SUBAYE, INC.
October
25, 2010
METRO
FAME PROPERTIES LIMITED
Rm.2209,
22/F., Xx Xxxxx House, 213 Queen’ s Road East, Wan Chai
Hong
Kong
Tel: x000
0000 0000
Xxxxxxxxx
Xxxxxxxxxx, Managing Director
Re: Purchase of Web
Properties and Users (42,731 SMEs Users) Database by Subaye, Inc. ("SBAY") From
Metro Fame Properties Limited of Hong Kong China ("Seller")
Dear
Xx.Xxxxxxxxxx:
This
letter agreement (the "Agreement") sets forth the terms of SBAY's purchase of
all of the assets, including, without limitation, the physical assets, good
will, web site contents (collectively, the "Assets"), used to conduct the
on-line Business to Business Opt-In Engine (B2B Engine) business that is known
as xxxx.xxx, and presently located at the URL: xxxx://xxx.xxxx.xxx
owned by Seller (the "Business").
The
consummation of the transactions set forth in this Agreement (the "Closing")
shall be effective as of 12:01 a.m. Hong Kong, China on the date that all of the
Closing conditions are satisfied (the "Closing Date"), as reasonably determined
by the Company.
On the
Closing Date, Seller shall sell, assign, transfer, convey and deliver to SBAY
and SBAY agrees to purchase and accept from the Seller, all right, title and
interest in and to all of the Assets, free and clear of all liens, encumbrances
or security interests. The purchase price for the purchased Assets shall be One
Million Four Hundred Ninety Five Thousand Five Hundred Eighty Five shares
(1,495,585) of common stock of SBAY (the "SBAY Shares" or the "Purchase Price"),
as follows:
On the
Closing Date, SBAY shall issues and delivers to Seller One Million Four Hundred
Ninety Five Thousand Five Hundred Eighty Five shares (1,495,585) SBAY Shares
(“Payment”); Seller agrees action necessary to transfer ownership to SBAY of
Business's telephone numbers, web sites content and all domain names for the
Business, free and clear of any liens or encumbrances.
The
parties acknowledge and agree that this is a sale of Assets and that, except as
otherwise specifically set forth in this Agreement, SBAY shall neither assume
nor be liable for any contracts, debts, warranties, obligations,
undertakings or liabilities whatsoever of the Seller, and Seller shall remain
solely liable for any and all claims against the Business or its assets and all
liabilities and accounts payable arising out of Seller's operation of the
Business, acts or omissions prior to the Closing.
Seller
hereby represents and warrants to SBAY that (1) this Agreement is a valid and
binding obligation of Seller enforceable in accordance with its terms and that
there are no agreements or encumbrances of the Seller with respect to the
Business or the Assets; (2) this Agreement does not violate or conflict with any
other agreement to which Seller is a party or require the consent of any
third-party; (3) attached hereto is Seller's financial information which is true
and accurate in all respects and present fairly the financial position and the
results of operation of the Business; (4) Seller has no material liabilities of
any nature whatsoever which are not disclosed in such financial information
since the date on the financial information; (5) all books and records of Seller
which have been provided to SBAY for inspection are true, correct and complete,
and contain no material omission with respect to the Business or operations or
status of the Seller or the Assets; (6) Seller is not a party to any pending
litigation, is not aware of any threatened litigation with respect to the
Business or the Assets and has not filed any voluntary petition in bankruptcy,
nor been served with or otherwise received notice of any involuntary petition in
bankruptcy having been filed against Seller; (7) Seller is the sole and
exclusive owner of and has good and marketable title to all of the Assets, free
and clear of all liens, mortgages, pledges, encumbrances or charges of every
kind, nature, and description whatsoever; (8) all licenses, permits or other
registrations required for operation of the Business are current and valid and
Seller is in compliance with all federal, state and local laws and regulations
in connection with the operation of the Business; (9) Seller is not in default
with respect to any material liabilities or material obligations, which are
related to the Assets or the Business, (10) Seller has and will transfer all
assets, rights and interests necessary or convenient for the operation of the
Business; and (11) all taxes, wages, utilities and other accounts payable in
connection with the Seller's operation of the Business through the Closing are
current and not past due, and all such liabilities or obligations incurred or
accrued have been paid and discharged as they become due and all such
liabilities and obligations have been, as of and through the Closing Date,
incurred in the ordinary course of business.
The
Seller understands that SBAY Shares to be issued to the Seller under this
Agreement have not been and will not be registered under the Securities Act in
reliance upon exemptions contained in the Securities Act or interpretations
thereof, and cannot be offered for sale, sold or otherwise transferred unless
such shares of SBAY stock are registered or qualify for exemption from
registration under the Securities Act. The Seller has such knowledge
and experience in financial and business matters that the Seller is capable of
evaluating the merits and risks of the Seller's investment in SBAY Shares being
acquired hereunder. The Seller understands and is able to bear any economic
risks associated with such investment. The Seller acknowledges that the Seller
has had the opportunity ask questions to the officers and management of SBAY
about the business and financial condition of SBAY. SBAY Shares being issued to
the Seller hereunder are being acquired by the Seller in good faith solely for
its own accounts, for investment and not with a view toward resale or other
distribution within the meaning of the Securities Act. The SBAY Shares shall not
be offered for sale, sold or otherwise transferred by the Seller without either
registration or exemption from registration under the Securities Act or
applicable state securities laws. No SBAY Shares were offered to the Seller by
means of publicly disseminated advertisements or sales literature.
SBAY
hereby represents and warrants to Seller that (1) SBAY is a corporation duly
organized, legally existing and in good standing under the laws of its state of
incorporation; (2) the information (including the financial statements and notes
thereto) contained in its Registration Statement
on Form 10KSB and its most recent Form 10-QSB filing, (the "SEC Filings")
accurate and complete in all material respects and do not contain an untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading; (3) the shares of SBAY
Common Stock when issued and paid for as contemplated hereby will be duly and
validly authorized, fully-paid and non-assessable, and Seller will acquire good
title to the shares; (4) the execution and delivery of this Agreement by SBAY
has been duly authorized and this Agreement constitutes the valid and binding
obligation of SBAY enforceable in accordance with its terms; (5) SBAY is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; (8) this Agreement does not violate or conflict with
any agreement to which SBAY is a party or require the consent of any third
party.
All
representations and warranties of the parties contained herein shall be true in
all material respects at and as of the Closing Date with the same effect as
though such representations and warranties were made at and as of such time; and
each party shall have performed and complied with all obligations, covenants,
and conditions required by this Agreement to have been performed or complied
with by it prior to or on the Closing Date. All
representations, warranties, agreements and covenants made and given herein
shall survive the execution and delivery of this Agreement and the
Closing.
Seller
shall indemnify, defend and save SBAY harmless from any actions, claims, losses,
damages, demands or expense (including without limitation all court costs and
reasonable attorney's fees on account thereof) suffered or incurred by SBAY, its
successors or assigns, arising from (i) any untruthfulness of any representation
made by the Seller in this Agreement or in any document delivered to SBAY by or
on behalf of Seller pursuant to this Agreement, or (ii) breach of any covenant
or warranty of the Seller contained in this Agreement or in any document
delivered to SBAY by or on behalf of Seller pursuant to this
Agreement. Until the Closing Date, Seller (1) shall not, either
directly or indirectly, on its own behalf or on behalf of any other person,
entity or concern, solicit, negotiate with, have discussions with or in any
manner entertain, encourage, contemplate or accept any offer, inquiry or
proposal of any other person, concern or entity seeking to acquire any or all of
the Assets or the Business; and (2) shall immediately notify SBAY of any contact
with Seller by any person, concern or entity regarding such offer, inquiry or
proposal, stating the name of such other entity and the substantive terms of
such offer.
Commencing
on the date hereof and continuing through the Closing Date, Seller agrees to
conduct its business in the ordinary course, which ordinary course shall in no
way impair or injure the business or professional reputation of SBAY, and
refrain from any extraordinary transactions.
At the
Closing, SBAY may issue a press release. No party shall make any other press
release or public statement anywhere in the world or on any global computer
network concerning SBAY or the Seller pertaining to the transactions
contemplated herein or in this Agreement without the prior, express written
consent of the other parties hereto.
The
obligations of SBAY to effect the transactions contemplated herein are further
subject to the satisfaction at or prior to the Closing Date of the following
conditions by Seller, unless waived by SBAY in writing: (1) from the date of
this Agreement through the Closing Date, Seller shall not have suffered any
adverse change in business or assets that has had an effect greater than Two
Thousand Dollars ($2,000.00); (2) all actions, proceedings, instruments and
documents required to carry out this Agreement, or incidental hereto, and all
other legal matters shall have been approved by counsel to SBAY, and such
counsel shall have received all documents, certificates and other papers
reasonably requested by it in connection
therewith; (3) Seller shall reaffirm that he is familiar with the business of
SBAY, that he is acquiring the SBAY Shares under Section 4(2) of the Securities
Act of 1933 (the "Securities Act"), commonly known as the private offering
exemption of the Securities Act, and that the SBAY Shares are restricted and may
not be resold, except in reliance on an exemption under the Securities Act; and
(4) at the time of Closing, Seller shall deliver to SBAY: (i) executed bills of
sale and other instruments in a form satisfactory to SBAY and its counsel as may
be necessary to transfer all of the Assets to SBAY and to consummate the
transactions called for by this Agreement; (ii) an executed employment letter
agreement dated of equal date herewith; and (iii) a certificate signed by Seller
certifying that the representations and warranties of Seller set forth in this
Agreement are true and correct as of the date of this Agreement.
The
obligations of Seller to effect the transactions contempleted herein are subject
to the satisfaction at or prior to the Closing Date of the following conditions
by SBAY, unless waived by Seller in writing: (1) SBAY shall have furnished
Seller with copies of resolutions duly adopted by the Boards of Directors of
SBAY approving the execution and delivery of this Agreement and all other
necessary or proper corporate action to enable them to comply with the terms of
this Agreement, and (2) at the time of Closing, SBAY shall deliver to Seller an
SBAY stock certificate representing the Payment and a certificate signed by a
duly authorized officer of SBAY certifying that the representations and
warranties of SBAY set forth in this Agreement are true and correct as of the
date of this Agreement.
Any
controversy or claim arising out of or related to this Agreement or the breach
thereof shall be settled by binding arbitration in Delaware, in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and
judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.
This
Agreement, together with attachments and documents identified herein,
constitutes the entire agreement and understanding of the parties with respect
to the subject matter hereof, and is intended as the parties' final expression
and complete and exclusive statement of the terms thereof, superseding all prior
or contemporaneous agreements, representations, promises and understandings,
whether written or oral, and may be amended or modified only by an instrument in
writing signed by both parties.
Any
notice required or permitted to be given hereunder shall be (a) in writing, (b)
effective on the first business day following the date of receipt, and (c)
delivered by one of the following means: (i) by personal delivery; (ii) by
prepaid, overnight package delivery or courier service; or (iii) by the Postal
Service, first class, certified mail, return receipt requested, postage prepaid.
All notices given under this Agreement shall be addressed to the addresses
stated at the top of this Agreement, or to such other addresses of which the
parties have been advised in writing by any of the above-described
means.
This
Agreement shall be governed by and construed in accordance with the laws of the
P.R of China, without giving effect to any principles of conflicts of law. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one and the
same Agreement. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective heirs, distributees, legal representatives,
successors and assigns.
Please
acknowledge receipt of the foregoing and your agreement and consent to same by
executing a copy of this letter where indicated below and returning a copy to us
by facsimile and a fully executed original to us by overnight mail
courier.
Very
truly yours,
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By: | /s/ Xxxxxxxx Xxx | |
| Xxxxxxxx Xxx, CEO | |||
Agreed
and accepted this 25th day of
October 2010.
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Seller: Metro
Fame Properties Limited
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By: | /s/ Xxxxxxxxx Xxxxxxxxxx | |
| Xxxxxxxxx Xxxxxxxxxx | |||
