ASSET PURCHASE AGREEMENT AMONG KIWIBOX.COM, INC. AND BRAND & NOBEL GmbH Dated as of March 3rd, 2011

1.2  No Assumption of any Seller Liabilities. The Seller acknowledges and agrees that the Purchaser shall not assume any liabilities of the Seller or its business that exist or accrue through the “Closing Date”, defined below.

 

1.5  Further Assurances. Seller shall, from time to time after the consummation of the transactions contemplated herein, at the request of Purchaser and without further consideration, execute and deliver further instruments of transfer and assignment and take such other action as Purchaser may reasonably require to more effectively transfer and assign to, and vest in, Purchaser the Assets free and clear of all Liens.

 

1.6 Sales and Transfer Taxes. The Parties are of the opinion that the transaction ('Transaction') set out in this Agreement qualifies as sale of a business as a going concern (Geschäftsveräußerung im Ganzen) for purposes of VAT. The Seller and the Purchaser will try to reach otherwise a joint understanding with the competent tax authorities in this respect. Following their joint understanding, all payments of Purchaser to the Seller under this Section 1 of this Agreement shall be made without VAT. However, if in the future the tax authorities are of the opinion that th e Transaction is subject—partly or in total—to VAT, the Purchaser shall pay the VAT to the Seller without undue delay.

 

 

2.0 Place of Closing. Subject to the satisfaction of all conditions and requirements, the closing of the sale and purchase of the Purchased Assets provided for in Article I shall take place on the Closing Date at the offices of Seller in Germany (or at such other place as the parties may designate in writing).

 

2.1 Termination of Agreement. This Agreement may be terminated prior to the Closing Date as follows:

 

(a)       at the election of the Purchaser any time prior to the Closing Date by written notice to the Seller, upon which termination, the Seller shall return to the Purchaser the *__________________________ to the Purchaser within three (3) days’ of Seller’s receipt of the written notice of termination sent by the Purchaser

 

(b)       by mutual written consent of the Seller and the Purchaser; or

 

(c)       by the Purchaser if there is a breach of any of Sellers’ representations or warranties set forth in Article III; or

 

2.2 Procedure Upon Termination. In the event of termination and abandonment by the Purchaser or the Seller, or both, pursuant to Section 2.1 hereof, written notice thereof shall immediately be given to the other party and this Agreement shall terminate, and the purchase of the Purchased Assets hereunder shall be abandoned, without further action by the Purchaser or the Seller. If this Agreement is terminated as provided herein each party shall redeliver all documents, work papers and other material of any other party relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, to the party furnishing the same.

2.3 Effect of Termination. In the event that this Agreement is validly terminated as provided herein, then each of the parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to the Purchaser or the Seller; provided, however, that (A) the Seller shall return the *______ to the Purchaser, identified in Section 1 .3(b)(i), within three (3) days of Seller’s receipt of Purchaser’s written notice of termination and the obligations of the parties set forth in this Section 2.3 hereof shall survive any such termination and shall be enforceable hereunder; provided, further, however, that nothing in this Section 2.3 shall relieve the Purchaser or the S eller of any liability for a breach of this Agreement.

7.1  Survival of Representations and Warranties. The Purchaser and the Seller hereto hereby agree that the representations and warranties contained in this Agreement or in any certificate, document or instrument delivered in connection herewith, shall survive the execution and delivery of this Agreement, and the Closing Date, regardless of any investigation made by the parties hereto; provided, however, that any claims or actions with respect thereto (other than claims for indemnifications with respect to the representation and warranties contained in Article 3 and Article 4 which shall survive for periods coterminous with any applicable statutes of limitation) shall terminate unless within thirty-six (36) months after the Closing Date written notice of su ch claims is given to the Seller or the Purchaser, as the case may be, or such actions are commenced.

7.2 Expenses. Except as otherwise provided in this Agreement, the Seller and the Purchaser shall each bear its own expenses incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby.

 

7.3 Specific Performance. The Seller acknowledges and agrees that the breach of this Agreement would cause irreparable damage to the Purchaser and that the Purchaser will not have an adequate remedy at law. Therefore, the obligations of the Seller under this Agreement, including; without limitation, the Seller’s obligation to sell the Purchased Assets to the Purchaser, shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which any party may have under this Agree ment or otherwise.

 

7.4 Submission to Jurisdiction; Consent to Service of Process. The parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state court located within the State of New York over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby, and each party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action proceeding related thereto may be heard and determined in such courts. The parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Eac h of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the parties hereto hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by the mailing of a copy thereof in accordance with the provisions of Section 7.7.

 

7.5 Entire Agreement; Amendments and Waivers. This Agreement (including the schedules and exhibits hereto) represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any such amendment, supplement, modification or waiver is sought. 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. 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.

 

7.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

7.7 Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given when delivered personally or mailed by express overnight delivery, to the parties (and shall also be transmitted by internet email to the Persons receiving copies thereof) at the following addresses (or to such other address as a party may have specified by notice given to the other party pursuant to this provision):

7.8 Severability. If any provision of this Agreement is invalid or unenforceable, the balance of this Agreement shall remain in effect.

 

7.9 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by either the Seller or the Parent or the Acquisition Sub (by operation of law or otherwise) without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above written.