ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is entered into between
Xxxxx Xxxxx (the "Purchaser") and Mar Ventures Inc., a Delaware corporation (the
"Seller"), effective as of August 6, 1997 (the "Effective Date"). For purposes
of this Agreement, each of Purchaser and Seller shall be referred to
individually as a "Party" and both of them shall be referred to collectively as
the "Parties".
Recitals
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A. The Seller has purchased a company engaged in the business of oil and
gas exploration, development, and consulting and Seller intends for its entire
business to be oil and gas exploration, development, and consulting. Seller also
has changed the location of its principal office from Encino, California to
Denver, Colorado.
B. Seller wishes to sell certain assets to Purchaser that are not related
to the Seller's oil and gas business or to Seller's principal office in Denver,
Colorado, and Purchaser wishes to purchase these assets from Seller, according
to the terms and conditions of this Agreement.
Agreement
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In consideration of the premises and of the mutual covenants contained in
this Agreement, the Parties agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
meanings indicated:
1.1 "Assets" refers to all right, title and interest of Seller in, to
and under (a) the Programs (as "Programs" is defined below), and all the
tangible and intangible assets of the Seller related to the Programs, including
but not limited to all of Seller's interest in licenses, licensing fees and
accounts receivable, copyrights, intellectual property rights related to the
Programs and to video tape or film reproductions of the Programs, and (b) the
office supplies and office furniture located at the Seller's former office (the
"California Office") located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000.
1.2 "Assignment And Release" refers to the form of Assignment,
Assumption And Release Agreement to be executed and delivered by Purchaser to
Seller in payment of the Purchase Price in accordance with Section 2.4 of this
Agreement, a form of which Assignment And Release is attached to and made a part
of this Agreement as Exhibit A.
1.3 "Landlord" means Terrace Tower U.S.A. Inc.
1.4 "Lease" means the Lease dated December 31, 1996, between Landlord
and Seller concerning the California Office.
1.5 "Liabilities" means all liabilities and obligations of Seller,
regardless of whether incurred or accrued before or after the Effective Date,
related to or concerning or arising out of (a) the Assets, (b) the Service
Agreements, (c) the Xxxxxxx Claim (except with respect to any services requested
by Seller after the Effective Date), and (d) the Lease. Without limiting the
foregoing, Liabilities shall include accounts payable related to the Assets. The
Liabilities are being assumed by Purchaser pursuant to this Agreement.
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1.6 "Programs" refers to the following television programs: (a)
"Heartstoppers. . . At The Movies", a two-hour television program hosted by
Xxxxxx Xxxxxxxx, (b) "Christmas At The Movies", a one-hour television program
hosted by Xxxx Xxxxx, and (c) "It's A Wonderful Life - A Personal Remembrance",
an approximately 15-minute television program hosted by Xxxxx Xxxxx, Jr.
1.7 "Purchaser" refers to Xxxxx Xxxxx, an individual.
1.8 "Seller" refers to Mar Ventures Inc., a Delaware corporation.
1.9 "Service Agreements" shall have the meaning set forth in Section
4(e).
1.10 "Xxxxxxx Claim" shall have the meaning set forth in Section 4(f).
2. Sale And Purchase.
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2.1 Sale Of Assets. Subject to the terms and conditions of this
Agreement and upon receipt of the payment of the Purchase Price in the manner
described in Section 2.4 of this Agreement, effective as of the Effective Date,
Purchaser shall purchase, and Seller shall sell, transfer, convey, assign, and
deliver to Purchaser, all of Seller's right, title and interest in, to, and
under the Assets. THE ASSETS ARE TRANSFERRED "AS IS" AND THE SELLER MAKES NO
WARRANTY AS TO THE SUITABILITY OF THE ASSETS FOR ANY PARTICULAR PURPOSE.
2.2 Assumption Of Liabilities. Effective as of Effective Date,
Purchaser shall assume the Liabilities. Without limiting the foregoing,
Purchaser agrees to assume and perform all obligations of Seller with respect to
the Assets and to pay or discharge all liabilities and obligations that have
been or will be incurred or accrued at any time with respect to the Assets. Each
of the Parties acknowledges and agrees that Seller shall have no further rights
or obligations related to the Assets or related to any liabilities or other
obligations that have been or will be incurred or accrued in connection with or
otherwise with respect to the Assets at any time prior or subsequent to the
Effective Date. Purchaser hereby agrees to indemnify and hold harmless Seller
and its officers, directors, representatives and agents from and against any and
all loss, damage, or liability due to, arising out of, or in any manner related
to (a) the Assets, or (b) the Liabilities, or (c) the failure of Purchaser to
perform Purchaser's obligations pursuant to this Section 2.2, or (d) a breach by
Purchaser of any representation, warranty, or certification contained in this
Agreement.
2.3 Purchase Price. Purchaser shall pay to Seller for all the Assets
aggregate consideration of $32,000 (the "Purchase Price"), payable in accordance
with Section 2.4(a) below.
2.4 Closing. The closing of the purchase and sale of the Assets
pursuant to this Agreement (the "Closing") shall be held at the Seller's offices
at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 on October 3, 1997 at 10:00
a.m. Notwithstanding the above, the Closing shall be held at such other time and
place to which the Seller and the Purchaser may agree. The date of Closing shall
be referred to as the "Closing Date". At the Closing, the following will occur:
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(a) Purchaser shall pay the Purchase Price by delivering to the
Seller a counterpart of the Assignment And Release signed by Purchaser; and
(b) Seller shall deliver to Purchaser (i) the Assets that are in
the possession or control of Seller, and (ii) a counterpart of the
Assignment And Release signed on behalf of Seller; and
(c) Purchaser shall deliver to Seller (i) payment of an amount
equal to the aggregate amount of Security Deposits in accordance with
Section 5.3 below, (ii) a copy of the Landlord Consent signed by Landlord
and Purchaser, and (iii) the amount of the Bank Account in accordance with
Section 5.4 below.
3. Representations Of Seller. Seller represents, warrants and agrees to and
with Purchaser as follows as of the Effective Date and as of the Closing Date:
3.1 Seller has full power, authority, and legal right to sell the
Assets;
3.2 This Agreement constitutes a legal and binding obligation of the
Seller, and is valid and enforceable against the Seller and Seller's successors
in accordance with its terms except as enforcement may be limited by applicable
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and except that the remedies of specific performance, injunction and
the forms of equitable relief may be subject to equitable defenses and to the
equitable discretion of the court before which any proceeding therefor may be
brought; and
3.3 There are no restrictions on Seller's right or ability to sell the
Assets to Purchaser.
4. Representations Of Purchaser. Purchaser hereby represents, warrants, and
agrees to and with Seller as follows:
4.1 Purchaser has full power, authority, and legal right to purchase
the Assets from Seller, and the execution of this Agreement by Purchaser does
not require the consent of, or notice to, any party not previously obtained or
given;
4.2 This Agreement constitutes a legal and binding obligation of the
Purchaser, and is valid and enforceable against Purchaser and Purchaser's
successors in accordance with its terms except as enforcement may be limited by
applicable bankruptcy, insolvency or other similar laws affecting creditors'
rights generally and except that the remedies of specific performance,
injunction and the forms of equitable relief may be subject to equitable
defenses and to the equitable discretion of the court before which any
proceeding therefor may be brought; and
4.3 Purchaser is a former officer and director of Seller and is
familiar with the Assets and the Liabilities. Purchaser understands that the
Assets are being transferred to Purchaser pursuant to the terms of this
Agreement in "AS IS" condition. NO REPRESENTATIONS OR WARRANTIES ARE MADE BY
SELLER TO PURCHASER CONCERNING THE SUITABILITY OF THE ASSETS FOR ANY PARTICULAR
PURPOSE.
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4.4 As of the Effective Date, Seller was indebted to Purchaser in an
aggregate amount of at least $32,000 for advances made by the Purchaser to the
Seller, which amount represents the valid and binding obligation of the Seller
for which the Seller received adequate consideration and which amount was
properly documented as an obligation of the Seller in accordance with generally
accepted accounting principles.
4.5 Purchaser has terminated all contracts and agreements concerning
telephone service, long distance telephone service, courier service, and other
services provided to the Seller at the California Office, including but not
limited to those with AT&T, Federal Express, and Pacific Xxxx (the "Service
Agreements"), and, as of the date of the signing of this Agreement by Purchaser,
the Seller has no obligations under the Service Agreements.
4.6 Purchaser has settled and caused to be discharged all amounts
claimed by or owed to Xxxxxxx, Breed & Xxxxxx from the Seller at any time on or
before the date of the signing of this Agreement by Purchaser (the "Xxxxxxx
Claim") and, as of the date of the signing of this Agreement by Purchaser, the
Seller has no obligations to Xxxxxxx, Breed & Xxxxxx.
5. Additional Covenants.
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5.1 Brokerage Commissions And Finders' Fees. Purchaser shall indemnify
and hold harmless Seller from any loss, cost or expense arising out of any claim
for brokerage commissions, finders' fees or other like payment with respect to
this Agreement or other transfer of the Assets if such claim is based upon any
agreement or understanding with Purchaser or any of Purchaser's representatives
or agents. Seller shall indemnify and hold harmless Purchaser from any loss,
cost, or expense arising out of a claim for brokerage commissions, finders' fees
or other like payment with respect to this Agreement or the transfer of the
Assets if such claim is based upon any agreement or understanding with Seller or
any of Seller's representatives or agents.
5.2 Expenses. Each respective Party will pay all expenses and fees of
his or its legal counsel, accountants, and other agents and advisers incurred
pursuant to this Agreement regardless of whether the transactions contemplated
in this Agreement are consummated.
5.3 California Office Lease. Seller agrees to pay to Purchaser at the
Closing $2,900 to reimburse Purchaser for the rental due pursuant to the Lease
from August 6, 1997 through September 30, 1997. Purchaser shall assume and
perform all obligations of Seller accruing on and after August 6, 1997 pursuant
to the Lease. Prior to the Closing, Purchaser shall obtain the written consent
(the "Landlord Consent") of Landlord to the assignment of the Lease to
Purchaser, which Landlord Consent shall contain a release of all of Seller's
obligations pursuant to the Lease arising after August 6, 1997 and which
Landlord Consent shall be in a form reasonably acceptable to Seller. At the
Closing, Purchaser shall pay to Seller an amount equal to all security deposits
(the "Security Deposits") held by the Landlord, pursuant to the Lease, which
consist of $1,605 in the aggregate, and, pursuant to the Landlord Consent,
Purchaser shall have the right to receive the return of the Security Deposits at
the expiration of the initial term of the Lease on February 28, 2000.
5.4 Bank Accounts. Purchaser shall deliver to Seller at the Closing
all amounts held in Bank Account No. 00000-00000 (the "Bank Account") at Bank of
America, Encino Branch 0392, which consists of approximately $336.20 as of the
date of Purchaser's signing of this Agreement. Prior to the Closing, Purchaser
shall cause the Bank Account to be closed and will provide Seller with
reasonable evidence of the closing of the Bank Account.
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5.5 Additional Documentation. Within 30 days of the receipt of a
request from Purchaser, Seller shall execute and deliver to Purchaser all such
additional agreements, assignments, instruments, and other documents reasonably
necessary to effectuate the transactions contemplated by this Agreement.
6. Miscellaneous.
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6.1 Entire Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof.
6.2 Notice. All notices, requests, demands, directions and other
communications ("Notices") provided for in this Agreement shall be in writing
and shall be mailed or delivered personally or sent by telecopier or facsimile
to the applicable Party at the address of such Party set forth below in this
Section 6.2. When mailed, each such Notice shall be sent by first class,
certified mail, return receipt requested, enclosed in a postage prepaid wrapper,
and shall be effective on the third business day after it has been deposited in
the mail. When delivered personally, each such Notice shall be effective when
delivered to the address for the respective Party set forth in this Section 6.2.
When sent by telecopier or facsimile, each such Notice shall be effective on the
first business day on which or after which it is sent. Each such Notice shall be
addressed to the Party to be notified as shown below:
Purchaser: Xxxxx Xxxxx
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Seller: Mar Ventures Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Either Party may change his or its respective address for purposes of
this Section 6.2 by giving the other Party Notice of the new address in the
manner set forth above.
6.3 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, and if any provision of this Agreement shall be or become
prohibited or invalid in whole or in part for any reason whatsoever, that
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remaining portion of that provision or the
remaining provisions of this Agreement.
6.4 Non-Waiver. The waiver of any Party of a breach or a violation of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach or violation of any provision of this Agreement.
6.5 Amendment. No amendment or modification of this Agreement shall be
deemed effective unless and until it has been executed in writing by the Parties
to this Agreement. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there by any estoppel to enforce any provision of
this Agreement, except by a written instrument that has been executed by the
Party charged with such waiver or estoppel.
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6.6 Inurement. This Agreement shall be binding upon both of the
Parties, and it shall benefit, respectively, each of the Parties, and their
respective successors and assigns. This Agreement shall not be assignable by any
Party. There are no third party beneficiaries to this Agreement.
6.7 Headings. The headings to this Agreement are for convenience only;
they form no part of this Agreement and shall not affect its interpretation.
6.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute a single instrument.
6.9 Survival Of Representations And Warranties. Each covenant,
agreement, representation and warranty of the Parties under this Agreement shall
survive for one year the execution of this Agreement and the performance of each
respective Party's obligations pursuant to this Agreement.
IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below
to be effective as of the Effective Date.
PURCHASER:
Date: 15 Oct. 1997 /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, individually
SELLER:
Mar Ventures Inc.
Date: 14 Oct 1997 By: /s/ D. Xxxxx Xxxxxxxxxxx
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D. Xxxxx Xxxxxxxxxxx,
President
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