f8k102609ex10ii_resourceacq.htm


    Exhibit 10.2

    

 

    


    ASSET
PURCHASE AGREEMENT

    


    This
ASSET PURCHASE AGREEMENT
(the "Agreement") dated as of the 26th day of October, 2009 is entered
into by and between DK Investors, Inc., a New York corporation ("Seller") and
SGK Nanostructures, Inc., a New York corporation ("Buyer").

    


    RECITALS

    


    WHEREAS, the Seller has
historically conducted business activities in the field of commercializing
proprietary technologies and capabilities that the Seller has developed or
acquired and is seeking to develop in the field of nanotechnology (the "Legacy
Business").

    


    WHEREAS, the Legacy Business
represented all of the Seller's operations.

    


    WHEREAS, the Seller has
determined to exit all business activities related to the Legacy
Business.

    


    WHEREAS, Seller desires to
convey, sell and assign to Buyer all of Seller's right, title and interest in
and to the Legacy Business, upon the terms and conditions contained in this
Agreement.

    


    NOW THEREFORE, in
consideration of the mutual promises and other good and valuable consideration,
the sufficiency of which is hereby acknowledged, the parties agree as
follows:

     

    1.           
 Recitals.
The foregoing recitals are true and correct.

     

    2.            
Sale and Purchase of
Assets.

     

    2.1 Sale
and Purchase of Assets. Subject to the terms and conditions of this
Agreement, at the Closing described in Section 6, Seller shall sell to Buyer,
and Buyer shall purchase from Seller any and all assets related to the Legacy
Business including, but not limited to the following (collectively, the
"Assets):

     

    (a)     Technology related to two patent
applications which are pending

     

    (b)     $
64,246.99 which represents 50% of the current Notes, accrued salary and related
expenses due to Mr. Leo

     

    (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").

     

    
      
        
        

      

      
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    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.         
Representations and
Warranties of Seller.

     

    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.           Representations and
Warranties of Buyer.

    


    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 

     

    
      
        
        

      

      
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      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. Buyer 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 consummation of the
transactions contemplated hereby.

    

     

    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.       Conditions to
Closing.

    


    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:

     

    (a)    
The
representations and warranties of Seller set forth in Section 3 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)     
No material adverse change shall have taken place with respect to the Assets;
and


     

    
      
        
        

      

      
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    (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.  Closing; Closing
Date.

     

    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
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    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.

    


    9. Miscellaneous.

    


    9.1 Expenses. Buyer and
Seller shall bear their own respective expenses incurred in connection with this
Agreement and in connection with all obligations required to be performed by
each of them under this Agreement.

     

    9. 2
Entire Agreement; No
Waiver. This Agreement and any instruments and agreements to be executed
pursuant to this Agreement, set forth the entire understanding of the parties
hereto with respect to its subject matter, merge and supersede all prior and
contemporaneous understandings with respect to its subject matter and may not be
waived or modified, in whole or in part, except by a writing signed by each of
the parties hereto. No waiver of any provision of this Agreement in any instance
shall be deemed to be a waiver of the same or any other provision in any other
instance. Failure of any party to enforce any provision of this Agreement shall
not be construed as a waiver of its rights under such provision.

     

    9.3.
Construction and
Enforcement. This Agreement shall be construed in accordance with the
laws of the State of New York, without application of the principles of
conflicts of laws. If it becomes necessary for any party to institute legal
action to enforce the terms and conditions of this Agreement, and such legal
action results in a final judgment in favor of such party ("Prevailing Party"),
then the party or parties against whom said final judgment is obtained shall
reimburse the Prevailing Party for all direct, indirect or incidental expenses
incurred, including, but not limited to, all attorney's fees, court costs and
other expenses incurred throughout all negotiations, trials or appeals
undertaken in order to enforce the Prevailing Party's rights hereunder. Any
suit, action or proceeding with respect to this Agreement shall be brought in
the state or federal courts located in New York County in the State of New York.
The parties hereto hereby accept the exclusive jurisdiction and venue of those
courts for the purpose of any such suit, action or proceeding.

     

    9.4 Notices. All notices
and other communications under this Agreement shall be in writing and shall be
deemed given when delivered personally (including by confirmed legible
telecopier transmission) or mailed by certified mail, return receipt requested,
or by overnight mail properly receipted to the parties at the following
addresses (or to such address as a party may have specified by notice given to
the other party pursuant to this provision):

    


     

    If to
Seller:

    DK
Investors, Inc,

    c/o
Primary Capital LLC

    80 Wall
Street, 5th Floor

       
New York, NY 10005

    Attention:
John Leo 

    Telephone
No.: (212) 300-0070 

    Telecopy
No.: (212) 400-4234

     

    with a
copy to (which shall not constitute notice):

     

    Anslow +
Jaclin LLP 195 

    Route 9
South


    
      
         


      

      
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    Facsimile:
(732) 577 1188

     

    If to
Buyer:                        SGK
Nanostructures, Inc.

    c/o
Norman Fuchs

    5
Flagpole Lane

    East
Setauket, New York 11733

     

    Telephone
No.: (631) 681-3771 9.5 Separability. In the
event that any provision hereof would, under applicable law, be invalid or
enforceable in any respect, such provision shall be construed by modifying or
limiting it so as to be valid and enforceable to the maximum extent compatible
with, and permissible under, applicable law. The invalidity- or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement which shall remain in
full force and effect.

    


     

    9-6 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. No assignment of
this Agreement or of any rights or obligation hereunder may be made by either
party (by operation of law or otherwise) without the prior written consent of
the other and any attempted assignment without the required consent shall be
void: provided, however,
that no such consent shall be required of Buyer to assign part or all of its
rights under this Agreement to one or more of its subsidiaries or
affiliates.

     

    9.7 Counterparts. This
Agreement ma}' be executed in counterparts, each of which shall be an original,
but which together shall constitute one and the same Agreement.

    
 

    


     

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

     

     

    
      
        	
                Seller

              
	 
      
	 
      	 
      
	
                By:

              	
                /s/  John
      C. Leo

              
	 
      	
                Name:  John
      C. Leo

              
	 
      	
                Title:  Chief
      Executive Officer

              
	 
      	 
      
	
                Buyer

              
	 
      
	 
      	 
      
	
                By:

              	
                /s/
      Norman Fuchs

              
	 
      	
                Name:  Norman
      Fuchs

              
	 
      	
                Title:  Chief
      Executive Officer

              


      

    

     

     

     

    


    


    
      
        
           


        

        
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    SCHEDULES


    


     

    Schedule
2.1(a) - Accounts Receivables 

     

    Schedule
2.1(c) - Customer List

    


     

    
      
        
        

      

      
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    Schedule
2.1(a) - Accounts Receivables

     

    
      None.

    

     

     

     

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    Schedule
2.1(c) - Customer List

     

     

    
      None.

    

     

     

    
 

     

    
      
        
        

      

      
        9