ASSETPURCHASE AGREEMENT

(c)     $ 110,000 Note payable due to Nano dynamics

 

(d)     $ 18,541.50 which represents 50% of the accrued salary due to Mr. Zucker

 

(e)     Any and all liabilities related to the business of SGK Nanostructures

 

(b)     All of the Seller's rights, title and interest in and to any agreements related to the Intangible Assets as hereinafter defined, including but not limited to, all existing agreements, if any, with contract manufacturers, resellers and suppliers (the "Agreements");

 

(c)     All customer and supplier lists, copies of financial and accounting records, credit and accounts receivable (as hereinafter defined) records, correspondence and other similar documents and records used and/or useful in connection with the Assets including the customer list included on Schedule 2.1(c) (collectively, the "Records"); and

 

(d)     All proceeds, rights, claims, credits, causes of action or rights of set-off against third parties relating to the Assets, including, without limitation, unliquidated rights under manufacturers' and vendors' warranties (the "Claims").

 

 

2.2 Liabilities Assumed. At the Closing, the Buyer shall assume and undertake to perform, pay, satisfy or discharge in accordance with their terms, any debt, loss, damage, adverse claim, liability or obligation (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or otherwise) ("Liabilities"), including any liability for taxes of Seller relating to or otherwise in respect of the Legacy Business or its operation on, before or after the Closing Date (the "Assumed Liabilities"). Assumed Liabilities shall also include the following Liabilities:

 

(a)     all Liabilities in respect of any and all products or services sold by Seller or any of its Affiliates relating to the Legacy Business on or before the Closing Date, including such liabilities for refunds, adjustments, allowances, exchanges, returns, warranty, merchantability, claims for breach of contract or in tort and other claims related to Seller's Legacy Business;

(b)     all Liabilities arising under or pursuant to any environmental laws, to the extent arising out of or otherwise related to Seller's ownership or operation of the Legacy Business;

 

(c)     all Liabilities arising out of, under or in connection with the Agreements including a breach by or default of Seller accruing under such Agreements on, prior to or after the Closing; and

 

(d)     all Liabilities in respect of any lawsuit, action or proceeding, pending or threatened, or any claim arising out of, relating to or otherwise in respect of the Assets or the Legacy Business that is asserted or brought by any person (including any governmental authority), based on any actual or alleged civil or criminal violation of law.

2.3 Purchase Price. The Buyer acknowledges that the pro-rata spin-off of the Legacy Business constitutes sufficient consideration for the execution and delivery of this Agreement.

3.1 Organization and Good Standing. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of formation, with full corporate power and authority to own, lease and operate its business and properties and to carry on business in the places and in the manner as presently conducted or proposed to be conducted. Seller is in good standing as a foreign corporation in each jurisdiction in which the properties owned, leased or operated, or the business conducted, by it requires such qualification except where the failure to so qualify would not have a material adverse effect on the Assets or consummation of the transactions contemplated hereby.

 

3.2 Authority and Enforcement. Seller has all requisite corporate power and authority to execute and deliver this Agreement, and to consummate the transactions contemplated hereby. Seller has taken all corporate action necessary for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and this Agreement constitutes the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as may be affected by bankruptcy, insolvency, moratoria or other similar laws affecting the enforcement of creditors' rights generally and subject to the qualification that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefor may be brought.

4.1 Organization and Good Standing. Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of formation, with full corporate

 

 

4.2 Authority and Enforcement. Buyer has all requisite corporate power and authority to execute and deliver this Agreement, and to consummate the transactions contemplated hereby. Buyer has taken all corporate action necessary for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and this Agreement constitutes the valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as may be affected by bankruptcy, insolvency, moratoria or other similar laws affecting the enforcement of creditors' rights generally and subject to the qualification that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefor may be brought.

 

4.3 Information on the Company and the Legacy Business. Norman Fuchs, the president of the Buyer was the Chairman of the Board of Directors of the Seller March 30, 2005to August 18, 2009 and has been operating the Legacy Business since the Company launched such business in September 18, 2003. In addition, Mr. Fuchs has had access to such other information concerning the Legacy Business' operations, financial condition and other matters as the Buyer deemed necessary to enable Buyer to thoroughly investigate the Assets and all aspects of the transaction set forth in this Agreement. Buyer has determined that the Assets are satisfactory to Buyer in all respects and is purchasing the Assets in "as is" condition. Buyer has and will rely solely on Buyer's own independent investigations and inspections and Buyer has not relied and will not rely on any representation of Seller other than as expressly set forth in this Agreement. Buyer further acknowledges and agrees that, except for the specific representations made by Seller in this Agreement, Seller has made no representations, is not willing to make any representations, nor held out any inducements to Buyer, other than those (if any) exclusively set forth in this Agreement; and Seller is not and shall not be liable or bound in any manner by any express or implied warranties, guaranties, statements, representations or information pertaining to the Assets, except as may be specifically set forth in this Agreement.

5.1 Conditions Precedent to Buyer's Obligation to Close. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to satisfaction of the following conditions on or prior to the Closing Date:

 

(b)     No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent or adversely affect Buyer's consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect).

 

(c)      No material adverse change shall have taken place with respect to the Assets; and

 

 

(d)     All actions to be taken by Seller in connection with consummation of the transactions contemplated hereby and all certificates, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer.

5.2 Conditions Precedent to Seller's Obligation to Close. The obligation of Seller to consummate the transactions contemplated hereby is subject to satisfaction of the following conditions on or prior to the Closing Date:

 

(a)      The representations and warranties of Buyer set forth in Section 4 above shall be true and correct in all material respects at and as of the Closing Date.

 

(b)      No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent or adversely affect Buyer's consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);

 

(c)      Seller shall have obtained the approval of its Board of Directors; and

 

(d)      All actions to be taken by Buyer in connection with consummation of the transactions contemplated hereby and all certificates, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Seller.

 

6.1 A closing of the transactions contemplated hereby (the "Closing") will take place at such time and place as mutually agreed upon by Seller and Buyer. The date on which the Closing is held is referred to in this Agreement as the "Closing Date."

 

6.2 Documents to be Delivered at the Closing. At the Closing, Seller shall deliver, or cause to be delivered, to Buyer the following a duly executed bill of sale, dated the Closing Date, transferring to Buyer all of Seller's right, title and interest in and to the Assets together with possession of the Assets together with such other certificates, documents and instruments as Buyer may have reasonably requested in connection with the transaction contemplated hereby.

 

7. Obligations Post-Closing. If, at any time after the Closing, the parties shall consider or be advised that any further deeds, assignments or assurances in law or that any other things are necessary, desirable or proper to complete the transactions contemplated hereby in accordance with the terms of this Agreement or to vest, perfect or confirm, of record or otherwise, the title to any of the Assets, the parties agree that their proper officers and directors shall execute and deliver all such proper deeds, assignments and assurances in law and do all things necessary, desirable or proper to vest, perfect or confirm title to such Assets and otherwise to carry out the purpose of this Agreement, and that the proper officers and directors the parties are fully authorized to take any and all such actions.

 

8. Indemnity by the Buyer. The Buyer agrees that it will indemnify and hold the Seller and their respective officers, directors, employees and agents (collectively, the "Seller Indemnitees") harmless from all Liabilities incurred or suffered by the Seller. For this purpose, "Liabilities" incurred by the Seller means all suits, proceedings, claims, expenses, losses, costs, liabilities, judgments, deficiencies, assessments, actions, investigations, penalties, fines, settlements, interest and damages (including reasonable attorneys' fees and expenses), whether suit is instituted or not and, if instituted, whether at any trial or appellate level, and

 

 

whether raised by the parties hereto or a third party, incurred or suffered by the Seller, arising from, in connection with or as a result of (a) any default or breach in the performance of any of the covenants or agreements made by the Buyer in this Agreement; or (b) the operation of the Assets after the Closing by the Buyer.