EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is entered into effective
September 29, 2005 (the "Effective Date") by and between Platinum SuperYachts,
Inc., a Nevada corporation (the "Seller") and Xxxxxxx Xxxxx (the "Purchaser").
Seller and Purchaser (each a "Party" and collectively the "Parties") agree as
follows:
This Agreement is made with reference to the following essential facts:
Seller has agreed to sell and Purchaser has agreed to purchase certain assets of
Seller related to the marine business of Seller, as described in more detail on
EXHIBIT A attached hereto (the "Assets").
1. SALE AND PURCHASE OF THE ASSETS. Pursuant to the terms and subject
to the conditions of this Agreement, Seller agrees to sell, deliver and assign
to Purchaser, and Purchaser agrees to purchase, acquire and accept from Seller,
on the Closing Date (as hereinafter defined) for the price set forth in Section
4.1 hereof, all of Seller's right, title and interest in and to the Assets.
2. NO ASSUMPTION OF LIABILITIES. Purchaser is not required to, and
shall not assume, pay, perform, defend, discharge or guarantee or be deemed to
have assumed, paid, performed, defended or discharged or guaranteed, or
otherwise be responsible for any liability, obligation or claim of any nature of
Seller, whether matured or unmatured, liquidated or unliquidated, fixed or
contingent, known or unknown, or whether arising out of acts or occurrences
prior to, at or after the Closing Date as to Seller and prior to the Closing
Date as to the Assets.
3. CONSIDERATION.
3.1. PURCHASE PRICE. As payment for the Assets, and pursuant
to the terms and subject to the conditions of Section 3.2 below, at Closing
Seller agrees to allow Purchaser to cancel Nine Million shares of the common
stock of Seller beneficially owned by Purchaser (the "Purchase Price").
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrant to Purchaser as follows:
4.1. DUE ORGANIZATION AND POWER OF SELLER. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite power and authority to enter into
this Agreement and to perform its obligations hereunder. Seller has not entered
into any agreement or contract to sell the Assets with any third party.
4.2. NO VIOLATION. The execution and delivery of this
Agreement will not (i) conflict with, or result in a default (or give rise to a
situation that would constitute a default but for a requirement of notice or
lapse of time or both) under, any document, agreement or other instrument to
which Seller or the Business is a party or by which Seller or the Business is
bound, including, Seller's Articles of Incorporation or Bylaws, (ii) result in
the creation or imposition of any lien or encumbrance on the Assets; (iii)
violate any statute or law of any jurisdiction or any judgment, decree, order,
regulation or rule of any court or governmental authority to which Seller is
subject.
1
4.3. NO CONSENT. No consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by Seller in connection with the
execution, delivery and performance of this Agreement by Seller.
4.4. TITLE TO ASSETS; ABSENCE OF LIENS. Seller has good, legal
and marketable title to all of the Assets, free and clear of all liens, defects,
pledges, charges, leases, conditional sales or other title retention agreement,
or other security interests, security titles or encumbrances of any kind or
nature whatsoever and at the Closing (collectively, "Liens"), Seller shall
deliver to Purchaser good, legal and marketable title to all of the Assets, free
and clear of all Liens.
4.5. NO PROCEEDINGS. There are no proceedings of any nature,
pending or, to the knowledge of Seller, threatened against or affecting the
Assets at law or in equity, domestic or foreign, criminal or civil, or before or
by any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality having jurisdiction over Seller and the
Assets and no notice of any proceeding, whether pending or threatened, has been
received by Seller. There are no judgments, orders, injunctions, decrees,
stipulations or awards against Seller.
4.6. NO LIABILITIES. Seller is not liable for or subject to
any liabilities relating to, arising out of or affecting the Assets. The Seller
does not have any material debt, liability, or obligation of any nature, whether
known or unknown, or fixed, absolute, accrued, contingent, or otherwise relating
to or affecting the Assets, except those which have been incurred in the
ordinary course of business and will be satisfied in full at Closing.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to Seller as follows:
5.1. DUE ORGANIZATION AND POWER OF PURCHASER. Purchaser is has
all requisite power and authority to enter into this Agreement and to perform
its obligations hereunder.
5.2. NO VIOLATION. The execution and delivery of this
Agreement will not (i) conflict with, or result in a default (or give rise to a
situation that would constitute a default but for a requirement of notice or
lapse of time or both) under, any document, agreement or other instrument to
which Purchaser is a party or by which Purchaser is bound, including or (ii)
violate any statute or law of any jurisdiction or any judgment, decree, order,
regulation or rule of any court or governmental authority to which Purchaser is
subject.
5.3. NO CONSENT. No consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority is required to be made or obtained by Purchaser in connection with the
execution, delivery and performance of this Agreement by Purchaser.
6. BULK SALES. Purchaser waives compliance by Seller with the
provisions of any bulk sales law under the Commercial Code of the State of
Nevada or any other state.
2
7. CONDITIONS TO CLOSING. Each Party's obligation to execute this
Agreement, to effect the transactions contemplated hereby and to take the other
actions required to be taken at the Closing is subject to the other Party's
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived in whole or in part):
7.1. ACCURACY OF REPRESENTATIONS. All of the representations
and warranties made by the other Party in this Agreement must be accurate in all
material respects.
7.2. PERFORMANCE. The other Party shall have in all material
respects performed or complied with all covenants and obligations that it is
required to perform or to comply with pursuant to this Agreement.
7.3. NO PROCEEDINGS. There shall not be any proceeding or
threatened proceeding against the other Party or any person affiliated with the
other Party: (a) involving any challenge to, or seeking damages or other relief
in connection with, any of the transactions contemplated by this Agreement, or
(b) that may have the effect of preventing, delaying, making illegal, or
otherwise interfering with any of the transactions contemplated by this
Agreement.
8. INDEMNIFICATION.
8.1. INDEMNIFICATION BY SELLER. Seller will indemnify, defend,
and hold harmless Purchaser, its representatives, agents, and assigns from and
against any and all damages, losses, settlement payments, obligations,
liabilities, penalties, claims, actions or causes of action, encumbrances,
unpaid tax liabilities, and actual costs and expenses (including, without
limitation, attorneys' fees and costs of investigation), suffered, sustained,
incurred or paid by Purchaser relating to or arising from the Assets prior to
the Effective Date and from any breach of any of Seller's representations,
warranties, or covenants contained in this Agreement.
8.2. INDEMNIFICATION BY PURCHASER. Purchaser will indemnify,
defend, and hold harmless Seller, its directors, shareholders, officers,
employees, attorneys, agents, and assigns from and against any and all damages,
losses, settlement payments, obligations, liabilities, penalties, claims,
actions or causes of action, encumbrances, unpaid tax liabilities, and actual
costs and expenses (including, without limitation, attorneys' fees and costs of
investigation), suffered, sustained, incurred or paid by Seller relating to or
arising from the Assets after the Effective Date and from any breach of
Purchaser's representations, warranties, or covenants contained in this
Agreement.
8.3. SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY
KNOWLEDGE. All representations, warranties, covenants, and obligations in this
Agreement and any certificate or document delivered pursuant to this Agreement
will survive the Closing. The right to indemnification, payment of damages or
other remedy based on such representations, warranties, covenants, and
obligations will not be affected by any investigation conducted with respect to,
or any knowledge acquired (or capable of being acquired) at any time, whether
before or after the execution and delivery of this Agreement or the Closing,
with respect to the accuracy or inaccuracy of or compliance with, any such
representation, warranty, covenant, or obligation. The waiver of any condition
based on the accuracy of any representation or warranty, or on the performance
of or compliance with any covenant or obligation, will not affect the right to
indemnification, payment of damages, or other remedy based on such
representations, warranties, covenants and obligations.
3
8.4. TIME LIMITATIONS. If the Closing occurs, Seller will have
no liability (for indemnification or otherwise) with respect to any
representation or warranty, or covenant or obligation to be performed and
complied with prior to the Closing unless on or before the first (1st)
anniversary of the Closing, Purchaser notifies Seller of a claim specifying the
factual basis of that claim in reasonable detail to the extent then known by
Purchaser. If the Closing occurs, Purchaser will have no liability (for
indemnification or otherwise) with respect to any representation or warranty, or
covenant or obligation to be performed and complied with prior to the Closing,
unless on or before the first (1st) anniversary of the Closing, Seller notifies
Purchaser of a claim specifying the factual basis of that claim in reasonable
detail to the extent then known by Seller. The foregoing shall not apply to any
claim arising out of the fraud of either Party.
9. MISCELLANEOUS.
9.1. INTEGRATION. This Agreement constitutes the entire
agreement between the Parties hereto and is intended by the Parties to be a
final expression of their understanding and a complete and exclusive statement
of the terms and conditions of the Agreement. This Agreement supersedes any and
all agreements, either oral or in writing, between the Parties concerning the
subject contained herein and contains all of the covenants, agreements,
understandings, representations, conditions, and warranties mutually agreed to
between the Parties. This Agreement may be modified or rescinded only by a
writing signed by the Parties hereto or their duly authorized agents.
9.2. ARBITRATION. Except where specific performance is
specifically permitted by this Agreement, arbitration constitutes the sole and
exclusive remedy for the settlement of any dispute or controversy concerning
this Agreement or the rights of the Parties to this Agreement, including whether
such dispute or controversy is arbitrable. The arbitration proceeding will be
conducted in Carson City, Nevada, before a single arbitrator under the
commercial rules of the American Arbitration Association (the "AAA") in effect
at the time a demand for arbitration is made. To the extent there is any
conflict between the rules of AAA and this arbitration clause, this clause will
govern and determine the rights of the Parties. The decision of the arbitrator,
including but not limited to the determination of the amount of any damages
suffered or the right to an injunction, will be exclusive, final, and binding on
all Parties, their heirs, executors, administrators, successors, and assigns, as
applicable, and judgment thereon may be entered in any court of competent
jurisdiction. The costs of arbitration, including administrative fees, fees for
a record and transcript, and the arbitrator's fees, as well as reasonable
attorney's fees will be awarded to the Party determined by the arbitrator to be
the prevailing Party.
9.3. CHOICE OF LAW. This Agreement shall be governed under the
laws of the State of Nevada, without regard to conflicts of law. For the
purposes of venue and jurisdiction, this Agreement shall be deemed made and to
be performed in Xxxxxx City County, Nevada. The Parties irrevocably consent to
the exclusive jurisdiction of the state and federal courts of the State of
Nevada located in Xxxxxx City for the purpose of any action brought in
connection with this Agreement.
4
9.4. ATTORNEY'S FEES. In the event any litigation,
arbitration, mediation, or other proceeding ("Proceeding") is initiated by any
Party against any other Party to enforce, interpret or otherwise obtain judicial
or quasi-judicial relief in connection with this Agreement, the prevailing Party
in such Proceeding shall be entitled to recover from the unsuccessful Party all
costs, expenses, actual attorney's and expert witness fees, relating to or
arising out of (1) such Proceeding (whether or not such Proceeding proceeds to
judgment), and (2) any post-judgment or post-award proceeding including, without
limitation, one to enforce any judgment or award resulting from any such
Proceeding. Any such judgment or award shall contain a specific provision for
the recovery of all such subsequently incurred costs, expenses, actual attorney
and expert witness fees.
9.5. COUNTERPARTS. This Agreement may be signed in one (1) or
more counterparts, each of which shall constitute an original but all of which
together shall be one (1) and the same document. Signatures received by
facsimile shall be deemed to be original signatures.
9.6. PARTIAL INVALIDITY. Each provision of this Agreement will
be valid and enforceable to the fullest extent permitted by law. If any
provision of this Agreement or the application of the provision to any person or
circumstance will, to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of the provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, will not be
affected by such invalidity or unenforceability, unless the provision or its
application is essential to this Agreement.
9.7. TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.8. DRAFTING AMBIGUITIES. Each Party to this Agreement and
their legal counsel have reviewed and revised this Agreement. The rule of
construction that any ambiguities are to be resolved against the drafting Party
shall not be employed in the interpretation of this Agreement or any amendments
or exhibits to this Agreement.
9.9. NOTICES. Any notice from one Party to another shall be
delivered either personally, via facsimile or by United States mail, postage
fully prepaid, addressed as follows:
Purchaser: Xxxxxxx Xxxxx
Suite 1100
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Seller: Platinum SuperYachts, Inc.
Attn: Xxx Xxxxxxxxx, President
Suite 1100
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
5
With a copy (not
constituting notice): Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxx Xxxxx, XX 00000
Any notice being shall be deemed delivered upon (a) personal service, or (b)
transmission via facsimile (with the original thereof to be immediately sent via
mail, postage prepaid), or (c) forty eight (48) hours after the time of deposit
in the mail, as the case may be. In the event any Party changes its address,
such change of address shall be communicated to the other Party in the manner
set forth in this Section.
9.10. DEFINITION OF KNOWLEDGE. A person will be deemed to have
"knowledge" of a particular fact or other matter if such individual is actually
aware of such fact or other matter, or a prudent person could be expected to
discover or otherwise become aware of such fact or other matter in the course of
conducting a reasonably comprehensive investigation concerning the existence of
such fact or other matter. "Knowledge," with respect to Seller, shall mean the
knowledge of Xxx Xxxxxxxxx and Xxxxx Xxxxxxx.
9.11. INTERPRETATION. Wherever the context of this Agreement
requires, all words used in the singular shall be construed to have been used in
the plural, and vice versa, and the use of any gender specific pronoun shall
include any other appropriate gender. The term "person" shall refer to any
individual, corporation or legal entity having standing to bring an action in
its own name under applicable state law. The conjunctive "or" shall mean
"and/or" unless otherwise required by the context in which the conjunctive "or"
is used.
[SIGNATURE PAGE FOLLOWS.]
6
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
SELLER: PURCHASER:
PLATINUM SUPERYACHTS, INC.,
a Nevada corporation
By: /S/ XXX XXXXXXXXX By: /S/XXXXXXX XXXXX
----------------------- --------------------------
Xxx Xxxxxxxxx, President Xxxxxxx Xxxxx
7
EXHIBIT A
---------
DESCRIPTION OF ASSETS
1. Yacht Models
2. Hull Display
3. Client List
4. Yacht BluePrints
5. The domain name "xxx.xxxxxxxxxxxxxxxxxxx.xxx"
6. All content on the website (xxx.xxxxxxxxxxxxxxxxxxxx.xxx) including
pictures, text etc.
7. The rights to the domain name xxxxxxxxxxxxxxxxxxx.xxx
8. The name and rights to use the name "Platinum SuperYachts Inc."
9. The wholly owned Canadian Subsidiary, a private company, named
"Platinum SuperYachts Inc." This is a shell company with no assets and
no liabilities.
10. The Consent of Judgement issued May 6, 2002 in the circuit court of the
11th circuit in and for Miami, Dade County, Florida in the amount of
$458,000 plus interest against Xxxxxx Xxxxxxxxx, Nemesis Enterprises,
Inc. and Privee International. Along with the rights to collect on the
promissory note from Mr. Xxxxxx Xxxxxxxxx in the amount of $200,000.00.
