Exhibit 10.21
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ASSET PURCHASE AGREEMENT
by and among
I. T. Technology Pty Ltd
and
I. T. TECHNOLOGY, INC.
and
STREAMCOM PTY LTD (ACN 084 388 367 Pty Ltd)
and
PACIFIC & ORIENT INVESTMENTS LIMITED
14 January 2002
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement, dated as of 14 January, 2002 (the
"Execution Date"), is entered into by and among I. T. Technology, Inc., a
Delaware corporation (the "Parent"), its wholly-owned subsidiary, I. T.
Technology Pty Ltd, ACN 085 839 738, a company organized under the laws of the
State of Victoria, Australia (the "Purchaser")(Parent and Purchaser, hereinafter
collectively the "Purchaser Parties") and Streamcom Pty Ltd, ACN 084 388 367, or
otherwise known as ACN 084 388 367 Pty Ltd, a company organized under the laws
of the State of Victoria, Australia (the "Seller"), Sellers sole shareholder,
Pacific & Orient Investments Limited, a company organized under the laws of New
Zealand (the "Shareholder") Seller, Shareholder , hereinafter collectively
referred to as the "Seller Parties").
B A C K G R O U N D:
WHEREAS, Seller is engaged in the business of live streaming
production, video encoding, production, online corporate communications project
management and video on demand integration (the "Business");
WHEREAS, upon the terms and subject to the conditions set forth herein,
the Seller and Shareholder desire to transfer, sell, convey, assign and deliver
to the Purchaser, and the Purchaser desires to acquire from the Seller and
Shareholder, the Business and all of the assets of the Seller, in exchange for
shares of the Parent's, $.0002 par value common stock, the assumption by the
Seller of certain Liabilities of the Seller and otherwise in accordance with the
terms and subject to the conditions of this Agreement; and
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Certain of the capitalized terms used in this
Agreement are defined in Exhibit A attached hereto and made part hereof.
Section 1.2. Additional Definitions. In addition to the foregoing
defined terms, (i) other capitalized terms appearing in this Agreement shall
have the respective meanings ascribed to such terms where they first appear in
the text of this Agreement and (ii) all accounting terms not specifically
defined in this Agreement shall be construed in accordance with generally
accepted Australian accounting practices.
ARTICLE II
PURCHASE AND SALE OF THE ASSETS; PURCHASE PRICE
Section 2.1. Purchase and Sale of the Assets. Except for the Excluded
Assets set forth in Section 2.2 below and subject to the terms and conditions of
this Agreement, effective as of the Effective Time, the Seller hereby Transfers
to the Purchaser, and Purchaser hereby purchases and accepts from the Seller,
free and clear of all Liens, all of the Sellers right, title and interest in and
to all of the assets of the Seller, including, but not limited to those assets
listed in Exhibit "B" attached hereto (collectively, the "Transferred Assets").
The Transferred Assets, include, but are not limited to the following:
(a) all cash, cash equivalents and Tax refunds;
(b) the Accounts Receivable;
(c) the equipment and other personal property;
(d) all Intangible Assets;
(e) originals or copies of all books, financial and other records and
information which has been reduced to written, recorded or encoded form
by any Seller Party relating to the Business or the Transferred Assets
in existence as of September 30, 2001, as such items may be modified or
augmented in the Ordinary Course of Business thereafter (collectively,
the "Books and Records");
(f) without limiting the foregoing, all computer hardware, computer
software, computer software documentation, including source code, and
systems documentation used in the Business in each case in existence as
of September 30, 2001, as such items may be modified or augmented in
the Ordinary Course of Business thereafter;
(g) without limiting the foregoing, all prepaid expenses, advances and
security deposits paid by the Seller;
(h) all Actions, judgments, insurance proceeds and insurance claims in
favor of or on behalf of the Seller related to the Business or the
Transferred Assets;
(i) any warranties of third parties on any Transferred Assets;
(j) security and utility deposits relating to Transferred Assets; and
(k) all assets, including but not limited to the furniture, removable
fixtures and equipment and other personal property, located at the
Excluded Leases.
Section 2.2 Excluded Assets. Notwithstanding anything to the contrary
contained herein, including Section 2.1 above, the Seller shall retain all of
its right, title and interest in and to, and shall not Transfer to the
Purchaser, solely those assets of the Seller consisting of the Excluded
Contracts and Excluded Leases (collectively, the "Excluded Assets").
Section 2.3. Non-Assumption of Liabilities. Except for trade payables
incurred during the 30 days prior to the Closing Date in the Ordinary Course of
Seller's Business, the Purchaser shall not assume, and shall have no liability
or obligation whatsoever at any time for any or all Liabilities of the Seller
whatsoever, whether arising prior to or after the Effective Time in connection
with the Business or the ownership of the Transferred Assets or otherwise.
Section 2.4. Purchase Price. The entire purchase price payable by the
Purchaser to or on behalf of the Seller for the Transferred Assets was
10,000,000 restricted shares of the Purchaser's $.0002 per share par value
common stock (the "Common Stock") which Parent has authorized for issuance and
delivery to the Seller and the Designated Distributees set forth below:
PACIFIC & ORIENT INVESTMENTS LTD. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER PARTY
Seller Parties jointly and severally represent and warrant to the
Purchaser Parties as of the date hereof as follows:
3.1 Organization and Qualification.
(a) Seller is a company duly organized, validly existing and
in good standing under the laws of the State of Victoria, Australia and
has the requisite authority and power to carry on its business as it is
now being conducted.
(b) Seller is duly qualified or licensed to do business and is
in good standing in each of the jurisdictions in which the nature of
its business or the properties owned or leased by it makes such
qualification or licensing necessary.
3.2 Capitalization.
(a) All of the shares of authorized capital stock of the
Seller are owned by the Shareholder (the "Seller Equity Interests").
(b) No Person, other than the Shareholder, has any option or
other right to purchase from the Seller, or to require the Seller to
issue, any additional shares of Seller Equity Interests.
3.3 No Subsidiaries. The Seller has no subsidiaries.
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3.4 Authorization.
(a) Each Seller Party has the requisite corporate (or
individual, as the case may be) power and authority to enter into this
Agreement and any related agreements, to perform its obligations
thereunder, and to consummate the transactions contemplated thereby.
The execution and delivery of this Agreement and any related
agreements, and the consummation of the transactions contemplated
thereby, has been duly authorized by all corporate action (if an
entity) by the applicable Seller Party. This Agreement and any related
agreements have been duly executed and delivered by each Seller Party
and constitutes a legal, valid and binding obligation of such Seller
Party, enforceable against the applicable Seller Party in accordance
with its terms.
(b) The execution and delivery by the applicable Seller Party
of this Agreement and any related agreements do not, and the
consummation of the transactions contemplated thereby will not, (i)
conflict with, or result in a violation of, any provision of the
constitution or shareholders agreements (if any) of the applicable
Seller Party, (ii), constitute or result in a breach of or default (or
an event which with notice or lapse of time, or both, would constitute
a default) under, or result in the termination or suspension of, or
accelerate the performance required by, or result in a right of
termination, cancellation or acceleration of any obligation or a loss
of a benefit under, any note, bond, mortgage, indenture, deed of trust,
lease, permit, concession, franchise, license, agreement or other
instrument or obligation to which the applicable Seller Party is a
party or to which the properties or Assets of the applicable Seller
Party is subject, (iii) create any Lien upon any of the properties or
Assets of the applicable Seller Party, or (iv) constitute, or result
in, a violation of any Law applicable to the applicable Seller Party or
any of the properties or Assets of the applicable Seller Party.
(c) No consent, approval, order or authorization of, notice
to, or registration, declaration, or filing and delivered to the
Purchaser at the Closing, with any Person is necessary in connection
with the execution and delivery of this Agreement and Transfer
Documents or the consummation by the Seller Party of the transactions
contemplated thereby.
3.5 Accuracy of Financial Statements. Seller has delivered the Seller
Financial Statements. The Seller Financial Statements are complete and correct,
and present fairly the financial position, results of operations and changes in
financial position of the Seller as of the dates and for the periods indicated.
3.6 Title to Property and Assets. Seller has good and valid title to
all of Transferred Assets free and clear of all encumbrances and Liens.
3.7 Contracts. There does not exist any event or condition that, after
notice or lapse of time or both, would constitute an event of default or breach
under any Contract on the part of the Seller or any other party thereto which
would result in the creation of any Lien upon any Transferred Asset, or any
Person acquiring any right to acquire, any Transferred Assets. Seller has not
received in writing any claim or threat that it has breached any of the terms
and conditions of any assigned Contract. Seller has no outstanding liabilities
or obligations under any Contract which covers or effects any Transferred Asset.
3.8 Litigation; Compliance with Laws. There are no Actions pending or
threatened in writing before any United States or Australian, federal, state,
local or foreign court or Governmental Authority, agency or body, and there is
no judgment, injunction, decree, award order outstanding against the Seller, the
Transferred Assets or the transactions contemplated hereby and, to the Knowledge
of the Seller Parties, none of the foregoing is threatened against any of the
Seller, its Transferred Assets or the transactions contemplated hereby. Seller
is not in violation of, nor has it violated any law applicable to the Business,
the Transferred Assets or Seller's operations.
3.9 Intellectual Property. Each of the Seller Parties represents and
warrants to Purchaser as of the date hereof, that:
(1) The Seller owns or has the right to use all Intellectual
Property necessary for or used in the conduct of the Business as now
conducted or contemplated to be conducted in the future (the "Required
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Intellectual Property"), free of any restrictions, and without known
conflict with the rights of others, and the Seller has not forfeited or
otherwise relinquished any such Required Intellectual Property;
(2) The Seller has not previously assigned, transferred,
conveyed, or otherwise encumbered any right, title or interest in the
Required Intellectual Property, and has not granted any third party any
license to use the Required Intellectual Property in any manner, or any
covenant not to ▇▇▇ for any such use of the Required Intellectual
Property;
(3) Except with respect to off-the-shelf software, the Seller
is the sole owner of all Required Intellectual Property;
(4) No Seller Party has received any demand, claim, notice or
inquiry from any person in respect of the Required Intellectual
Property which challenges, threatens to challenge, the validity of, the
rights of the Seller in, or the right of the Seller to use, any such
Required Intellectual Property, and no Seller Party knows of any basis
for any such challenge;
(5) To the best of the Seller's knowledge, use of the Required
Intellectual Property does not violate, infringe, conflict, interfere
with or require the Seller or any party acquiring from the Seller the
obligation to pay any licence fee or royalty in respect of the
intellectual property or proprietary right of any third party, nor has
any third party asserted any claim that it does so; and
(6) Seller has not granted any license with respect to any
Intellectual Property to any person.
3.10 Taxes. The Seller has timely filed, subject to appropriate
extensions, all requisite Seller Returns relating to any Taxes, that, if unpaid,
might result in a Lien upon any of the Transferred Assets or a claim against the
Purchaser, as required and when due for all taxable periods in accordance with
provisions of law pertaining thereto.
3.11 Employee, Employee Benefit Plans. Except as set forth in Section
5.1 below,. Purchaser shall have no obligations, or Liability whatsoever for any
past or current employee of the Seller or the termination thereof or payments
with respect to any Employee Plan , including severance pay, annual leave,
workers compensation payments, superannuation guarantee charge payments or other
payments due in respect of such employees of the Seller. Seller is not bound by
any Contract, union or collective bargaining agreement or otherwise with respect
to Seller's employees. There are no pending claims or Actions which have been
asserted or instituted regarding any past or current employee of Seller under
which the Seller may have liability, contingent or otherwise and no such
complaint is pending, nor is any such complaint threatened, nor are there any
facts or circumstances which would form a basis for such complaint
3.12 Conduct of Business. Each of the Seller Parties covenants and
agrees that from September 30, 2001 through the Execution Date, Seller has:
(a) operated only in the Ordinary Course of Business;
(b) not issued, purchased, sold, directly or indirectly
redeemed, or otherwise acquired or contracted for the purchase or sale
of any of the Seller Equity Interests, (x) declared or paid any
dividend, either in cash or in shares of the Seller Equity Interests or
(y) issued or agreed to issue any options to purchase any Seller Entity
Interests.
(c) cancelled, discounted or otherwise compromised any
Accounts Receivable or other indebtedness owing to any Seller or any
claims which any Seller may possess or waive any rights of material
value, except in the Ordinary Course of Business; and
(d) Sold or otherwise disposed of any assets of the Seller,
except in the Ordinary Course of Business;
3.13 Brokers. No Seller Party has retained any broker or finder in
connection with any of the transactions contemplated by this Agreement, and
Seller and Shareholder have not incurred or agreed to pay, or taken any other
action that would entitle any Person to receive, any brokerage fee, finder's fee
or other similar fee or commission with respect to any of the transactions
contemplated by this Agreement.
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3.14 Investment Intent. Seller and the Designated Distributees are
acquiring the Common Stock for their own account, and not with a view to, or for
sale in connection with, any distribution of any of such Common Stock and each
Person who will receive the Common Stock at the Closing shall prior thereto
entered into a Subscription Agreements and Investor's Questionnaire's.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER WARRANTING
PARTIES
Unless otherwise indicated herein, Purchaser Parties jointly and
severally represent and warrant to Seller as of the date hereof as follows:
4.1 Good Standing and Corporate Power of Purchaser. Purchaser is a
company duly organized, validly existing and in good standing under the laws of
the State of Victoria, Australia, and has the requisite authority and power to
carry on its business as it is now being conducted and has all necessary
corporate power to perform its obligations under this Agreement. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware, and has all necessary corporate power to perform its obligations
under this Agreement.
4.2 Authorization. The execution, delivery and performance of this
Agreement on behalf of the Purchaser and Parent have been duly authorized by all
necessary action on the part of the Purchaser and Parent. This Agreement
constitutes a legal, valid and binding obligation of Purchaser and Parent ,
enforceable against Purchaser and Parent in accordance with its terms, subject
to (a) laws of general application relating to bankruptcy, insolvency and the
relief of debtors and (b) rules of law governing specific performance,
injunctive relief and other equitable remedies.
4.3 Effect Of Agreement. The execution and delivery by the Purchaser
and Parent of this Agreement and the documents required hereunder and the
consummation by the Purchaser and Parent of the transactions contemplated
hereby: (a) will not result in the breach of any of the terms and provisions of,
or result in a termination or modification of, or constitute a default under, or
conflict with any agreement or other instrument by which Purchaser or Parent is
bound, or conflict with any judgment, decree, order or award of any court,
governmental body, or arbitrator, or any applicable law, rule or regulation
which would have a Material Adverse Effect and (b) do not require the consent of
any Governmental Authority or third party.
4.4 Title to Stock. Parent has issued instructions to its transfer
agent to issue to the Seller and or the Designated Distributees the shares of
Common Stock, which parties shall acquire good title to the Common Stock free of
any encumbrances, except for (a) any encumbrances created by or through the
Seller and (b) restrictions on the sale or transfer thereof under the Act and/or
state "Blue Sky" statute or any Australian federal or state statute.
4.5 SEC Reports. Parent has previously furnished Seller Parties with
true and complete copies of all reports filed by it with the SEC from February
8, 2001 to the date hereof (such reports being hereinafter collectively referred
to as the "SEC Reports").
SECTION 5. ADDITIONAL AGREEMENTS
5.1 Employees of the Seller. Purchaser, agrees to hire, on an at will
basis, employees of the Seller, who have been continuously employed by the
Seller since September 30, 2001 at their respective salaries in effect as of
September 30, 2001 and on terms and conditions in accordance with Purchaser's
Employee Plans and other customary practices and policies.
5.2 Covenant Not to Compete. For a period of three (3) years, two (2)
years or one (1) year (with each of these periods being a separate and severable
obligation following the Closing Date) (the "Restriction Period"), each of the
Seller Parties and their Affiliates hereby agree not to compete with Purchaser
or Parent in Australia or the United States by engaging in the Business or as
an, operator, majority shareholder, director, partner, employee, consultant to
any entity engaged in the Business or any business engaged in the management,
syndication and distribution of online media content, with the exception of that
business currently conducted as of the date hereof by VideoEcard Pty Ltd, a
member the Shareholder's group of companies.
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SECTION 6. CLOSING.
6.1 Closing.The Closing shall be held at the offices of the Parent,
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, at 4:00 p.m.
(Melbourne time) on the Execution Date or at such other place, time and/or date
as may be mutually agreed to in writing by all of the Parties. The Closing and
all of the transactions to occur at the Closing shall be deemed to have occurred
at the Effective Time.
6.2 Deliveries by the Seller Party and the Designated Distributees. At
the Closing, in addition to any other documents required under this Agreement,
the Purchaser Parties acknowledge that the Seller Party and/or any Designated
Distributee, as the case may be, have delivered to the Purchaser Parties the
following:
(a) completed and executed Subscription Agreements and
Investor's Questionnaire;
(b) documents satisfactory to Purchaser and its counsel which
evidence the assignment and transfer of the Seller rights, title and
interest in and to all Transferred Assets; and
(c) ▇▇▇▇ of Sale with respect to the Transfer of Transferred
Assets. 6.3 Deliveries by the Purchaser's Parties. At the Closing, in
addition to any other document required under this Agreement, the
Seller Parties acknowledge that the Purchaser Parties, have delivered
to the Seller Party and/or any Designated Distributee, as the case may
be, a letter of instruction to the Parent's transfer agent, instructing
said transfer agent to issue and deliver to the Designated Distributee
the number of shares of restricted Common Stock set forth opposite such
Designated Distributee's name.
SECTION 7. INDEMNIFICATION AND RELATED MATTERS
7.1 Survival of Representations and Warranties, Indemnifiable Claims.
(a) All representations, covenants, agreements and warranties
of each of the parties made in this Agreement shall survive the Closing
for a period of three (3) years from the Closing Date and notice of all
claims for indemnification hereunder shall be made within such period;
provided, however, that (i) the representations and warranties of each
of the Seller Parties relating to Taxes contained in Section 3.10 and
Employee Benefit Plans contained in Section 3.14 hereof, (ii) any
representation or warranty which is inaccurate or incomplete because of
fraud and (iii) any representation and warranty with respect to any
matter affecting legal title to the Transferred Assets, in each case
shall survive for the length of the applicable statute of limitations
in respect of such matter, if any. The right to recover Damages on any
claim shall not be affected by the termination of any representations
and warranties as set forth above provided that notice of the existence
of such claim has been given prior to such termination.
(b) Subject to the notice and limitations in Section 7.1(a),
Purchaser and Parent and any of their Affiliates, officers, directors,
agents, successors, representatives and assigns shall be entitled to
assert a claim for indemnification under this Section 7 against the
Seller Parties, for any Damages, resulting from, arising out of or
incurred with respect to a breach of any representation, warranty,
covenant of any Sellers Party contained in the Agreement or delivered
in connection herewith, or in any Transaction Document.
SECTION 8. MISCELLANEOUS PROVISIONS
8.1 Time of Essence. All times and dates in this Agreement and each and
every provision hereof in which time is an element are of the essence; provided,
however, that if the time period for exercising any right, option or election
provided in this Agreement or the time period for the performance of any act
required under this Agreement falls on a day other than a Business Day, then
such time period shall be automatically extended through the close of business
on the next regularly scheduled Business Day.
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8.2 Governing Law. This Agreement shall be construed in accordance
with, and governed in all respects by, the laws of the State of Victoria,
Australia and the parties submit to the exclusive jurisdiction of its courts
(and its appellate courts) and to the Federal Court of Australia sitting in
Victoria.
8.3 Notices. All notices and other communications required or permitted
under this Agreement shall be in writing which are addressed as provided in this
Section (i) if delivered personally against proper receipt or by confirmed
facsimile transmission shall be effective upon delivery and (ii) if delivered
(A) by certified or registered or comparable mail with postage prepaid shall be
effective five (5) Business Days or (B) by Federal Express or similar courier
service with courier fees paid by the sender, shall be effective two (2)
Business Days following the date when mailed or couriered, as the case may be.
Any party hereto may from time to time change its address for the purpose of
notices to such party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
party sought to be charged with its contents. Initially, all notices shall be
sent to the parties hereto as follows:
if to Purchaser and/or Parent:
I.T. Technology, Inc.
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Telephone:(011)(▇▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: (011)(▇▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President
with a copy to (not constituting notice):
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. - Jeffer, Mangels, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
2121 Ave. of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to Seller and/or Shareholder:
Streamcom Pty Ltd / Pacific & Orient Investment Limited
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Telephone: (011) (▇▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: (011) (▇▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Grummisch
8.4 Table of Contents and Headings. The table of contents of this
Agreement and the underlined headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement. The Background section of this Agreement
however, is expressly incorporated into and forms part of this Agreement.
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8.5 Assignment. Except for the assignment of the Common Stock to the
Designated Distributees contemplated herein, no party hereto may assign any of
its rights or delegate any of its obligations under this Agreement to any other
Person without the prior written consent of the other parties hereto; provided,
however, Parent and Purchaser may assign Purchaser's rights and obligations
hereunder to an Affiliate or pursuant to the acquisition of assets of the
Purchaser by means of a merger, stock or asset purchase or other similar
transaction.
8.6 Parties in Interest. Nothing in this Agreement is intended to
provide any rights or remedies to any Person (including any employee or creditor
of the Seller) other than the parties hereto.
8.7 Severability. In the event that any provision of this Agreement, or
the application of such provision to any Person or set of circumstances, shall
be determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to Persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be affected and shall continue to be
valid and enforceable to the fullest extent permitted by law.
8.8 Entire Agreement. This Agreement and the Transaction Documents set
forth the entire understanding of the parties hereto and supersede all other
agreements and understandings between any of the parties relating to the subject
matter hereof and thereof, including but not limited to the Heads of Agreement
dated November 1, 2001 between the Parties hereto.
8.9 Waiver. No failure on the part of either party hereto to exercise
any power, right, privilege or remedy under this Agreement, and no delay on the
part of either party hereto in exercising any power, right, privilege or remedy
under this Agreement, shall operate as a waiver thereof; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
8.10 Amendments. This Agreement may not be amended, modified, altered
or supplemented except by means of a written instrument executed by Purchaser,
Seller, Shareholder and Parent.
8.11 Confidentiality. The Parties hereto shall hold in strict
confidence, and shall cause each of their Associates to hold in strict
confidence, all documents and all proprietary or non-public information obtained
with respect to all the Parties hereto and any and all of their Associates.
Except for the Parent's disclosure obligations under the United States
securities Laws, the parties hereto shall not permit any of such documents or
information to be improperly utilized or to be disclosed or conveyed to any
other Person.
8.12 Interpretation of Agreement. Each party hereto acknowledges that
it has participated in the drafting of this Agreement, and any applicable rule
of construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in connection with the construction or
interpretation of this Agreement.
8.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
8.14 Incorporation By Reference. All Exhibits and Schedules attached
hereto, referred to herein or to be delivered in connection herewith are
incorporated herein by reference.
8.15 Legal and Professional Fees and Expenses. Seller shall not incur
or be responsible for any legal or professional fees or expenses arising out of
or relating to the negotiation, drafting and execution of this Agreement or any
other Transaction Documents or Closing document or certificate, due diligence on
Parent or the Purchaser, the Closing of the transactions contemplated by this
Agreement or related matters. Such fees and expenses shall be entirely the
obligation of the Shareholder or the Designated Distributees.
8.16 Further Agreements. From and after the Closing Date, the Parties
hereto agree to take all actions necessary to effectuate and consummate the
transactions contemplated by this Agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
PURCHASER: I. T. TECHNOLOGY PTY LTD
By: /s/ Yam-Hin Tan /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: Yam-Hin Tan ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director Director
PARENT: I. T. TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
SELLER: STREAMCOM PTY LTD (ACN 084 388 367 Pty Ltd)
By: /s/ ▇▇▇▇▇▇▇ Grummisch
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ GRUMMISCH
Title: Director and Chairman of the Board
SHAREHOLDER: PACIFIC & ORIENT INVESTMENTS LIMITED
By: /s/ ▇▇▇▇▇▇▇ Grummisch
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ GRUMMISCH
Title: Principal Representative
9
LIST OF EXHIBITS
Exhibit A Definitions
Exhibit B List of Transferred Assets
EXHIBIT A
TO STOCK PURCHASE AGREEMENT
DEFINED TERMS
For purposes of this Agreement:
Definitions. The following terms, as used in this Agreement, shall have
the following meanings:
"Accounts Receivable" shall mean all accounts and notes
receivable of the Seller determined in accordance with Australian Accounting
Standards.
"Act" shall mean the United States Securities Act of 1933,
as amended
"Actions" shall mean any claim, dispute, demand, cause of
action or action asserted in any arbitration, litigation, mediation, suit,
investigation or other proceeding and any appeal therefrom.
"Affiliates" shall mean, with respect to any Person, any
Person which, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person.
Affiliates include, but are not limited, to children, grandchildren, spouses,
parents, grandparents, in-laws or other family members living in the same
household as the Person. As used in this definition, the term "control"
(including the terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to (a) vote twenty percent
(20%) or more of the outstanding voting securities of such Person, or (b)
otherwise direct the management policies of such Person by contract or
otherwise.
"Agreement" shall mean this Asset Purchase Agreement and shall
include all of the Schedules and Exhibits and documents, attached hereto.
"Approval" shall mean any approval, authorization, consent,
license, franchise, order or permit of or by, notice to, or filing or
registration with, a Person.
"Associates" of a Person shall include:
(a) such Person's Affiliates, stockholders,
directors, officers, employees, agents, attorneys, accountants and
representatives; and
(b) all stockholders, directors, officers, employees,
agents, attorneys, accountants and representatives of each of
such Person's Affiliates.
"▇▇▇▇ of Sale" shall mean the ▇▇▇▇ of sale transferring to the
Purchaser the Transferred Assets, substantially in the form attached hereto as
Exhibit B.
"Books and Records" shall have the meaning ascribed to such
term in Section 2.1(g) hereof.
"Business" shall have the meaning ascribed to such term in the
recitals to this Agreement.
"Business Day" shall mean a day that is not a Saturday, a
Sunday or a day on which banks in the Melbourne, Australia are required or
authorized to close for regular banking business.
"Closing" shall mean the consummation of the transactions
contemplated by this Agreement.
"Closing Consents" shall have the meaning ascribed to such
term in Section 3.4(c) hereof.
A-1
"Closing Date" shall mean the Execution Date or such other
date as the parties hereto may mutually agree upon.
"Common Stock" shall have the meaning ascribed to such term in
Section 2.4 hereof.
"Confidential Information" is defined to include, but not
limited to, confidential information, financial information, business trade
secrets, marketing information, financial and technical trade secrets,
techniques, processes, and know-how.
"Contract" shall mean each instrument, contract, license and
other agreement, including unexpired leases of personal property, relating to
the Business to which the Seller is a party or by which it or any of the
Transferred Assets is bound.
"Copyrights" shall mean all copyrights, Australian and
foreign, whether registered or not, all copyright applications, all copyright
registrations, including but not limited to the copyrights in the Sellers
business documents and files, customer documents and files, software, product
designs and packaging, advertising, promotional material, and software products
(whether developed or in development).
"Damages" shall mean any claim, cost, loss, deficiency, cost,
Tax, judgment, order, settlement, demand, fee, claim, award, fine penalty, Lien
obligation, expense or any other Liability (including, without limitation,
reasonable attorneys' and other professional or accountants' fees, costs and
expenses) or damage of any kind or nature whatsoever
"Designated Distributee" shall mean an Affiliate of the Seller
designated by the Seller to receive shares of Common Stock at the Closing.
"Execution Date" shall have the meaning ascribed to such term
in the preamble to this Agreement.
"Effective Time" shall mean 12:00 noon on the Closing Date.
"Employee Plans" shall mean any employee pension, profit
sharing, deferred compensation, severance, cafeteria, stock option, stock
purchase, incentive, golden parachute, bonus, group or individual medical and
health benefits, welfare, insurance or other employee benefit plan, program or
arrangement.
"Execution Date" shall have the meaning ascribed to such term
in the preamble to this Agreement.
"Excluded Contracts" shall mean all Contracts pursuant to
which the Seller has any outstanding obligations or liabilities.
"Excluded Assets" shall mean all of the assets of the Seller
that do not constitute Transferred Assets.
"Excluded Leases" shall mean all leases other than the assumed
leases.
"Governmental Authority" shall mean any foreign, federal,
state, local or other governmental, administrative or regulatory authority,
body, agency, court, tribunal or similar entity including any arbitrator or
arbitration panel.
"Intangible Assets" shall mean all intangible property owned
by the Seller relating to the Business or the Transferred Assets, including,
without limitation, the Intellectual Property, all warranties and similar
guarantees of quality or performance given by third parties in respect of goods
delivered or services performed, goodwill, Approvals, confidential or
proprietary information, covenants not to compete, all designs and works of art
used on labels and other packaging of the Inventory, all advertising campaign
materials, all clinical studies, if any, performed with respect to any of the
Transferred Assets and any other assets, identifiable or unidentifiable,
normally considered an "intangible asset" under generally accepted Australian
accounting practices and standards.
A-2
"Intellectual Property" shall mean, except as expressly set
forth in Schedule 2.1(d), all of the following irrespective of where any of the
same were issued, are pending or exist that are owned by, issued to or licensed
by the Seller: patents of any description, and applications therefor; trademarks
(and goodwill associated therewith) and other trade names, labels, trade dress,
advertising and package designs, and other trade rights, whether or not
registered and all applications therefor; copyrights, whether or not registered
and all applications therefor (including copyrights in computer software and
computer software documentation, source code and systems documentation);
Internet domain names, Web sites, know-how, trade secrets, business leads,
research and results thereof, technology, techniques, data, methods, processes,
instructions, drawings and specifications, inventions, discoveries,
improvements, designs, processes, formulae, recipes, whether patented or
patentable or not (whether or not such items have been reduced to written,
computer-readable or other tangible form); shop rights and license agreements
and other agreements of every kind and character relating to any of the
foregoing; and all claims and causes of action relating to any of the foregoing,
including claims and causes of action for past infringement.
"Inventory" shall mean all inventories owned by the Seller
relating to the Business. For the purposes hereof inventories shall include
without limitation all packaging, finished goods, raw materials, supplies, work
in process, spare parts and other miscellaneous items of tangible property
normally considered a part of "inventory" owned by the Seller , items of
inventory in transit to Seller and items of inventory located somewhere other
than Sellers Facilities.
"Knowledge" when referring to the knowledge of Seller Parties
shall mean information actually known or which reasonably should be known by
Seller and any of the Seller Parties, or officers or directors thereof, upon
reasonably diligent inquiry. When referring to the Knowledge of Purchaser,
"Knowledge" shall mean information actually known or which reasonably should be
known by the officers and directors of the Purchaser upon reasonably diligent
inquiry.
"Law" shall mean any United States or Australian (as
appropriate) federal or state law, statute, rule, regulation, ordinance,
standard, requirement, administrative ruling, order or process promulgated by
any Governmental Authority as in effect from time to time.
"Liability" shall mean any debt, liability, commitment and
guaranty, warranty or obligation of any kind, character or nature whatsoever,
whether known or unknown, secured or unsecured, accrued, fixed, absolute,
potential, contingent or otherwise, and whether due or to become due including
but not limited to the debt of approximately $24,000 (AUD) payable by the Seller
Parties to the National Australia Bank.
"Lien" shall mean any lien, statutory lien, pledge, mortgage,
security interest, charge, easement, right of way, covenant, claim, restriction,
right, option, conditional sale or other title retention agreement, or
encumbrance of any kind or nature.
"Marks" is defined to include all words, names, logos,
symbols, trade names, source indicating indicia, trade dress, trademarks, marks,
U.S., Australian and foreign applications to register marks, and foreign
registrations.
"Material Adverse Effect" shall mean a material adverse effect
on the business, operations or financial condition of the Seller; provided,
however, that each of the following events shall be disregarded in determining
whether there has been or would be an "Material Adverse Effect": (a) any adverse
effect that results from general economic, business or industry conditions; (b)
any adverse effect that results from the taking of any action permitted or
required by this Agreement or from entering into of this Agreement by the
applicable party and the announcement of pendency of the transactions
contemplated by this Agreement, (c) any adverse effect that results from a
change in industry conditions generally, or (d) any adverse effect that results
from a change in Law, regulation or generally accepted accounting principles or
an interpretation of any of them.
"Non-Compete Agreements" shall mean non-competition agreements
between the Purchaser and Parent and each of the Seller Warranting Parties
pursuant to which the Seller Warranting Parties shall agree not to engage in the
Business as described in Section 5.2 for a period of three (3) years from the
Closing as substantially set forth in Section 5.2 of the Asset Purchase
Agreement.
"Ordinary Course of Business" an action by the Seller shall be
deemed to have been taken in the "Ordinary Course of Business" if: (i) such
action is taken in the Sellers normal operation, consistent with its past
practices and does not result in a Material Adverse Effect on the Seller; (ii)
such action is not required to be authorized by the Shareholder or its Board of
Directors or any committee of the Board of Directors and (iii) does not require
A-3
any other separate or special authorization or consent of any nature by any
Governmental Authority or third parties with respect to the Seller. In no event
shall any action or related actions that will result in an expenditure or
obligation of any Seller to expend more than ten thousand dollars ($10,000)
individually or twenty five thousand dollars in the aggregate ($25,000) be
considered to be in the Ordinary Course of Business; provided that actions
specifically required to be taken by this Agreement shall be deemed to be taken
in the Ordinary Course of Business.
"Parent" shall mean I. T. Technology, Inc, a Delaware
corporation.
"Patents" is defined to include all concepts, ideas, designs,
inventions (whether patentable or not), techniques, all Australian and foreign
patent applications, and all patents.
"Person" shall mean any individual, general or limited
partnership, corporation, limited liability company, association, business
trust, joint venture, Governmental Authority, business entity or other entity of
any kind or nature.
"Policies" shall mean general liability insurance covering the
Seller, the Business or the Transferred Assets or Assumed Liabilities.
"Purchaser" shall have the meaning ascribed to such term in
the preamble to this Agreement.
"Purchaser Party(ies)" shall have the meaning ascribed to such
term in the Background.
"Required Intellectual Property" shall have the meaning
ascribed to such term in Section 3.9(1) hereof.
"SEC" shall mean the Securities and Exchange Committee.
"SEC Reports" shall have the meaning ascribed to such term in
Section 4.6 hereof.
"Seller" shall have the meaning ascribed to such term in the
preamble to this Agreement.
"Seller Covered Indemnity Claim " shall have the meaning set
forth in Section 7.3.
"Seller Equity Interests" shall have the meaning ascribed to
such term in Section 3.2(a) hereof.
"Seller Financial Statements" shall mean financial statements
of the Seller consisting of the documents already provided by the Seller Parties
to the Purchaser Parties.
"Seller Returns" shall mean United States or Australian,
federal, state, local and foreign Tax Returns and reports.
"Sellers Facilities" shall mean all real property owned by
Seller.
"Seller Party(ies)" shall have the meaning set forth in the
Background.
"Shareholder" shall have the meaning set forth in the
Background.
"Subsidiary" shall mean, with respect to any Person
(the "Owner"), any corporation or other Person of which securities or other
interests having the power to elect a majority of that corporation's or other
Person's board of directors or similar governing body, or otherwise having the
power to direct the business and policies of that corporation or other person
(other than securities or other interests having such power only upon the
happening of a contingency that has not occurred) are held by the Owner or one
or more of its Subsidiaries' when used without reference to a particular Person,
"Subsidiary" means a Subsidiary of the Company.
"Tax" or "Taxes" shall mean all taxes, charges and assessments
(including, without limitation, income, withholding, excise, unemployment,
social security, occupation, transfer, franchise, property, sales and use taxes,
import duties or charges, and all penalties, interest and additions to tax in
respect thereof) imposed by any Australian or foreign Governmental Authority.
A-4
"Tax Return" shall mean any return, report, declaration, claim
for refund, estimate, election, or information statement or return relating to
any Tax, including any schedule or attachment thereto, and any amendment
thereof.
"Transaction Document" shall mean this Agreement and the ▇▇▇▇
of Sale, and any and all other certificates, instruments or documents delivered
in connection with or related to the Transfer of the Transferred Assets to the
Purchaser pursuant to this Agreement.
"Transfer" shall mean any sale, transfer, conveyance,
assignment, delivery or other disposition, and "Transfer" or "Transferred," used
as a verb, shall each have a correlative meaning.
"Transferred Assets" shall have the meaning ascribed to such
term in Section 2.1 hereof.
A-5
EXHIBIT "B"
Transferred Assets
The Transferred Assets, as defined and described in the Agreement, include, but
are not limited to, the following items:
1. Names, trademarks, service marks. Logos, or other branding devices, and
registrations therefore, which the Streamcom is currently using or
intends to use in the course of business. Including, without
limitation, "Streamcom" and "▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇" and derivations thereof.
2. Domain names which the Streamcom is currently using or intends to use
in the course of business, including without limitation,
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇ and ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇.
3. All designs, software, methodologies, presentations, demonstration,
source code, scripts inventions, software architecture specifications,
and any provisional patent applications related to the business of the
Streamcom, (collectively "Streamcom Technology").
4. All confidential information related to the business of Streamcom,
including methods of promoting the use of Streamcom Technology,
strategic partners and alliances for furthering the adoption of Company
Technology, future functions or features of Streamcom Technology,
revenue projections, market research, business models, methods of
exploiting Streamcom Technology, business plans, and business
development strategies.
5. All assets included in the Streamcom - Schedule of Furniture, Fittings,
Equipment and Software as at 14/1/02 as attached hereto and made a part
hereof.
B-1
STREAMCOM - SCHEDULE OF FURNITURE, FITTINGS, EQUIPMENT AND SOFTWARE
As at 14/1/02
ITEM # OBJECT LOCATION ITEM # OBJECT LOCATION
1 Whiteboard ITTech 81 enclyopedia Mac ITTech
2 Shannon's computer incl. Screen, ITTech 82 visual c++ 6 ITTech
speakers, power board, keyboard, mouse.
3 power cables + Ethernet ITTech html and chi un leashed ITTech
4 Desks with power supply x 3 ITTech 83 using cgi ITTech
5 file holders metal x 3 ITTech 84 programming perl ITTech
6 cardboard white board and calendar ITTech 85 ms dos books ITTech
7 Grey wood filing cabinet ITTech 86 IBM hot swap HD Installed in
BORG
8 PC, mouse, keyboard, screen ITTech 87 IBM raid adapter ITTech
9 printer ITTech 88 IBM fault tolerant network adapter ITTech
10 LaserJet 5mp ITTech 89 Large White board (owned by SWW) ITTech
11 Epson stylus ED 90 SOFTWARE IN THE OFFICE:
12 Fax /laserjet3100 ITTech 91 MS internet starter kit ITTech
13 Printer switcher ITTech 92 MS Frontpage ITTech
14 Small white set of drawers ITTech 93 Redhat Linux 5.2 / 4.1 ITTech
15 Keyboards x3 ITTech 94 SCO ITTech
16 Hub + power supply ITTech 95 Visual C++ ver 6.0 ITTech
17 Monitor x1 ITTech 96 real server pro g2 v7.0 ITTech
18 Multi PC controller ITTech 97 real server hosting edition ITTech
19 Router + power supply x 2 ITTech 98 office 98 Mac edition ITTech
20 2 hubs + power supply ITTech 99 alive e show ITTech
21 NT1 ITTech 100 double vision ITTech
22 server boxes . Proxy , web , mail, ITTech 101 media cleaner pro v4 Mac ITTech
intranet
23 Seagate backup drive ITTech 102 ▇▇▇▇▇▇▇▇ broadcaster ITTech
24 6 backup tapes ITTech 103 ▇▇▇▇▇▇▇▇ video 2 ITTech
25 UPS ITTech 104 q design music codec 2 ITTech
26 Desk with Return ▇▇▇▇ ▇▇▇▇▇ 105 cleaner 5 Mac upgrade ITTech
27 scsi drive external x2 ITTech 106 media cleaner compression suite ITTech
28 Super disk ITTech 107 ultradev 4 ITTech
29 power/av./scsi/comms/cables/power suppliesITTech 108 fireworks 4 ITTech
30 Sony projector + case IT Tech 109 webtrends enterprise suitte ITTech
31 Grey shelves containing software books IT Tech 110 powerpoint 2000 ITTech
folders info
32 video archive old tapes ITTech 111 quicken 3 ITTech
indoor antenna SWW 112 windows 95 ITTech
34 speakers IT Tech 113 windows 98 ITTech
35 Axis webcam ITTech 114 MS proxy server ITTech
hard drive x2 ITTech 115 NT server 4 ITTech
37 Mac Power book laptop & power supply ITTech 116 Back office ITTech
38 Net gear hub + power supply (not Working) ITTech 117 SQL server ITTech
39 Scanner ITTech 118 IREZ capture pcmcia card ITTech
40 Fan ITTech 119 interview XLR8 x2 ITTech
41 Laptop bag ITTech 120 firewire card ITTech
42 scsi card ITTech 121 CUCUS video confrencing kit ITTech
43 Mac g4 + monitor + keyboard + Mouse ITTech Osprey 100 PCI card Bretts PC ITTech
44 Modem ITTech
45 D link net modem ITTech
46 usb live x3 ITTech
47 Mackie 1202 mixing desk audio ITTech
48 PC with Mitsibishi monitor ITTech
49 jazz drive external ITTech
50 2x pinboards ITTech
51 misc. CD's ITTech
52 Disks ITTech
53 BOOKS:
54 samba ITTech
55 firewalls complete ITTech
56 building an intranet ITTech
Cisco tcp/ip ITTech
58 cgi prog with perl ITTech
59 nt4 admin guide ITTech
60 mastering NT server 4 ITTech
61 sco Unix ITTech
62 using linux by example ITTech
63 unix and c ITTech
64 cgi programming ITTech
65 nt manuals ITTech
66 creating cool web pages with html ITTech
67 c ITTech
68 visual c++ ITTech
69 visual c++ 5th edition ITTech
70 programming windows ITTech
71 red hat 7 ITTech
72 java class libraies ITTech
73 care Java ITTech
74 reality check ITTech
75 PhotoShop 4 for dummies ITTech
76 win NT 4 server ITTech
77 win NT resource kit ITTech
78 win NT 4 answers ITTech
79 Mac Os 8.5 ITTech
80 back office manuals ITTech
B-2
