EXHIBIT 10.1 ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made effective this 29th day of April, 2009
BETWEEN:
XXX XXXXX, of 0 Xxxxxx Xx. Xxxx, Xxxxx X000, Xxxxxxxx, Xxxxxxx X0X
0X0
(the "Vendor")
OF THE FIRST PART
AND:
XXXXX SOUND INC., a company incorporated pursuant to the laws
of Nevada with an office located at 0 Xxxxxx Xx. Xxxx, Xxxxx
X000, Xxxxxxxx, Xxxxxxx X0X 0X0;
(the "Purchaser")
OF THE SECOND PART
WHEREAS:
A. The Vendor is the owner of a 100% interest in all the property,
assets and intellectual property necessary for the development,
manufacture and marketing of the wah-anti-wah guitar effects pedal,
including, without limitation, the assets described in Schedule "A" hereto
(collectively, "the Assets");
B. The Vendor has agreed to sell and the Purchaser has agreed to
purchase the Assets upon the following terms and conditions; and
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and mutual agreements and covenants herein contained, the parties
hereby covenant and agree as follows:
1. VENDOR'S REPRESENTATIONS
The Vendor represents and warrants to the Purchaser now and at the
Closing Date that:
(a) the Vendor has good and sufficient right and authority to enter into
this Agreement on the terms and conditions herein set forth and to
transfer the legal title and beneficial ownership of the Assets to
the Purchaser;
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(b) the performance of this Agreement will not be in violation of any
Agreement to which the Vendor is a party and will not give any
person or company any right to terminate or cancel any agreement or
any right enjoyed by the Vendor and will not result in the creation
or imposition of any lien, encumbrance or restriction of any nature
whatsoever in favour of a third party upon or against the Assets;
(c) the Vendor has good and marketable title to the Assets, all of which
are free and clear of all liens, charges and encumbrances, and all
of which Assets are in the possession of or under the control of the
Vendor;
(d) there has been no act of God, damage, destruction, loss, labour
disruption or trouble, or other event (whether or not covered by
insurance) materially and adversely affecting any of the Assets or
the organization, operations, affairs, business, properties,
prospects or financial condition or position of the Vendor's
business operations;
(e) the Vendor holds, and shall transfer to the Purchaser at the Closing
Date, all permits, licences, registrations and authorizations
necessary to own and operate the Assets and carry on its business;
(f) the Assets constitute all of the rights, assets and properties that
are usually and ordinarily used or held for use in connection with
or otherwise related to the operation of the Vendor's business;
(g) the Vendor has not, directly or indirectly, engaged or entered into
any transaction or incurred any liability or obligation which might
materially and adversely affect any of the Assets or the
organization, operations, affairs, business, properties, prospects
or financial condition or position of the Vendor's business;
(h) there is no indebtedness of the Vendor to any person which
might, by operation of law or otherwise, now or hereafter constitute
or be capable of forming an encumbrance upon any of the Assets and
there is no indebtedness of any kind whatsoever relating to the
business in respect of which the Purchaser may become liable on or
after the Closing Date (as defined herein);
(i) no action, suit, judgment, investigation, inquiry, assessment,
reassessment, litigation, determination or administrative or other
proceeding or arbitration before or of any court, arbitrator or
governmental authority is in process, or pending or threatened,
against or relating to the Vendor's business or any of the Assets
and no state of facts exists which could constitute the basis
therefor;
(j) the Vendor's business complies with all applicable laws, including
all environmental, health and safety statutes and regulations;
(k) there is no written, verbal or implied agreement, option,
understanding or
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commitment or any right or privilege capable of becoming any of the
same, for the purchase from the Vendor of its business or any of the
Assets, other than purchase orders accepted by the Vendor in the
usual and ordinary course of the operation of its business;
(l) none of the Assets is in any respect infringing the right of any
person under or in respect of any patent, design, trade xxxx, trade
name, copyright or other industrial or intellectual property; and
(m) the Vendor does not have any information or knowledge of any fact
relating to the Vendor's business, the Assets or the transactions
contemplated hereby which might reasonably be expected to affect,
materially and adversely, any of the Assets or the organization,
operations, affairs, properties, prospects or financial condition or
position of the business.
2. PURCHASER'S REPRESENTATIONS
The Purchaser represents and warrants to the Vendor now and at
closing that:
(a) the Purchaser is a corporation duly incorporated, validly existing
and in good standing under the laws of Nevada;
(b) as of the date of this Agreement, the Purchaser's authorized share
capital consists of 75,000,000 shares of common stock with a par
value of $0.0001 per share;
(c) 1,600,000 common shares are issued and outstanding as fully paid and
non-assessable shares. No other person has any written or verbal
agreement or option, understanding or commitment or any right or
privilege capable of becoming an agreement for the purchase of
securities in the capital of the Purchaser;
(d) the Vend-In Shares (as defined herein) will, upon issuance, be
validly issued, non-assessable and free and clear of all liens,
charges and encumbrances;
(e) the Articles and Bylaws of the Purchaser permit its to carry on its
present and intended businesses, including the business currently
conducted by the Vendor;
(f) The corporate records and minute books of the Purchaser contain
complete and accurate minutes of all meetings of the directors and
shareholders of the Purchaser held since incorporation;
(g) the Purchaser has no knowledge of any:
(i) actions, suits, investigations or proceedings against the
Purchaser which are in progress, pending or threatened;
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(ii) outstanding judgments of any kind against the Purchaser; or
(iii) occurrences or events which have, or might reasonably be
expected to have, a material adverse effect on the Purchaser's
intended business.
(h) There are no outstanding orders, judgments, injunctions,
awards or decrees of any court, arbitrator or governmental or
regulatory body involving the Purchaser. No suit, action or legal,
administrative, arbitration or other proceeding or reasonable basis
therefor, or, to the best of the Purchaser's knowledge, no
investigation by any governmental agency, pertaining to the
Purchaser or its assets is pending or has been threatened against
the Purchaser which could adversely affect the financial condition
or prospects of the Purchaser or the conduct of the business thereof
or any of the Purchaser's assets or materially adversely affect the
ability of the Purchaser to consummate the transactions contemplated
by this Agreement.
3. EFFECT OF REPRESENTATIONS
3.1 The representations and warranties of the Vendor and the Purchaser
(the "Parties") set out above form a part of this Agreement and are conditions
upon which the Parties have relied in entering into this Agreement and shall
survive the acquisition of the Assets by the Purchaser.
3.2 The Parties will indemnify and save each other harmless from all
loss, damage, costs, actions and suits arising out of or in connection with any
breach of any representation, warranty, covenant, agreement or condition made by
it and contained in this Agreement.
4. PURCHASE AND SALE OF ASSETS
The Purchaser hereby agrees to purchase from the Vendor and the
Vendor hereby agrees to sell to the Purchaser an undivided 100% right, title and
interest in and to the Assets in consideration of the Purchaser and delivering
to the Vendor at Closing a certificate representing 4,000,000 shares of
restricted common stock in its capital.
5. CLOSING
The sale and purchase of the Assets shall be closed at the office of
the Purchaser on April 29, 2009 or on such other date or at such other place as
may be agreed upon by the parties (the "Closing Date" or "Closing").
6. CONDITIONS PRECEDENT TO THE VENDOR'S OBLIGATIONS
Each and every obligation of the Vendor to be performed on the
Closing Date shall be subject to the satisfaction by the Closing Date of the
following conditions, unless waived in writing by the Vendor:
(a) The representations and warranties made by the Purchaser in
this Agreement shall
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be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made
or given by the Closing Date; and
(b) The Purchaser shall deliver to the Vendor:
(i) a certificate representing 4,000,000 shares of
restricted common stock (the "Shares") in the capital stock of
the Purchaser registered in the name of the Vendor; and
(iii) a copy of resolutions of the Purchaser's Board of
Directors authorizing the execution of this Agreement, the
acquisition of the Assets, and the issuance of the Shares.
7. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
Each and every obligation of the Purchaser to be performed on the
Closing Date shall be subject to the satisfaction by the Closing Date of the
following conditions, unless waived in writing by the Purchaser:
(a) The representations and warranties made by the Vendor in this
Agreement shall be true and correct on and as of the Closing Date
with the same effect as though such representations and warranties
had been made or given by the Closing Date;
(b) The Vendor shall deliver to the Purchaser a xxxx of sale
evidencing the sale and transfer of title to the Assets from the
Vendor to the Purchaser.
8. FURTHER ASSURANCES
The parties hereto covenant and agree to do such further acts and
execute and deliver all such further deeds and documents as shall be reasonably
required in order to fully perform and carry out the terms and intent of this
Agreement.
9. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement to date between the
parties hereto and supersedes every previous agreement, communication,
expectation, negotiation, representation or understanding, whether oral or
written, express or implied, statutory or otherwise, between the parties with
respect to the subject of this Agreement.
10. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
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11. TITLES
The titles to the respective sections hereof shall not be deemed a
part of this Agreement but shall be regarded as having been used for convenience
only.
12. SEVERABILITY
If any one or more of the provisions contained herein should be
invalid, illegal or unenforceable in any respect in any jurisdictions, the
validity, legality and enforceability of such provisions shall not in any way be
affected or impaired thereby in any other jurisdiction and the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
13. APPLICABLE LAW
The situs of the Agreement is Hamilton, Ontario, and for all
purposes this Agreement will be governed exclusively by and construed and
enforced in accordance with laws prevailing in the Province of Ontario. The
parties agree to attorn to the jurisdiction of the Courts of the Province of
Ontario.
14. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF this Agreement has been executed as of the day
and year first above written.
XXXXX SOUND INC.
/S/ XXX XXXXX PER: /S/ XXX XXXXX
_______________________________ _________________________________
XXX XXXXX AUTHORIZED SIGNATORY
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SCHEDULE "A"
TO THAT CERTAIN AGREEMENT MADE AS OF APRIL 29TH, 2009
BETWEEN XXX XXXXX AND XXXXX SOUND INC.
LIST OF ASSETS
* the know-how and any intellectual property rights relating to the wah-
anti-wah guitar effects pedal including, the sole and exclusive right to
manufacture, modify, distribute, market and sell the wah-anti-wah pedal
(the Purchaser hereby acknowledges that the Vendor has not applied for any
intellectual property protection of its product or any related aspects,
including any logos or potential trademarks).
* all inventory components, parts and finished products, as well as all
equipment and supplies relating to the wah-anti-wah guitar effects pedal
* the Internet website relating to the wah-anti-wah guitar effects pedal,
including all written and graphical content
* all goodwill related to the wah-anti-wah guitar effects pedal
* all receivables and prepaid expenses relating to the wah-anti-wah guitar
effects pedal business
* all material contracts and customer lists relating to wah-anti-wah guitar
effects pedal business
* the books and records of the wah-anti-wah guitar effects pedal business
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