ASSET PURCHASE AGREEMENT
THIS AGREEMENT (together with the schedules attached
hereto, this “Agreement”) dated as of October 1, 2005.
ONYX TRADING INC. (herein
called the “Seller”) a company incorporated in the Republic of the
Seychelles and having a registered address at 000 Xxxxxxxx Xxxxx, Xxxxxxxx,
KENSHOU INC. a company
incorporated under the laws of State of Nevada and having a registered address
at 000 Xxxx Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx 00000
(herein called the “Buyer”)
WHEREAS, the Buyer desires to purchase and acquire from the
Seller and the Seller desires to sell and assign to the Buyer all of the Sellers
rights, title and interest in and to the intellectual property relating to a
video platform (the “Assets”) in exchange for shares of the
WHEREAS, the parties desire to enter into this Agreement to set
forth their mutual agreements concerning the above matter;
NOW, THEREFORE, in consideration of the mutual promises of the
parties hereto, and of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is mutually agreed by and
between the parties hereto as follows:
SALE AND TRANSFER OF ASSETS; CLOSING
1.1 Sale of Asset Subject to the
terms and conditions of this Agreement, and in reliance upon the
representations, warranties, covenants and agreements contained herein, at the
closing of the transactions contemplated hereby (the “Closing”), the
Seller will sell, convey, assign and transfer the Assets to the Buyer, and the
Buyer will purchase and acquire the Assets from the Seller, free and clear of
any claims or Encumbrances (as defined in Section 2.6) . The Assets shall
include all of the Seller’s right, title and interest in and to the following as
at the Closing Date (as defined in Section 1.3 below):
Intellectual Property. All rights in and to patents and patent
applications, registered or unregistered trademarks, service marks, and
trademark or service xxxx registrations and applications, trade names, logos,
designs, Internet domain names, slogans and general intangibles of like nature,
together with all goodwill relating to the foregoing, copyrights, copyright
registrations, renewals and applications, Software (as defined in Section
2.7(h), licenses, agreements and all other proprietary rights, which relate to
the use and
exploitation of the Assets (collectively, the “Intellectual
Property”). Intellectual Property shall also include all technology and
proprietary information developed by any employee, consultant or agent of the
Seller during the course of their employment, consultancy or agency with the
Permits and Licenses. All rights of the Seller with respect to permits,
approvals, orders, authorizations, consents, licenses, certificates and all
pending applications therefor (collectively, “Permits”), which have been
issued or granted to, or are owned or used by, the Seller in connection with the
ownership or use of the Assets;
Consideration. In consideration of the sale, transfer and assignment to
the Buyer of the Assets, at the Buyer shall issue and deliver to the Seller in
consideration for the issue to the Seller, on Closing, an aggregate of
20,000,000 common shares in the capital of the Buyer (the " Shares")
hereinafter being referred to as the “Purchase Price”.
The Closing. The Closing will take place on the early of the satisfaction
or waiver of the Closing conditions set forth in Articles 5 and 6 of this
Agreement, and (b) December 31, 2005 (the “Closing Date”).
Obligations. At Closing, the Buyer and the Seller shall take the following
actions, in addition to such other actions as may otherwise be required under
Conveyance Instruments. The Seller shall deliver to Buyer or its designee
such warranty deeds, bills of sale, assignments, and other instruments of
conveyance and transfer as the Buyer may reasonably request to effect the
assignment to the Buyer or its designee of the Assets.
Consideration. The Buyer shall deliver to the Seller the Shares.
Evidence of Ownership. The Seller shall deliver the documentary evidence
of ownership in form satisfactory to the Buyer.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
induce the Buyer to execute, deliver and perform this Agreement, and in
acknowledgement of the Buyer’s reliance on the following representations and
warranties (in addition to the representations and warranties in Article 1), the
Seller represents and warrants to the Buyer as follows as of the date hereof and
as of the Closing Date:
Organization. The Seller is a corporation duly organized, validly
existing and in good standing under the applicable laws of the territory British
West Indies with the power and authority to conduct its business as it is now
being conducted and to own its assets.
Power and Authority. The Seller has the power and authority to execute,
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by them in connection with the transactions
contemplated hereby, and the Seller has taken all necessary action to authorize
the execution and delivery of this Agreement and such other agreements and
instruments and the consummation of the transactions contemplated
hereby, including but not limited to the receipt of all
necessary regulatory approvals including the approval of the Seller's
shareholders. This Agreement is, and the other agreements and instruments to be
executed and delivered by the Seller in connection with the transactions
contemplated hereby, when such other agreements and instruments are executed and
delivered, shall be, the valid and legally binding obligations of the Seller
enforceable against the Seller in accordance with their respective terms.
Conflict. Neither the execution and delivery of this Agreement and the other
agreements and instruments to be executed and delivered in connection with the
transactions contemplated hereby, nor the consummation of the transactions
contemplated hereby, will to the best of the Seller’s knowledge violate or
conflict with: (a) any foreign or local law, regulation, ordinance, governmental
restriction, order, judgment or decree applicable to the Seller; (b) any
provision of any charter, bylaw or other governing or organizational instrument
of the Seller; or (c) any mortgage, indenture, license, instrument, trust,
contract, agreement, or other commitment or arrangement to which the Seller is a
party or by which the Seller is bound.
Consents. No Permit (as defined in Section 1.1(a)(iv)) or approval,
authorization, consent, permission, or waiver to or from any person, or notice,
filing, or recording to or with, any person is necessary for: (a) the execution
and delivery of this Agreement and the other agreements and instruments to be
executed and delivered by the Seller in connection with the transactions
contemplated hereby, or the consummation by the Seller of the transactions
contemplated hereby; or (b) the ownership and use of the Assets by the
The Seller owns or has the valid right to use all of the Intellectual Property
(as defined in Section 1.1(a)(ii)) comprised in the Assets all of which is
described on Schedule “A” attached hereto.
Intellectual Property owned or used by the Seller is free and clear of all
Encumbrances or other restrictions on transfer. The Seller is registered with
the applicable governmental agency as the sole owner of record for each
application and registration listed on Schedule “A”. The Seller is the
registered owner of such Internet domain names listed on Schedule “A” and where
applicable has a currently valid registration of such domain names.
registrations listed in Schedule “A” are valid and subsisting, in full force and
effect, and have not been cancelled, expired, or abandoned. There is no pending
or threatened opposition, interference or cancellation proceeding before any
court or registration authority in any jurisdiction against such registrations
or against any Intellectual Property licensed to the Seller pursuant to the
License Agreements (as defined in the next paragraph).
"B" attached hereto sets forth a complete and accurate list of all agreements
pertaining to the use of, or granting any right to use or practice any rights
under, any Intellectual Property, whether the Seller is the licensee, licensor
or user thereunder and whether written, oral, express or implied, any written
settlements or consents relating to any Intellectual Property and covenants not
to xxx (collectively, the “License Agreements”), indicating for each the
title, the parties, date executed, and the Intellectual Property covered
thereby. Except as set forth in Schedule "B", there are no settlements,
consents, judgments, or orders or other agreements which restrict any of the
Seller’s rights to use any Intellectual
Property or permit third parties to use any Intellectual
Property which would otherwise infringe any of the Seller’s Intellectual
To the best of the Seller’s knowledge, no third party is misappropriating,
infringing, diluting, or violating any Intellectual Property owned by, assigned
or licensed to the Seller, and no such claims are pending against a third party
by the Seller.
Schedule "C" attached hereto lists all Software currently or previously owned,
licensed, sublicensed, assigned, leased, sold to or by or otherwise used by the
Seller, and identifies which is owned, licensed, sublicensed, assigned, leased,
sold or otherwise used, as the case may be. “Software” means any and all
(i) computer programs, including any and all software implementations of
algorithms, models and methodologies, whether in source code or object code or
otherwise, (ii) computer databases and computer compilations, including any and
all data and collections of data, whether machine readable or otherwise, (iii)
subsequent error corrections or updates relating to any of the foregoing, (iv)
descriptions, flow-charts and other work product used to design, plan, organize
and develop any of the foregoing, (v) Internet domain names and the technology
supporting and content contained on the respective Internet site(s), and (vi)
all end-user and programmer documentation, including user manuals and training
materials, relating to any of the foregoing.
Each item of Software listed in Schedule "C" is either: (i) owned by the Seller,
(ii) currently in the public domain or otherwise available to the Seller without
the license, lease or consent of any third party, or (iii) used under rights
granted to the Seller pursuant to a written agreement, assignment, license or
lease from a third party, which written agreement, license or lease is listed in
Schedule "C". The Seller’s use of the Software set forth in Schedule "C" does
not violate the rights of any third party. With respect to the Software set
forth in Schedule "C" which the Seller purports to own, such Software was
either: (x) developed by employees of the Seller within the scope of their
employment; (y) developed by independent contractors who have assigned their
rights to the Seller pursuant to written agreements; or (z) acquired by the
Seller from third parties.
Except for any open-source software code set out in Schedule “C” made available
to the Seller under a free and assignable license, which the Seller is entitled
to so utilize under a license it holds from a third party that is assignable to
the Buyer, the Software does not incorporate codes other than those developed by
the Seller or its employees or consultants who developed such codes under work
for hire agreements with the Seller.
Investor Representations. The Seller acknowledges and agrees that the
Shares will be offered and sold to the Seller without such offers and sales
being registered under the United States Securities Act of 1933, as amended (the
“Securities Act”) and will be issued to the Seller in accordance with
Rule 903 of Regulation S of the Securities Act in an “offshore transaction”
within the meaning of Regulation S based on the representations and warranties
of the Seller in this Agreement. As such, the Seller further acknowledges and
agrees that all Shares will, upon issuance, be “restricted securities” within
the meaning of the Securities Act.
Agreement Regarding Resale. The Seller agrees to resell the Shares only
in accordance with the provisions of Regulation S of the Securities Act,
pursuant to registration under the Securities Act, or pursuant to an available
exemption from registration pursuant to the Securities Act, and otherwise in
accordance with all applicable state securities laws and the laws of any other
jurisdiction. The Seller agrees that the Buyer may require the opinion of legal
counsel reasonably acceptable to the Buyer in the event of any
offer, sale, pledge or transfer of any of the Shares by the Seller pursuant to
an exemption from registration under the Securities Act.
Prohibition Against Hedging Transactions. The Seller agrees not to engage
in hedging transactions with regard to the Shares unless in compliance with the
Right of Company to Refuse Transfer. The Seller agrees that the Buyer
will refuse to register any transfer of the Shares not made in accordance with
the provisions of Regulation S of the Securities Act, pursuant to registration
under the Securities Act, pursuant to an available exemption from registration,
or otherwise pursuant to this Agreement.
No Obligation to Register. The Seller acknowledges that the Buyer has not
agreed and has no obligation to register the resale of the Shares under the
Share Certificates. The Seller acknowledges and agrees that all
certificates representing the Shares will be endorsed with the following legend
in accordance with Regulation S of the Securities Act or such similar legend as
deemed advisable by legal counsel for the Buyer to ensure compliance with
Regulation S of the Securities Act and to reflect the status of the Shares as
“THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"ACT"), AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT PROVIDED BY REGULATION S PROMULGATED UNDER THE ACT. SUCH
SECURITIES MAY NOT BE REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT. HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY
NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE ACT”.
Issuance of Shares The Seller represents and warrants to the Buyer as
follows, and acknowledges that the Buyer is relying upon such covenants,
representations and warranties in connection with the issue of the Shares to the
the Seller is not a “U.S. Person” as defined by Regulation S of the Securities
Act and is not acquiring the Shares for the account or benefit of a U.S.
the Seller was not in the United States at the time the offer to purchase the
Shares was received or this Agreement was executed;
the Seller has such knowledge, sophistication and experience in business and
financial matters such that it is capable of evaluating the merits and risks of
the investment in the Shares. The Seller has evaluated the merits and risks of
an investment in the Shares. The Seller can bear the economic risk of this
investment, and is able to afford a complete loss of this investment;
Seller acknowledges that the Buyer is in the early stages of development of its
business and the Buyer’s success is subject to a number of significant risks,
including the risk that the Buyer will not be able to finance its plan of
operations. The Seller further
acknowledges that (i) the Buyer has limited cash and working
capital, (ii) the Buyer will have to raise additional capital in order to
finance its plan of operations which capital may be raised by the issue of
additional shares of its common stock which will result in dilution to the
Seller, and (iii) the Buyer has no arrangements for any financing in place and
there is no assurance that any financing will be completed;
Shares will be acquired by the Seller for investment for the Seller's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that the Seller has no present intention
of selling, granting any participation in, or otherwise distributing the same in
the United States or to U.S. Persons. The Seller does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Seller has been afforded access to information about the Buyer and the Buyer’s
financial condition, results of operations, business, properties, management and
prospects sufficient it to evaluate its investment in the Shares. The Seller
further represents that it has had an opportunity to ask questions and receive
answers from representatives of the Buyer regarding the terms and conditions of
the offerings completed by the Buyer and the business, properties, prospects and
financial condition of the Buyer, each as is necessary to evaluate the merits
and risks of investing in the Shares. The Seller believes it has received all
the information it considers necessary or appropriate for deciding whether to
purchase the Shares. The Seller has had full opportunity to discuss this
information with the Seller’s legal and financial advisers prior to execution of
Seller acknowledges that the Buyer will rely on these representations in
completing the issuance of the Shares to the Seller;
the Seller acknowledges that the offering of the Shares by the Buyer has not
been reviewed by the United States Securities and Exchange Commission or any
state securities regulatory authority;
Agreement has been duly authorized, validly executed and delivered by the
the Seller has satisfied itself as to the full observance of the laws of its
jurisdiction in connection with the purchase of the Shares and the execution of
this Agreement, including (i) the legal requirements within its jurisdiction of
incorporation or residence of the Seller for the purchase of the Shares; (ii)
any local or foreign exchange restrictions applicable to such purchase; (iii)
any governmental or other consents that may need to be obtained; (iv) the income
tax and other tax consequences, if any, that may be relevant to an investment in
the Shares; and (v) any restrictions on transfer applicable to any disposition
of the Shares imposed by the jurisdiction in which the Seller is incorporated or
Disclosure. No representation, warranty, or statement made by the Seller
in this Agreement or in any document or certificate furnished or to be furnished
to the Buyer pursuant to this Agreement contains or will contain any untrue
statement or omits or will omit to state any fact necessary to make the
statements contained herein or therein not misleading. The Seller has disclosed
to the Buyer all facts known or reasonably available to the Seller that are
material to the financial condition, operation and use of the Assets.
Truth at Closing. All of the representations, warranties and agreements
made by the Seller contained in this Agreement shall be true and correct and in
full force and effect on and as of the Closing Date.
REPRESENTATIONS AND WARRANTIES OF BUYER
induce the Seller to execute, deliver and perform this Agreement, and in
acknowledgement of Seller’s reliance on the following representations and
warranties, the Buyer hereby represents and warrants to the Seller as follows as
of the date hereof and as of the Closing Date:
The Buyer is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada, with the power and authority to
conduct its business as it is now being conducted and to own and lease its
properties and assets.
and Authority. The Buyer has the power and authority to execute, deliver,
and perform this Agreement and the other agreements and instruments to be
executed and delivered by it in connection with the transactions contemplated
hereby, and the Buyer has taken all necessary action to authorize the execution
and delivery of this Agreement and such other agreements and instruments and the
consummation of the transactions contemplated hereby. This Agreement is, and,
when such other agreements and instruments are executed and delivered, the other
agreements and instruments to be executed and delivered by the Buyer in
connection with the transactions contemplated hereby shall be, the valid and
legally binding obligations of the Buyer, enforceable in accordance with their
Broker’s or Finder’s Fees. The Buyer has not authorized any person to act
as broker, finder, or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
No Conflict. Neither the execution and delivery by the Buyer of this
Agreement and of the other agreements and instruments to be executed and
delivered by the Buyer in connection with the transactions contemplated hereby
or thereby, nor the consummation by the Buyer of the transactions contemplated
hereby, will violate or conflict with: (a) any foreign or local law, regulation,
ordinance, governmental restriction, order, judgment or decree applicable to the
Buyer; or (b) any provision of any charter, bylaw, or other governing or
organizational instrument of the Buyer.
Truth at Closing. All of the representations, warranties, and agreements
of the Buyer contained in this Agreement shall be true and correct and in full
force and effect on and as of the Closing Date.
COVENANTS OF THE SELLER PRIOR TO CLOSING
Required Approvals. As promptly as practicable after the date of this
Agreement, the Seller shall make all filings required by foreign or local law to
be made by them in order to consummate the transactions contemplated hereby. The
Seller shall (a) cooperate with the
Buyer with respect to all filings that the Buyer elects to make
or is required by law to make in connection with the transactions contemplated
hereby, and (b) cooperate with the Buyer in obtaining any consents of the type
described in Sections 2.4 and 2.5.
Prohibited Actions. In no event, without the prior written consent of the
Buyer, shall the Seller:
any of the Assets to be subjected to any claim or Encumbrance;
any claims or rights of substantial value respecting the Assets, or sell,
transfer, or otherwise dispose of any of the Assets, except in the ordinary
course of business and consistent with past practice; or
of, license, or permit to lapse any rights in any Intellectual Property;
From the date of this Agreement to the Closing Date, the Seller shall: (a)
provide the Buyer with such information and access as the Buyer may from time to
time reasonably request to the Assets.
Non-Solicitation. Until the completion or termination of the transactions
contemplated by this Agreement, the Seller shall not, nor shall any of its
representatives, solicit, offer or encourage any sale of any of the Assets.
CONDITIONS TO THE SELLER’S OBLIGATIONS
of the obligations of the Seller to be performed hereunder shall be subject to
the satisfaction (or waiver by the Seller) at or prior to the Closing Date of
each of the following conditions:
Representations and Warranties; Performance. The Buyer shall have
performed and complied in all respects with the covenants and agreements
contained in this Agreement required to be performed and complied with by it at
or prior to the Closing Date, the representations and warranties of the Buyer
set forth in this Agreement shall be true and correct in all respects as of the
date hereof and as of the Closing Date as though made at and as of the Closing
Date (except as otherwise expressly contemplated by this Agreement), and the
execution and delivery of this Agreement by the Buyer and the consummation of
the transactions contemplated hereby shall have been duly and validly authorized
by the Buyer’s Board of Directors, and the Seller shall have received a
certificate to that effect signed by the secretary of the Buyer.
Litigation. No Litigation shall be threatened or pending against the
Buyer or the Seller that, in the reasonable opinion of counsel for the Seller,
could result in the restraint or prohibition of any such party, or the obtaining
of damages or other relief from such party, in connection with this Agreement or
the consummation of the transactions contemplated hereby.
Documents Satisfactory in Form and Substance. All agreements,
certificates, and other documents delivered by the Buyer to the Seller hereunder
shall be in form and
substance satisfactory to counsel for the Seller, in the
exercise of such counsel’s reasonable judgment.
of Financing. The Buyer shall have completed a financing by way of private
placement of at least US$100,000 by the sale of no more than 2,000,000 common
share of the Buyer at a price of US$0.05 per common share.
CONDITIONS TO THE BUYER’S OBLIGATIONS
of the obligations of the Buyer to be performed hereunder shall be subject to
the satisfaction (or the waiver by the Buyer) at or prior to the Closing Date of
each of the following conditions:
Representations and Warranties; Performance. The Seller shall have
performed and complied in all respects with the covenants and agreements
contained in this Agreement required to be performed and complied with by them
at or prior to the Closing Date, the representations and warranties of the
Seller set forth in this Agreement shall be true and correct in all respects as
of the date hereof and as of the Closing Date as though made at and as of the
Closing Date (except as otherwise expressly contemplated by this Agreement), and
the execution and delivery of this Agreement by the Seller and the consummation
of the transactions contemplated hereby shall have been duly and validly
authorized by the Seller’s Board of Directors, and the Buyer shall have received
a certificate to that effect signed by the secretary of the Buyer.
Consents. All required approvals, consents and authorizations shall have
No Litigation. No Litigation shall be threatened or pending against the
Buyer or the Seller that, in the reasonable opinion of counsel for the Buyer,
could result in the restraint or prohibition of any such party, or the obtaining
of damages or other relief from such party, in connection with this Agreement or
the consummation of the transactions contemplated hereby.
Due Diligence. The Buyer shall have completed its due diligence review of
the Assets and shall have been satisfied with the findings thereof.
Proof of Ownership. The Seller shall have delivered to the Buyer
documentary evidence, in form satisfactory to the Buyer.
COVENANTS OF THE SELLER AND THE BUYER FOLLOWING
Allocation of Purchase Price; Transfer Taxes.
with applicable tax rules, the Buyer shall allocate the Purchase Price to the
Assets. The Buyer shall prepare and file, in a timely fashion, forms in a manner
consistent with such allocation with the relevant tax authority. All tax returns
and reports filed or
prepared by the Buyer and/or the Seller with respect to the
transactions contemplated by this Agreement shall be consistent with the
allocation made by the Buyer under this Section 7.1(a) .
sales, transfer, and similar taxes and fees (including all recording fees, if
any) incurred in connection with this Agreement and the transactions
contemplated hereby shall be borne by the Seller and the Seller shall file all
necessary documentation with respect to such taxes.
Further Assurances. Subject to the terms and conditions of this
Agreement, each party agrees to use all of its reasonable efforts to take, or
cause to be taken, all actions and to do or cause to be done, all things
necessary and proper or advisable to consummate and make effective the
transactions contemplated by this Agreement (including the execution and
delivery of such further instruments and documents) as the other party may
of Proprietary Data. The Parties shall hold in a fiduciary capacity for the
benefit of each other all secret or confidential information, knowledge or data
relating to the each other or any of their affiliated companies, and their
respective businesses, which shall not be or become public knowledge. Neither
Party, without the prior written consent of the other, or as may otherwise be
required by law or legal process, shall communicate or divulge either before or
after the Closing Date any such information, knowledge or data to anyone other
than the other Party and those designated by the other Party in writing.
SURVIVAL AND INDEMNITY
Survival of Representations, Warranties, etc. Each of the
representations, warranties, agreements, covenants and obligations herein is
material and shall be deemed to have been relied upon by the other party or
parties and shall survive indefinitely after the date hereof and after the
Closing and shall not merge in the performance of any obligation by any party
hereto. All rights to indemnification contained in this Agreement shall survive
the Closing indefinitely.
Indemnification by the Seller and Buyer. The parties shall indemnify,
defend, and hold harmless each other, and the each others representatives,
stockholders, controlling persons and affiliates, at, and at any time after, the
Closing, from and against any and all demands, claim, actions, or causes of
action, assessments, losses, damages (including incidental and consequential
damages), liabilities, costs, and expenses, including reasonable fees and
expenses of counsel, other expenses of investigation, handling, and Litigation
(as defined in Section 2.13), and settlement amounts, together with interest and
penalties (collectively, a “Loss” or “Losses”), asserted against,
resulting to, imposed upon, or incurred by the either party, directly or
indirectly, by reason of, resulting from, or arising in connection with: (i) any
breach of any representation, warranty, or agreement of either party contained
in or made pursuant to this Agreement, including the agreements and other
instruments contemplated hereby; (ii) any breach of any representation,
warranty, or agreement of either party contained in or made pursuant to this
Agreement, including the agreements and other instruments contemplated hereby,
as if such representation or warranty were made on and as of the Closing Date;
(iii) any claim by any person for brokerage or finder’s fees or commissions or
similar payments based upon any agreement or understanding alleged to have been
made by any such person with either party in connection this Agreement or any of
contemplated hereby; and (iv) to the extent not covered by the
foregoing, any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs, and expenses, including
reasonable fees and expenses of counsel, other expenses of investigation,
handling, and Litigation and settlement amounts, together with interest and
penalties, incident to the foregoing.
remedies provided in this Section 8.2 will not be exclusive of or limit any
other remedies that may be available to the either party to this Agreement.
Termination. This Agreement may be terminated at any time prior to the
by mutual written consent of the Seller and the Buyer;
either the Seller or the Buyer if (i) there shall have been a material breach of
any representation, warranty, covenant or agreement set forth in this Agreement,
on the part of the Buyer, in the case of a termination by the Seller, or on the
part of the Seller, in the case of a termination by the Buyer, which breach
shall not have been cured, in the case of a representation or warranty, prior to
Closing or, in the case of a covenant or agreement, within ten (10) business
days following receipt by the breaching party of notice of such breach, or (ii)
any permanent injunction or other order of a court or other competent authority
preventing the consummation of the transactions contemplated hereby shall have
become final and non-appealable; or
either the Seller or the Buyer if the transactions contemplated hereby shall not
have been consummated on or before December 31, 2005; provided,
however, that the right to terminate this Agreement pursuant to this
Section 9.1(c) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the consummation of the transactions contemplated hereby to have
occurred on or before the aforesaid date.
Effect of Termination. Each party’s right of termination under Section
9.1 is in addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will not be an election of
remedies. If this Agreement is terminated pursuant to Section 9.1, unless
otherwise specified in this Agreement, all further obligations of the parties
under this Agreement will terminate; provided, however, that if
this Agreement is terminated by a party because of the breach of this Agreement
by the other party or because one or more of the conditions to the terminating
party’s obligations under this Agreement is not satisfied as a result of the
other party’s failure to comply with its obligations under this Agreement, the
terminating party’s rights to pursue all legal remedies will survive such
Entire Agreement. This Agreement, and the other certificates, agreements,
and other instruments to be executed and delivered by the parties in connection
with the transactions contemplated hereby, constitute the sole understanding of
the parties with respect to the subject matter hereof and supersede all prior
oral or written agreements with respect to the subject matter hereof.
Parties Bound by Agreement; Successors and Assigns. The terms,
conditions, and obligations of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and
Amendments and Waivers. No modification, termination, extension, renewal
or waiver of any provision of this Agreement shall be binding upon a party
unless made in writing and signed by such party. A waiver on one occasion shall
not be construed as a waiver of any right on any future occasion. No delay or
omission by a party in exercising any of its rights hereunder shall operate as a
waiver of such rights.
Severability. If for any reason any term or provision of this Agreement
is held to be invalid or unenforceable, all other valid terms and provisions
hereof shall remain in full force and effect, and all of the terms and
provisions of this Agreement shall be deemed to be severable in nature. If for
any reason any term or provision containing a restriction set forth herein is
held to cover an area or to be for a length of time which is unreasonable, or in
any other way is construed to be too broad or to any extent invalid, such term
or provision shall not be determined to be null, void and of no effect, but to
the extent the same is or would be valid or enforceable under applicable law,
any court of competent jurisdiction shall construe and interpret or reform this
Agreement to provide for a restriction having the maximum enforceable area, time
period and other provisions (not greater than those contained herein) as shall
be valid and enforceable under applicable law.
Attorney’s Fees. Should any party hereto retain counsel for the purpose
of enforcing, or preventing the breach of, any provision hereof including, but
not limited to, the institution of any action or proceeding, whether by
arbitration, judicial or quasi-judicial action or otherwise, to enforce any
provision hereof or for damages for any alleged breach of any provision hereof,
or for a declaration of such party’s rights or obligations hereunder, then,
whether such matter is settled by negotiation, or by arbitration or judicial
determination, the prevailing party shall be entitled to be reimbursed by the
losing party for all costs and expenses incurred thereby, including, but not
limited to, reasonable attorneys’ fees for the services rendered to such
This Agreement may be executed in one or more counterparts, each of which shall
for all purposes be deemed to be an original and all of which shall constitute
the same instrument.
The headings of the sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
Expenses. Except as specifically provided herein, the Seller and the
Buyer shall each pay all costs and expenses incurred by it or on its behalf in
connection with this Agreement and the transactions contemplated hereby,
including fees and expenses of its own financial consultants, accountants, and
All notices, requests, demands, claims, and other communications which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given five business days after such notice, request,
demand, claim or other communication is sent, if sent by registered or certified
mail, return receipt requested, postage prepaid; and, in any case, all such
communications must be addressed to the intended recipient at the address set
forth on the first page of this Agreement. Any party may send any notice,
request, demand, claim, or other communication hereunder to the intended
recipient at the address set forth above using any other means, but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Nevada without giving effect to the
principles of choice of law thereof.
Any dispute arising under or in connection with any matter
related to this Agreement or any related agreement shall be resolved exclusively
by arbitration. The arbitration shall be in conformity with and subject to the
applicable rules and procedures of the American Arbitration Association. All
parties agree to be (1) subject to the jurisdiction and venue of the arbitration
in the State of Nevada, (2) bound by the decision of the arbitrator as the final
decision with respect to the dispute and (3) subject to the jurisdiction of the
Superior Court of the State of Nevada for the purpose of confirmation and
enforcement of any award.
Whenever reference is made in this Agreement to any Article, Section, or
paragraph, such reference shall be deemed to apply to the specified Article,
Section or paragraph of this Agreement.
Wherever reference is made in this Agreement to a Schedule, such reference shall
be deemed to apply to the specified Schedule attached hereto, which are
incorporated into this Agreement and form a part hereof. All terms defined in
this Agreement shall have the same meaning in the Schedules attached hereto.
form of the word “include” when used herein is not intended to be exclusive
(e.g., “including” means “including, without limitation”).
No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any
No Third Party Beneficiary Rights. No provision in this Agreement is
intended or shall create any rights with respect to the subject matter of this
Agreement in any third party.
Such Other Acts. The parties hereto shall do all things, take such acts
and execute such documents as are necessary to give effect to the intention
Electronic Means. Delivery of an executed copy of this Agreement by
electronic facsimile transmission or other means of electronic communication
capable of producing a printed copy will be deemed to be execution and delivery
of this Agreement as of the date first indicated above.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date first indicated above.
||ONYX TRADING INC.
||/s/ Xxxxx Xxxxx
||Director – Equity Management Inc.
||/s/ Xxxxxx Xxxxxxx
There is no trademark associated with the Assets.
The is no patent application associated with the Assets
Internet Domain Names
There is no Internet domain name associated with the Assets.
The Owned Software described in Schedule “C” below.
Contract on the assignment of proprietary author’s rights
concluded between Xeris s.r.o. and ONYX TRADING INC. on the 1st of
Licensed Software in Schedule “C” below.
The system is a complete video platform solution. It contains
all the foundations to eventually develop Video Value Added Services on the top
of it. Those Value Added Services are NOT part of the software and need to be
Video content can be uploaded onto the platform using various
methods such as direct grabbing from TV programs (real time), DVD upload,\dots
Video are stored in a fully redundant way on a distributed system and using some
secure mechanisms that assure data integrity. Video content can then be streamed
to various end devices.
This distributed and hierarchical system has been named
internally TVE (for TV Everywhere). It has been designed with scalability in
mind, the goal being a global reach in order to provide services on a global. An
overview of the system architecture is given below:
The largest entity is the national system, which could consist
of one or several nodes. In the diagram, the national nodes are designated as
TVE-CZ01, TVE-CZ02, XXX-XX00, XXX-XX00, XXX-XX00 and TVE-DE02. The naming
standard is being used to reflect the international two-char country codes.
The next level inside the national node is formed by nodes
dedicated to particular ISPs. ISP could be a pure Internet provider or could
also provide a cable-TV service. For example, they could offer HBO among their
programs and they would like to enable the TVE access to HBO for their paying
customers. ISP could also be interested by the service for its multicast
The following graph provides an overview of a single node. A
system node is the very basic component of the whole system. It is the smallest
usable entity of the system.
The video storage system is the core of the platform. It has
been fully developed in-house. The storage system was designed for video files
with an average bitrate of around 1.2Mbps, which leads to 150kBps or 540MB per
The storage system is designed as a distributed -- clustered
system with assured availability.
The system uses RTP for the transport protocol.
The system supports the grabbing of live broadcast (DVB) and
also basic entry from DVDs.
Basic web services have been developed to offer a basic
interface to demonstrate the platform. Still, complete services would eventually
need to be developed.
The software has been developed to run on mainstream hardware.
It is recommended to use 1000Base-TX Standard for internal wiring. 100Base-TX
standards is sufficient for external connections.
For the network topology, IPv4 address space inside the one
node (e.g. addresses like 00.0.0.0/00) . Streamers will be connected via second
NIC (Network Interface Card) to the Internet and they will have addresses from
public address space at these NICs.
During the storage of the grabbed data, the system will use a
simple lock scenario, where the chunks currently written are locked (marked as
inaccessible) in the database. This will be much simpler then writing. Indeed,
the object will be simply marked as inaccessible in the fs metadatabase. As a
result, nobody will be able to access this object. Then, it could simply be
removed on garbage-collection basis.
The storage chain is illustrated below:
Grabbed data are split into chunks (We suppose the size of one
data block (chunk) to be around 20s of recording, which is approximately 3MB).
These chunks are scattered around the storage cluster. So no neighbor chunks (in
view of chunks' sequence) are stored on the same OSN (Object Storage Node). Each
chunk is stored at (at least two) mutually disjoint OSNs to achieve data
redundancy. Object is defined as a sequence of the chunks.
FS-metadata are stored in a relational database. Stored
information consists of: ChunkIDPrefix, SeqNum, OSNID, CTYPE, Flags (e.g.
"intention to delete"). You get ID of the chunk if you put together
ChunkIDPrefix and SeqNum (see figure below). Motivation behind this is that we
want to have as simple as possible retrieving and storing chunks (thus SeqNum,
which will increment by 1 for each next chunk and some kind of prefix which will
distinguish particular data sources). ChunkIDPrefix consists of NodeID,
ChannelID and number of days since 1.1.2001.
XXX is used as the main transport protocol. RTP uses UDP for
data delivery. The RTSP protocol for stream control (such as Stop, Play, Rewind
Players will interact directly with the chosen streamer (chosen
by the system, not by the customer/user). Streamer is chosen by one of
application servers, which performs the authorization of the user.
Because video quality is paramount, the solution uses quality
TV tuners and grabbing cards. ViewCast Osprey 210 respectively ViewCast Osprey
230 (PCI-X Version) have been used in the solution. The cards need to have
integrated tuner, because of teletext reception.
DVB is supported as a source of video data as well.
One of the main problems is the gathering of the input
information for metadata construction. The detection of the start and the end of
programs need also to be developed. At this time, the only available option is
the use of VPS codes. A computer card which understands VPS would need to be
found. For DVB, the standardization is ongoing, but not all the broadcasters
sends VPS inside DVB (or basically VBI data). In analog TV, there is a very
similar situation -- a lot of broadcasters don't support VPS as well.
All the inside (in-node) wiring should be done according to
1000Base-TX standard (e.g. UTP Cat~5 or 7). Gigabit ethernet cards and switches
are commodity hardware nowadays. They should be used for interconnecting devices
inside the cluster.
For outside connections, 100Base-TX will be sufficient for
web-servers. For streamers is 1000Base-TX preferred. For connecting the
web-servers, CSS should be used to hide them (from the Internet) behind one
virtual IP address. The use of CSS in proxy mode (typical use of products such
as Cisco CSS11000) can give the option to install SSL acceleration modules in
the CSSs and to remove the SSL decryption overhead from the web-servers. On the
other hand -- commodity processors are so powerful that SSL traffic can be
better handled than before. Moreover, some OSS activities (namely Linux Virtual
Cluster project) can be used to achieve the same functionality without the need
of specialized hardware.
For the network topology of the node, private IPv4 address
space should be used inside one node (e.g. addresses like 00.0.0.0/00) .
Streamers will be connected via second NIC (Network
Interface Card) to the Internet and they will have addresses
from public address space at these NICs.
A private DNS zone should be used within the node. Every IP
address will have its name representation in this zone. Furthermore for some
group of services (such as FSMDS replicas we will setup special alias which will
resolve in group of address (not into only one). This approach will be used as
simple way to achieve redundancy and load-balancing inside the node.
For the servers, there are no special requirements. Servers
should enable RAID1 or RAID5 as a local storage. This would provide higher
availability and reduce the maintenance costs. All servers should run Debian
Minimum number of servers (this configuration does not support
redundancy): one grabber, one DB engine, one storage node (metadata DB and FSMDS
can be located on one server), one server for web service and service tasks, one
streamer. That represents 5 computers.
The core of the solution (the storage of videos) is fully owned.
RTSP elements on the server and client side
Complete RTP payloader for H.264
Watermarking for H.264
Interfaces between components
The solution has been designed and developed in order to
accommodate the following licensed software:
Open Source Software
The complete solution uses a few Open Source components.
Gstreamer (Multimedia framework)
AAC encoders and decoders
H.264 encoders and decoders
Jboss (Java application servers)
Spring (J2EE application framework)
Hibernate (Java persistent layer)
Debian GNU/Linux (Operating system)
Also, a lot of plug-ins, patches and bug fixing have been
produced as part of the projects. The strategic decision was made to release
those patched and fixes to the open source community. This include many Gstream
plug ins (A52Dec, RTSP, RTP, Storage, …)