DATED / 2009 Asia Premium Television Group Inc. and Globestream Technology Inc. ACQUISITION AGREEMENT
Exhibit 10.1
DATED / 2009
and
Globestream
Technology Inc.
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***********************************************
ACQIUISTION
AGREEMENT
This
Acquisition Agreement, dated as of March 23, 2009 (the “Agreement”), is made by
and between:
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Party
A:
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Asia Premium Television Group,
Inc. (“ATVG”), a publicly traded
company listed on the OTTCB, incorporated and existing under the laws of
Nevada.
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Party
B:
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Globstream Technology Inc.
(“GS”), a mobile technology
development and sales company, incorporated and existing under the laws of
the Caymen Islands..
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Whereas:
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1.
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GS has the
following shareholders (the
“Shareholders”):
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|
•
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Xxxx
Xxx
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•
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Xxxxxxx
Xxx
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|
•
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Oaknoll
Holdings, Inc.
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|
•
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Zhi-Xxx
Xxxxx
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|
•
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Xxxx
Xxxxxxx
|
|
•
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Xxxxxxx
XxXxxxx
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|
•
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WSGR
Investment
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|
•
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Xxxxx
Xxxxxx
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•
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San
Domenico Trust
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|
•
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Xxxxx
Xxxxxx
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•
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Xxxxxxx
Xx
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2.
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The
Shareholders together own 100% of GS’s shares (the
“Shares”).
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| 3. | Xxxx Xxx, Xxxxxxx Xxx, Oaknoll Holdings, Inc, Zhi-Xxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxx XxXxxxx, and WSGR Investment are the main shareholder of GS’s (the “Main Shareholders”) |
| 4. | For reasons of business development, having conducted all necessary due diligence and business assessment, and with the agreement of all Parties involved, ATVG wishes to acquire 100% of GS’ shares (the “Acquisition”). |
NOW, THEREFORE, in consideration of the various
covenants and agreements of the Parties to and with each other set for herein,
both parties agree as follows:
CLAUSE
1: LEGAL FORM OF ACQUISITION
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1.1
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For
the purposes of acquiring 100% of the Shares, ATVG shall issue to the
Shareholders ATVG common stock (see CLAUSE 5). In exchange for the ATVG
stock to be issued, the Shareholders hereby agree to transfer 100% of the
Shares to ATVG.
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CLAUSE
2: GS POST ACQUISITION OWNERSHIP AND JURISDICTION
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2.1
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After
the completion of the Acquisition, ATVG shall own and control 100% of GS,
including any and all of its subsidiaries and tangible and non tangible
assets (herein referred to as the
“Assets”).
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CLAUSE
3: TRANSFER OF EQUITY
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1.
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In
order for ATVG to acquire 100% equity ownership of GS, the Shareholders
shall have up to 30 days to transfer all of their shares of GS to ATVG,
and all relevant parties shall handle the relevant procedures for transfer
of ownership.
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2.
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From
the time this Agreement shall come into force until the formal transfer of
shares has legally taken place, the Shareholders of the GS shall be
shareholders in name only, and all rights and obligations afforded them
through their shaholder status shall be automatically transferred to ATVG.
GS shareholders, management, and employees shall not, without the prior
written consent of ATVG, engage in any business activities, outside those
required for the usual course of business, or dispose of any of GS’
assets.
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3.
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Upon
completion of the transfer of the Shares to ATVG by the Shareholders, ATVG
shall enjoy full title and rights to 100% of GS and all its
Assets.
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CLAUSE
4: TRANSFER OF ASSETS, MATERIALS, AND GOODS
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1.
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Patented
Rights
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1.1 Any
patents or patent rights registered anywhere in the world that are held by
GS or any of its subsiduaries prior to this Agreeement coming into force,
shall be transferred to ATVG by GS and its Main Shareholders within 30
days of signing this Agreement. The transfer shall include any and all
relevant documents required to legally own and maintain any such patent
rights.
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1.2 GS
and its Main Shareholders guarantee that all patent rights held by GS are
uncompromised, free of any and all liens, their trade secrets well
protected, and all patent licensing costs paid in
full.
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|
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1.3 GS
and its Main Shareholders shall fully disclose to ATVG the nature, scope,
extent, and use of the patent licensing rights, and all their related
documents, to be transfered to ATVG by
GS.
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|
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1.4 GS
and its Main Shareholders shall transfer to ATVG ownership and any and all
materials and documents relating to any patents that have been applied by
for by GS and are currently still pending
approval.
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2.
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Un-Patented
Technology and Other Commercial Technology
Secrets:
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|
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2.1 GS
and the Main Shareholders shall give to ATVG any and all
documents and materials related to all the un-patented
technology and or any other commercial technology owned by GS or used by
GS to conduct its business.
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|
|
2.2 GS
and the Main Shareholders guarantee to ATVG that any un-patented
technology owned by GS has the potential for patent
application.
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|
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2.3 GS
and the Main Shareholders guarantee to ATVG that none of the non-patented
or other commercial technology secrets have been, or will be, disclosed or
licensed to any outside third
party.
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|
|
2.4 GS
and the Main Shareholders hereby guarantee that from the time this
Agreement is signed neither GS nor the Shareholders shall, unless agreed
to in writing by ATVG, use, modify or license any of GS’s non-patented or
other commercial technology .
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3.
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Other
Assets:
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|
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3.1 GS
and the Main Shareholders agree to transfer to ATVG any other Assets owned
by GS within 10 days of signing this agreement, and GS and the Main
Shareholders guarantee that until such time that the mentioned assets are
transferred to ATVG they shall be kept under safe custody and
not be disposed of or depreciate at a rate any higher than
would normally be expected.
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|
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3.2 GS
and the Main Shareholders hereby guarantee that all assets mentioned above
shall be transfered free of any liens and without any obvious
damage.
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4.
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Financial
and Project Materials:
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|
|
4.1 Within
15 days of signing this Agreement GS and the Main Investors shall provide
to ATVG all of GS and its subsiduaries’ financial materials. These
materials include but are not limited to all historical financial records,
financial statements, financial reports, bank account statements,
orgininal banking certificates, accounting materials and records, tax
fillings, etc.. From the time of signing this Agreement until the transfer
and registration of all finanfical materials has been completed, GS or any
of its subsiduaries shall not withdraw or use any cash from the any of
their bank accounts unless otherwise agreed to in writing by
ATVG.
|
|
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4.2 GS
and its subsiduaries shall provide all other materials relating to their
business operations. The materials include, but are not limited to,
licenses, company chops, or any other materials deemed important by ATVG
but not listed in the preceding
paragraph
|
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5.
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GS
and the Major Shareholders shall assist ATVG to complete all necessary
changes in registration of any of the materials outlined in CLAUSE 4 of
this Agreement.
|
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6.
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GS,
its subsiduaries, and the Main Shareholders guarantee that all assets and
materials referred to in CLAUSE 4 of this Agreement shall be kept safe and
in good condition. GS, its Shareholders, its subsidiaries, its management,
and its employees shall not, unless receiving written permission from
ATVG, dispose of, or willfully cause to depreciate the value of, any of
the assets mentioned here in. Any depreciation in value of the mentioned
assets due to negligence or willfull actions by anyone other than ATVG
shall held financially liable for
damages.
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CLAUSE
5: CONSIDERATION AND PAYMENT
|
1.
|
The
total consideration for the Acquistion shall be 1,040,000 of ATVG common
stock and delivered to the Shareholders as
follows:
|
|
|
1.1 ATVG
shall issue the Shareholders 800,000 shares of ATVG common stock subject
to a one year lock-up period and valued at $0.15 per share, totalling
$120,000.
|
|
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1.2 ATVG
shall transfer to the Shareholders or their desinated party 84,377 shares
of ATVG common stock subject to a six month lock-up period and valued at
$0.15 per share, totalling
$12,656.55.
|
|
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1.3 ATVG
shall issue to the Shareholders 155,623 shares of ATVG common stock in the
form of Warrants with a $0.15 strike price and a provision for cashless
exercise. The warrants shall have a 10 year time limit in which they must
be exercised by the holder.
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2.
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The
consideration is to be paid as
follows:
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|
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2.1 Within
30 days of the completion of the transfer of the Shares by GS and
Shareholders to ATVG, ATVG shall issue its common stock in the forms set
out in provision 1 of CLAUSE 5 of this Agreement to all Shareholders or
their designated parties.
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|
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2.2 The
distribution of the shares to be issued by ATVG as part of the
consideration for the Acquisition to the Shareholders is made explicit in
the following table:
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Name
of Recipient
|
Number
of Stock
|
|
Common
Stock With One Year Lock-Up
|
|
|
Will
Stewartx
|
150,244
|
|
Xxxxxxx
XxXxxxx
|
150,244
|
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Xxxx
Xxxxx (Peregrine)
|
150,244
|
|
Xxxxxx
XxXxxxxxx
|
75,122
|
|
Xxx
Xxxxxxx
|
150,244
|
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Iguana
Holdings Corp.
|
75,122
|
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WSGR
Investment Group
|
16,902
|
|
Xxxxx
Xxxxxx
|
1,502
|
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San
Domenico Trust
|
376
|
|
Zhi-Xxx
Xxxxx
|
30,000
|
|
Common
Stock With Six Month Lock-Up
|
|
|
Xxxx
Xxx
|
10,834
|
|
Xxxxxxx
Xxx
|
8,333
|
|
Zhi-Xxx
Xxxxx
|
20,000
|
|
Xxxx
Xxxxxxx
|
11,000
|
|
Xxx
XxXxxxx
|
11,000
|
|
WS
Investment
|
3,960
|
|
Xxxxx
Xxxxxx
|
352
|
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San
Domenico Trust
|
88
|
|
Xxxxx
Xxxxxx
|
110
|
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Xxxxxxx
Xx
|
7,700
|
|
Xx
Xxx
|
11,000
|
|
Common
Stock in Warrants
|
|
|
Xxxxxx
Xxx
|
155,623
|
|
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2.2 GS
and the Majority Shareholders share ensure that all Shareholders or their
designated party receive the Shares as outline in the table above. Upon
completion of the issuance of the Shares by ATVG to the Shareholders,
ATVG’s obligation of payment pursuant to CLAUSE 1 and 5
shall be deemed to have been paid in
full.
|
CLAUSE
6: LIABILITIES AND LEGAL DOCUMENTATION
|
1.
|
Even
if disclosed to ATVG by GS or its Main Shareholders prior to signing this
Agreement, ATVG shall not be held liable for any debts, including
convertible bonds issued by party GS arising from the conversion of any
debt and obligations, incurred by GS or any of its subsidiaries prior to
the signing of this Agreement. Any re-payment of outstanding debts of
GS or any of its subsidiaries existing before the signing of this
Agreement shall be the sole responsibility GS or its
subsiduaries.
|
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2.
|
Except
as otherwise agreed to in writing by the parties, GS and all its
subsidiaries shall be responsible for ensuring the safe and secure filing
and storage of all contracts, as well as any other requisite legal
documents, entered into prior to or after the signing of this
Agreement.
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3.
|
GS
and its susidiaries shall bear sole responsibility for any and all debts
incurred after the signing of this Agreement, unless those debts are
incurred as a direct result of the execution of CLAUSE 1 of this
Agreement.
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4.
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Any
debts or loans by and between GS and any of its subsidiaries still
outstanding shall be waived and
written-off.
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CLAUSE
7: STAFF AND PERSONNEL
|
1.
|
Prior
to ATVG becoming the 100% owner of GS, GS shall fire or layoff all of its
existing staff.
|
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2.
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All
costs associated with the layoffs, including severance payments
and outstanding salaries, shall be paid by
GS.
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3.
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GS
shall provide ATVG a full list of all GS staff layed off, and ATVG shall
then have the exclusive right to hire back any staff it feels serves the
continued business interest of GS, and shall negotiate the terms of the
new contracts with said employees.
|
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4.
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GS
shall do its utmost to provide ATVG with accurate information about which
employees are essential to the continued success of the GS business, and
it undertakes to ensure, to the best of its ability, that the employees
deemed essential by ATVG be retained in the services of the GS through
signing new contracts.
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CLAUSE
8: GS’S EXISTING BUSINESS
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1.
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GS
and its Main Shareholders shall preserve the integrity of GS’s business
operations and shall provide to ATVG, in a timely and efficient manner,
all necessary materials, equipment, products, and licenses that may be
required to operate GS in its
entirety.
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2.
|
After
the signing of this Agreement, GS and its Main Shareholders shall not in
any way shape or form leverage, use, or otherwise personally benefit from
any of GS’s Assets. The Assets shall include but not be limited to company
materials, patents, information, equipment, and staff. Nor shall GS
or the Main Shareholder use the Assets to engage in any competing business
activities.
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CLAUSE
9: RIGHTS AND OBLIGATIONS OF GS
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1.
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GS
and the Majority Shareholders guarantee that they will take all reasonable
and necessary measures to facilitate the Acquisition, and GS shall render
to ATVG a copy of the GS board resolution approving the
acquisition.
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2.
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GS
and the Main Shareholders undertake and guarantee that the execution of
this Agreement does not violate any laws or regulations that may be
applicable to them or GS’s business
operations.
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3.
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GS
and the Main Shareholders shall undertake to execute the transfer of the
Shares and all necessary related materials within the time frame set out
in CLAUSE 3 and CLAUSE 4 of this
Agreement.
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4.
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GS
and the Main Shareholders guarantee to assit ATVG, as is reasonably
required, to complete the ammendments and change of registration of all
relevant administrative, commercial, and legal records required to legally
effect the Acquisition.
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5.
|
Party
B and the Shareholders guarantee to ATVG that all information and
representations made in this agreement and during the course of ongoing
negotiations between the Parties are accurate and truthful. Should any
information, statement, or representation be found to be fraudulent,
GS and the Shareholders shall bear full legal responsibilities for any
liabilities arising as a result.
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6.
|
If
the Main Shareholders have any outstanding debts or have taken, loaned, or
otherwise used any of the Assets belonging to GS or any of its
subsidiaries, the Main Shareholders shall return such assets and repay any
outstanding liabilites to GS or its subsidiary within ten days of signing
this Agreement.
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7.
|
Should
GS or any of its subsidiaries have outstanding liabilities due to the Main
Shareholders or any related parties thereof at the time of signing this
agreement, the Main Shareholders shall waive, or shall cause their related
parties to waive, in written form, any and all outstanding liabilities due
to them from GS or any of its
affiliates.
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8.
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GS
and the Main Shareholders assume all responsibility for the personnel,
company materials, company products, and company financials as outlined in
this Agreement.
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CLAUSE
10: GUARANTEES
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1.
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ATVG,
GS, the Shareholders, and the Main Shareholders (singularly the “Party”
and collectively the “Parties”) guarantee that they possesse all the
necessary legal and proprietary rights over their respective companies and
businesses required to execute, in full, the Acquisition and all
provisions set forth in this
Agreement.
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2.
|
The
Parties guarantee that all personnel and or management engaged in
negotations and required to execute this Agreement are authorized by law
to do so.
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3.
|
The
Parties guarantee that all related party representatives are legally
authorized to engage in and execute this
Agreement.
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4.
|
The
Parties guarantee that they shall abide by their respective duties and
obligations, as set out in this Agreement. The Parties shall not to
infringe on the rights guaranteed one another under the terms of this
Agreement nor cause additional duties and obligations, outside those set
forth herein, to be borne by any other Party. Should any of the
Parties cause any other Party or Parties to bear any duty or obligation
beyond those set out herein, the Party or Parties to have caused such
additional duties or obligations shall duly compensate the Party or
Parties affected.
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CLAUSE
11: CONFIDENTIALITY
|
1.
|
For the purposes of this Agreement, confidential
information (“Confidential Information”) shall be taken to mean: any information contained in this
agreement, its attachments and any other supplementary agreements;
documents provided during the negotiations of this Agreement; documents
pertaining to the company’s financials, proprietary technology and
intellectual property rights, operations, or customers, that one party
gains from counterparts or their related
parties.
|
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2.
|
The
Parties shall be subject to the following obligations with respect to the
Confidential Information:
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|
|
2.1 To
keep the Confidential Information confidential and secret, and not,
without the prior written consent of any Party, to disclose directly or
indirectly the Confidential Information to any third
party.
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|
2.2 Not
to use the Confidential Information directly or indirectly for any
purposes other than in connection with, and for the benifit of, the GS
business.
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2.3 Otherwise
exercise at least the same degree of care with respect to the Confidential
Information as those Parties would use in handling their own proprietary
informatino, except that the foregoing obligation of confidentiality and
non-use shall not apply to:
|
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a)
|
circumstances
in which the Parties agreed in writing to disclose such
information;
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b)
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information
relayed to internal personnel or related
parties;
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c)
|
information
which at the time of disclosure is already in the public
domain;
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d)
|
information
which after disclosure hereunder becomes part of the public domain by
publication or otherwise through no act or fault of the
Recipient;
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e)
|
information
which can be proven to have been known to the third party prior to the
date hereof and not obtained or derived in contravention of any
confidentiality obligation in favor of
GS;
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f)
|
information
disclosed by the Recipient's pursuant to applicable law, governmental
regulation or legal process.
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3.
|
If
any Party discloses any Confidential Information outside the conditions
set forth in CLAUSE 11 of this Agreement, the Party reponsible for
disclosing that information shall be held legally and financially liable
for any losses or damages which occur or could occur because of
it.
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CLAUSE
12: BREACH OF TERMS
|
1.
|
The
Parties shall endeavour to act honestly and in good faith in order to
carry out the terms of this Agreement and to fulfill the duties and
obligations perscribed them
thereunder.
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2.
|
If
any Party is in breach of any of the terms set out in the Agreement, those
Parties not in breach shall notify, in writing, the Party in violation of
the Agreement and request the Party to fulfill their duties and
obligations. The Party in breach shall compensate those Parties affected
by the breach.
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3.
|
In
the event a Party is in serious breach of the Agreement, from which other
Parties suffer serious material losses, and if the violating Party does
not comply with the terms of the Agreement even after being notified of
their breach, the counterparts shall have the right to terminate the
Agreement.
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4.
|
A
breach of any of the terms of this Agreement that results in actual or
projected economic or financial damages, or incurred expenses, shall be
call for damages to be paid to the
sufferers.
|
|
5.
|
The
failure of any Party at any time or times to require performance of any
provision hereof shall in no manner affect the right to enforce the
same. The waiver by any Party of any breach of the provisions
herein shall not be construed to be a waiver of any succeeding breach of
such provision or a waiver of the provision itself by such Party or a
waiver of any other provision or condition
herein.
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|
6.
|
The
Parties will be considered to be in breach of this Agreement should any
one fail to abide by the terms of any supplementary
Agreements.
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CLAUSE
13: AMENDMENTS AND TERMINATION
|
1.
|
This
Agreement can be amended or terminated only if all Parties agree in
writing.
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2.
|
This
Agreement can be terminated in the event it becomes obvious to the Parties
that it cannot be executed.
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CLAUSE
14: FORCE MAJEUR
|
1.
|
No
Party shall be liable for any failure or delay in performing its
obligations hereunder due to force majeure, which for purposes hereof
shall include acts of God, governmental actions (other than actions
related to the Plant land), war, riots, strikes, typhoons, accidents of
transportation, explosions, court orders and civil commotion, fire,
floods, labor disputes, and any other causes which could not with
reasonable diligence by controlled or prevented by the
Parties.
|
|
2.
|
In
the event of Force Majeur, the Party affected shall provide written
notification and provide official verification of the Force Majeur within
15 days of its occurence.
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CLAUSE
15: LEGAL JURISDICTION AND DISPUTE RESOLUTION
|
1.
|
The
Agreement, as well as any procedure arising there from, shall be governed
by the Laws of the Peoples Republic of China.
|
|
2.
|
Any
dispute caused by fulfilling the Agreement shall be resolved through
negotiations between the Parties. In the event the Parties fail to resolve
the issue through negotiations, the dispute shall be submitted to Beijing
Arbitration Committee.
|
|
3.
|
External
Disputes:
|
|
|
3.1 If
during the course of fulfilling this Agreement any Party suffers losses or
an infringement of their rights as set out in this Agreement due to any
third party, each Party shall, according to all relevant national laws and
regulations,
bear responsibility.
|
|
|
3.2 With
regards to joint liabilities, should any Party come to bear more liability
than the other Parties, that Party shall have the right to recieve
compensation from the other
Parties.
|
|
|
3.3 The
above mentioned liabilities include but are not limited to substantive and
procedural liabilities.
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CLAUSE
16: OTHER
|
1.
|
If
any matters are deemed unclear or uncertain in this Agreement by the
Parties, the Parties shall issue supplementary agreements. If there are
any conflicts between this Agreement and any supplementary agreements, the
supplementary agreements shall take
precedence.
|
|
2.
|
Any
matters not covered by this Agreement or any supplementary agreement shall
be regulated by all relevant laws and
regulations.
|
|
3.
|
Notwithstanding
termination of this Agreement, neither Party shall be relieved from
liability to the other for any breach of CLAUSE 11, 12, 15 of this
Agreement.
|
|
4.
|
This
Agreement shall have 13 copies. Each copy shall be distributed to the
Parties for signature. The agreement shall come into effect upon receiving
all the signatures.
|
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day,
month and year first above written.
________________
Signed
by
on behalf
of [Asia Premium Television
Group Inc]
_______________
Signed
by
on behalf of [Globstream
Technology]
