ASSET PURCHASE AGREEMENT
Exhibit
10.5
This
ASSET
PURCHASE AGREEMENT
(the
“Agreement”) is entered into as of this 17th
day of
November, 2006, by and among Benacquista Galleries, Inc. a corporation existing
under the laws of the state of Nevada (“Purchaser”); and Physiognomy Interface
Technologies, Inc., a corporation existing under the laws of the state of Nevada
(the “Seller”).
WITNESSETH:
WHEREAS,
the
Seller currently (1) holds all operational, technical and intellectual property
rights to, and (2) exclusively owns all assets, including but not limited to
software code, web site pages, website graphics, databases, including customer
bases, advertising banners, online forms and search engines and website traffic
pertaining to the Domain Name and web site “xxxxxxxxxxxx.xxx” (collectively,
such rights and assets shall be referred to as the “Property”);
WHEREAS,
the
Purchaser wishes to purchase the Property in its entirety;
WHEREAS,
the
parties agree that the Purchaser shall not assume any of the liabilities of
the
Seller regarding the Property;
NOW
THEREFORE,
in
consideration of the promises and mutual covenants, conditions and agreements
contained herein and for such other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, each
intending to be legally bound hereby agree as follows:
ARTICLE
I
PURCHASE
OF ASSETS
1.1 Purchase
and Sale of Property.
Seller
represents and warrants to Purchaser that Seller own without limitation, all
right, title and interest in and to the Property. Upon the terms and subject
to
the conditions of this Agreement, Seller hereby agrees that on the Closing
Date
(as hereinafter defined in Section 2.1), Seller shall sell, assign, transfer
and
convey to the Purchaser and Purchaser hereby agrees to purchase, obtain and
acquire from Seller, all of Seller’s right, title and interest in and to the
Property, free and clear of any and all claims, rights liens and/or
encumbrances.
1.2
Liabilities
Not Assumed.
Purchaser does not assume or otherwise become responsible for, any liability
or
obligation of the Seller or claimant of such liability or obligation whatsoever
known or unknown, whether arising out of occurrences prior to, at or after
the
date hereof, including without limitation:
|
(a)
|
Any
liability whatsoever with respect to the
Property
|
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(b)
|
Any
and all liability of the Seller, whether or not related to
Property
|
|
(c)
|
Any
process of future action, suit, claim or proceeding against the
Seller
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1.3
Purchase
Price.
In
consideration off and in exchange for the Seller’s sale, assignment, transfer
and conveyance of all of the Property, and in consideration of Seller’s
agreement hereby to not compete in any way with the Purchaser or the Property
for a period of five years from the Closing Date, the Purchaser agrees to pay
to
the Seller a total of Five Thousand Dollars ($5,000 US) as purchase price for
the Property, (“The Purchase Price”).
1.4
Seller
to Transfer All Rights, Title and Interest to the
Property.
Immediately upon full payment of the purchase price, Seller will take any action
that may be necessary or desirable to protect and perfect Purchaser’s title and
interest and Purchaser to authorize the change of registered ownership of the
Domain Name ownership with the Internic, ICANN, or other authorized entity.
Seller also agrees
to
take any necessary action to notify transfer of ownership on intellectual
property at copyright and trademark offices, or any other agencies, and to
effectuate transfer of the Domain Name to a primary and secondary hosting
company to be designated by the Purchaser. Seller will also effectuate
assignments of any contracts necessary for the operation of the
Property
ARTICLE
II
CLOSING
2.1 Date
and Time of Closing.
Subject
to satisfaction of the conditions to Closing set forth in this Agreement, the
closing of the transaction contemplated by this Agreement (the “Closing”) shall
take place at 10:00 a.m. (Pacific Standard Time), on November 17, 2006 at the
offices Purchaser, or at such other place and time thereafter as shall be
mutually agreeable to the parties hereto (the “Closing Date”).
2.2
Delivery
of Instruments.
The
following documents, instruments and other materials shall be executed and
delivered at or prior to the Closing on the Closing Date:
(a) Instruments
of Transfer.
The
Seller shall execute and deliver to the Purchaser such bills of sale,
assignments, endorsements, and other instruments and documents reasonably deemed
to be necessary or appropriate to vest in the Purchaser on the Closing Date
and
goods and marketable title to the Property free and clear of any and all adverse
claims, mortgages, pledges, liens, charges, security interests or other rights,
interests or encumbrances, and a receipt for the price of other assets being
acquired hereunder, title to which shall transfer upon delivery of such
assets.
(b) Purchase
Price.
Purchaser shall deliver to the Seller the Purchase Price.
(c) Related
Agreements.
The
Purchaser and the Seller shall execute and deliver any other agreements
reasonably necessary to effectuate consummation of the transactions contemplated
herein.
ARTICLE
III
REPRESENATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Seller.
The
Seller represents and warrants to the Purchaser as follows:
(a) Authorization.
The
Seller has duly authorized the execution, delivery and performance of this
Agreement and consummation of the transactions contemplated hereby. The Seller
has taken all necessary action and has all the necessary power to enter into
this Agreement and to consummate the transactions contemplated
hereby.
(b) Binding
Agreement.
This
Agreement is the valid and binding and irrevocable obligation of the Seller,
and
assuming validity of the representations and warranties of Purchaser, and is
enforceable against such Seller in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereinafter in effect.
(c) Title.
The
Seller owns good, marketable, unencumbered, full and valid title, as would
be
considered under the law of any jurisdiction, to all of the Property and can
demonstrate a consistency of chain of title with respect thereto since
acquisition or inception. The Property is or will at the date of closing be
owned free and clear of all adverse claims, liens, mortgages, charges, security
interests, encumbrances and other restrictions or limitations of any kind
whatsoever. The Seller is not in bankruptcy, divorce or any other proceedings
which might result in claims against the Property.
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(d) Intellectual
Property.
With
respect to the Property, the Seller has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any intellectual property
rights of third parties, and Seller have not received any charges, complaint,
claim, demand, or notice alleging any such interference, infringement,
misappropriation or violations. No comment of any government, authority or
individual in necessary for the sale to the Seller of the Property.
(e) Accuracy
of Information Furnished.
No
statement by the Seller set forth herein or in the exhibits or schedules hereto,
and no statement, verbal or written, made in connection with the transactions
contemplated hereby or the Property, contains any untrue statement of material
fact, or omits to state any material fact which is necessary to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
(f) Organization.
The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada. The Purchaser has the corporate power
and
authority to own and lease its properties and assets and to carry on its
business as it is now being conducted.
3.2 Representations
and Warranties of Purchaser.
The
Purchaser represents and warrants to the Seller as follows:
(a) Authorization.
The
execution, delivery and performance of this Agreement and consummation of the
transaction contemplated hereby have been duly authorized, adopted and approved
by the board of directors of the Purchaser. The Purchaser has taken all
necessary corporate action and has all the necessary corporate power to enter
into this Agreement and to consummate the transactions contemplated
hereby.
(b) Binding
Agreement.
This
Agreement has been duly and validly executed and delivered by the officers
of
the Purchaser on behalf, and assuming the validity of the representations and
warranties of Seller, this Agreement is the valid and binding obligation of
the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in
effect.
(c) Organization.
The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada. The Purchaser has the corporate power
and
authority to own and lease its properties and assets and to carry on its
business as it is now being conducted.
ARTICLE
IV
COVENANTS
4.1 Obligations.
Each of
the Seller and the Purchaser agrees to carry out their respective obligations
at
and following Closing as set forth in Article I, II, and IV of this
Agreement.
(a) Governmental
Filings and Comments.
The
Seller and the Purchaser shall cooperate with one another and make best efforts
in filing any necessary applications, reports or other documents with any
domestic or foreign, federal, state or local agencies, or authorities with
respect to the Property and the QBH, including but not limited to patent,
trademark and copyright applications and filings on behalf of the
Purchaser.
(b) Notice.
The
Seller will give prompt notice of any claim against any of them or against
the
Property and will give full cooperation and best efforts to the Purchaser in
defending any such claims, and in the event of any claim, lien, or action
against the Property, the Seller will indemnify the Purchaser in full for any
resulting costs, expenses or damages incurred by the Purchaser.
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ARTICLE
V
MISCELLANEOUS
5.1 Fees
and Expenses.
Except
as otherwise provided in this Agreement, each party hereto will bear its own
legal, accounting and other fees and expenses incident to the transactions
contemplated herein.
5.2
Modification,
Amendment and Waiver.
The
parties hereto may amend, modify or otherwise waive any provision of this
Agreement by mutual covenant, provided that each covenant and any amendment,
modification or waiver is in writing and signed by each of the parties
hereto.
5.3
Assignment.
The
Purchaser shall have the authority to assign its respective rights or
obligations under this Agreement without the prior written consent of the other
parties hereto.
5.4
Burdens
and Benefits.
This
Agreement shall be binding upon and, to the extent permitted in this Agreement,
shall inure to the benefit of the parties and their respective successors and
permitted assigns.
5.5
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
state of Nevada, without regard, however, to such jurisdiction’s principles of
conflicts of law.
5.6
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be an
original, but all of which shall constitute but one agreement.
5.7
Severability
of Provisions.
The
provisions of the Agreement shall be considered severable in the event that
any
of such provisions are held by a court of competent jurisdiction to be invalid,
void or otherwise unenforceable.
5.8
Survival.
The
provisions of Sections 1.1, 1.4 and all of Articles III, IV and V shall survive
termination of this Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed and delivered on the
date and year first above written.
BENACQUISTA
GALLERIES, INC.
/s/
Xxxxx
Xxxxx
By:
Xxxxx
Xxxxx
President
PHSYIOGNOMY
INTERFACE TECHNOLOGIES, INC.
/s/
Xxxxxx
Xxxxx
By:
Xxxxxx Xxxxx
President
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