodwill
symbolized thereby; and e) and all rights to xxx for past infringement, if
any, and to receive any recoveries therefore, all as set forth on Exhibit A,
hereto and incorporated herein by this reference (the “Purchased Assets”).
Seller hereby sells, assigns, conveys and transfers to Buyer and Buyer
hereby accepts, all of Seller's right, title and interest including but
not limited to all of Seller's common law rights in and to the Purchased
Assets. In addition, Seller hereby sells, assigns, conveys and transfers
to Buyer all data, programming code, user or customer lists, moderator
contact information and all other information as it pertains to the
operation of the Websites listed on Exhibit A.
Except as otherwise expressly set forth in Exhibit B
attached hereto, the Buyer does not assume any liabilities associated with
the business associated with the Websites and Domain Names (“Business”).
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2.
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Purchase
Price and Costs of Transfer. The purchase price for the
Purchased Assets shall be Two Hundred Sixty Four Thousand Dollars ($264,
000), which shall consist of One Hundred Thirty Four Thousand Dollars
($134,000) (“Cash”) payable to Seller
as specified below and One Hundred Thirty Thousand Dollars ($130,000)
payable to Seller in One Hundred Four Thousand (104,000) shares of the
Buyer’s common stock (“Shares”) (the Cash and
the Shares shall collectively be referred to as the “Purchase Price”). The
value of One Hundred Thirty Thousand Dollars ($130,000) for the Shares was
calculated based on a closing price of the Buyer’s common stock of $1.25
per share as of November 2, 2009. The Shares shall be issued to Seller
within ten (10) days of the Closing (as defined below) subject to
compliance with the applicable federal and state securities
laws. Buyer shall pay Fifty Thousand Dollars ($50,000) of the
Cash (“Initial
Payment”) to Seller and closing costs for Xxxxxx.xxx (as defined
below) on Closing pursuant to Section 5 of this Agreement. Buyer shall pay
the balance of the Cash to Seller in twelve equal installments of Seven
Thousand Dollars ($7,000) to be paid to Seller within ten (10) days of the
first day of each month after the Closing. If the Buyer
defaults on payment of the monthly installments of Seven Thousand Dollars
($7,000) to Seller as specified above, and such default is not cured
within ten (10) days after the Seller has given the Buyer written
notice thereof, then Seller shall have the right to transfer the Shares to
Buyer in exchange for the rights to the Websites and Domain
Names.
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3.
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Further
Assurances. Seller
hereby covenants that it will, at any time upon request of Buyer, execute
and deliver to Buyer any new or confirmatory instruments and do and
perform (at Buyer's reasonable expense) any other acts which Buyer may
reasonably request in order to fully sell assign and transfer to and vest
in Buyer, all of Seller's right, title and interest in and to the
Purchased Assets, including, without limitation transfer of all Domain
Names, software, databases, images, trademarks and hosting
agreements.
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4.
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Covenants. Seller
further covenants that it will not, anywhere in the world, challenge, or
cause a third party to challenge, the validity and ownership by Buyer of
the Purchased Assets and will not, anywhere in the world directly or
indirectly seek to register, defend, compromise or dispute any rights in
and to the Purchased Assets. Seller also will not, anywhere in
the world, directly or indirectly seek to register or otherwise acquire
any rights in any web sites, domain names, trade names, trademarks,
service marks, or other intellectual property assets that are or may be,
or that contain portions that are or may be, confusingly similar to the
Purchased Assets. Seller also will not use or cause to be used
any copies of the Purchased Assets.
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5.
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Closing.
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5.1.
The actions to be taken by the parties hereto to close the transaction as
provided shall take place on or before November 19, 2009 (the
“Closing”) via the
Internet website service of xxxxxx.xxx located at
xxxxx://xxx.xxxxxx.xxx/xxxxx.xxx (“Xxxxxx.xxx”). The Buyer
agrees to pay the closing costs of Xxxxxx.xxx. At the Closing, Seller
shall first deliver to Buyer possession of all of the Purchased Assets,
including transfer of domains, and good and sufficient instruments of
transfer, conveying and transferring the Purchased Assets to Buyer, for
review to verify the Purchased Assets are properly accounted for and
operational. Upon effective delivery, Seller shall authorize
the release payment and delivery to Xxxxxx.xxx of the Initial Payment. The
instruments of transfer shall contain covenants and warranties that Seller
has good and marketable title in and to the
assets.
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5.2.
Subject to delivery of the Purchased Assets by Seller to Buyer as provided in
this Section 5, Buyer shall deliver to Seller and Xxxxxx.xxx shall pay to Seller
the Initial Payment. The Initial Payment shall be payable in cash by check or
wire transfer at Closing. The Buyer shall issue and deliver the Shares to Seller
within ten (10) days of Closing
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6.
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Warranties
and Representations. Seller hereby
represents and warrants to Buyer that: (a) Seller has all necessary power
and authority to own, lease and operate the Purchased Assets and to
operate the Business as now being conducted; (b) Seller has the requisite
power and authority to execute, deliver, and perform this Agreement, and
when executed and delivered at Closing, will constitute a valid and
binding obligation of Seller; (c) Neither the execution, delivery or
performance of this Agreement nor the consummation of the transactions
contemplated hereby: (i) will conflict with any provision of
the organizational charter or bylaws of Seller; (ii) will conflict with,
will result in a violation of any applicable law or judgment; (iii) will
result in a breach of any assumed obligation; or (iv) will create any lien
or encumbrance upon any of the Purchased Assets; (d) Seller has good and
marketable title to all Purchased Assets and none of the Purchased Assets
is subject to any lien, encumbrance, claim or security interest
(collectively, the “Liens”); (e) The cash
flow statements, balance sheets and profit and loss statements provided to
Buyer by Seller are true and correct in all material respects and present
fairly the operating income and financial condition of Seller and its
Business as of their respective dates; (f) All returns, reports and
statements relating to the Purchased Assets or to the operation of the
Business which Seller is required to file with any governmental agency
have been filed, and complied with; (g) Seller has filed or has caused to
be filed all federal, state, county, local or city tax returns affecting
the Purchased Assets or the operation of the Business which are required
to be filed by Seller, and all tax assessments and other governmental
charges which are due and payable have been timely paid; (h) There are no
actions, suits, proceedings, orders or claims pending or threatened
against Seller, or pending or threatened by Seller against any third party
which relate to, or in any way affect, the Purchased Assets or the
operation of the Business; (i) Seller has complied in all material
respects with all applicable federal, state and local laws, rules,
regulations, ordinances, codes, statutes, judgments, orders and decrees in
connection with the ownership of the Purchased Assets and the operation of
the Business and that neither the ownership nor the use of the Purchased
Assets conflicts with the rights of any other person or entity; (j) Seller
has no contingent liabilities or other liabilities outside the ordinary
course of business; (k) The books and other records of the Seller relating
to the Business are true, correct and complete in all material respects;
(l) The Purchased Assets include all Purchased Assets used or useful in
connection with the operation of the Business as currently operated; (m)
Upon the consummation of the transactions contemplated hereby, Seller will
transfer good and valid title to the Purchased Assets free and clear of
any Liens; (n) The Purchased Assets will be fit for their intended
purposes and be fully functional as represented prior to the Closing; (o)
Since Buyer’s inspection of the Purchased Assets, there has not been and
will not be in the foreseeable future any material damage, destruction,
change or loss of any kind or have had a material adverse effect with
respect to the Purchased Assets; (p) No insolvency proceedings of any
character, voluntary or involuntary, affecting the Purchased Assets are
pending; (q) There are no existing agreements with, options or rights of,
or commitments to any person, other than to Buyer, to acquire any of the
Purchased Assets or any interest therein; (r) There are no material
omissions or untrue statements contained in this Agreement which are
misleading; and (s) All representations and warranties made by Seller
shall survive the Closing.
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7. Miscellaneous.
7.1.
Assignment. Neither
this Agreement nor any right or obligation under this Agreement is assignable in
whole or in part by any Party without the prior written consent of the other
Parties and any attempted assignment without such consent shall be null and void
and of no force or effect.
7.2.
Complete
Agreement. This Agreement, including any and all Exhibits and
attachments to this Agreement, which are hereby incorporated by reference into
this Agreement, constitutes the complete and integrated understanding of the
Parties with respect to the subject matter of this Agreement and supersedes all
prior understandings and agreements, whether written or oral, with respect to
the same subject matter.
7.3.
Amendments. This
Agreement may only be amended by a written agreement duly signed by persons
authorized to sign agreements on behalf of each Party.
7.4.
Notices. All
notices, demands, requests, or other communications which may be or are required
to be given or made by any Party to the other Party pursuant to this Agreement
shall be in writing and shall be hand delivered, mailed by first-class
registered or certified mail, return receipt requested, postage prepaid, or
delivered by overnight air courier addressed as provided in the preamble of this
Agreement.
7.5.
Governing
Law and Jurisdiction. The interpretation and construction of
this Agreement, to the extent the particular issue is controlled by state law,
shall be governed by and construed in accordance with the Laws (but not
including choice of law provisions) of the State of California. The state and
federal courts located in County of Los Angeles, California shall have exclusive
jurisdiction to adjudicate all disputes between the parties concerning the
subject matter hereof.
7.6.
Counterparts. To
facilitate execution, this Agreement may be executed in as many counterparts as
may be required. It shall not be necessary that the signature of or
on behalf of each Party appears on each counterpart, but it shall be sufficient
that the signature of or on behalf of each Party appears on one or more of the
counterparts. All counterparts shall collectively constitute a single
agreement. A facsimile copy or other reliable reproduction of this
Agreement shall be deemed an original.
7.7.
Benefits;
Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective Parties and their permitted assigns and successors in
interest.
7.8 Indemnification.
Seller shall indemnify, defend and hold Buyer harmless from all liabilities,
costs, expenses, damages, and penalties (including, without limitation,
reasonable attorneys’ fees) arising from Seller’s breach of the warranties set
forth in this Agreement.
7.9 Attorneys’
Fees.
The prevailing party in any dispute concerning this Agreement shall be entitled
to recover reasonable attorneys’ fees incurred as a result of defending or
prosecuting the claim, as the case may be.
IN
WITNESS WHEREOF the parties execute this Agreement as of the day and date first
above written.
SELLER:
EnzoTen
Media Inc.
By:
/s/ Xxxxx
Skee
Xxxxx
Skee
Title:
President
BUYER:
By: /s/ Xxxxxx
Xxxxx
Name:
Xxxxxx Xxxxx
Title:
CFO
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EXHIBIT
A
Description of the Purchased
Assets
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A.
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The
following completed Websites including, without limitation, any and all
associated software used in building the Websites, content posted therein,
and Website users lists and Website data bases containing any Website user
or Website information, including, without limitation personally
identifiable information regarding the Websites’ users and
participants:
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| xxxx://xxx. xxxxxxxxxxxxxxx.xxx |
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xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx
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xxxx://xxx.xxxxxxxxxxxxxxxx.xxx
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xxxx://xxx.xxxxxxxxxxxxxxx.xxx
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xxxx://xxx.xxxxx0xxxxxxx.xxx
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xxxx://xxx.xxxxxxxxx.xxx
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B.
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The
following Domain Names:
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Seller
owns the following domains registered with Godaddy Inc that are the subject of
the sale to Buyer:
| xxxx://xxx. xxxxxxxxxxxxxxx.xxx |
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xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx
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xxxx://xxx.xxxxxxxxxxxxxxxx.xxx
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xxxx://xxx.xxxxxxxxxxxxxxx.xxx
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xxxx://xxx.xxxxx0xxxxxxx.xxx
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xxxx://xxx.xxxxxxxxx.xxx
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C.
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Additional
add-ons that are installed with the above referenced forums, and will be
transferred to Buyer include:
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VBulletin
License number (brand free) - VBFF1F4293
VBClassified
with brand free option – Username: EnzoTen
EXHIBIT
B
Assumed
Obligations
None
