ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and
entered into this 28th day of December, 2004, between TC X Calibur, Inc., a
Nevada corporation ("TCX" or the "Company"); Berliner Holdings Limited, a
corporation organized under the Province of Ontario, Canada ("Berliner"); and
Film Opticals of Canada 2004, a newly formed corporation organized under the
Province of Ontario, Canada, and a wholly-owned subsidiary of Berliner ("New
Film Opticals").
W I T N E S S E T H:
RECITALS
WHEREAS, TCX is the parent of Film Opticals Investments Limited,
a corporation organized under the Province of Ontario, Canada ("Film
Opticals"); and
WHEREAS, all of the Company's current operations are being
conducted in Film Opticals and substantially all of the Company's assets are
owned by Film Opticals, except the Company's film library, which consists of
approximately 125 movies in foreign languages referenced in Exhibit A attached
hereto and incorporated herein by reference (primarily Chinese) (the "Film
Library"); and
WHEREAS, the respective Boards of Directors of TCX and New Film
Opticals have adopted resolutions pursuant to which New Film Opticals will
acquire Film Opticals and the Film Library, and Berliner will cancel 500,000
shares of the Company's common stock that it currently owns in consideration
of such purchase; and, as further consideration of such purchase, New Film
Opticals and Berliner will assume, pay and/or compromise all of the Company's
outstanding claims or liabilities as of the Closing of the Agreement that are
related to Film Opticals and the Company's Film Library and indemnify and hold
the Company harmless from them;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, it is agreed:
Section 1
Conveyance of Film Opticals and Film Library
1.1 Conveyance and Payment. TCX hereby conveys all of its
right, title and interest in Film Opticals and the Film Library, without
qualification, to New Film Opticals, excluding only those liabilities
comprising the costs and expenses of this Agreement; and Berliner hereby
agrees to cancel 500,000 shares of the Company's common stock in further
consideration thereof.
1.2 Delivery of Title of Conveyances. The conveyance of the
Company's right, title and interest in Film Opticals and the Film Library
shall be effected by the delivery to New Film Opticals at the closing (the
"Closing") of the required certificates of title, if applicable, or notarized
assignments, as may be deemed to be reasonably required or necessary, or other
documentation, that is deemed reasonably sufficient to convey the right, title
and interest of TCX in Film Opticals and the Film Library to New Film
Opticals.
1.3 Further Assurances. At the Closing and from time to time
thereafter, TCX shall execute such additional instruments and take such other
action as New Film Opticals may reasonably request in order to more
effectively transfer TCX' s right, title and interest in Film Opticals and the
Film Library to New Film Opticals.
1.4 Assumption of Liabilities and Indemnification. Berliner and
New Film Opticals shall assume, pay and indemnify and hold TCX harmless from
and against any and all pre-Agreement claims and liabilities of TCX that are
related to Film Opticals or the Film Library, whether by contract, lease,
license or otherwise, without qualification, except the costs and expenses
related to this Agreement.
Section 2
Closing
The Closing contemplated by Section 1 shall occur on or before ten
calendar days following the execution and delivery of this Agreement and the
requisite approval of persons owning a majority of the outstanding voting
securities of the Company, unless another time is agreed upon in writing by
the parties. The Closing may be accomplished by wire, express mail or other
courier service, conference telephone communications or as otherwise agreed by
the respective parties or their duly authorized representatives.
Section 3
Representations and Warranties of TCX
TCX represents and warrants to, and covenants with, Berliner and
New Film Opticals as follows:
3.1 Corporate Status. TCX is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada
and is licensed or qualified as a foreign corporation in all states in which
the nature of its business or the character or ownership of its properties
makes such licensing or qualification necessary.
3.2 Corporate Authority. TCX has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and will deliver to Berliner and/or New Film Opticals or their
respective representatives at the Closing a certified copy of resolutions of
its Board of Directors authorizing execution of this Agreement by its officers
and performance thereunder.
3.3 Due Authorization. Execution of this Agreement and
performance by TCX hereunder have been duly authorized by all requisite
corporate action on the part of TCX, and this Agreement constitutes a valid
and binding obligation of TCX and performance hereunder will not violate any
provision of the Articles of Incorporation, Bylaws, agreements, mortgages or
other commitments of TCX.
Section 4
Representations, Warranties and Covenants of Berliner and New Film Opticals
Berliner and New Film Opticals represent and warrant to, and
covenant with, TCX as follows:
4.1 Corporate Status. Berliner and New Film Opticals are each
corporations duly organized, validly existing and in good standing under the
laws of the Province of Ontario, Canada, and are licensed or qualified as
foreign corporations in all states in which the nature of their business or
the character or ownership of their properties make such licensing or
qualification necessary.
4.2 Corporate Authority. Berliner and New Film Opticals have
full corporate power and authority to enter into this Agreement and to carry
out their obligations hereunder and will deliver to TCX or its representative
at the Closing a certified copy of resolutions of their respective Boards of
Directors authorizing execution of this Agreement by their officers and
performance thereunder.
4.3 Due Authorization. Execution of this Agreement and
performance by Berliner and New Film Opticals hereunder have been duly
authorized by all requisite corporate action on the part of Berliner and New
Film Opticals, and this Agreement constitutes a valid and binding obligation
of Berliner and New Film Opticals and performance hereunder will not violate
any provision of the Articles of Incorporation, Bylaws, agreements, mortgages
or other commitments of Berliner or New Film Opticals.
Section 5
General Provisions
5.1 Further Assurances. At any time, and from time to time,
after the Closing, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to confirm
or perfect title to any property or assets transferred hereunder or otherwise
to carry out the intent and purposes of this Agreement.
5.2 Waiver. Any failure on the part of any party hereto to
comply with any of its or their obligations, agreements or conditions
hereunder may be waived in writing by the party to whom such compliance is
owed.
5.3 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first-class registered or certified mail, return
receipt requested, as follows:
If to TCX: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
With a copy to: Xxxxxxx X. Xxxxxxxxxx, Esq.
455 East 000 Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
If to Berliner: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
If to New Film Opticals: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
5.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
5.5 Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
5.6 Governing Law and Venue of Actions. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the
State of Nevada, except to the extent pre-empted by federal law, in which
event (and to that extent only), federal law shall govern.
5.7 Assignment. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their successors and assigns.
5.8 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
5.9 Default. In the event of any default hereunder, the
prevailing party in any action to enforce the terms and provisions hereof
shall be entitled to recover reasonable attorney's fees and related costs.
5.10 Survival of Representations and Warranties. The
representations, warranties, covenants and agreements contained herein shall
survive the Closing and be fully binding on the parties until the expiration
of the applicable statute of limitations period.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective the day and year first above written.
TC X CALIBUR, INC.
Date: 12/28/04 By /s/ Claus Voellmecke
Claus Voellmecke, President
BERLINER HOLDINGS LIMITED
Date: 12/28/04 By /s/ Claus Voellmecke
Claus Voellmecke, President
FILM OPTICALS OF CANADA 2004
Date: 12/28/04 By /s/ Claus Voellmecke
Claus Voellmecke, President
