ASSET PURCHASE AGREEMENT
ASSET
PURCHASE AGREEMENT, dated as of November 30, 2005 (as hereafter amended,
modified or supplemented, this "Agreement"), between BRIDGEFILMS, INC., a
non-profit corporation organized and existing under the laws of the State of
New
York ("Seller"), and BRIDGEFILMS, INC., a corporation organized and existing
under the laws of the State of Nevada ("Purchaser"). Seller and Purchaser are
sometimes referred to herein individually as a "Party" and collectively as
the
“Parties."
WITNESSETH:
WHEREAS,
Seller is a non-profit entity engaged in the business of producing documentary
films in the United States; and
WHEREAS,
Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller, all right, title and interest of Seller in and to all of the property
and assets used in connection with the business of Seller, and in connection
therewith Purchaser is willing to assume all liabilities of Seller relating
thereto, all upon the terms and subject to the conditions set forth
herein;
NOW,
THEREFORE,
in consideration of the representations, warranties and covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto hereby agree
as
follows:
SECTION
1. Purchase and Sale of Assets.
(a)
Purchase Price. On the Closing Date, as hereinafter defined, Purchaser shall
pay
Seller for the Assets the price of 500,000 common shares of Purchaser (the
“Purchase Price”).
(b)
Assets to Be Sold. On the terms and subject to the conditions of this Agreement,
Seller shall, on the Closing Date, sell, assign, transfer, convey and deliver
to
Purchaser or cause to be sold, assigned, transferred, conveyed and delivered
to
Purchaser, and Purchaser shall acquire from Seller, on the Closing Date, all
of
Seller's right, title and interest in and to the following assets, in each
case
owned or leased by Seller (collectively, the "Assets"):
(i)
all
furniture, fixtures, equipment, machinery, and other tangible personal property
of the Seller;
(ii)
all
books of account, general, financial, tax and personnel records, invoices,
supplier lists, correspondence and other documents, records and files and all
computer software and programs and any rights thereto;
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(iv)
all
intellectual property, goodwill, trade secrets and other intangible personal
property, including, but not limited to, any and all right to the films of
Seller;
(v)
all
sales and promotional literature, customer lists and other sales-related
materials;
(vi)
all
rights under all contracts, subcontracts, licenses, sublicenses, agreements,
leases, purchase orders, customer orders, commitments and similar binding
arrangements of Seller;
(vii)
all
cash, cash equivalents and bank accounts;
(ii)
all
accounts receivable, notes and other amounts receivable from third parties
(including, without limitation, customers and employees) arising from the
conduct of the business of Seller;
(iii)
all
claims, causes of action, chases in action, rights of recovery and rights of
set-off of any kind (including rights to insurance proceeds) pertaining to,
arising out of or inuring to the benefit of the business of Seller;
(iv)
all
rights of Seller in and to the names "Bridgefilms" and "Bridgefilms, Inc."
;
(vi)
all
rights of Seller under this Agreement and any other asset of Seller not
specifically mentioned herein.
SECTION
2. Assumption of Liabilities. (a) Purchaser shall, on the Closing Date, assume
and shall pay, perform and discharge when due all liabilities of Seller.
SECTION
3. Closing. Subject to the terms and conditions of this Agreement, the sale
and
purchase of the Assets and the assumption of the Liabilities contemplated by
this Agreement shall take place on December 15, 2005 at 10:00 a.m. PST (the
"Closing") to be held at the offices of Cane Xxxxx LLP, 0000 X. Xxxx Xxxxxxx
Xx., Xxx Xxxxx, XX 00000 or at such other place or at such other time or on
such
other date as Seller and Purchaser may mutually agree upon in writing (the
day
on which the Closing takes place being the "Closing Date"). Purchaser shall
have
from the date of this Agreement to the Closing Date in which to conduct all
investigations and studies of the Assets and Liabilities as Purchaser shall
determine to be necessary or appropriate. Seller shall provide to Purchaser
any
and all documents requested by Purchaser to perform such investigations and
studies. If Purchaser is not satisfied for any reason whatsoever prior to the
Closing Date, then Purchaser shall have the absolute and unconditional right
to
terminate this Agreement. If Purchaser elects to terminate this Agreement,
the
Purchaser shall deliver written notice to Seller of its
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intention
within three (3) days of the Closing Date. Should Purchaser issue such notice,
then this Agreement shall automatically terminate whereupon the parties shall
be
relieved of any and all further obligations hereunder. If Purchaser does not
issue such notice, then Purchaser will have deemed to have elected to go forward
with the acquisition of the Assets pursuant to this Agreement.
SECTION
4. Conditions to Closing. The Closing of this Agreement is subject to the
following conditions:
(a)
The
representations and warranties set forth in this Agreement shall be true and
correct;
(b)
The
Parties shall have performed in all material respects the covenants required
to
be performed by them under this Agreement at or prior to the Closing
Date.
(c)
There
shall be no effective or pending law or order that would prohibit the Closing,
and the Seller shall have obtained all necessary approvals of any governmental
entities in connection with the transactions contemplated hereby.
SECTION
5. Closing Deliveries. At the Closing, Seller shall deliver or cause to be
delivered to Purchaser an executed xxxx of sale and any other documents
necessary to sell, assign, transfer, convey and deliver to Purchaser or cause
to
be sold, assigned, transferred, conveyed and delivered to Purchaser all of
Seller's right, title and interest in and to the Assets. Purchaser shall deliver
or cause to be delivered to Seller the Purchase Price in the form of a cashier’s
check, wire fund, or other mechanism of payment of lawful U.S. funds as
requested by the Seller.
SECTION
6. Consents. Seller shall use reasonable efforts to obtain any required consents
to assignment of all contracts, licenses, sublicenses, agreements and leases
included among the Assets.
SECTION
7. Damages. In no event shall Seller or Purchaser be liable for consequential
damages under this Agreement or any documents or instruments delivered by such
parties at the Closing.
SECTION
8. Representations and Warranties. (a) Seller and Purchaser each hereby
represents and warrants to the other that (i) it is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all necessary corporate power and
authority to enter into this Agreement and any agreements ancillary hereto,
to
carry out its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby; (ii) the execution and delivery
of
this Agreement and any agreements ancillary hereto by it, the performance by
it
of its obligations hereunder and thereunder and the consummation by it of the
transactions contemplated hereby and
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thereby
have been duly authorized and approved by all requisite action on its part;
and
(iii) this Agreement has been, and upon their execution any agreements ancillary
hereto will be, duly executed and delivered by it, and (assuming due
authorization, execution and delivery by the other party) this Agreement
constitutes, and upon their execution any agreements ancillary hereto will
constitute, legal, valid and binding obligations of it enforceable against
it in
accordance with their respective terms.
(b)
EXCEPT WITH RESPECT TO THE EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFICALLY
SET FORTH HEREIN, SELLER MAKES NO, AND EXPRESSLY DISCLAIMS ANY, REPRESENTATION
OR WARRANTY OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WHETHER
OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR
QUALITY OF THE ASSETS, OR ANY PART THEREOF, OR AS TO THE CONDITION, WORKMANSHIP
OR VALUE THEREOF OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR
PATENT. IT IS UNDERSTOOD BY THE PARTIES THAT THE ASSETS ARE TO BE CONVEYED
HEREUNDER "AS-IS" AND "WHERE-IS" ON THE CLOSING DATE AND IN THEIR THEN PRESENT
CONDITION, AND THE PURCHASER SHALL RELY SOLELY UPON ITS OWN INVESTIGATION AND
EXAMINATION THEREOF.
SECTION
9. Public Announcements. Neither Party hereto shall make, or cause to be made,
any press release or other public announcement with respect to this Agreement
or
the transactions contemplated hereby without the prior written consent of the
other party, and in any event, no such press release or other public
announcement shall disclose any of the terms or conditions of this Agreement,
unless such disclosures are required to be made by law.
SECTION
10. Further Action. Each of the Parties hereto shall use all reasonable efforts
to take, or cause to be taken, all appropriate action, do or cause to be done
all things necessary, proper or advisable under applicable law, and execute
and
deliver such documents and other papers, as may be required to carry out the
provisions of this Agreement and consummate and make effective the transactions
contemplated hereby.
SECTION
11. Expenses. All costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall
be
paid by the Party incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION
12. Headings. The descriptive headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning,
construction or interpretation of this Agreement.
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SECTION
13. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any law or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate
in
good faith to modify this Agreement so as to effect the original intent of
the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated
to
the greatest extent possible.
SECTION
14. Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, representations, undertakings and understandings, both written
and oral, between Seller and Purchaser with respect to the subject matter
hereof.
SECTION
15. Assignment. This Agreement may not be assigned by operation of law or
otherwise without the express written consent of Seller and Purchaser (which
consent may be granted or withheld in the sole discretion of Seller and
Purchaser).
SECTION
16. No Third Party Beneficiaries. This Agreement shall be binding upon and
inure
solely to the benefit of the parties hereto and their permitted assigns and
nothing herein, express or implied, is intended to or shall confer upon any
other person, including, without limitation, any employee or former employee
of
Seller, any legal or equitable right, benefit or remedy of any nature
whatsoever, including, without limitation, any rights of employment for any
specified period, under or by reason of this Agreement.
SECTION
17. Amendment. This Agreement may not be amended, modified or supplemented
except by an instrument in writing signed by, or on behalf of, Seller and
Purchaser.
SECTION
18. Arbitration. All disputes, differences, controversies or claims between
the
parties hereto arising out of or relating to this Agreement or the transactions
contemplated hereby shall be finally settled under binding arbitration in the
city of Las Vegas, Nevada. Any such arbitration shall be governed by the
Commercial Arbitration Rules of the American Arbitration
Association.
SECTION
19 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Nevada, without giving effect to
any
choice of law or conflict of law provision or rule that would cause the
application of the Laws of any jurisdiction other than the State of
Nevada.
SECTION
20. Counterparts. This Agreement may be executed in one or more counterparts,
and by the different parties hereto in separate counterparts, each of
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which
when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
SECTION
21. Specific Performance. The Parties hereto agree that irreparable damage
would
occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at
law
or equity, without the necessity of demonstrating the inadequacy of money
damages.
IN
WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be executed
by their respective officers hereunto duly authorized as of the date first
written above.
THE
BRIDGEFILMS COMPANY, INC., a New York non-profit corporation.
By:
Xxxxxxxx
X. Xxxxx
Name:
Xxxxxxxx X. Xxxxx
Title:
President
BRIDGEFILMS,
INC., a Nevada corporation.
By:
Xxxxxxxx
X. Xxxxx
Name:
Xxxxxxxx X. Xxxxx
Title:
President