ASSET PURCHASE AGREEMENT JANUARY 6, 1999
Between:
Unicorn Trade & Commerce (Europe) Ltd., a company incorporated
pursuant to the laws of Ireland and having an office at 00
Xxxxxxxxxxx Xxxxxxx, Xxxxxx 0, Xxxxxxx
(the Vendor )
AND:
XxxxxXxxxx.xxx, a company incorporated pursuant to the laws of
the state of Nevada and having an office at 290, 1111 West
Hastings Street, Vancouver, British Columbia V6E 2J3
(the Purchaser )
Whereas the Vendor has a 100% ownership interest in certain
Software (hereinafter defined) known as Software , which certain source
codes are contained in an electronic data storage device, in which it
holds copyright and other rights, title and interest which it wishes to
sell to the Purchaser and the Purchaser wishes to buy.
Now therefore this agreement witnesses that in consideration
of the premises and the mutual agreements and covenants herein contained
(the receipt and sufficiency of which is acknowledged by each party) the
parties hereby covenant and agree as follows:
1. DEFINITIONS
1.1 The terms defined in this section shall have the following
meanings for the purposes of this Agreement:
(a) Closing Date means a date agreed to in writing by the parties
hereto, but in any event, no later than January 15, 1999;
(b) Computer Program shall mean an ordered series of instructions or
statement, in any form, for controlling the operation of a
data processor to execute a process to be performed on date;
(c) Confidential Information means all information (including, without
limitation, Software, trade secrets, know-how, specifications,
analyses, formulas, drawings, data, reports, patterns,
devices, plans, processes, methodologies or compilations) and
any other documentation, whether written, graphic or stored
electronically or magnetically, belonging to either party
which may not be generally known;
(d) Documentation shall mean any and all systems manuals, programmed
manuals, test and diagnostic information, maintenance
information, programmed listings, flow charts, application
manuals, user manuals, operating manuals and operating
procedures, technical specifications for the design,
performance, operation test and maintenance of the Software
used or useful in or relating to the design, use, maintenance,
or marketing of the Software whether in writing,
electromagnetic recording, computer-stored information, data
in machine-readable form or any other form and shall include
any and all contracts and mutual confidentiality and non-
disclosure agreements with any and all third parties relating
to the Software;
(e) Software shall mean the Computer programs and data files known as
WebSprite and the Web Enabling Software (detailed in
attached Appendix) contained as source code and programming
files on an electronic data storage device. WebSprite is a
computer program which allows the automatic retrieval of
information from data sources and web sites on the Internet ,
as it may be updated from time to time. Web Enabling
Software is a series of computer programs, active X
components and data bases which permit access and structural
connectivity to the Reuters Triarch 2000 datafeed and provide
for the subsequent retrieval and display of said information
in a browser based environment. Software shall include this
aforementioned products that the Vendor asserts any right,
title or interest of any nature whatsoever, including
copyright, patent rights, trademark or trade name rights,
trade secrets, or any other industrial or intellectual
property right whatsoever, and shall include all data, object
codes, source codes and/or executable code in machine readable
form or human readable form with interpretive comments, all
related technology and know-how, all improvements, upgrades,
corrections, modifications, alteration, revisions, updates,
extensions and/or enhancements completed or in progress and
any and all Documentation relating thereto;
2. PURCHASE AND SALE
2.1 Subject to the terms and conditions hereof, the Vendor agrees
to sell and the Purchaser agrees to purchase all of the
Vendor's rights, title and interest of any nature whatsoever
including any and all patents, copyrights, and trade secrets
in the Software free and clear of all encumbrances and
liabilities.
2.2 The Purchaser shall assume no liabilities nor shall it become
liable for any liabilities of the Vendor or its business
undertaking and the Vendor shall pay, satisfy, assume,
discharge, observe, perform, fulfill and indemnify and save
harmless the Purchaser from and against any such liabilities.
3. PURCHASE PRICE
3.1 The Parties agree that the Software has a purchase price of 4
million restricted and unregistered shares (the Purchase
Price ).
3.2 The Purchase Price will be paid no later than the 15th of
January 1999.
4. SHARE RESTRICTIONS
4.1 The Vendor acknowledges that the AlphaTrade shares to be
issued hereunder are issued pursuant to Rule 144 of the
Securities and Exchange Commission and as such are subject to
certain selling restrictions. The Vendor agrees not to resell
the AlphaTrade shares otherwise than in accordance with
application securities legislation. The Vendor agrees to
execute all documents and make such filings as may be required
on the part of the Vendor under applicable securities
legislation.
5. VENDOR'S REPRESENTATIONS AND WARRANTIES
5.1 The Vendor represents and warrants to the Purchaser that:
(a) The Vendor is duly incorporated and validly exists under the laws of
Ireland and is in good standing with respect to all statutory
filings required by the applicable corporate and securities
laws of Ireland;
(b) The Vendor has good and sufficient corporate capacity, power and
authority to enter into this Agreement on the terms and
conditions herein set forth, to complete the transactions
contemplated hereby and to duly observe and perform all of its
covenants and obligations in accordance with the Agreement and
all necessary action has been taken by or on the part of the
Vendor to authorize the execution and delivery of the
Agreement;
(c) The Vendor is not resident in Canada, does not carry on business in
Canada and is not a registrant for the purposes of collecting
goods and services tax;
(d) The completion of the transactions contemplated hereby will not
result in any fees, duties, taxes, assessments or other
amounts relating to the Software becoming due or payable;
(e) The Vendor is the sole and exclusive owner of the entire right,
title, and interest in and to, and has the sole and exclusive
right to use, free and clear of any payment obligation or
other encumbrances or liabilities, all intellectual property
relating to the Software, whether registered or not, which
registrations are in good standing, valid, subsisting and in
full force and effect in accordance with their terms;
(f) The Software is legally and beneficially owned by the Vendor and the
Vendor has good and marketable title thereto free and clear of
all encumbrances and liabilities and the Software is in the
Vendor s possession;
(g) The Vendor has full knowledge of the purpose for which the Purchaser
intends to use the Software and that the Software is free and
clear of any and all defects which may adversely affect the
purpose for which the Purchaser intends to use the Software;
(h) The Agreement has been duly executed and delivered by the Vendor and
constitutes a legal, valid and binding obligation of the
Vendor, enforceable against it in accordance with its terms
subject to applicable bankruptcy, insolvency and other similar
laws affecting creditors rights generally and except that the
remedies of specific performance, injunctive relief or other
equitable remedies may not be available in any particular
instance;
(i) The performance of this Agreement will not be in violation of the
incorporating documents of the Vendor, any law, judgement,
rule, or regulation to which the Vendor, its assets or the
Software are subject or of any agreement to which the Vendor
is a party and will not result in the creation or imposition
of any lien, encumbrance or restriction of any nature
whatsoever in favor of a third party upon or against the
Software;
(j) The use of the Software by the Vendor does not infringe or otherwise
violate any rights of any person or entity, and there is no
pending or, to the knowledge of the Vendor, threatened claim
alleging any such infringement or violation, or alleging any
defect in or invalidity, misuse or unenforceability of, or
challenging the ownership or use of the Vendor s rights with
respect to the Software.
5.2 The representations and warranties of the Vendor contained in
this Agreement or any certificates or documents delivered
pursuant to the provisions hereof or in connection with the
transactions contemplated hereby will be true at and as of the
Closing Date as though such representations and warranties
were made at and as of such time. Notwithstanding any
investigations or enquiries made by the Purchaser prior to the
Closing Date or the waiver of any condition by the Purchaser,
the presentations and warranties of the Vendor will survive
the Closing Date and notwithstanding the closing of the
purchase and sale herein provided for, will continue in full
force and effect for the benefit of the Purchaser for a period
of three years after the Closing Date, except for those
representations and warranties relating to tax liability which
will continue for a period of six years after the Closing
Date.
5.3 In the event that any of the said representations and
warranties are found to be incorrect and such incorrectness
results in any loss or damage sustained directly or indirectly
by the Purchaser then the Vendor will pay the amount of such
loss or damage to the Purchaser within 30 days of receiving
notice thereof provided that the Purchaser will not be
entitled to make any claim unless the loss or damage suffered
will exceed the amount of $1,000.
6. PURCHASER'S REPRESENTATIONS AND WARRANTIES
6.1 The Purchaser represents and warrants to the Vendor that:
(a) The Purchaser is duly incorporated and validly exists under the laws
of the State of Nevada and is in good standing;
(b) On the Closing Date, 4 million shares will be issued as fully paid
and non-assessable;
(c) The Purchaser has the corporate power to own the assets owned by it
and to carry on the business carried on by it and is licensed
to carry on business in all places where it conducts business;
(d) The Purchaser has good and sufficient corporate capacity, power and
authority to enter into this Agreement on the terms and
conditions herein set forth, to complete the transactions
contemplated hereby and to duly observe and perform all of its
covenants and obligations in accordance with this Agreement
and all necessary action has been taken by or on the part of
the Purchaser to authorize the execution and delivery of this
Agreement;
(e) The performance of this Agreement will not be in violation of the
incorporating documents of the Purchaser or of any agreement
to which the Purchaser is a party and will not give any person
or company any right to terminate or cancel any agreement or
any right enjoyed by the Purchaser and will not result in the
creation or imposition of any lien, encumbrance or restriction
of any nature whatsoever in favor of a third party upon or
against the assets of the Purchaser;
(f) There are no actions, suits, proceedings, investigations,
complaints, orders, directives or notices of defect or non-
compliance by or before the courts, administrative tribunal,
arbitrator or governmental authority issued, pending or, to
the knowledge of the Purchaser, threatened against or
affecting the Purchaser, its business or its assets (including
proceedings or actions by any taxation authority) which, if
successful, could have a materially adverse effect on the
business of the Purchaser.
6.2 The representations and warranties of the Purchaser contained
in this Agreement or any certificates or documents delivered
pursuant to the provisions hereof or in connection with the
transactions contemplated hereby will be true at and as of the
Closing Date as though such representations and warranties
were made at and as of such time. Notwithstanding any
investigations or enquiries made by the Vendor prior to
closing or the waiver of any condition by the Vendor, the
representations and warranties of the Purchaser will survive
the Closing Date and notwithstanding the closing herein
provided for, will continue in full force and effect for the
benefit of the Vendor for a period of three years after the
Closing Date, except for those representations and warranties
relating to tax liability which will continue for a period of
six years after closing.
6.3 In the event that any of the said representations and
warranties are found to be incorrect and such incorrectness
results in any loss or damage sustained directly or indirectly
by the Vendor, then the Purchaser will pay the amount of such
loss or damage to the Vendor within 30 days of receiving
notice thereof provided that the Vendor will not be entitled
to make any claim unless the loss or damage suffered will
exceed the amount of $1,000.
7. CONDITIONS PRECEDENT
7.1 All obligations of the Vendor under this Agreement are further
subject to the Purchaser delivering or causing to be
delivered, on the Closing Date,
(a) To the Vendor:
(i) a copy of the resolutions of the Directors of the Purchaser
authorizing the form, execution and delivery of this
Agreement and the completion of the transactions
contemplated in this Agreement
(ii) a copy of the resolution of the Directors of the Purchaser
authorizing the issue of 4 million restricted and
unregistered shares to the Vendor.
7.3 The conditions set forth in paragraph 7.2 of this Agreement are for
the exclusive benefit of the Vendor and the Vendor may waive the
conditions in whole or in part by delivering to the purchaser at or before
the time of closing a written waiver to that effect stated to be made
pursuant to this subsection and executed by the Vendor.
7.4 All obligations of the Purchaser under this Agreement are further
subject to:
(a) all consents and approvals required to be obtained by the Vendor for
the purpose of selling, assigning or transferring the Software
having been obtained;
(b) no material loss or damage having occurred to the Software since the
date of this Agreement;
(c) the Vendor delivering or causing to be delivered to the Purchaser on
the Closing Date:
(i) a copy of the resolution of the Directors of the Vendor
authorizing the sale of the Software to the Purchaser;
(ii) a copy of the resolution of the Directors of the Vendor
authorizing the form, execution and delivery of this
Agreement and the transactions contemplated herein;
(iii)the Software.
7.5 The conditions set forth in paragraph 7.4 of this Agreement are for
the exclusive benefit of the Purchaser and the Purchaser may waive
the conditions in whole or in part by delivering to the Vendor, at
or before the time of closing, a written waiver to that effect
stated to be made pursuant to this subsection and executed by the
Purchaser.
8 CLOSING
8.1 The sale of the Software and the issuance of the AlphaTrade shares
will be closed at the offices of XxxxxXxxxx.xxx, #290, 0000 X.
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx on the Closing Date
following the satisfaction of the conditions precedent set out in
Part 7 of this Agreement.
9 GENERAL
9.1 Time is of the essence in this Agreement.
9.2 The terms and provisions herein contained constitute the entire
agreement between the parties and supersede all previous oral or
written communications.
9.3 This Agreement will be governed by, construed and enforced in
accordance with the laws of the State of Nevada in the United
States.
9.4 References to dollar amounts in this Agreements means United States.
9.5 This Agreement and each of its terms and provisions will enure to
the benefit of and be binding upon the parties to this Agreement and
their respective heirs, executors, administrators, personal
representatives, successors and assigns.
9.6 If any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect in any
jurisdiction, the validity, legality and enforceability of such
provisions or provisions will not in any way be affected or impaired
thereby in any other jurisdiction and the validity, legality and
enforceability of the remaining provisions contained herein will not
in any way be affected or impaired thereby, unless in either case as
a result of such determination this Agreement would fail in its
essential purpose.
9.7 This Agreement is not transferable or assignable without the written
consent of the other parties.
9.8 Any notices under this Agreement must be:
(a) in writing,
(b) delivered, telecopied or mailed by prepaid post, and
(c) addressed to the party to which notice is to be given at the address
for such party indicated herein or at another address designed
by such party in writing.
9.9 Notices shall be addressed as follows:
(a) if to the Purchaser:
#000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: President
Facsimile: (000) 000-0000
(b) if to the Vendor:
00 Xxxxxxxxxxx Xxxxxxx
Xxxxxx 0, Xxxxxxx
Attention: President
Facsimile: 000 000 000
9.10 This Agreement may be executed in as many counterparts as may be
necessary or by facsimile and each of the facsimile or counterpart
so executed shall be deemed to be an original and such counterparts
together shall constitute one and the same instrument and
notwithstanding the date of execution shall be deemed to bear the
date as set out on the first page of this Agreement.
XxxxxXxxxx.xxx Unicorn Trade & Commerce (Europe) Ltd.
Per: Per:
/s/ J. Xxxxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxxxx
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Authorized Signatory Authorized Signatory
