ASSET PURCHASE AGREEMENT
AGREEMENT,
dated as of March 6, 2006 among Xxxxxxx Xxxxxxxxx, a resident of Connecticut
("Seller"), and Aprecia, Inc., a Delaware corporation with offices at 0000
Xxxx
Xxxxx Xxxx, Xxxxxxxx, XX 00000 (the "Purchaser").
RECITALS
A.
Seller
is
the owner of certain assets relating to software based on open source induction
technology designed to enable the automatic discovery of patterns and the
automatic creation of rules for raw data.
B. Purchaser
desire to acquire certain assets from Seller.
C. Seller
desires to sell the same to Purchaser.
D. It
is
intended that the sale of the Assets shall qualify for United States federal
income tax purposes as a tax free transfer of property within the meaning of
Section 351 of the Internal Revenue Code of 1986, as amended (the “Code”), and
immediately following the Closing as contemplated herein, the Seller together
with other founders shall be “in control” of the Purchaser as defined in Section
368(c) of the Code.
NOW,
THEREFORE,
in
consideration of the mutual representations, warranties, covenants and
agreements herein set forth, the parties hereto hereby agree as
follows:
1.
Sale of Assets.
Subject
to the terms and conditions of this Agreement, at the closing under this
Agreement (the "Closing"), Seller shall sell, convey, assign, transfer and
deliver to Purchaser, and Purchaser shall purchase, acquire and accept from
Seller all right, title, and interest in and to the following assets (the
"Assets"):
know-how
related to the creation and issuance of automated alerts for fraudulent xxxxxx
placed at North American thoroughbred races, using open source algorithms as
a
base for the development of proprietary user interfaces, access methods to
third-party systems, and workflow.
It
is
expressly understood that Purchaser shall not assume, pay or be liable for
any
liability or obligation of Seller of any kind or nature at any time existing
or
asserted, whether, known, unknown, fixed, contingent or otherwise, not
specifically assumed herein by Purchaser.
2.
Purchase Consideration.
In
consideration of the purchase and sale of the Assets, Purchaser shall issue
to
Seller Nine Million Seven Hundred Thousand (9,700,000) shares of common stock
of
Purchaser (the “Purchase
Consideration”)
at the
Closing.
3.
Closing.
3.1
Place
and Time.
The
Closing shall take place at the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx
LLP,
1065 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m.
on March 6, 2006, or at such other time or place as Purchaser and Seller may
mutually agree as may be evidenced by their effecting the Closing (the "Closing
Date").
3.2
Deliveries
by Seller.
At the
Closing, Seller shall deliver the following to the Purchaser:
(a) All
of
the tangible Assets including without limitation all books and records related
thereto and/or the rights to take possession thereof.
(b) Such
deeds, bills of sale, assignments and other instruments of conveyance and
transfer, and such powers of attorney, as shall be effective to vest in
Purchaser title to or other interest in, and the right to full custody and
control of, the Assets, free and clear of all liens, charges, encumbrances
and
security interests whatsoever including, but not limited to, the Xxxx of Sale
form annexed hereto as Exhibit
3.2(b).
(c) All
other
documents, certificates, instruments or writings reasonably required by
Purchaser to be delivered by Seller at or prior to the Closing pursuant to
this
Agreement.
3.3
Deliveries
by Purchaser.
At the
Closing, Purchaser shall deliver the following to the Seller:
(a)
the
Purchase Consideration in the form of a stock certificate in the name of Seller
for Nine Million Seven Hundred Thousand (9,700,000) shares of Purchaser’s common
stock (the “Shares”).
3.4 Proceedings.
All
proceedings which shall be taken and all documents which shall be executed
and
delivered by the parties on the Closing Date shall be deemed to have been taken
and executed simultaneously, and no proceeding shall be deemed taken nor any
documents executed or delivered until all have been taken, executed and
delivered.
2
3.5 Conditions
to Purchaser' Obligations.
The
obligations of Purchaser to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one
or
more of which may be waived by Purchaser:
(a) There
shall not be in effect any injunction, order or decree of a court of competent
jurisdiction that prohibits or delays consummation of any or all of the
transactions contemplated in this Agreement nor shall any proceeding seeking
any
of the foregoing have been commenced.
(b) The
representations and warranties of Seller set forth in this Agreement shall
be
true and correct in all material respects as of the date of this Agreement
and
as of the Closing Date as though made at such time.
(c) Seller
shall have performed and complied in all material respects with the agreements
contained in this Agreement required to be performed and complied with by it
prior to or at the Closing.
(d) Purchaser
shall have received a certificate to the effect set forth in clauses (b) and
(c)
above signed by the Seller.
3.6 Conditions
to Seller's Obligations.
The
obligations of Seller to effect the Closing shall be subject to the satisfaction
at or prior to the Closing of the following conditions, any one or more of
which
may be waived by Seller:
(a) There
shall not be in effect any injunction, order or decree of a court of competent
jurisdiction that prohibits or delays the consummation of any or all of the
transactions contemplated herein nor shall any proceeding seeking any of the
foregoing have been commenced.
(b) The
representations and warranties of the Purchaser set forth in this Agreement
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date as though made at such time.
(c) The
Purchaser shall have performed and complied in all material respects with the
agreements contained in this Agreement required to be performed and complied
with by it prior to or at the Closing.
4.
Representations and Warranties of Seller.
Seller
hereby represents and warrants to Purchaser as follows:
4.1
No
Conflicts.
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(a) Seller
has the right, power, authority and capacity to execute and deliver this
Agreement and to perform its obligations under this Agreement.
(b) Neither
the execution, delivery or performance of this Agreement by Seller nor the
consummation by Seller of the transactions contemplated hereby will, directly
or
indirectly (with or without notice or lapse of time or both):
(i)
contravene,
conflict with or result in a violation or breach of (A) any legal requirement
or
any governmental order to which Seller or any of the properties or assets owned
or used by Seller may be subject, or (B) any authorization, license or permit
of
any governmental authority, including any private investigatory license or
other
similar license, which is held by Seller or that otherwise relates to the
business of, or any of the assets owned or used by Seller;
(ii)
result
in
a violation or breach of or constitute a default, give rise to a right of
termination, cancellation or acceleration, create any entitlement to any payment
or benefit or require the consent or approval of or any notice to or filing
with
any third party under any contract to which Seller is a party or to which his
or
his properties or assets may be bound, or require the consent or approval of
or
any notice to or filing with any governmental authority to which the Seller
or
his properties or assets may be subject; or
(iii)
result
in
the imposition or creation of any encumbrance upon or with respect to any of
the
properties or assets owned or used by Seller.
4.2 No
Undisclosed Liabilities.
Seller
has no material liabilities or obligations of any nature (whether absolute,
accrued, contingent, or otherwise) with respect to the Assets except for
liabilities or obligations which have previously been disclosed to Purchaser
and
current liabilities incurred in the ordinary course of business, which current
liabilities are consistent with the representations and warranties contained
in
this Agreement and will not, individually or in the aggregate, have a material
adverse change in the business, operations, properties, prospects, liabilities,
results of operations, assets or condition (financial or otherwise) of
Seller.
4.3 Taxes.
With
respect to the Assets, Seller has properly and timely filed all federal, state
and local Tax returns and has paid all Taxes, assessments and penalties due
and
payable. All such Tax returns were complete and correct in all respects as
filed, and no claims have been assessed with respect to such returns. There
are
no present, pending, or threatened audit, investigations, assessments or
disputes as to Taxes of any nature payable by the Seller, nor any Tax liens
whether existing or inchoate on any of the assets of the Seller, except for
current year Taxes not presently due and payable. The federal income Tax returns
of the Seller have never been audited. No IRS or foreign, state, county or
local
Tax audit is currently in progress. The Seller has not waived the expiration
of
the statute of limitations with respect to any Taxes. There are no outstanding
requests by the Seller for any extension of time within which to file any Tax
return or to pay Taxes shown to be due on any Tax return. Other than with
respect to the Seller, the Seller is not liable for Taxes of any other person
or
entity or is currently under any contractual obligation to indemnify any person
or entity with respect to Taxes or is a party to any Tax sharing agreement
or
any other agreement providing for payments by the Seller with respect to Taxes.
4
For
purposes of this Agreement, the term “Tax” shall mean any United States federal,
national, state, provincial, local or other jurisdictional income, gross
receipts, property, sales, use, license, excise, franchise, employment, payroll,
estimated, alternative or add-on minimum, ad valorem, transfer or excise tax,
or
any other tax, custom, duty, governmental fee or other like assessment or charge
imposed by any governmental authority, together with any interest or penalty
imposed thereon.
4.4 Compliance
with Law; Governmental Authorizations.
To the
best of Seller’s knowledge, Seller is in compliance with all federal, state and
local laws, authorizations, licenses and permits of any governmental authority
and all governmental orders affecting the properties and assets of Seller,
including federal, state and local: (i) Occupational Safety and Health Laws;
(ii) private investigatory and other similar laws; (iii) the Fair Credit
Reporting Act and similar state and local laws; and (iv) laws regarding or
relating to trespass or violation of privacy rights. Seller has not been charged
with violating, nor to the knowledge of Seller, threatened with a charge of
violating, nor, to the knowledge of Seller, is Seller under investigation with
respect to a possible violation of any provision of any federal, state or local
law relating to any of, properties or assets.
4.7 Effect
of Agreement.
This
Agreement has been duly executed and delivered by Seller and constitutes, and
such other agreements and instruments to be executed by Seller pursuant hereto,
when so duly executed and delivered, will constitute, legal, valid and binding
obligations of Seller, enforceable in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to
or
affecting the rights of creditors generally and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
4.8 Title
to Assets.
After
giving effect to the transactions contemplated by this Agreement, Purchaser
will
have good and valid title to all of the Assets, free and clear of all, liens,
encumbrances, restrictions, security interests, mortgages, and claims (including
any related to duty or customs), except with respect to any of the foregoing
which may be incurred by Purchaser.
4.9
Broker's
Fees.
Seller
has not employed any broker or finder or incurred any liability for any broker's
or finder's fees or commissions in connection with this Agreement or the
transactions contemplated herein.
4.10 Intentionally
Left Blank.
4.11 Disclosure.
No
representation or warranty by Seller in this Agreement, nor in any certificate,
schedule or exhibit delivered or to be delivered pursuant to this Agreement
contains or will contain any untrue statement of material fact, or omits or
will
omit to state a material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading.
5
4.13 Legal
Proceedings.
There
is no pending claim, action, investigation, arbitration, litigation, suit or
other proceeding (“Proceeding”):
(a)
that
has been commenced by or against the Seller or that otherwise relates to or
may
affect the business of, or any of the properties or assets owned, held or used
by, the Seller; or
(b)
that
challenges, or that may have the effect of preventing, delaying, making illegal,
or otherwise interfering with, any of the transactions contemplated hereby.
To
the
knowledge of the Seller, (A) no such Proceeding has been threatened, and (B)
no
event has occurred or circumstance exists that may give rise to or serve as
a
basis for the commencement of any such Proceeding.
4.14 Investment
Representations
(a)
The
Seller is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of
Regulation D.
(b)
The
Seller understands that the Shares are being offered and sold to it in reliance
on specific exemptions from the registration requirements of United States
federal and state securities laws and that the Purchaser is relying in part
upon
the truth and accuracy of, and such Seller’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
such Seller set forth herein in order to determine the availability of such
exemptions and the eligibility of such Buyer to acquire such
securities.
(c)
Seller understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Shares, or the fairness or suitability of the investment
in
the Shares, nor have such authorities passed upon or endorsed the merits of
the
offering of the Shares.
(d)
Seller understands that the certificates or other instruments representing
the
Shares shall bear a restrictive legend in substantially the following form
(and
a stop -transfer order may be placed against transfer of such stock
certificates):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW
TOWARD RESALE AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR
AN
OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
6
The
legend set forth above shall be removed and the Purchaser shall issue a
certificate without such legend to the holder of the Shares upon which it is
stamped, if, unless otherwise required by state securities laws, (i) in
connection with a sale transaction, provided the Shares are registered under
the
Securities Act of 1933, as amended, or (ii) in connection with a sale
transaction, after such holder provides the Purchaser with an opinion of
counsel, which opinion shall be in form, substance and scope customary for
opinions of counsel in comparable transactions, to the effect that a public
sale, assignment or transfer of the Shares may be made without registration
under the Securities Act of 1933, as amended.
5.
Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to Seller as follows:
5.1 Effect
of Agreement.
This
Agreement has been duly executed and delivered by Purchaser and constitutes,
and
each other agreement, document or instrument to be executed by Purchaser
pursuant hereto, when so duly executed and delivered, will constitute, legal,
valid and binding obligations of Purchaser, enforceable against Purchaser in
accordance with their terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting the rights of creditors generally and
by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
5.2
Knowledge.
Purchaser have not relied on any representations or warranties of any Seller
or
any agent of any Seller, whether implied or otherwise, other than those
expressly made by Seller in this Agreement, in making its determination to
enter
into and consummate this Agreement.
5.3
Broker's
Fees.
Purchaser have not employed any broker or finder or incurred any liability
for
any broker's or finder's fees or commissions in connection with this Agreement
or the transactions contemplated herein.
6. Pre-Closing
Covenants.
6.1 Compliance
with Conditions.
The
parties hereto shall use their best efforts to cause the Closing to be
consummated and to cause the execution and delivery of the documents referred
to
in Section 3 hereof and to bring about the satisfaction of the conditions to
the
obligations of the parties hereto set forth in Section 3, herein.
6.2 Update
of Exhibits.
From
and after the date hereof and up to the Closing Date, the parties hereto shall
update the exhibits to this Agreement to the extent necessary to make such
exhibits true and accurate as of the Closing Date and shall deliver copies
of
such updated exhibits to Purchaser or Seller, as the case may be, immediately
upon their preparation.
7
6.3 Consents.
From
and after the date hereof, the parties hereto shall use their best efforts
to
obtain all of the certificates, authorizations, consents or approvals required
as set forth in Section 3 hereof. Evidence of such certificates, authorizations,
consents or approvals shall be delivered to Purchaser or Seller, as the case
may
be, on or prior to the Closing.
6.4 Business
Practices.
From
and after the date hereof and up to the Closing Date, Seller shall continue
to
run the business of Seller in a manner consistent with past business practices
including the satisfaction of all of its then current obligations.
7. Indemnifications
by Seller and Purchaser.
7.1 Indemnification
by Seller.
Seller
shall indemnify and hold harmless Purchaser and shall reimburse Purchaser for
any loss, liability, claim, damage, expense (including, without limitation,
costs of investigation and defense and reasonable attorney's fees) or diminution
of value (collectively, "Damages") arising from or in connection
with:
(a) any
inaccuracy in any of the representations and warranties of Seller in this
Agreement or in any certificate delivered by Seller pursuant to this Agreement,
or any actions, omissions or state of facts inconsistent with any such
representation or warranty (for purposes of this clause (a), each schedule
and
exhibit to this Agreement shall be deemed a representation and
warranty);
(b) any
failure by Seller to perform or comply with any agreement made by it under
this
Agreement;
(c) any
operations or business conducted, commitment made, service rendered or condition
existing or any action taken or omitted by or on behalf of Seller, except for
any claims for which Purchaser is required to indemnify Seller pursuant to
Section 7.2 herein;
(d) any
claim
by any person for brokerage or finder's fees or commissions or similar payments
based upon any agreement or understanding alleged to have been made by any
such
person with Seller (or any person acting on its behalf) in connection with
any
of the transactions contemplated herein; and
(e) Seller's
failure to comply with the "Bulk Sales Laws" under the Uniform Commercial
Code;
provided,
however,
that
(i) Seller shall have no obligation to indemnify Purchaser for Damages until
the
aggregate Damages exceed $20,000 and, in such event, for the full amount of
such
Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed
the Purchase Consideration, and (iii) Seller shall have no obligation to
indemnify Purchaser for any claims made by Purchaser under this Section 7.1
after twenty four (24) months after the Closing Date.
7.2 Indemnification
by Purchaser.
Purchaser shall indemnify and hold harmless Seller, and shall reimburse Seller
for any Damages arising from or in connection with:
8
(a) any
inaccuracy in any of the representations and warranties of Purchaser in this
Agreement or in any certificate delivered by Purchaser pursuant to this
Agreement, or any actions, omissions or state of facts inconsistent with any
such representation or warranty (for purposes of this clause (a), each schedule
and exhibit to this Agreement shall be deemed a representation and
warranty);
(b) any
failure by Purchaser to perform or comply with any agreement made by it under
this Agreement;
(c) any
claim
by any person for brokerage or finder's fees or commissions or similar payments
based upon any agreement or understanding alleged to have been made by such
person with Purchaser (or any person acting on its behalf, regardless of whether
such person purported to act on behalf of Seller) in connection with any of
the
transactions contemplated in this Agreement; and
(d) obligations
with respect to any product liability associated with the Equipment for the
period after the Closing Date;
provided,
however,
that
(i) Purchaser shall have no obligation to indemnify Seller for Damages until
the
aggregate Damages exceed $20,000 and, in such event, for the full amount of
such
Damages, (ii) Purchaser' aggregate liability for Damages shall in no event
exceed the Purchase consideration, and (iii) Purchaser shall have no obligation
to indemnify Seller for any claims made by any Seller under this Section 7.2
after twenty four (24) months after the Closing Date.
7.3 Procedure
for Indemnification.
Promptly after receipt by an indemnified party under Section 7.1 or 7.2 hereof
of notice of the commencement of any action or assertion of any claim, such
indemnified party shall, if a claim in respect thereof is to be made against
an
indemnifying party under such Section, give notice to the indemnifying party
of
the commencement or assertion thereof, but the failure so to notify the
indemnifying party shall not relieve it of any liability that it may have to
any
indemnified party except to the extent the indemnifying party demonstrates
that
the defense of such action is materially prejudiced thereby. If any such action
shall be brought against an indemnified party and it shall give notice to the
indemnifying party of the commencement thereof, the indemnifying party shall
be
entitled to participate therein and, to the extent that it shall wish, to assume
the defense thereof with counsel satisfactory to such indemnified party and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not
be
liable to such indemnified party under such Section for any fees of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party in connection with the defense thereof, other than reasonable
costs of investigation. If an indemnifying party assumes the defense of such
an
action:
(a) no
compromise or settlement thereof may be effected by the indemnifying party
without the indemnified party's consent which shall not be unreasonably withheld
unless (i) there is no finding or admission of any violation of law or any
violation of the rights of any person and no effect on any other claims that
may
be made against the indemnified party and (ii) the sole relief provided is
monetary damages that are paid in full by the indemnifying party;
and
9
(b) the
indemnifying party shall have no liability with respect to any compromise or
settlement thereof effected without its consent. If notice is given to an
indemnifying party of the commencement of any action and it does not, within
ten
(10) business days after the indemnified party's notice is given, give notice
to
the indemnified party of its election to assume the defense thereof, the
indemnifying party shall be bound by any determination made in such action
or
any compromise or settlement thereof effected by the indemnified party.
Notwithstanding the foregoing, if an indemnified party determines in good faith
that there is a reasonable probability that an action may materially and
adversely affect it or its affiliates other than as a result of monetary
damages, such indemnified party may, by notice to the indemnifying party, assume
the exclusive right to defend, compromise or settle such action at its cost
or
expense, but the indemnifying party shall not be bound by any determination
of
an action so defended or any compromise or settlement thereof effected without
its consent (which shall not be unreasonably withheld).
8. Miscellaneous.
8.1 Bulk
Sales Laws:
The
parties hereto hereby agree to waive compliance with "Bulk Sales Laws" under
the
Uniform Commercial Code and the related notice provisions thereof.
8.2 Survival.
All
representations, warranties and agreements contained in this Agreement or in
any
certificate delivered pursuant to this Agreement shall survive eighteen (18)
months after Closing.
8.3 Waivers
and Amendments.
(a) This
Agreement may be amended, modified or supplemented only by a written instrument
executed by the parties hereto. The provisions of this Agreement may be waived
only by an instrument in writing executed by the party granting the waiver.
No
action taken pursuant to this Agreement, including without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be construed
as a further or continuing waiver of such breach or as a waiver of any other
or
subsequent breach.
(b) No
failure on the part of any party to exercise, and no delay in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
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8.4 Fees
and Expenses.
Each
party shall be responsible for its respective fees and expenses incurred in
connection with this transaction.
8.5 Notices.
All
notices, requests, demands and other communications that are required or may
be
given under this Agreement shall be in writing and shall be deemed to have
been
duly given or made: if by hand, immediately upon delivery; if by telex,
telecopier, telegram or similar electronic device, immediately upon sending,
provided it is sent on a business day, but if not, then immediately upon the
beginning of the first business day after being sent; if by Federal Express,
Express Mail or any other overnight delivery service, on the first business
day
after dispatch; if by registered or certified mail, return receipt requested,
upon receipt by the addressee. All notices, requests and demands are to be
given
or made to the parties at the following addresses (or to such other address
as
either party may designate by notice in accordance with the provisions of this
paragraph):
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If
to Seller:
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Xxxxxxx
Xxxxxxxxx
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0000
Xxxx Xxxxx Xxxx
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Xxxxxxxx,
XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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With
a copy to:
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Xxxxxx
X. Xxxxxx, Esq.
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Law
Offices of Xxxxxx X. Xxxxxx
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000
Xxxxxxxxx Xxxx
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Xxxxxxxxx,
XX 00000-0000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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If
to Purchaser:
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Aprecia,
Inc.
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0000
Xxxx Xxxxx Xxxx
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Xxxxxxxx,
XX 00000
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Telephone:
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Facsimile:
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With
a copy to:
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Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
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1065
Avenue of the Americas, 21st Floor
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Attn:
Xxxx Xxxx, Esq.
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Xxx
Xxxx, Xxx Xxxx 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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8.6 Entire
Agreement.
This
Agreement and the schedules and exhibits hereto set forth the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersede any prior negotiations, agreements, letters of intent,
understandings or arrangements between the parties hereto with respect to the
subject matter hereof.
11
8.7 Binding
Effect, Benefits, Construction.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto,
or
their respective successors, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
8.8 Non-Assignability.
This
Agreement and any rights pursuant hereto shall not be assignable by any party
hereto without the prior written consent of the other party.
8.9 Arbitration.
The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good faith.
If such good negotiation fails to resolve such dispute, controversy, difference
or claim within fifteen (15) days after any party delivers to any other party
a
notice of its intent to submit such matter to arbitration, then any party to
such dispute, controversy, difference or claim may submit such matter to
arbitration with the American Arbitration Association in the City of New York,
New York.
8.10 Applicable
Law, Venue, Jurisdiction.
All
questions concerning the construction, validity, enforcement and interpretation
of the Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereby irrevocably submits
to
the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, borough of Manhattan for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in
any
suit, action or proceeding, any claim that it is not personally subject to
the
jurisdiction of any such court, that such suit, action or proceeding is improper
or inconvenient venue for such proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. The parties hereby waive all
rights to a trial by jury. If either party shall commence an action or
proceeding to enforce any provisions of the Agreement, then the prevailing
party
in such action or proceeding shall be reimbursed by the other party for its
attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding
8.11 Section
and Other Headings.
The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
12
8.12 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.
IN
WITNESS WHEREOF,
Purchaser and Seller have caused this Agreement to be signed by their duly
authorized respective officers all as of the date first written
above.
|
SELLER:
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Xxxxxxx
Xxxxxxxxx
|
|
|
/s/Xxxxxxx
Xxxxxxxxx
|
||
|
PURCHASER:
|
Aprecia,
Inc., a Delaware Corporation
|
|
|
By:
/s/Xxxxxxx Xxx
|
||
|
|
Name:
Xxxxxxx Xxx
|
|
|
Title:
Chief Executive Officer
|
13
Exhibit
XXXX
OF SALE
WHEREAS,
Xxxxxxx Xxxxxxxxx, a resident of Connecticut ("Seller"), and Aprecia, Inc.,
a
Delaware corporation (the "Purchaser"), have entered into an Asset Purchase
Agreement, dated February 23, 2006 (the "Agreement"), pursuant to which Seller
has agreed to sell to Purchaser, and Purchaser have agreed to purchase from
Seller the "Assets" (as defined in the Agreement);
NOW,
THEREFORE, Seller, for good and valuable consideration paid to it, and pursuant
to the provisions of the Agreement, which are hereby incorporated by reference
herein, have granted, bargained, sold, conveyed, assigned, released, transferred
and delivered, and by these presents do grant, bargain, sell, convey, assign,
release, transfer and deliver unto Purchaser, its successors and assigns, to
have and hold the same forever, the Assets.
Seller,
for itself and its successors and assigns, does hereby convey to Purchaser
good
and marketable title to the Assets free and clear of all liens, liabilities,
claims and encumbrances, except as provided in the Agreement or as may have
been
created by Purchaser, and do for its successors and assigns covenant and agree
to warrant and defend the sale of the Assets to Purchaser, its successors and
assigns, against all and every person.
No
other
warranty or representation, except as expressly made by Seller in the Agreement
or in this Xxxx of Sale, is made by Seller, nor shall any be
implied.
IN
WITNESS WHEREOF, Seller has caused this instrument to be executed by its duly
authorized officers this 23rd
day of
February, 2006, to become effective on the date hereof.
|
Xxxxxxx
Xxxxxxxxx
|
|
|
/s/Xxxxxxx
Xxxxxxxxx
|
|
|
|
APRECIA,
INC.
|
|
A
Delaware Corporation
|
|
|
By:
/s/Xxxxxxx Xxx
|
|
|
Name:
Xxxxxxx Xxx
|
|
|
Title:
Chief Executive Officer
|
14
