Exhibit (6)(b)
ASSET PURCHASE AGREEMENT
This Asset
Purchase Agreement (this "Agreement") is effective as of the 6th day of April, 2015 (the “Effective
Date”), and made by and between We-Commerce, LLC, a Texas Limited Liability Company (the "Buyer"), and BeautyKind,
LLC, a Texas Limited Liability Company (the "Seller").
RECITALS
WHEREAS,
Buyer desires to acquire customer data, customer lists, customer information and analytics, existing currently, or subsequently
created by or as a result of the operation of BeautyKind, as hereinafter provided (the “Customer Lists and Information”);
and
WHEREAS,
Buyer desires to acquire from BeautyKind all of BeautyKind’s intellectual property, including but not limited to the software,
documentation, source code, and all modifications to the foregoing, and all portions thereof, together with all proprietary rights
relating thereto, including without limitation, all intellectual property rights such as copyrights, patent and trade secret rights
associated with the eCommerce platform utilized by We-Commerce and/or BeautyKind (“Other Intellectual Property”), but
specifically excluding trademarks, logos and URL domain names bearing, displaying or exhibiting the BeautyKind name or xxxx (“Excluded
Intellectual Property”). The term “Assets” as used herein shall mean and include both the Customer Lists and
Information and the Other Intellectual Property.
AGREEMENT
NOW THEREFORE,
in consideration of the foregoing and of the mutual promises and covenants contained herein, and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties agree as follows:
1. Purchase
Price and Exchange of Consideration.
1.1 Upon
the Effective Date, Seller hereby sells, assigns, transfers, conveys, and shall deliver to Buyer, all of the Assets existing currently
or subsequently created by or as a result of the operation of BeautyKind including, but not limited to, all of the Seller's respective
rights and benefits related to or arising from of the Assets.
1.2 In
consideration of the sale of the Assets to Buyer, and subject to the terms and conditions set forth in this Agreement, and the
Buyer’s Operating Agreements, Buyer agrees to issue to the Series A Preferred Unitholders of Seller, certain Common Units
of Buyer to be issued on a three for one unit (3 for 1) basis (meaning for every three (3) Series A Preferred Units held in Seller,
Buyer will issue one (1) Common Unit of Buyer).
2. Closing.
The sale and assignment of the Assets, shall take place on the Effective Date.
3. Representations
and Warranties. The Seller represents and warrants to the Buyer as follows:
3.1 Assets.
All of the Assets are owned, and immediately prior to the conveyance to Buyer, will be owned, by the Seller, free and
clear of all liens, encumbrances, claims, options, security interests, calls and commitments of any kind. The Seller has full legal
right, power and authority to enter into this Agreement and to sell, assign, convey and transfer the Assets to the Buyer and, on
the Effective Date, the sale and assignment of the Assets to the Buyer hereunder will transfer to the Buyer valid title thereto,
free and clear of all liens, encumbrances, claims, options, security interests and commitments of any kind.
3.2 No
Restrictions. Seller is not currently a party to any contract, employment agreement, noncompetition agreement, or any
other contract or agreement, other than those between Buyer and Seller, or subject to any restriction or conditions contained in
any permit, license, judgment, order, writ, injunction, decree or award which, singly or in the aggregate, materially and adversely
affects or restricts, or is likely to materially and adversely affect or restrict the Assets or the Buyer's acquisition, use or
enjoyment thereof.
3.3 Approval
and Authorization. The execution and delivery of this Agreement by Seller and the performance of the transactions contemplated
herein have been duly and validly authorized by Seller, and this Agreement is a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its respective terms subject to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general application relating to or affecting creditor's rights and general equity principles.
3.4 No
Conflicts. The execution and delivery of this Agreement by Seller does not, and the consummation by Seller of the
transactions contemplated hereby does not and will not, violate or conflict with, or result (with the giving of notice or the
lapse of time or both) in the violation of, or constitute a default under any provision of, or result in the acceleration or
termination of, or entitle any party to accelerate or terminate (whether after giving of notice or lapse of time or both),
any obligation or benefit under, or result in the creation or imposition of any lien, pledge, security interest or other
encumbrance upon the Assets pursuant to any material contract, law, ordinance, regulation, order, arbitration award, judgment
or decree to which the Seller is a party, or by which Seller or its assets (including the Assets) are bound and to Seller's
knowledge, does not and will not violate or conflict with any other material restriction of any kind or character to which
the Seller is subject or by which any of Seller's assets (including the Assets) may be bound.
4. Representations
and Covenants of Buyer. The Buyer represents and warrants as follows:
4.1 Existence
and Good Standing. The Buyer has been duly organized and validly exists in good standing as a limited liability company
under the laws of the State of Texas.
4.2 No
Default. The execution of this Agreement by the Buyer and the performance of its obligations hereunder will not violate
or result in a breach of, or constitute a default under any material agreement to which the Buyer is a party or by which it or
its assets are bound.
4.3 Approval
and Authorization. The execution and delivery of this Agreement and the performance of the transactions contemplated
herein have been duly and validly authorized by all necessary action on the part of the Buyer and is a legal, valid and binding
obligation of the Buyer, enforceable against the Buyer in accordance with its terms subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general application relating to, or affecting creditor's rights and general equity principles.
5. Preservation
and Maintenance of Assets. The Seller shall cooperate with the Buyer after the Effective Date to take all reasonable
actions deemed necessary by the Buyer to preserve and transition the Assets, for Buyer’s benefit, including but not limited
to, the maintenance and preservation of the economic value associated therewith.
6. Survival.
The representations, warranties and covenants of the parties contained in this Agreement shall survive until the second
(2nd) anniversary of the Effective Date.
7. Miscellaneous.
7.1 Further
Assurances. The Seller will cooperate with the Buyer on and after the Effective Date in furnishing information and other
assistance in connection with any actions, proceedings, arrangements, or disputes of any nature with respect to matters pertaining
to all periods prior to the date of the Effective Date and will take, or cause to be taken such further action, and will execute,
deliver, and file such further documents and instruments as the Buyer reasonably requests in order to effectuate fully the purposes,
terms and conditions of this Agreement.
7.2 Assignment:
Binding Effect. This Agreement and the rights of the Buyer hereunder may be assigned by the Buyer. This Agreement and
the rights of the Seller hereunder may not be assigned by Seller. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, the successors and assigns of the Buyer and the heirs, beneficiaries, and legal representatives of the Seller.
7.3 Execution.
This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all
of which together shall constitute but one and the same instrument. Execution and delivery of this Agreement by delivery
of a facsimile copy bearing the facsimile signature of a party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable original documents.
7.4 Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be valid, legal, and enforceable
under all applicable laws. If, however, any provision of this Agreement shall be invalid, illegal, or unenforceable under any such
applicable law in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements
of such law, or, if for any reason it is not deemed so modified, it shall be invalid, illegal, or unenforceable only to the extent
of such invalidity, illegality, or limitation on enforceability without affecting the remaining provisions of this Agreement, or
the validity, legality, or enforceability of such provision in any other jurisdiction.
7.5 Choice
of Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. EACH PARTY HEREBY CONSENTS TO THE JURISDICTION
OF ANY STATE COURT LOCATED WITHIN THE COUNTY OF DALLAS, STATE OF TEXAS AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
7.6 Waiver
of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAlVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH, THIS AGREEMENT.
7.7 Notice. Except as
otherwise expressly permitted herein, all notices required or permitted to be given hereunder shall be in writing and shall be
deemed effective upon receipt by the Person to whom sent. Unless changed by notice given by either party to the other pursuant
hereto, such notices shall be given to the parties at the following addresses:
If to Buyer:
We-Commerce Holdings, LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
If to Seller:
BeautyKind, LLC
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
7.8 Headings.
The headings of this Agreement are for convenience and shall not by themselves determine the interpretation of this
Agreement.
7.9 No
Waiver. Failure to insist upon strict compliance with any of the terms, covenants, or conditions hereof will not be
deemed a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of, or failure to insist upon strict
compliance with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power
at any other time or times.
7.10 Counterparts
and Facsimile Execution. This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument. Any counterpart or other signature delivered
by facsimile or PDF shall be deemed for all purposes as being a good and valid execution and delivery of this Agreement by that
party.
7.11 Entire
Agreement. This Agreement and the representations, warranties, and other agreements referred to herein set forth the
entire understanding of the parties hereto, relating to the subject matter hereof and supersede all prior representations, warranties,
agreements and understandings among or between any of the parties relating to the subject matter hereof and is not intended to
confer upon any other person any rights or remedies hereunder. Each of the parties hereby disclaim any reliance on any statements,
representations, warranties, information received, whether verbal or non-verbal, which is not expressly set forth in this Agreement.
Each of the parties hereby acknowledges and agrees to all terms, covenants, representations and warranties contained in this Agreement.
Each of the parties acknowledges, agrees and represents that no representations or warranties have been made by, between or among
any of the parties, except for those representations and warranties expressly set forth in this Agreement.
Signatures appear on following page.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
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SELLER: |
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BeautyKind, LLC |
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By: |
/s/ Xxxx X. Xxxxxxxx III |
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Name: Xxxx X. Xxxxxxxx III |
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Its: Manager and Authorized Representative |
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BUYER: |
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We-Commerce Holdings, LLC |
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By: |
/s/ Xxxx X. Xxxxx |
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Name: Xxxx X. Xxxxx |
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Its: Manager and Authorized Representative |