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Exhibit 10.25
ASSET PURCHASE AGREEMENT
THIS AGREEMENT made this 17th day of August, 2000.
B E T W E E N:
CYBER-TECH GROUP LIMITED, a corporation
incorporated under the laws of the
British Virgin Islands (hereinafter
referred to as the "Purchaser"),
- and -
CYBERWORKS, INC., a corporation
incorporated under the laws of
California hereinafter referred to as
the "Vendor"),
WHEREAS the Vendor is the owner and registrant of the domain names
▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇▇▇.▇▇▇ as shown by the records of Network Solutions,
Inc. ("NSI") of Herndon, Virginia, which is the registrar and administers the
.COM and .NET generic top level domain name system of the Internet;
AND WHEREAS, the Vendor is the owner of certain related
intellectual property as further defined in this Agreement;
AND WHEREAS, the Vendor has agreed to sell and the Purchaser has
agreed to purchase such domain names and related intellectual property;
NOW THEREFORE, in consideration of the premises and covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1 - INTERPRETATION
1.01 DEFINITIONS
In this Agreement, unless something in the subject matter or context is
inconsistent therewith:
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"AFFILIATE" an "Affiliate" of, or a Person "affiliated" with, a
specified Person is a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified;
"AGREEMENT" means this agreement, including its recitals and schedules,
as amended from time to time;
"BUSINESS DAY" means a day other than a Saturday, Sunday or statutory
holiday in Ontario;
"CLOSING DATE" means August 18, 2000 or such other date as may be agreed
in writing between the Vendor and the Purchaser;
"DOMAIN NAME" means an alphanumeric Internet address or part of an
alphanumeric Internet address including, but not limited to, a full domain name,
a top level domain or any sub-domain under the Internet domain name system;
"ESCROW AGENT" means ▇▇▇▇▇▇ Pundit Pathak & ▇▇▇▇▇▇▇▇;
"ESCROW AGREEMENT" means the form of Escrow Agreement attached hereto as
Schedule "A";
"INTELLECTUAL PROPERTY" means all domestic and foreign, including all
U.S. and Canadian, trademarks, service marks, trade dress, trading styles,
logos, trade names and business names, together with all translations,
adaptations, derivations and combinations thereof and including all goodwill
associated therewith and all applications, registrations and renewals in
connection therewith and includes any right, title and interest as licensee or
authorized user of any of the aforementioned;
"NEW SITE DATE" means 30 days from the Site Termination Date;
"NSI" has the meaning set out in the Recitals;
"PERSON" means any individual, firm, corporation (including any
non-profit corporation), general or limited partnership, limited liability
partnership, joint venture, limited liability company, estate, trust,
association, organization, labour union, or other entity, including any
successor (by merger or otherwise) of such entity;
"PURCHASED DOMAIN NAMES" means the Domain Names ▇▇▇▇▇▇▇▇▇▇.▇▇▇ and
▇▇▇▇▇▇▇▇▇▇.▇▇▇;
"PURCHASED INTELLECTUAL PROPERTY" means all Intellectual Property owned
by the Vendor or its Affiliates that contains the name "CYBERWORKS", or that is
confusingly similar to or contains any word that is confusingly similar to such
word and includes the registered Intellectual Property or applications for such
registered Intellectual Property set out in Schedule "B" to this Agreement;
"PURCHASE PRICE" has the meaning set out in Section 2.3;
"PURCHASED ASSETS" means the Purchased Domain Names and the Purchased
Intellectual Property;
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"SITE TERMINATION DATE" means the date that NSI provides notice that it
accepts the Purchaser's Domain Name Registration Agreement and creates a Domain
Name registration record for the Purchased Domain Names that associates the
Purchased Domain Names with the Purchaser's host servers' Internet Protocol
addresses; and
"TIME OF CLOSING" means 2:00 p.m. (San Diego time) on the Closing Date.
1.02 HEADINGS
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and do not affect
the construction or interpretation of this Agreement. The terms "hereof",
"hereunder" and similar expressions refer to this Agreement and not to any
particular Article, Section or other portion hereof. Unless something in the
subject matter or context is inconsistent therewith, references herein to
Articles, Sections and Schedules are to Articles and Sections of and Schedules
to this Agreement.
1.03 EXTENDED MEANINGS
In this Agreement words importing the singular number only include the
plural and vice versa, words importing any gender include all genders and words
importing persons include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations. The term "including" means
"including without limiting the generality of the foregoing".
1.04 STATUTORY REFERENCES
In this Agreement, unless something in the subject matter or context is
inconsistent therewith or unless otherwise herein provided, a reference to any
statute is to that statute as now enacted or as the same may from time to time
be amended, re-enacted or replaced and includes any regulations made thereunder.
1.05 CURRENCY
All references to currency herein are to lawful money of the United
States of America.
1.06 RECITALS
The recitals hereto form an integral part of this agreement.
ARTICLE 2 - SALE AND PURCHASE
2.01 SALE OF ASSET
Subject to the terms, conditions and provisions hereof, the Vendor
agrees to sell, convey, assign and transfer to the Purchaser, all right, title,
benefit and interest in and to the Purchased Assets.
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2.02 LIABILITIES NOT ASSUMED
The Purchaser does not assume and shall not be liable for any
obligations, commitments, liabilities of or claims against the Vendor,
whatsoever, and the Vendor shall continue to be responsible for same and agree
to indemnify and save harmless the Purchaser in respect thereof. It is
understood that the Purchaser will be responsible for payment of the initial NSI
Domain Name registration fee for the Purchased Domain Names and all maintenance
fees thereafter.
2.03 PURCHASE PRICE
The purchase price payable to the Vendor for the Purchased Assets shall
be US $1,000,000 (One Million United States dollars) (hereafter the "Purchase
Price").
2.04 PAYMENT OF PURCHASE PRICE
The Purchase Price shall be paid at the Time of Closing to the Escrow
Agent by wire transfer to the Escrow Agent and shall be held by the Escrow Agent
pursuant to the terms of the Escrow Agreement attached hereto as Schedule "A".
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
3.01 VENDOR'S REPRESENTATIONS AND WARRANTIES
The Vendor represents and warrants to the Purchaser that:
(1) the Vendor is duly incorporated, organized and subsisting under
the laws of California;
(2) the Vendor has the power, authority and right to enter into and
deliver this Agreement and to transfer the legal and beneficial
title and ownership of the Purchased Assets to the Purchaser
free and clear of all liens, charges, encumbrances and any other
rights of others whatsoever;
(3) except as provided in this Agreement, the Vendor is the owner of
and has good and marketable title to all of the Purchased Assets
including ownership of the Purchased Domain Names as shown by
the records of NSI;
(4) Schedule "C" sets forth, separately, all of the following
Purchased Intellectual Property:
(a) that of which Vendor is not the exclusive owner or that
Vendor owns jointly with a third party, identifying the
subject matter, any related registration, and the limits
on ownership by Vendor, and
(b) that Vendor uses pursuant to license or sublicense from
a third party, listing the licensed Intellectual
Property, any royalty, license or fee payable with
respect to the use of such Intellectual Property and any
corresponding registration, the source of authorization
or license and the owner;
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(5) except as expressly set forth in Schedule "C", Vendor is not a
party to any contract or commitment to pay any royalty, license
or other fee with respect to the use of the Purchased Assets;
(6) except as provided for in Schedule "B", no other Purchased
Intellectual Property is registered in the name of the Vendor or
any of its Affiliate nor have any applications been made for
registration of any of the Purchased Intellectual Property by
the Vendor or any of its Affiliates;
(7) except for the consent of NSI or such other consents that have
otherwise been obtained, no consents are required for Vendor to
sell, transfer or assign to Purchaser all of the right, title,
benefit and interest of Purchaser in any of the Purchased
Assets;
(8) to the best of the knowledge of the Vendor, no third party has
interfered with, infringed upon, misappropriated, misused,
violated or otherwise come into conflict with any of the
Purchased Assets or rights to the Purchased Assets;
(9) to the best of the knowledge of the Vendor, the Purchased Assets
do not infringe upon, misappropriate, misuse, violate or
otherwise come into conflict with any Intellectual Property or
other rights of any third party;
(10) Vendor currently has no information, knowledge or belief that
any third party has asserted or intends to assert any rights to
the Purchased Domain Names;
(11) Vendor currently has no outstanding obligations or liabilities,
contingent or otherwise, pursuant to any agreement written or
oral respecting the Purchased Domain Names except for this
Agreement;
(12) Vendor has not received any notice from NSI or any other third
party that the Purchased Domain Names infringe any trademark,
trade name, or any other proprietary right; and
(13) no actions, claims or other proceedings are pending or, to
Vendor's knowledge, threatened against or affect the Purchased
Assets which, if decided unfavourably, would materially and
adversely affect the title to the Purchased Assets, or the
Vendor's ability to effect the sale and transfer thereof to the
Purchaser as contemplated in this Agreement.
3.02 PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Vendor that:
(1) the Purchaser is a corporation duly incorporated, organized and
subsisting under the laws of the British Virgin Islands;
(2) the Purchaser has good and sufficient power, authority and right
to enter into and deliver this Agreement and to take all action
required to be taken by the Purchaser hereunder;
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(3) except for such consents that have already been obtained, no
additional consents are required for the Purchaser to purchase
the Purchased Assets; and
(4) no actions, claims or other proceedings are pending or, to
Purchaser's knowledge, threatened against the Purchaser which,
if decided unfavourably, would materially and adversely affect
the Purchaser's ability to effect the purchase of the Purchased
Assets as contemplated in this Agreement.
ARTICLE 4 - COVENANTS
4.01 COVENANTS OF THE VENDOR
The Vendor covenants and agrees that from and after the Site Termination
Date:
(1) neither the Vendor nor any Affiliate of the Vendor will,
directly or indirectly, challenge or oppose, or be a party to
any proceeding which seeks to challenge or oppose, in any manner
whatsoever, in any court or tribunal, the ownership, validity,
registrability or right to use by the Purchaser of the Purchased
Assets or any Domain Name or Intellectual Property identical to
or confusingly similar to the Purchased Assets;
(2) neither the Vendor nor any Affiliate of the Vendor will operate
any Internet website associated with, or otherwise use, any
Domain Name that is identical or confusingly similar to the
Purchased Assets;
(3) neither the Vendor nor any Affiliate of the Vendor will adopt or
use any Intellectual Property that is identical or confusingly
similar to the Purchased Intellectual Property other than use of
the name "Cyberworks" by the Vendor in carrying on its business
during the period ending no later than the New Site Date;
(4) other than as required by law or generally available to the
public through no misconduct of Vendor, the Vendor and all
Affiliates of the Vendor will keep the existence and terms and
conditions of this Agreement in strict confidence, provided,
subject to section 8.04, Vendor or its Affiliates shall be
allowed to issue a press release regarding the sale of the
Purchased Assets at the time of Closing; and
(5) the Vendor will indemnify and save the Purchaser harmless from
and against any and all claims against the Purchaser relating to
the Purchased Assets arising from the non-compliance by the
Purchaser or Vendor, or both, with the provisions of the bulk
sales legislation in any jurisdiction where the Vendor owns
assets, including any and all costs and expenses which the
Purchaser may incur in defending any proceedings brought against
it pursuant to the provisions of the said legislation, provided
that the Vendor's liability hereunder shall be limited to and
shall not exceed the Purchase Price.
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4.02 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
The representations, warranties and covenants of the Vendor and the
Purchaser shall survive the completion of the sale of the Purchased Assets
herein provided for and notwithstanding such completion, such representations,
warranties and covenants shall continue in full force and effect thereafter.
ARTICLE 5 - CONDITIONS
5.01 CONDITIONS IN FAVOUR OF THE PURCHASER
The sale by the Vendor and the purchase by the Purchaser of the
Purchased Assets is subject to the following conditions, which are for the
exclusive benefit of the Purchaser and which are to be performed or complied
with at or prior to the Time of Closing:
(1) Vendor will provide whatever assistance may be necessary to
complete the transfer and assignment to the Purchaser of the
Purchased Domain Names, which transfer and assignment of the
Purchased Domain Names shall not be deemed effective until the
Site Termination Date, and which assistance includes achieving
the following:
(a) completion and delivery of all notices and
authorizations to NSI that conform to NSI's requirements
for a Domain Name transfer;
(b) completion, delivery and acceptance by NSI of the NSI
Registrant Name Change Agreement;
(c) termination of the Vendor's current Domain Name
Registration Agreement for the Purchased Domain Names
with NSI; and
(d) authorization of NSI to disassociate the Purchased
Domain Names from the Vendor's host servers, and
authorization of NSI to take all steps necessary to
register the Purchased Domain Names to the Purchaser.
(2) Vendor shall deliver to the Purchaser a copy of all submitted
forms and a notification of successful termination of the
Vendor's current Domain Name Registration Agreement for the
Purchased Domain Names; and
(3) the representations and warranties of the Vendor set forth in
Section 3.01 will be true and correct at the Time of Closing
with the same force and effect as if made at and as such time.
5.02 CONDITIONS IN FAVOUR OF THE VENDOR
The sale by the Vendor and the purchase by the Purchaser of the
Purchased Assets is subject to the following conditions, which are for the
exclusive benefit of the Vendor and which are to be performed or complied with
at or prior to the Time of Closing:
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(1) Purchaser will provide whatever assistance may be necessary to
complete the transfer and assignment to the Purchaser of the
Purchased Domain Names, which transfer and assignment of the
Purchased Domain Names shall not be deemed effective until the
Site Termination Date, and which steps include the completion
and delivery of all notices and authorizations to NSI that
conform to NSI's requirements for a Domain Name transfer;
(2) The execution and delivery to the Vendor of a letter agreement
pursuant to which representatives of the venture capital
division of Pacific Century Cyberworks Limited and
representatives of Venture Catalyst Incorporated agree to meet
on an informal basis for the purpose of considering mutual
business opportunities; and
(3) The Escrow Agent shall have received funds representing the
Purchase Price and, subsequent to the Time of Closing, upon
satisfaction of the provisions of section 2.1 of the Escrow
Agreement the Vendor shall have received the Purchase Price
pursuant to the Escrow Agreement without any claim or
reservation of rights from Purchaser or Escrow Agent.
ARTICLE 6 - ADDITIONAL AGREEMENTS
6.01 CLICK-THROUGH
During the period from the Site Termination Date to and including the
New Site Date, the Purchaser will permit the Vendor, at no charge, to place a
click-through banner on the Purchaser's Internet websites associated with the
Purchased Domain Names in order to allow the Vendor time to register a new
Domain Name, to associate its host servers with that new Domain Name and to
market that new Domain Name.
6.02 E-MAIL FORWARDING
During the period from the Site Termination Date to and including the
New Site Date, the Purchaser will forward all e-mails addressed to any of the
e-mail addresses set out in Schedule "D" to an Internet address to be supplied
by the Vendor.
ARTICLE 7 - CLOSING
7.01 CLOSING
The sale and purchase of the Purchased Assets will be completed at the
Time of Closing at the offices of the Vendor.
ARTICLE 8 - GENERAL
8.01 FURTHER ASSURANCES
Each of the Vendor and the Purchaser will from time to time execute and
deliver all such further documents and instruments and do all acts and things as
the other party may, either before or after the Closing Date, reasonably require
to effectively carry out or
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better evidence or perfect the full intent and meaning of this Agreement
including the execution of any further assignment documentation required for the
purposes of registering the assignment and transfer of any of the Purchased
Assets.
8.02 TIME OF THE ESSENCE
Time is of the essence to this Agreement.
8.03 FEES AND COMMISSIONS
Except as provided herein, each of the Vendor and the Purchaser will pay
its respective legal and other costs and expenses incurred in connection with
the preparation, execution and delivery of this Agreement and all documents and
instruments executed pursuant hereto and any other costs and expenses whatsoever
and howsoever incurred. Each of the Vendor and the Purchaser will indemnify and
save harmless the other from and against any claim for any broker's, finder's or
placement fee or commission alleged to have been incurred as a result of any
action by it in connection with the transactions hereunder.
8.04 PUBLIC ANNOUNCEMENTS
Except as required by law, no public announcement or press release
concerning the sale and purchase of the Purchased Assets may be made by the
Vendor without the prior consent and approval of the Purchaser. For greater
certainty, no such public announcement may be made without consultation by the
Vendor with the Purchaser which shall include submitting the text of the public
announcement to the Purchaser for comment before its release.
8.05 BENEFIT OF THE AGREEMENT
This Agreement will inure to the benefit of and be binding upon the
respective heirs, executors, administrators, other legal representatives,
successors and permitted assigns of the parties hereto.
8.06 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and cancels and supersedes any
prior understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or statutory, between
the parties other than as expressly set forth in this Agreement.
8.07 AMENDMENTS AND WAIVERS
No amendment to this Agreement will be valid or binding unless set forth
in writing and duly executed by both of the parties hereto. No waiver of any
breach of any provision of this Agreement will be effective or binding unless
made in writing and signed by the party purporting to give the same and, unless
otherwise provided, will be limited to the specific breach waived.
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8.08 ASSIGNMENT
This Agreement may not be assigned by the Vendor without the written
consent of the Purchaser but may be assigned by the Purchaser to an Affiliate of
Purchaser without the consent of the Vendor.
8.09 NOTICES
Any demand, notice or other communication to be given in connection with
this Agreement must be given in writing and will be given by personal delivery
or by electronic means of communication addressed to the recipient as follows:
To the Vendor:
Cyberworks, Inc.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Val del ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
To the Purchaser:
Cyber-Tech Group Limited
Trustnet ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
With a copy to:
Chitiz Pundit Pathak & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
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or to such other address, individual or electronic communication number as may
be designated by notice given by either party to the other. Any demand, notice
or other communication given by personal delivery will be conclusively deemed to
have been given on the day of actual delivery thereof and, if given by
electronic communication, on the day of transmittal thereof if given during the
normal business hours of the recipient and on the Business Day during which such
normal business hours next occur if not given during such hours on any day.
8.10 GOVERNING LAW
This Agreement is governed by and will be construed in accordance with
the laws of the State of California without giving effect to principles of
conflicts of laws.
8.11 ATTORNMENT
For the purpose of all legal proceedings this Agreement will be deemed
to have been performed in the State of California and the courts of the State of
California will have jurisdiction to entertain any action arising under this
Agreement. Purchaser and Vendor agree to submit to jurisdiction in California
and further agree that any cause of action arising under this Agreement shall be
brought in a court in San Diego County, California.
8.12 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original and all of which taken together will be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CYBER-TECH GROUP LIMITED
Per: /s/ Alex Arena
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Title: Director
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CYBERWORKS, INC.
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Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Secretary
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