Asset Purchase and Sale Agreement By and Between China YouTV Corp. and First Light Resources Limited April 1, 2009
Exhibit 10.1
Asset
Purchase and Sale
Agreement
By and Between
and
First
Light Resources Limited
April 1, 2009
The
parties to this Asset Purchase and Sale Agreement (“Agreement”), effective as of
April 1, 2009 (“Effective
Date”), are First Light
Resources Limited, an Ontario corporation (“1st Light” or the “Seller”), and China YouTV
Corp., a Nevada company (“Buyer”).
RECITALS
A. Seller
is an Ontario company with offices in Sarnia, Ontario.
B. Seller
is a junior mineral resource exploration company, exploring and developing
economically viable mineral deposits situated in well known and historically
proven mining areas (the “Business”).
C. Subject
to the terms and conditions contained in this Agreement, Seller desires to sell
to Buyer and Buyer desires to purchase from Seller certain assets and
liabilities related to the Business listed in this Agreement.
Now,
therefore, in consideration of the mutual covenants, representations, and
warranties in this Agreement, the parties make the following
agreement:
ARTICLE
1
PURCHASE AND SALE OF
ASSETS
1.1
Purchase and Sale of Assets. Except as set forth in Article 1.2, Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, on the
Closing Date, all of Seller’s right, title, and interest in and to the following
assets of Seller used in the operation of the Business (the “Assets”):
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(a) All
customer contracts, agreements, warranties, and other customer rights or
agreements, written or oral, related to the operation of the Business and
all Business leases and other
agreements;
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(b) All
lists (in written or electronic format) of past, present or potential
applicants with Seller in the Business, including all files, information
and computer records related
thereto;
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(c) All
lists (in written or electronic format) of past, present or potential
customers of Seller in the Business, including all files,
information and computer records related
thereto;
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(d)
if all business development information, databases, price lists and
pricing records, copies of accounting records, rate records, sales
literature, technical literature, information and know-how, and any other
books, documents, instruments and records, in each case used in the
operation of the Business;
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(e) All
goodwill associated with the Business;
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(f) The
prepaid expenses (excluding any prepaid taxes) and deposits of the
Business as of the Closing Date ;
and
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(g) All
rights in favor of Seller under non-competition or non-solicitation
agreements executed in favor of Seller by any of Seller’s current or past
employees, if any.
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1.2
Seller shall convey title to the Assets to Buyer free and clear of all liens,
security interests, and encumbrances of any kind or nature.
1.3 Risk
of Loss. Seller assumes all risk of loss or damage to the Assets prior to the
Closing Date. In the event that there is any material loss or damage to all or
any material portion of the Assets prior to the Closing, Buyer may either
terminate this Agreement pursuant to Article 10, or negotiate with Seller for a
proportionate reduction in the Purchase Price to reflect the loss or damage. For
the purposes of this provision, the term “material loss or damage” shall mean
any loss or damage to the Assets with an aggregate cost of Fifty Thousand
Dollars ($50,000).
ARTICLE
2
ASSUMPTION OF
LIABILITIES
2.1
Assumption of Liabilities. As of the Closing Date, in addition to any other
liabilities expressly assumed by Buyer under this Agreement, Buyer shall only
assume responsibility for performing and satisfying all of the contractual
obligations and other liabilities of Seller.
2.2
Excluded Liabilities. Except as expressly provided in this Agreement, including,
without limitation, with respect to the Assumed Liabilities, Buyer shall not
assume or become liable for any obligations, commitments, or liabilities of
Seller, whether known or unknown, absolute, contingent, or otherwise, and
whether or not they are related to the Assets (the “Excluded
Liabilities”).
ARTICLE 3
PURCHASE PRICE
3.1
Purchase Price. Subject to the terms and conditions of this Agreement, the
purchase price for the Assets shall be One Hundred Fourteen Thousand US Dollars
($114,000) (“Purchase
Price”). The Purchase Price shall be paid to Seller in cash or common
stock of the Buyer or the combination.
ARTICLE 4
CLOSING
4.1 Time
and Place of Closing. The Closing for the purchase and sale of the Assets
(“Closing” or “Close”) will take place at
Vancouver, British Columbia, Canada, on April 1, 2009, or at such other time and
place as the parties may mutually agree (the “Closing Date”). At the Close,
Seller will transfer and convey title to the Assets and the Assumed Liabilities
to Buyer, and Buyer will assume the Assumed Liabilities, as provided in this
Agreement.
4.2
Seller’s Closing Obligations. At the Close, Seller shall execute, acknowledge,
and deliver, as appropriate, each of the following items:
(a) A
duly executed xxxx of sale (the “Xxxx of Sale”), in
substantially the form attached as Exhibit A and incorporated herein by
reference, conveying to Buyer all of Seller’s right, title, and interest in and
to the Personal Property.
(b) A
duly executed assignment of all Contracts (the “Assignment of Customer Contracts,
Agreements, and Arrangements”), in substantially the form attached as
Exhibit B and incorporated herein by reference, pursuant to which Seller
shall assign to Buyer all of its right, title, and interest in and to, and Buyer
shall accept and assume all of Seller’s obligations in respect of, the Contracts
and the other Assumed Liabilities.
(c) All
other deeds, bills of sale, warranty deeds, assignments, endorsements, licenses,
and other good and sufficient instruments and documents of conveyance and
transfer as shall be necessary and effective to transfer, convey, and assign to
Buyer at the Closing all of Seller’s right, title, and interest in and to the
Assets, free and clear of any liens or encumbrances, other than any Permitted
Liens.
4.3
Buyer’s Closing Obligations. At the Closing, Buyer shall execute (or cause to be
executed), acknowledge, and deliver, as appropriate, each of the following
items:
(a) The
Payment provided for in Article 3.1.
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(b) A
duly executed Assignment of Customer Contracts, Agreements, and
Arrangements, pursuant to which Seller shall assign to Buyer all of its
right, title, and interest in and to, and Buyer shall accept and assume
all of Seller’s obligations in respect of, the
Contracts.
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(c) All
other instruments and documents necessary to consummate the transactions
contemplated by this Agreement.
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ARTICLE 5
SELLER’S REPRESENTATIONS AND
WARRANTIES
5.1
Seller’s Representations and Warranties. Seller makes the following
representations and warranties to Buyer, each of which is true and correct as of
the Effective Date and as of the Closing Date:
(a) Each
of CYTV and 1st Light is a corporation in good standing under the laws of the
state of its incorporation.
(b) Seller
has full legal power and authority to enter into, deliver and perform this
Agreement, and this Agreement constitutes Seller’s valid and binding obligation,
enforceable in accordance with its terms, except to the extent that such
enforceability (i) may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors’ rights
generally, and (ii) is subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(c) The
execution and delivery of this Agreement does not conflict with, violate, or
constitute a default under the terms, conditions, or provisions of any agreement
or instrument to which Seller is a party.
(d) There
are no actions, suits, proceedings, or claims now pending, or, to the best of
Seller’s knowledge, threatened against Seller or the Assets that would cause a
Material Adverse Effect.
(e) Seller
has good and marketable title to the Assets free and clear of all liens,
charges, and encumbrances, and any contractual requirement to obtain the consent
of a party to a Contract that is being assigned hereunder.
(f) To
the best of Seller’s knowledge, all of the Contracts are in full force and
effect, have been duly executed by the parties, and neither Seller nor any other
party is in material default under any Contract, nor has Seller knowledge that
any party to any of these agreements intends to cancel or terminate any of these
Contracts.
(g) To
the best of Seller’s knowledge, each agreement, instrument, or license with
respect to the Intangible Property is in full force and effect, and neither
Seller nor any other party is in material default under any such
agreements.
(h) Seller
is not a party to, or otherwise bound by, any collective bargaining agreement,
multi-employer pension fund, or other labor union agreement with respect to any
person(s) employed by Seller in connection with its operation of the
Business.
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(i)
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Seller
is in material compliance with all federal, state, and local laws and
regulations with respect to the operation of the
Business.
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ARTICLE 6
BUYER’S REPRESENTATIONS AND
WARRANTIES
6.1
Buyer’s Representations and Warranties. Buyer makes the following
representations and warranties to Seller, each of which is true and correct as
of the Effective Date and as of the Closing Date:
(a) Buyer
is a public company, duly organized, validly existing, and in good standing
under the laws of the state of its organization.
(b) Buyer
has full legal power and authority to enter into, deliver and perform this
Agreement and the Notes, and this Agreement and the Notes constitute the valid
and binding obligations of Buyer, enforceable in accordance with their terms,
except to the extent that such enforceability (i) may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditors’ rights generally, and (ii) is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) There
is no action, suit, proceeding, or claim pending, or, to the best of Buyer’s
knowledge, threatened, against Buyer that would affect Buyer’s ability to
fulfill Buyer’s obligations under this Agreement or the Notes.
(d) No
other action, consent or approval on the part of Buyer is necessary to authorize
Buyer’s due and valid execution, delivery and performance of this Agreement and
the Notes.
(e) The
execution and delivery of this Agreement and the Notes and the performance by
Buyer of its obligations hereunder and there under (i) do not and will not
conflict with or violate any provision of the operating agreement or similar
organizational documents of Buyer, and (ii) do not and will not
(a) result in a violation of, or (b) require any authorization,
consent, approval, exemption or other action by or notice to any court or
administrative, arbitration or governmental body or other third party pursuant
to, any law, statute, rule, regulation, judgment, decree, contract, agreement,
license or instrument to which Buyer is subject or by which any of its assets
are bound.
ARTICLE 7
COVENANTS
7.1
Further Assurances Prior to Closing. Seller and Buyer shall, prior to Closing,
execute any and all documents and perform any and all acts reasonably necessary,
incidental, or appropriate to effect the transactions contemplated by this
Agreement.
7.2
Notification of Changed Circumstances. At any time after the Effective Date and
prior to the Closing, if either party becomes aware of any fact or circumstance
that would change a representation or warranty made under this Agreement such
that it would cause a Material Adverse Effect, the party with knowledge of those
facts shall notify the other in writing as soon as possible after the discovery
of the fact or circumstance.
7.3
Client Information Database. Buyer will have the right to copy all employee and
client information related to the Business from Seller’s database.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS
OF BUYER
8.1
Buyer’s Conditions. The obligation of Buyer to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction, on or
before the Closing Date, of each of the following conditions:
(a) The
representations and warranties of Seller contained in this Agreement shall be
true and correct in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date.
(b) Seller
shall have performed and complied in all material respects with all covenants
and agreements required by this Agreement to be performed or complied with by
Seller on or prior to the Closing Date.
(c) No
injunction or restraining order shall be in effect which forbids or enjoins the
consummation of the transactions contemplated by this Agreement, no proceedings
for such purpose shall be pending, and no federal, state, local or foreign
statute, rule or regulation shall have been enacted which prohibits, restricts
or delays the consummation of the transactions contemplated hereby.
(d) The
Assets shall be in substantially the same condition on the Closing Date as on
the Effective Date, and there shall be no material loss or damage to the Assets
prior to the Closing.
(e) Seller
shall have obtained the Required Consents.
(f) All
liens, claims, charges, security interests, pledges, assignments, or
encumbrances relating to the Assets that are not Permitted Liens shall be
satisfied, terminated, and discharged by Seller, and evidence reasonably
satisfactory to Buyer and its counsel of the satisfaction, termination, and
discharge shall be delivered to Buyer.
(g) Seller
shall have delivered the documents required by Article 4.2, each duly
executed as indicated therein, and such other documents as Buyer or its counsel
may reasonably request to evidence the transactions contemplated
hereby.
8.2
Failure to Satisfy Buyer’s Conditions. Any of Buyer’s conditions precedent may
be waived in whole or in part by Buyer in writing at any time on or before the
Closing Date. In the event all Buyer’s conditions precedent have not been waived
by Buyer or satisfied in full on or before the Closing Date, Buyer may elect to
terminate this Agreement as provided in Article 10.
ARTICLE
9
CONDITIONS
PRECEDENT TO OBLIGATIONS OF SELLER
9.1
Seller’s Conditions. The obligation of Seller to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction, on or
before the Closing Date, of each of the following conditions:
(a) The
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date.
(b) Buyer
shall have performed and complied in all material respects with all covenants
and agreements required by this Agreement to be performed or complied with by
Buyer on or prior to the Closing Date.
(c) No
injunction or restraining order shall be in effect which forbids or enjoins the
consummation of the transactions contemplated by this Agreement, no proceedings
for such purpose shall be pending, and no federal, state, local or foreign
statute, rule or regulation shall have been enacted which prohibits, restricts
or delays the consummation of the transactions contemplated hereby.
(d) Buyer
shall have delivered (or cause to be delivered) the documents and payments
required by Article 4.3, each duly executed as indicated therein (as
appropriate), and such other documents as Seller or its counsel may reasonably
request to evidence the transactions contemplated hereby.
9.2
Failure to Satisfy Seller’s Conditions. Any of Seller’s conditions precedent may
be waived in whole or in part by Seller in writing at any time on or before the
Closing Date. In the event that all of Seller’s conditions precedent have not
been waived by Seller or satisfied in full on or before the Closing Date, Seller
may elect to terminate this Agreement as provided in Article 10.
ARTICLE
10
TERMINATION
10.1
Termination. This Agreement may be terminated as follows:
(a) By
the mutual consent of Buyer and Seller at any time prior to
Closing.
(b) By
Buyer at any time prior to the Closing as expressly provided in this Agreement,
or if any condition precedent to Buyer’s obligations set forth in Article 8
has not been satisfied in full or previously waived by Buyer in writing, at or
prior to Closing.
(c) By
Seller at any time prior to the Closing as expressly provided in this Agreement,
or if any condition precedent to Seller’s obligations set forth in
Article 9 has not been satisfied in full or previously waived by Seller in
writing, at or prior to Closing.
10.2
Effect of Termination. In the event of the termination of this Agreement
pursuant to the provisions of this Article 10 prior to the Closing, this
Agreement shall become void and have no effect, without any liability on the
part of any of the parties.
10.3
Remedies Cumulative. The remedies set forth in this Agreement are cumulative and
not exclusive of any other legal or equitable remedy otherwise available to any
party.
10.4
Effectiveness of Confidentiality Agreement. In the event of a Termination, the
Confidentiality Agreement in connection with this transaction shall remain in
force.
ARTICLE
11
GENERAL
PROVISIONS
11.1
Assignment. The respective rights and obligations of the parties to this
Agreement may not be assigned by any party without the prior written consent of
the other, which consent may not be unreasonably withheld or
delayed.
11.2
Successors and Assigns. The terms and provisions of this Agreement shall be
binding on and inure to the benefit of the permitted successors and permitted
assigns of the parties.
11.3
Entire Agreement. This Agreement (including the Exhibits attached hereto) and
the Confidentiality Agreement constitute the entire agreement between the
parties with respect to the subject matter of this Agreement and supersede all
prior agreements, oral and written, between the parties hereto with respect to
the subject matter of this Agreement.
11.4
Modification and Waiver. This Agreement may not be amended, modified, or
supplemented except by written agreement signed by the party against which the
enforcement of the amendment, modification, or supplement is sought. No waiver
of any of the provisions of this Agreement shall be deemed, or shall constitute,
a waiver of any other provision. No waiver shall be binding unless executed in
writing by the party making the waiver.
11.5
Attorney Fees. If any legal action or other proceeding is brought to enforce the
provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorney fees and other costs incurred in the action or proceeding,
in addition to any other relief to which the prevailing party may be entitled.
11.6 Fees
and Expenses. Except as otherwise specifically provided in this Agreement,
Seller and Buyer shall pay their own fees and expenses in connection with the
negotiation and consummation of the transactions contemplated by this
Agreement.
11.7
Notices. All notices, requests, demands, and other communications required by
this Agreement shall be in writing and shall be (a) delivered in person,
(b) mailed by first class registered or certified mail, (c) sent by a
nationally recognized overnight courier for next business day delivery or
(d) delivered by facsimile transmission, as follows, or to such other
address as a party may designate to the other in writing:
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(i)
If to Seller:
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First
Light Resources Inc.
2323
Passingham Dr
Sarnia,
Ont. N7T7H4
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(ii)
If to Buyer:
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0/X,
XxxXxxXxXxx, Xx0, XxxxXx Xxxx, Xxxx,
Xxxxxxx,
Xxxxx
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If
delivered personally or by courier, the date on which the notice, request,
instruction, or document is delivered shall be the date on which the delivery is
made, and if delivered by facsimile transmission or mail as aforesaid, the date
on which the notice, request, instruction, or document is received shall be the
date of delivery.
11.8
Headings. All Article headings contained in this Agreement are for convenience
of reference only, do not form a part of this Agreement, and shall not in any
way affect the meaning or interpretation of this
Agreement.
11.9
Counterparts. This Agreement may be executed in two (2) or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one counterpart has been signed by each party and
delivered to the other party hereto.
11.10
Time of Essence. Time shall be of the essence with respect to the obligations of
the parties to this Agreement.
11.11
Governing Law. This Agreement shall be governed by and construed under the laws
of the State of British Columbia.
11.12
Severability. In the event that any provision of this Agreement is deemed to be
invalid, illegal, or unenforceable, all other provisions of the Agreement that
are not affected by the invalidity, illegality, or unenforceability will remain
in full force and effect.
In
witness whereof, the duly authorized representatives of the parties hereto
executed this Agreement as of the Effective Date.
China
YouTV Corp., a Nevada corporation
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/s/
Xxx Xxxx
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Xxx
Xxxx
Chief
Executive Officer
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First
Light Resources Inc., an Ontario corporation
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/s/ Xxx
Xxxxxxxx
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Xxx
Xxxxxxxx
Chief
Executive Officer
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LIST OF
EXHIBITS
Exhibit A
— Xxxx of Sale
Exhibit B
— Assignment of Customer Contracts, Agreements, and Arrangements
Exhibit A
XXXX OF SALE
This Xxxx
of Sale is (“Xxxx of Sale”) is made and entered into by and between First Light
Resources Inc., an Ontario corporation (“1st Light”), and China YouTV Corp., a
Nevada company, (“Buyer”).
RECITALS
A. 1st
Light and Buyer have entered into an Asset Purchase and Sale Agreement, dated as
of April 1, 2009 (the “Agreement”), pursuant to which Seller is selling to Buyer
the Assets.
B. Pursuant
to the terms of the Agreement, Seller desires to convey, remise, release, and
quitclaim to Buyer, all of Seller’s right, title, and interest in and to the
Personal Property.
Now,
therefore, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, 1st Light and Buyer hereby agree as
follows:
1. Defined Terms. Unless
otherwise defined in this Xxxx of Sale, all capitalized terms shall have the
meanings given to them in the Agreement.
2. Successors and
Assigns. This Assignment shall inure to the benefit of, and be binding
on, successors and assigns of the parties.
3. Counterparts and Facsimile
Signatures. This Assignment may be executed in any number of counterparts
and by facsimile signature, each of which shall be deemed an original. The
counterparts shall together constitute only one agreement.
4. Conflicts. This
Assignment is made subject to the terms and conditions of the Agreement. In the
event of a conflict between the provisions of this Assignment and the provisions
of the Agreement, the provisions of the Agreement shall prevail. Whereof, the
parties have executed this Xxxx of Sale as of date first set forth
above.
China
YouTV Corp., a Nevada corporation
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/s/
Jie Xxxx
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XX
Xxx
Xxxx
Chief
Executive Officer
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First
Light Resources Inc., an Ontario corporation
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/s/ Xxx
Xxxxxxxx
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Xxx
Xxxxxxxx
Chief
Executive Officer
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Exhibit B
ASSIGNMENT OF CUSTOMER CONTRACTS,
AGREEMENTS, AND ARRANGEMENTS
This
Assignment of Customer Contracts, Agreements, and Arrangements (this
“Assignment”) is made and entered into by and between First Light Resources
Inc., an Ontario corporation, and China YouTV Corp., a Nevada company,
(“Assignee”).
RECITALS
A. Assignor
and Assignee have entered into an Asset Purchase and Sale Agreement, dated as of
April 1, 2009 (the “Agreement”), pursuant to which Assignor is selling to
Assignee the Assets.
B. Assignor
is a party to certain Contracts.
C. Pursuant
to the terms of the Agreement, Assignor desires to assign Assignor’s rights,
title, and interest in and to the Contracts to Assignee, and Assignee desires to
accept the assignment and assume all of the obligations associated with the
Contracts.
Now,
therefore, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree as
follows:
1. Defined Terms. Unless
otherwise defined in this Assignment, all capitalized terms shall have the
meanings given to them in the Agreement.
2. Assignment of
Contracts. Assignor hereby conveys, contributes, assigns, sets over and
transfers to Assignee all of Assignor’s right, title, and interest in and to the
Contracts, subject to, in the case of any Contract that requires consent to
assignment, the receipt of the required consent.
3. Acceptance of Assignment and
Obligations. Assignee hereby assumes and agrees to pay, perform and
discharge if, as and when due in accordance with the terms thereof the
Contracts.
4. Successors and
Assigns. This Assignment shall inure to the benefit of, and be binding
on, successors and assigns of the parties.
5. Counterparts and Facsimile
Signatures. This Assignment may be executed in any number of counterparts
and by facsimile signature, each of which shall be deemed an original. The
counterparts shall together constitute only one agreement.
6. Conflicts. This
Assignment is made subject to the terms and conditions of the Agreement. In the
event of a conflict between the provisions of this Assignment and the provisions
of the Agreement, the provisions of the Agreement shall prevail.
7. Governing Law. This
Assignment shall be governed by and construed under the laws of the State of
British Columbia.
In
witness whereof, the parties have executed this Assignment as of the date first
set forth above.
China
YouTV Corp., a Nevada corporation
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/s/
Xxx Xxxx
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Xxx
Xxxx
Chief
Executive Officer
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First
Light Resources Inc., an Ontario corporation
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/s/ Xxx
Xxxxxxxx
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Xxx
Xxxxxxxx
Chief
Executive Officer
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