EXHIBIT 10.9
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the 15th day of December, 2002 between X.xxx Advantage, Inc. a
Nevada corporation ("Seller") and Saiph Corporation, a Nevada corporation
("Purchaser").
Whereas, the Seller desires to sell and the Purchaser desires to
purchase certain assets, properties, and rights of the Seller;
Now, therefore, in consideration of the covenants, agreements,
representations, and warranties contained in this Agreement, the parties
hereto hereby agree as follows:
1. Sale and Transfer of Assets
1.1 Purchase and Sale of Assets
Subject to the terms and conditions of this Agreement, on the
Closing Date (as defined herein) the Seller shall sell, transfer, convey,
assign, and deliver to the Purchaser, and the Purchaser shall purchase,
acquire, and accept from the Seller, all of the Seller's rights, title and
interest in and to all of the assets of Seller (the "Transferred Assets"),
including, but not limited to, the Software and Software Applications as
set forth in Schedule "A."
1.2 Sale of Trade Name
Seller irrevocably transfers and assigns to Purchaser all rights,
title, and interest in any and all the trade names associated with the
Transferred Assets and the associated goodwill.
1.3 No Assumption of Liabilities or Obligations
Notwithstanding anything to the contrary in this Agreement, the
Purchaser shall not assume any liabilities or obligations of the Seller and
nothing herein shall be construed as imposing any liability or obligation
upon the Purchaser other than those specifically provided herein.
1.4 Purchase Price
The aggregate consideration for the Transferred Assets shall be
10,000 shares of the Purchaser's common stock (the "Option) payable at
Closing.
1.5 Allocation of Purchase Price
The Purchase Price shall be allocated among the Transferred
Assets in the manner set forth in a schedule to be delivered by the
Purchaser to the Seller on or before the Closing Date. Neither the
Purchaser nor the Seller shall, in connection with any tax return, any
refund
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claim, any litigation or investigation or otherwise, take any position with
respect to the allocation of the Purchase Price which is inconsistent with
the manner of allocation provided in such schedule.
2. The Closing
2.1 Place and Date
The Closing of the purchase and sale of the Transferred Assets
(the "Closing") shall take place at the offices of Purchaser, 000 Xxxxxxx
Xxxxxx Xx., Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, upon the execution of this
Agreement by the parties, but no later than December, 15, 2002 provided
that the conditions set forth in Section 7 hereof have been satisfied. The
date of the Closing is herein referred to as the "Closing Date."
2.2 Transfer of Transferred Assets
(a) At the Closing and subject to the terms and conditions of
this Agreement, Seller shall deliver to Purchaser the following, and
simultaneously with such delivery, Seller shall take such action as may be
necessary or reasonably requested by Purchaser to place Purchaser in
possession and control of the Transferred Assets:
(i) Such bills of sale, assignments, novation agreements,
master letters of agency or other instruments of transfer and assignment,
as shall be necessary to vest in Purchaser title to the Transferred Assets
sold and assigned under this Agreement, free and clear of all liens, claims
and encumbrances;
(ii) Copies of resolutions of the Board of Directors of
Seller authorizing the execution, delivery and performance of this
Agreement by Seller and a certificate of Seller's secretary, dated the
Closing Date, that such resolutions were duly adopted and are in full force
and effect;
(iii) Such other certificates or other documents or
instruments as the Purchaser or Purchaser's council may reasonably request.
(b) At the Closing, as a condition to Seller's obligations under
this Agreement, Purchaser shall deliver to Seller the following:
(i) Copies of resolutions of the Board of Directors of
Purchaser authorizing the execution, delivery and performance of this
Agreement by Purchaser and a certificate of Purchaser's secretary, dated
the Closing Date, that such resolutions were duly adopted and are in full
force and effect; and
(ii) Such other certificates or other documents or
instruments as Seller
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or Seller's counsel may reasonably request.
3. Representations and Warranties of Seller
Seller represents and warrants to Purchaser as follows:
3.1 Organization and Authority
Seller is a corporation whose charter is currently revoked, but
is in the process of re-instating its charter under the laws of the State
of Nevada and has all requisite power and authority to own, operate and
lease its properties and to carry on its business as now being conducted.
Seller is wholly owned by Xxxxx Xxxxxxx who will also execute this
Agreement individually.
3.2 Authorization of Agreement
The Board of Directors of Seller, pursuant to the power and
authority legally vested in it, has duly authorized the execution, sealing
and delivery of the Agreement by Seller and the transactions hereby
contemplated, and no action, confirmation or ratification by the
stockholders of Seller or by any other person, entity or governmental
authority is required in connection therewith. Seller has the power and
authority to execute, seal and deliver this Agreement, to consummate the
transactions hereby contemplated and to take all other actions required to
be taken by it pursuant to the provisions hereof. Seller has taken all
actions required by law, its Certificate of Incorporation, its Bylaws or
otherwise to authorize the execution, sealing and delivery of this
Agreement. This Agreement is valid and binding upon Seller in accordance
with its terms. Neither the execution, sealing and delivery of this
Agreement nor the consummation of said transactions will constitute any
violation or breach of the certificate of Incorporation or the Bylaws of
Seller, or any order, writ, injunction, decree, law, rule or regulation
applicable to Seller.
3.3 No Conflicts
To the best of Seller's knowledge, the execution, delivery and
performance of this Agreement and the consummation of all of the
transactions contemplated hereby (i) do not or will not with or without the
giving of notice or passage of time or both, violate, conflict with or
result in a breach or termination of any provision of; or constitute a
default under, or accelerate or permit the acceleration of the performance
required by the terms of; or result in a creation of any mortgage, security
interest, claim, lien, charge or other encumbrance upon any of the
Transferred Assets pursuant to, or otherwise give rise to any liability or
obligation under any agreement, mortgage, deed of trust, license, permit or
other agreement or instrument, or any older, judgment, decree, statue,
regulation or any other restriction of any kind or description to which
Seller is a party or by which Seller or the Transferred Assets may be
bound; and (ii) will not affect or violate the terms and conditions of, or
result in the cancellation, modification, revocation or suspension
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of any rights in or to the Transferred Assets.
3.4 Title to Purchased Assets
Seller has, and on the Closing date will have, good and
marketable title to all of the assets free and clear of all claims and
encumbrances.
3.5 Material Contracts
Except as disclosed in Exhibit "C" attached hereto, Seller is not
a party to or bound by any material written or oral contracts, obligations
or commitments related to the Qualified Customer Accounts or the Accounts
Receivable, including any written or oral commitments to pay commissions or
other compensation relative to the Qualified Customer Accounts or the
Accounts Receivable. Seller has delivered or made available to Purchaser
correct and complete copies of all of the contract's agreement and other
documents listed in Exhibit "C" hereto and all amendments thereto and
waivers granted thereunder. The rights and interest of Seller in all such
contracts and agreements may be assigned to Purchaser without the consent
of any other person, except as otherwise disclosed, and at the Closing,
Purchaser will acquire all such rights and interest. There are no
unresolved disputes pending or, to the best knowledge of Seller, threatened
under or in respect of any such contract or agreements. All such contracts
and agreements are valid and effective in accordance with their respective
terms.
3.6 Customer Relationships
Seller has no knowledge that any Qualified Customer Account has
been terminated or is expected to be terminated, in whole or in part;
provided, however, that this subsection shall not be construed as a
representation, warranty, or guarantee that any such customer will, after
the Closing, maintain its present business relationship with Purchaser. To
the best of Seller's knowledge, no director or officer of Seller has any
direct or indirect interest in any such Qualified Customer Accounts.
3.7 Litigation: Compliance
(a) To the best of Seller's knowledge, there are no actions,
suits, proceeding or arbitration's or governmental investigations pending
or threatened against, by or affecting Seller (or to the best of the
knowledge of Seller, any basis therefore) in which, individually or in the
aggregate, an unfavorable determination could materially and adversely
affect any of the Transferred Assets or impede execution of the performance
of this Agreement Seller has not received any notice of any violation of
any applicable federal, state, local or foreign law, rule, regulation,
ordinance, order or decree relating to the Transferred Assets, and Seller
is not aware of any threatened claim of such violation or any basis
therefore.
(b) To the best of Seller's knowledge, Seller has complied and
is in compliance in
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all material respects with all laws, rules, regulations, ordinances,
orders, decrees, writs, injunctions, building codes, safety, fire and
health codes, or other governmental restrictions applicable to Seller; or
the Transferred Assets.
(c) To the best of Seller's knowledge, Seller has all
governmental licenses, permits, approvals or other authorizations presently
required to service the Qualified Customer Accounts, all of which are in
full force and effect and all of which are listed on Schedules A, and B
hereto.
3.8 Brokers, Finders, etc
Seller has employed no finder, broker, agent or other
intermediary in connection with the negotiation or consummation of this
Agreement or any of the transactions contemplated hereby.
3.9 Disclosure
To the best of Seller's knowledge, no representation or warranty
by Seller and no statement or certificate furnished or to be furnished by
or on behalf of Seller to Purchaser pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading.
3.10 Disclaimer of Fraudulent Intent
Seller represents and warrants that the transactions described in
this Agreement have been undertaken in good faith, considering its
obligations to any person or entity to whom Seller owes a right to payment,
whether or not the right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured (collectively such persons with such claims
are called "Creditors" under this paragraph), and has undertaken these
transactions without any intent to hinder; delay or defraud any such
Creditors, and either has disclosed in the ordinary course of business or
will undertake to disclose to all such Creditors the existence of this
transaction from any such Creditors. Seller further represents and warrants
that: (1) it will not retain possession or control of any of the property
transferred under this Agreement and then only for and on behalf of the
account of the Purchaser; (2) the Seller has not been sued or threatened
wit suit by any Creditor prior to the execution of this Agreement; (3) the
Seller has not removed or concealed any assets from any Creditors; (4) the
Seller has not incurred any substantial debt that is significantly greater
than the normal and customary debts of the Seller in the ordinary course of
business; (5) the Seller at Closing believes in good faith that Seller will
receive consideration reasonably equivalent to the value of the Transferred
Assets transferred under this Agreement.
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4. Representations and Warranties of Purchaser
Purchaser represents and warrants to Seller as follows:
4.1 Corporate Status
Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada with full corporate
power and authority to carry on its business as now conducted. Purchaser is
a development stage business, and is a fully reporting company subject to
the reporting requirements of Section 13 of the Securities Exchange Act of
1934.
4.2 Authority for Agreement
Purchaser has the power and authority to execute and deliver this
agreement and to carry out its obligations hereunder. The execution,
delivery and performance by the Purchaser of this Agreement and the
consummation of the transactions contemplated hereby have been duty
authorized by all necessary corporate action on the part of Purchaser. This
Agreement has been duly executed by Purchaser and the transactions
contemplated by it constitute the legal, valid and binding obligation of
Purchaser enforceable against Purchaser in accordance with its terms. No
consent approval, or authorization of; or declaration, filing, or
registration with, any federal or state governmental or regulatory
authority is required to be made or obtained by Purchaser in connection
with the execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement except
approval of applicable public service commissions.
4.3 No Conflicts
To the best of Purchaser's knowledge, the execution, delivery and
performance of this agreement and the consummation of all of the
transactions contemplated hereby: (i) do not with or without the giving of
notice or passage of time or both, violate, conflict with or result in a
breach or termination of any provision of; or constitute a default under;
or accelerate or permit the acceleration of the performance required by the
terms of; or result in a creation of any mortgage, security interest claim,
lien, charge or other encumbrance upon any of the Transferred Assets
pursuant to, or otherwise give rise to any liability or obligation under
any agreement, mortgage, deed of trust, license, permit or other agreement
or instrument, or any order; judgment, decree, statue, regulation or any
other restriction of any kind or description to which Purchaser is a party
or by which Purchaser or the Transferred Assets may be bound; and (ii) will
not terminate or result in the termination of any such agreement or
instrument, or in any way affect or violate the terms and conditions of; or
result in the cancellation, modification, revocation or suspension of; any
rights in or to the Transferred Assets.
4.4 Continued Competition
Purchaser hereby acknowledges that Seller is a competitor of
Purchaser in the long
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distance telecommunications industry. Subject to any and all applicable
non-competition covenants, Purchaser hereby consents to the continued
competition by Seller and Seller's individual shareholders in the long
distance telecommunications industry.
5. Conditions Precedent
5.1 Conditions to Obligations of Purchaser
The representations and warranties of Seller contained in section 3
hereof shall be true in all material respects at and as of the Closing
Date, except as affected by the transactions contemplated hereby. Seller
shall have duly performed and complied with all agreements and conditions
required by this Agreement to be performed, or complied with, by it prior
to or on the Closing Date. There shall have been no material adverse change
in the Qualified Customer Accounts.
(a) Consents
Any required material approvals, acceptances, and consents of or
to the transaction contemplated hereby, shall have been applied for,
including, but not limited to, notice to any applicable public service
commission.
(b) Corporate Proceedings
All corporate and other proceedings of Seller in connection with
the transactions contemplated by this Agreement and all documents and
instruments incident to such corporate proceedings, shall be reasonably
satisfactory in substance and form to Purchaser, and Purchaser shall have
received all such documents and instruments, or copies thereof
5.2 Conditions to Obligations of Seller
The obligation of Seller to deliver the xxxx of sale,
assignments, endorsements and other instruments of transfer relating to the
Transferred Assets and to satisfy Seller's other obligations hereunder
shall be subject to the fulfillment, on or prior to the Closing Date (or
waiver by Seller), of the following conditions, which Purchaser agrees to
use its best efforts to cause to be fulfilled:
(a) Representations, Performance
The representations and warranties of Purchaser contained in
Section 4 hereof shall be true at and as of the Closing date. Purchaser
shall have duly performed and complied in all material respects with all
agreements and conditions required by this Agreement to be performed, or
complied with, by it prior to or on the Closing Date.
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(b) Corporate Proceedings
All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and
instruments incident thereto, shall be satisfactory to Seller and Seller
shall have received all such documents and instruments, or copies thereof
(c) No Material Changes
No material changes in the financial position of Purchaser or
material changes in the information previously disclosed to seller shall
have occurred.
6. Covenant Not to Compete
As a material inducement for Purchaser to enter into and close this
Agreement, Seller agrees that for a period of five (5) years from the
Closing Date, neither seller nor any of Seller's officers, directors,
employees or agents will directly or indirectly offer any long distance
services to the Qualified Customer Accounts. Further; Seller agrees that
neither Seller nor any of Seller's officers, directors, employees or agents
will use or disclose any information regarding the telecommunication
services of the Qualified Customer Accounts for a period of five (5) years
following the Closing Date without the prior written consent of Purchaser;
which consent may be withheld in the sole and absolute discretion of
Purchaser. The covenants contained herein shall apply even if the customer
is not then using the services of Purchaser. Seller acknowledges and agrees
that the extent of damages to Purchaser in the event of a breach of the
covenant contained in this Section would be impossible to ascertain and
there is and will be available to Purchaser no adequate remedy at law to
compensate it in the event of such a breach. Consequently, Seller agrees
that in the event Seller or any of Seller's officers, directors, employees
or agents breach any such covenants, Purchaser shall be entitled to enforce
any and all of the covenants by injunctive or other equitable relief
ordered by any court of competent jurisdiction.
7. Indemnification Manner of Claims
7.1 Indemnification
From and after the Closing date, Seller will indemnify Purchaser
against, and hold Purchaser harmless from, any and all liability, damage,
deficiency, loss, cost or expense (including reasonable attorney's fees)
that is based upon or that arises out of (i) any misrepresentation or
breach of any representation, warranty or agreement made by Seller herein
(ii) any obligation, debt or liability of Seller to the extent that the
same is not expressly assumed herein by Purchaser, or (iii) the use and
ownership of the Transferred Assets on or prior to the Closing date (other
than those liabilities specifically assumed by Purchaser hereunder).
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7.2 Manner of Claims
Any notice of a claim by reason of any of the representations and
warranties contained in this Agreement shall state specifically the
representation or warranty with respect to which the claim is asserted, and
the amount of liability asserted against the other party by reason of the
claim.
8. Miscellaneous
8.1 Consents of Third Parties
This Agreement shall not constitute an agreement to assign any
interest in any instrument, contract, lease, permit or other agreement or
arrangement of Seller; or any claim, right or benefit arising thereunder or
resulting therefrom, if any assignment without the consent of a third party
would constitute a breach or violation thereof or adversely affect the
rights of the Purchaser or Seller thereunder. If a consent of a third party
which is required in order to assign any instrument contract lease, permit
or other agreement or arrangement or any claim, right or benefit arising
thereunder or resulting therefrom, which consent Seller shall use its best
efforts to obtain prior to the Closing, is not obtained prior to the
Closing, or if an attempted assignment would be ineffective or would
adversely affect the ability of Seller to convey its interest to the
Purchaser; Seller will cooperate with Purchaser in any lawful and
economically feasible arrangement to provide that Purchaser shall receive
Seller's interest in the benefits under any such instrument, contract
lease, permit or other agreement or arrangement; and any transfer or
assignment to Purchaser by Seller of any interest under any such
instrument, contract, lease, permit or other agreement or arrangement that
requires the consent of a third xxxxx shall be made subject to such consent
or approval being obtained.
8.2 Expenses
Subject to the terms of Section 10 hereof, each of the patties
hereto shall bear its own expenses, costs and fees (including attorney's
fees) in connection with the transactions contemplated hereby, including
the preparation and execution of this Agreement and compliance herewith,
whether or not the transactions contemplated hereby shall be consummated.
8.3 Severability
If any term or provision of this Agreement shall be held or
deemed to be, or shall in fact be, inoperative or unenforceable as applied
in any particular case because it conflicts with any other provision or
provisions hereof or any constitution or statue or rule of public policy,
or for any other reason, such circumstances shall not have the effect of
rendering the term or provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any
extent whatever; but such term or provision shall be deemed modified or
deleted as or to the extent required by applicable law. The invalidity of
any one or more phrases, sentences,
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clauses, sections, or subsections of this Agreement shall not effect the
remaining portions of this Agreement.
8.4 Notices
All notices, consents, requests, instructions, approvals and
other communications provided for herein shall be validly given, made or
served, if in writing and delivered personally or sent by registered or
certified mail (return receipt requested), (i) if to Seller: 00000 Xxxxxxx
Xxx, Xxx Xxxxxxx, XX 00000, Attn: Xxxxx Xxxxxxx, President; and (ii) if to
Purchaser: 000 Xxxxxxx Xxxxxx Xx., Xxxxx 000, Xxxxxxx Xxxxx, XX 00000,
Attn: Suki Mudan, President, in each case at such other address as may be
specified in writing to the other parties.
8.5 Amendments
This Agreement may not be amended except by an instrument in
writing, duly executed and delivered on behalf of each of the parties
hereto.
8.6 Waiver
Any xxxxx may waive compliance by another with any of the
provisions of this Agreement. No waiver of any provisions shall be
construed as a waiver of any other provision. Any waiver must be in
writing.
8.7 Counterparts
This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original agreement, and all of which taken
together shall constitute one agreement notwithstanding that all of the
parties arc not signatories to the original or the same counterpart.
8.8 Assignment
Any assignment of this Agreement or the rights or obligations
hereunder by any party without the prior written consent of the non-
assigning parties shall be void. Notwithstanding the foregoing, either
xxxxx may assign all or any part of its rights and/or obligations to one or
more affiliates, subsidiaries, parent companies or shareholders of said
party. No such assignment shall relieve the assigning party of any of its
obligations or duties under this Agreement.
8.9 Costs
In the event any action is instituted to enforce or interpret the
terms of this Agreement or arises out of this Agreement, the xxxxx
prevailing in such action shall be entitled to recover its reasonable
attorney's fees and costs as determined by the court.
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8.10 Entire Agreement: Applicable Law, etc.
This Agreement constitutes the entire agreement and supersedes
all prior agreements and understanding, both written and oral, among the
parties with respect to the subject matter hereof. This agreement shall be
governed in all respects, including validity, interpretation and effect, by
the laws of the State of California applicable to contracts made and to be
performed in California.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first written above.
Purchaser: Seller:
By: /s/ Xxxxxxx Mudan By: /s/ Xxxxx Xxxxxxx
Name: Xxxxxxx Mudan Name: Xxxxx Xxxxxxx
Title: President Title: President
Address: Address:
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Individually
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Schedule "A"
ASSET PURCHASE AGREEMENT
X.xxx Advantage, Inc. a Nevada corporation ("Seller")
and
Saiph Corporation, a Nevada corporation ("Purchaser")
Dated December 15, 2002
Seller irrevocably grants, sells, and assigns to Buyer all rights, title,
and interest in all versions of the below listed Software throughout the
universe in all languages and in all media of expression now known or later
developed, including all copyrights (for the life thereof, including
renewals, extension, and reversions thereof), trade secret rights, and
other proprietary rights in the Software in all existing and future
versions, enhancements, and derivative works, including, but not limited
to, the following rights:
a. the exclusive rights to market, license, and sublicense the
Software and any derivative works developed from the Software;
b. the exclusive rights to modify, enhance, develop derivative works
from, copy, and copyright the Software; and
c. the exclusive rights to enforce all property rights in the
Software, whether arising from copyright laws, from trade secret
principles, or in any other manner, through suit in law or in
equity, against any and all entities, throughout the world.
Software Programs/Applications:
- StockPager
- Gaming System
- Pooling and Pari-mutuel System
- PageGate
- BannerBrokerage
- SinglePlanet
- ContestMarketing
- PetXChange
- CellMate and CellBlock
- LottoWorld
- CheckMeOut
- KiddieCab
- Stuff-I-Want
- Automated IT assessment and Report Card for CEOs
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