EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
entered into as of June 1, 2002, by and between CREATIVE MARKETEAM CANADA LTD.
("MARKETEAM"), a British Columbia company having its principal place of business
at 0000 XxXxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0 and i5ive
COMMUNICATIONS INC. ("i5ive"), a British Columbia company, having its principal
place of business at 0000 Xxxxxxxx Xxxxxx - Xxxxx 000, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0.
PREMISES
A. i5ive has developed a Website, related links, content and other
materials which include, among other things, an "Enabling Platform" of
producing and distributing author-generated materials over the
Internet, an Internet-based community, and educational materials by
users of the i5ive Website. This Internet content includes a Website,
links, content and other materials referred to as "Xxxxx000.xxx" and
"Suite University"; and
B. MARKETEAM and i5ive have been parties to a Management and Operating
Services Agreement dated as of January 31, 2002 (the "M & O Agreement")
pursuant to which MARKETEAM has provided management and operating
services; and
C. MARKETEAM wishes to acquire from i5ive, and i5ive wishes to sell to
MARKETEAM, the Website Assets of i5ive (as defined herein) on the terms
and conditions mutually agreed by the Parties and set out in this
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
warranties, representations, covenants and agreements set forth in this
Agreement, the Parties agree as follows:
ARTICLE 1
PURCHASE AND SALE OF WEBSITE ASSETS
1.1 PURCHASE AND SALE OF WEBSITE ASSETS.
Subject to the terms and conditions of this Agreement, at the Closing
i5ive, in exchange for MARKETEAM's payment of the Purchase Price, shall sell,
assign, transfer, convey, and deliver to MARKETEAM all of i5ive's right, title,
and interest in and to the Website Assets, free and clear of any and all Liens.
1.2 PURCHASE PRICE.
In consideration for the sale, transfer, conveyance, assignment and
delivery of the Website Assets by i5ive to MARKETEAM, and in reliance upon the
representations, warranties, covenants, and agreements made in this Agreement by
i5ive, at the Closing MARKETEAM shall pay i5ive:
(a) the sum of US$100;
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(b) a number of shares in the capital of MARKETEAM, equal to 15% of
the shares in the capital of MARKETEAM issued and outstanding
following the Closing; and
(c) a sum equal to the Proceeds, if any, received by MARKETEAM on
any sale by MARKETEAM, within one (1) year of the Closing Date,
of all or any portion of the Website Assets.
1.3 SECURITY FOR PURCHASE PRICE.
As security for that portion of the Purchase Price payable by MARKETEAM
to i5ive under Article 1.2(c), MARKETEAM shall on the Closing Date execute and
deliver to i5ive:
(a) a promissory note in the principal sum of US$120,000 without
interest and payable on the first anniversary of the Closing
Date; and
(b) a general security agreement creating a first security interest
in all of MARKETEAM's present and after-acquired personal
property.
The foregoing security shall be forgiven, discharged and returned to
MARKETEAM if there has not been any sale of all or any portion of the Website
Assets within one (1) year of the Closing Date or, if there has been any such
sale, if the Proceeds of such sale have been paid by MARKETEAM to i5ive.
1.4 ASSIGNMENT AND ASSUMPTION OF CONTRACTS.
(a) i5ive agrees to use its best endeavors to obtain the consent of
B&N to the assignment to MARKETEAM of all of the rights and
obligations under each of the B&N Contracts;
(b) In the event that i5ive, despite its best endeavours, is unable
to obtain the consent of B&N to the assignment of any B&N
Contract to MARKETEAM as contemplated by Article 1.4(a): (i)
i5ive agrees to the extent permitted under the B&N Contract to
sub-contract the performance of each B&N Contract to MARKETEAM
and to act as MARKETEAM's agent in the collection of any
payments due under each such sub-contract; and (ii) MARKETEAM
agrees to perform each such sub-contract and to hold i5ive
harmless from any loss or liability arising out of MARKETEAM's
performance of it; and
(c) Except as otherwise stated in Exhibit 1.4, MARKETEAM agrees to
assume as of the Closing Date all of the obligations of i5ive
(i) under the agreements listed on Exhibit 1.4 hereto, and (ii)
subject to B&N consenting to the assignment of the B&N
Contracts, under the B&N Contracts. MARKETEAM agrees to
indemnify and hold i5ive, its officers, Directors, agents and
Representatives harmless from any liability claim, damages, or
loss arising out of or asserted on the basis of any of the
contracts assumed by MARKETEAM hereunder.
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ARTICLE 2
CLOSING
2.1 TIME, DATE AND PLACE OF CLOSING.
The closing of the purchase and sale of the Website Assets (the
"Closing") will take place concurrently with the execution of this Agreement at
the offices of i5ive, or such other place as may be mutually agreed upon by the
Parties.
2.2 DOCUMENTS DELIVERED BY I5IVE AT CLOSING.
At Closing, i5ive shall deliver or cause to be delivered to MARKETEAM
the following documents:
(a) Good and sufficient bills of sale, assignments, and any other
instruments of sale, conveyance, transfer, or assignment, dated
as of the Closing Date, required or deemed reasonably necessary
by MARKETEAM in order to vest fully and effectively in
MARKETEAM good and marketable title to the Website Assets free
of all Liens;
(b) Such other documents or certificates as shall be reasonably
requested by MARKETEAM.
2.3 DOCUMENTS DELIVERED BY MARKETEAM AT CLOSING.
At Closing, MARKETEAM shall deliver or cause to be delivered to i5ive
the following:
(a) Payment of the cash portion of the Purchase Price by
immediately available funds;
(b) A certificate for the number of shares in the capital of
MARKETEAM provided for under in Article 1.2(b);
(c) The promissory note and general security agreement provided for
under Article 1.3;
(d) Such other documents or certificates as shall be reasonably
requested by i5ive; and
(e) Such assumption and other agreements as may be reasonably
requested by i5ive pursuant to Article 1.4(c) hereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF I5IVE
i5ive represents and warrants to MARKETEAM, as of the date hereof, as
follows:
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3.1 ORGANIZATION, STANDING AND POWER.
i5ive is a company duly organized, validly existing, and in good
standing under the Laws of the Province of British Columbia, and has the power
and authority to carry on its business as now conducted.
3.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) i5ive has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this
Agreement and to consummate the transactions contemplated by
it. The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated herein,
have been, or at the Closing Date will have been, duly and
validly authorized by all necessary corporate action on the
part of i5ive, and this Agreement will at the Closing Date
represent a legal, valid, and binding obligation of i5ive,
enforceable against i5ive in accordance with its terms;
(b) Neither the execution and delivery of this Agreement by i5ive,
nor the consummation by i5ive of the transactions contemplated
hereby, nor compliance by i5ive with any of the provisions
hereof, will: (i) conflict with or result in a breach of any
provision of i5ive's constating documents; (ii) constitute or
result in a default under, or require any consent pursuant to
any Contract or Permit of i5ive, except as to the assignment of
the B&N Contracts; or (iii) violate any Law or Order applicable
to i5ive or the Website Assets.
3.3 TITLE TO WEBSITE ASSETS.
i5ive has, or will have on the Closing Date, and as a result of the
transactions contemplated by this Agreement MARKETEAM will receive, good and
marketable title to all of the Website Assets, free and clear of any Liens.
3.4 RESIDENCY.
i5ive is resident in Canada within the meaning of the Income Tax Act
(Canada).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF MARKETEAM
MARKETEAM represents and warrants to i5ive as follows:
4.1 ORGANIZATION, STANDING, AND POWER.
MARKETEAM is a company duly organized, validly existing, and in good
standing under the Laws of the Province of British Columbia, and has the power
and authority to carry on its business as now conducted.
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4.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) MARKETEAM has the power and authority necessary to execute,
deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated by it. The execution,
delivery and performance of this Agreement and the consummation
of the transactions contemplated herein have been, or at the
Closing Date will have been, duly and validly authorized by all
necessary corporate action on the part of MARKETEAM and this
Agreement will at the Closing Date represent a legal, valid,
and binding obligation of MARKETEAM, enforceable against
MARKETEAM in accordance with its terms.
(b) Neither the execution and delivery of this Agreement by
MARKETEAM, nor the consummation by MARKETEAM of the
transactions contemplated hereby, nor compliance by MARKETEAM
with any of the provisions hereof will: (i) conflict with or
result in a breach of any provision of MARKETEAM's constating
documents; (ii) constitute or result in a default under, or
require any consent pursuant to any Contract or Permit of
MARKETEAM; or (iii) violate any Law or Order applicable to
MARKETEAM or its assets.
4.3 CAPITALIZATION OF MARKETEAM
MARKETEAM's authorized capital consists of 12,000 common shares, of
which, as of the date hereof, there are 480 issued and outstanding. No other
class of capital is authorized. There are no outstanding options, warrants or
rights to subscribe for, or commitments of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for, shares of the
capital stock of MARKETEAM or Contracts, commitments, understandings or
arrangements by which MARKETEAM is or may be obligated to issue additional
shares of its capital or options, warrants, or rights to purchase or acquire any
additional shares in its capital. All the shares of MARKETEAM to be issued to
i5ive pursuant to this Agreement will be, when issued and delivered, fully paid,
validly issued and non-assessable.
ARTICLE 5
COVENANTS
5.1 COVENANTS RE LEASES.
i5ive covenants and agrees with MARKETEAM that, from the Closing Date
until the earlier of the termination of the Lease, the subletting of i5ive's
office premises or notice is received from i5ive, MARKETEAM shall be entitled
to:
(a) Use and occupy i5ive's office premises on a month-to-month
basis at no cost to MARKETEAM other than Telus charges for
telephone lines and long distance charges, B.C. Hydro charges
for heat and electricity, Westport charges for cleaning, and
ADT charges for security;
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(b) Use the office equipment currently leased by i5ive, including
without limitation, telephones, and photocopiers, at no cost to
MARKETEAM other than any operating costs, over and above the
monthly lease rate, incurred as a result of MARKETEAM's use of
such equipment;
(c) Continue to house the servers off-site with Telus Advanced
Communications, at no cost to MARKETEAM, until the Telus
contract is terminated and in any event no later than April
2003.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 LIMITS OF i5ive LIABILITY.
It is understood and agreed that i5ive shall have no liability to
MARKETEAM for any breach of any representation, warranty, covenant or agreement
herein in any amount in excess of the Purchase Price.
6.2 NO RECOURSE AGAINST SUITE 000.XXX, INC.
Suite 101 shall have no liability whatsoever to MARKETEAM for any
amount whatsoever arising out of any breach of any representation, warranty,
covenant or agreement herein, it being understood and agreed that this Agreement
is entered into without recourse to Suite 101.
6.3 TERMINATION OF M & O AGREEMENT.
MARKETEAM and i5ive agree that the M & O Agreement was terminated
effective as of May 31, 2002 and i5ive shall have no further liability
thereunder to MARKETEAM.
6.4 LETTER TO i5ive VENDORS.
Concurrently with or promptly after the Closing, MARKETEAM shall send
written notification to each of i5ive's vendors, suppliers and other persons
with whom it has a similar relationship advising such persons that the Website
Assets have been sold to MARKETEAM and i5ive shall have no liability to such
persons arising out of transactions engaged in commencing with the time of the
Closing.
ARTICLE 7
GOVERNING LAW; DISPUTE RESOLUTION
7.1 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the Laws of the Province of British Columbia applicable to contracts executed
and wholly performed within that Province.
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7.2 ARBITRATION.
(a) COMMERCIAL ARBITRATION ACT.
Any controversy or claim arising out of or relating to this
Agreement shall be determined by arbitration in accordance with
the Commercial Arbitration Act, R.S.B.C. 1996, c. 55.
(b) COMPOSITION OF ARBITRAL TRIBUNAL.
The arbitration shall be held before a panel of three
arbitrators, one of whom shall be nominated by each of
MARKETEAM and i5ive and one of whom, who shall serve as chair,
shall be nominated by the arbitrators nominated by MARKETEAM
and i5ive.
(c) JUDICIAL ASSISTANCE.
The award of the arbitrators shall be final and binding. The
Parties waive any right to appeal the award, to the extent a
right to appeal may be lawfully waived. Each Party retains the
right to seek judicial assistance: (i) to compel arbitration;
(ii) to obtain interim measures of protection pending
arbitration; and (iii) to enforce any decision of the
arbitrators, including the final award.
ARTICLE 8
MISCELLANEOUS
8.1 ENTIRE AGREEMENT.
This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement between the Parties with respect to the
transactions contemplated under this Agreement and supersedes all prior
arrangements or understandings with respect thereto, written or oral.
8.2 AMENDMENTS.
This Agreement may be amended only by a subsequent writing signed by
each of the Parties.
8.3 EXPENSES.
Each of the Parties shall bear and pay all direct costs and expenses
incurred by it or on its behalf in connection with the transactions contemplated
under this Agreement.
8.4 BROKERS AND FINDERS.
Each of the Parties represents and warrants that neither it nor any of
its officers, directors, employees, or affiliates has employed any broker or
finder or incurred any liability for any financial advisory fees, investment
bankers' fees, brokerage fees, commissions, or finders' fees in connection with
this Agreement or the transactions contemplated by it.
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8.5 ASSIGNMENT.
This Agreement and the rights, interests or obligations under this
Agreement may be assigned (whether by operation of Law or otherwise) by a Party
only to an affiliate of that Party. Subject to the preceding sentence, this
Agreement will be binding upon, enure to the benefit of, and be enforceable by
the Parties and their respective successors and assigns.
8.6 NOTICES.
All notices or other communications which are required or permitted
under this Agreement shall be in writing and sufficient if delivered by hand, by
facsimile transmission, by registered or certified mail, postage pre-paid, or by
courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided under this Agreement), and shall be
deemed to have been delivered as of the date so delivered:
i5ive Communications Inc.:
0000 Xxxxxxxx Xxxxxx - Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Telecopy Number: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
Creative Marketeam Canada Ltd.
0000 XxXxxxx Xxxxxx
Xxxxxxxxxx, X.X. X0X 0X0
Telecopy Number: (000) 000-0000
Attention: Xxxx Loblaw
8.7 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
8.8 CAPTIONS.
The captions contained in this Agreement are for reference purposes
only and are not part of this Agreement.
8.9 SEVERABILITY.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
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ARTICLE 9
DEFINITIONS
9.1 DEFINITIONS.
The following terms shall, whenever capitalized in this Agreement, have
the meanings ascribed below:
"AGREEMENT" means this Agreement, including the Exhibits delivered pursuant to
this Agreement and incorporated in it by reference.
"B&N" means XXXXXXXXXXXXXX.XXX, LLC.
"B&N" Contracts" means the contracts dated May 30, 2001 and August 8, 2001
between Xxxxx000.xxx, Inc., a Delaware corporation, and B&N relating to
introduction writing and proofreading services, respectively.
"CLOSING DATE" means the date determined in accordance with Article 2.1 hereof
on which the Closing shall occur.
"CONSENT" means any consent, approval, estoppel, authorization, clearance,
exemption, waiver, or similar affirmation by any Person pursuant to any
Contract, Law, Order, or permit.
"CONTRACT" means any written or oral agreement, license, arrangement,
authorization, commitment, contract, indenture, instrument, lease, obligation,
plan, practice, restriction, understanding or undertaking of any kind or
character, or other document to which any Person is a party or that is binding
on any Person or its capital stock, assets or business.
"LAW" means any code, law, ordinance, regulation, reporting or licensing
requirement, rule, or statute applicable to a Person or its assets, liabilities
or business, including those promulgated, interpreted or enforced by any
regulatory authority.
"LIEN" means any conditional sale agreement, default of title, easement,
encroachment, encumbrance, hypothecation, infringement, lien, mortgage, pledge,
reservation, restriction, security interest, title retention or other security
arrangement, or any adverse right or interest, charge, or claim of any nature
whatsoever of, on, or with respect to any property or property interest.
"ORDER" means any administrative decision or award, decree, injunction,
judgment, order, quasi-judicial decision or award, ruling, or writ of any
federal, state, local or foreign or other court, arbitrator, mediator, tribunal,
administrative agency or regulatory authority.
"PERMIT" means any federal, state, local, and foreign governmental approval,
authorization, certificate, easement, filing, franchise, license, notice,
permit, or right to which any Person is a party or that is or may be binding
upon or inure to the benefit of any Person or its securities, assets or
business.
"PERSON" means a natural person or any legal, commercial or governmental entity,
such as, but not limited to, a corporation, general partnership, joint venture,
limited partnership, limited liability
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company, trust, business association, group acting in concert, or any person
acting in a representative capacity.
"PROCEEDS" means any cash and the cash value of any assets received by MARKETEAM
on any sale by it, within one (1) year of the Closing Date, of all or any
portion of the Website Assets.
"PURCHASE PRICE" means the money and shares in the capital of MARKETEAM to be
paid over and delivered to i5ive pursuant to Article 1.2.
"REPRESENTATIVE" shall mean any investment banker, financial advisor, attorney,
accountant, consultant, or other representative of a Person.
"SUITE101" shall mean Xxxxx000.xxx, Inc., a Delaware corporation and sole
stockholder of i5ive.
"WEBSITE ASSETS" shall mean the assets listed on Exhibit 9 as they exist
immediately prior to Closing.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed
on its behalf and its corporate seal to be hereunto affixed and attested by
officers thereunto as of the day and year first above written.
I5IVE COMMUNICATIONS INC.
By: /s/
---------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: President
CREATIVE MARKETEAM CANADA LTD.
By: /s/
---------------------------
Name: Xxxx Loblaw
Title: President
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