ASSET AND STOCK PURCHASE AGREEMENT January 19, 2006
January
19, 2006
THIS
ASSET and STOCK PURCHASE AGREEMENT (this “Agreement”)
is made
and entered into as of January
19,
2007,
by and among:
| 1) |
BLIVE
NETWORKS INC, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, a Delaware
corporation (“BLive” or “Seller”);
|
| 2) |
FORTE
FINANCE LIMITED, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ VLT 08,
(“Forte”);
|
| 3) |
PETROLEUM
CORPORATION OF CANADA LIMITED, an Alberta corporation (“Petroleum
Corp.”);
and
|
| 4) |
TRIBEWORKS,
INC., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇, a Delaware corporation (“Tribeworks”
or
the “Purchaser”).
|
WITNESSETH
WHEREAS,
the shareholders listed on Exhibit
J
own all
of the issued shares in BLive; and
WHEREAS,
BLive in turn owns 49 shares in INFOBUILD NETWORKS (CANADA) INC (“Infobuild”)
and ▇▇▇▇ ▇▇▇▇▇ (“▇▇▇▇▇”)
owns 51
shares in INFOBUILD NETWORKS (CANADA) INC (“▇▇▇▇▇ Infobuild Shares”) and these
100 shares comprise all of the issued and outstanding capital stock of
Infobuild; and
WHEREAS,
BLive owns all of the assets recorded in the attached balance sheet of BLive
(Schedule
A)
including the 49 shares in Infobuild, an advance to Infobuild (“Infobuild
Advance”) and various computers, equipment and software more particularly
detailed in the asset register headed Book Asset Detail (Schedule
B)
as well
as various in-house developed software, computer hardware, source data, computer
files, registered and unregistered patents, copyrights, trade names (including
the name BLive Networks), trademarks, proprietary
information, trade secrets, material and manufacturing specifications, patent
licenses and all other
intellectual property (collectively the “BLive Intellectual Property”). All of
these assets described above and all of the other assets, tangible or
intangible, except for the Excluded Assets, of BLive including but not limited
to the Infobuild Advance and BLive Intellectual Property, all rights, title
and
interest under the BLive customer contracts, all customer lists of BLive, all
rights to prepayments and accounts receivable of BLive, and all bank accounts
of
BLive, and licensed software are defined hereafter as the “BLive Assets”;
WHEREAS,
BLive desires to sell and transfer to Purchaser, and Purchaser desires to
purchase and receive from BLive, the BLive Assets, for the consideration and
upon the terms and subject to the conditions set forth in this
Agreement;
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
1
WHEREAS,
BLive desires to assign to Petroleum Corp. the consideration from Purchaser
for
the sale of its Assets pursuant to the Agreement in exchange for good and
valuable consideration;
WHEREAS,
▇▇▇▇▇ desires to grant an option to the Purchaser, and Purchaser desires to
enter into an option agreement for the consideration and upon the terms and
subject to the conditions set forth in this Agreement;
WHEREAS,
concurrently with the execution and delivery of this Agreement, as a material
inducement to Purchaser to enter into this Agreement, each Transferred Employee
(as defined in Section
3.6)
has
agreed to employment with Purchaser pursuant to a Transferred Employee Offer
Letter (as defined below), the effectiveness of which is contingent on and
subject to the Closing (as defined in Section
3.1),
in a
form satisfactory to Purchaser, attached hereto as Exhibit
A
(the
“Transferred Employee Offer Letter”) and the appropriate attachments related
thereto.
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledge, it is agreed as follows:
ARTICLE
1.
PURCHASE
AND SALE OF THE BLIVE ASSETS
1.1. Purchase
and Sale of BLive Assets.
In
consideration of the issuance by Purchaser to Petroleum Corp. of one million
shares of Purchaser’s
common
stock, par value $0.004 per share (“PP
Shares”)
(the
“Purchase Price”) to be issued at the Closing, and subject to the terms and
conditions set out below, BLive agrees to sell to the Purchaser, and the
Purchaser agrees to purchase from BLive the BLive Assets. Purchaser is assuming
none of the liabilities associated with BLive except for the Assumed
Liabilities. Seller
will execute and deliver to Purchaser a “▇▇▇▇ of Sale” conveying the BLive
Assets to Purchasers, in the form attached hereto as Exhibit
B.
1.2. The
Excluded Assets shall be:
1.2.1. cash
in
BLive bank accounts up to a maximum of $5,000 (USD)
1.2.2. all
minute books, stock records and corporate seals;
1.2.3. all
insurance policies and the rights thereunder;
1.2.4. all
personnel records and other records that Seller is requires by law to retain
in
its possession;
1.2.5. all
rights of Seller under this Agreement.
1.3. The
Assumed Liabilities shall be:
1.3.1. Any
liability arising out of the collection of any account receivable, including
any
counterclaim;
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
2
1.3.2. Any
liability arising after the effective time of the Closing;
1.4. Restriction
of Tribeworks Shares.
The PP
Shares:
1.4.1. will
be
restricted securities within the meaning of Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Securities Act") ("Rule 144") and
will
have a minimum restriction against resale of 12 months from the date of issuance
(“Restricted Period”) endorsed on them,
1.4.2. the
offer
and sale of the shares will not be registered under the Securities Act or any
applicable state laws,
1.4.3. Tribeworks
will have no obligation, and makes no commitment to Petroleum Corp., to register
the resale of any of the PP Shares in order to permit them to be publicly
resold, except as provided in the registration rights agreement substantially
in
the form attached hereto as Exhibit
C,
and
1.4.4. the
exemption from the registration requirements of the Securities Act under Rule
144 will not be available unless the terms and conditions of Rule 144 have
been
complied with,
1.4.5. At
the
end of the Restricted Period Petroleum Corp.
may
transfer or offer to transfer its PP Shares 30 days after it notifies Tribeworks
of its intention to do so if (a) Petroleum Corp. provides or Tribeworks obtains
an opinion of counsel reasonably satisfactory to Tribeworks that no registration
(or perfection of any exemption) is required with respect to such transfer
or
offer to transfer or (b) an appropriate registration statement with respect
to
the PP Shares has been filed by Tribeworks with the United States Securities
and
Exchange Commission and any applicable state securities authority and declared
effective by such Commission and authorities. At the end of the Restricted
Period, Petroleum Corp. will be able to transfer its PP Shares only in
accordance with applicable Federal and State securities laws.
1.4.6. Petroleum
Corp. may not transfer the PP Shares during the Restricted Period.
1.5. Escrow.
Three
hundred thousand (300,000) PP Shares will be issued and held in escrow for
the
benefit of Petroleum Corp. and Purchaser by a party to be mutually agreed upon
by Petroleum Corp. and the Purchaser. 300,000
PP Shares will
be
released as set forth below, pursuant to an “Escrow
Agreement”,
in
substantially the same form attached as Exhibit
D,
between
Petroleum Corp, Purchaser and an escrow agent to be agreed upon by the
parties. 300,000 PP Shares shall be held in escrow until the earlier of:
(a) one year from the date of Closing or (b) (i) the receipt of SR&ED tax
refunds owed to Infobuild for calendar year 2005 (the “2005
SR&ED Tax Refunds”)
in the
amount of Canadian dollars one hundred and twenty one thousand (121,000); (ii)
the filing of SR&ED tax refunds owed to Infobuild for the year 2006 (the
“2006
SR&ED Tax Refunds”)
by
Seller
with
Canada Revenue using the same procedures, methods of calculation and filing
as
for prior years such that the amount of 2006 SR&ED Tax Refunds will be at
least Canadian dollars eighty nine thousand (89,000) for the year ending
December 31, 2006; and (iii) confirmation from Seller that no additional third
party debt exists that the Purchaser would have to assume.
To the
extent that the 2005 SR&ED Tax Refunds or any other form of refund from
Canada Revenue does not equal or exceed Canadian dollars one hundred and twenty
one thousand (121,000), then the number of PP Shares shall be reduced and
cancelled by the number equal to the amount of Canadian dollars that the amount
received falls short of Canadian dollars one hundred and twenty one thousand
(121,000). Other than this Escrow provision, Seller offers no warranty
whatsoever regarding the 2005 SR&ED Tax Refunds and 2006 SR&ED Tax
Refunds. In the event the 2005 SR&ED Tax Refunds are delayed by Canada
Revenue, the time period in this Section
1.5
shall be
extended until the refunds are paid or Canada Revenue denies
payment.
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
3
ARTICLE
2.
PURCHASE
OF TRIBEWORKS SHARES
2.1. Purchase
of Tribeworks Inc. Shares.
Contemporaneously with Closing and as a condition of Closing, Petroleum Corp.
will subscribe for one hundred thousand (100,000) Tribeworks shares at a price
of United States one dollar (US$1.00) per share (“Article
2
Shares”)
using
the Subscription Agreement, attached as Exhibit
G,
and
also completing the registration
rights agreement substantially in the form attached hereto as Exhibit
C.
These
shares will
be
restricted securities within the meaning of Rule 144 and will have also have
a
minimum restriction on transfer of at least 12 months (“Restricted Period”)
endorsed on them and be subject to the same terms and conditions as in
Section
1.2.
Contemporaneously
with Closing and as a condition of Closing, Petroleum Corp. shall deliver
the
purchase price of $100,000 to Tribeworks in connection with the sale of Article
2 Shares.
2.2. Entitlement
to Warrants. The
subscription for these Tribeworks shares will also entitle Petroleum Corp.
to a
warrant to purchase up to an additional 300,000 Tribeworks shares at $1.25
per
share, by completing the form attached hereto as Exhibit
H
(the
“Warrant”), subscribed for on the terms set out in the “Warrant Subscription
Agreement” in Exhibit
L.
Upon
exercise of the Warrant, the Subscriber agrees to become a shareholder of the
Company and to be bound by the terms of this Warrant Subscription Agreement.
As
consideration for the Warrant, the Subscriber hereby irrevocably tenders to
the
Company a cashier’s check (or personal check if so authorized by the Company) or
wire transfer in the amount of $10.00 and other good and valuable consideration
(the “Warrant Purchase Price”). The Warrant shall have a term of two (2) years.
The
Warrant and any shares resulting therefrom will
also
be restricted securities within the meaning of Rule 144 and will have also
be
subject to the Restricted Period and be subject to the same terms and conditions
as in Section 1.2.
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
4
ARTICLE
3.
CLOSING
3.1. Closing.
The
closing of the purchase and sale of the BLive Assets (the “Closing”)
shall
be held via overnight courier or in person, as agreed by the parties, and shall
be effective as of the date hereof (the “Closing
Date”).
3.2. Delivery
by Seller.
At the
Closing, the Seller shall cause to be delivered to Purchaser the following
documents and instruments (the “Seller
Documents”),
all of
which are dated on or effective as of the Closing Date:
3.2.1. all
documents of title that including share certificate or certificates representing
and evidencing the 49 shares in Infobuild duly endorsed in blank by an officer
of BLive together with any other transfer documents to perfect the transfer
of
the BLive Assets to the Purchaser;
3.2.2. a
certified resolution of the board of directors of BLive authorizing the
execution of this Agreement and the consummation of the transactions
contemplated hereby;
3.2.3. written
acknowledgement of BLive’s bankers that they will redirect and credit all credit
card receipts and sales revenue to the bank account of to be directed by the
Purchaser.
3.2.4. the
password for all of BLive’s
computers system, data centers, websites and any other storage devices such
that
the Purchaser can gain full and complete access to all of the BLive Intellectual
Property;
3.2.5. the
minute book of Infobuild containing: (a) Infobuild’s
Articles of Incorporation, (b) Infobuild’s
Bylaws,
(c) all corporate minutes and resolutions of Infobuild, and (d)
Infobuild’s
corporate seal;
3.2.6. the
financial records of Infobuild;
3.2.7. the
▇▇▇▇
of Sale conveying the BLive Assets to Purchaser;
3.2.8. the
Assignment of Trademarks attached as Exhibit
K;
3.2.9. the
Assignment of Patent Licenses attached as Exhibit
L;
3.2.10. the
Option Agreement; and
3.2.11. an
“Officer’s Certificate”, substantially in the form of Exhibit
E
to this
Agreement, executed by a senior officer of BLive on behalf of BLive, which
will
include certification as to the representations and warranties made in this
Agreement and a certification that the transaction has been approved by the
shareholders of BLive and the board of directors of BLive.
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
5
3.3. Delivery
by Purchasers.
At the
Closing, Purchaser will deliver to the Seller a
certified resolution of the Purchaser authorizing the execution of this
Agreement and the consummation of the transactions contemplated hereby.
Purchaser will deliver 300,000 of PP Shares to an escrow agent to be determined
by the parties (the “Escrow Agent”) at Closing. Purchaser shall deliver the
balance of the PP Shares, the Article 2 shares and the Warrants to Petroleum
Corp. at Closing. Purchaser shall deliver to Seller signed Employment Agreements
with the Transferred Employees.
3.4. Closing
Costs.
After
the Closing, Purchaser shall pay all documentary transfer taxes or fees, if
any,
associated with the purchase and sale of the 49 Infobuild shares from BLive.
All
other closing costs shall be allocated equally between Seller and Purchaser;
provided,
however,
that
each party shall be responsible for the payment of the fees and expenses of
their respective legal counsel involved in this transaction.
3.5. BLive
Bank Accounts.
At
Closing, BLive shall assign control and all of its rights and interests in
the
bank accounts set forth on Schedule
4.5
to
Purchaser.
3.6. Employee
Matters.
Purchaser
will make an offer of employment to each
of
the employees and/or consultants of BLive and Infobuild listed on Exhibit
I
to
become an employee of Purchaser or a subsidiary thereof.
3.6.1 All
employees of BLive and Infobuild as of the Closing Date who are not listed
on
Exhibit
I,
as
updated as of the Closing Date, are referred to herein as “Non-Transferred
Employees.” The employees listed on Exhibit
I
(which
may be updated until the Closing Date by Purchaser) are referred to herein
as
the “Transferred Employees.” Each Transferred Employee has agreed to employment
with Purchaser pursuant to a Transferred Employee Offer Letter, the
effectiveness of which is contingent on and subject to the Closing. Each
employee to whom an offer of employment is made by Purchaser or a subsidiary
thereof and who accepts such offer shall
become an employee of Purchaser or such subsidiary on the first business day
following the Closing.
3.6.2. As
of or
prior to the Closing Date, any and all agreements, or arrangements providing
for
Change of Control (as defined in the applicable plan) payments to any
Transferred Employee (other than such agreements or arrangements respecting
the
vesting of restricted stock, options or the termination of options held by
such
Transferred Employees, payments made with respect to termination of options
or
payments of the exercise price of any such options pursuant to agreements in
effect on the date hereof) will be terminated and neither BLive nor Infobuild
will be obligated to make any such payments to any Transferred Employee in
connection with the transactions contemplated herein.
3.6.3 Contemporaneously
with the Closing or at the next regular payroll date, BLive and Infobuild shall:
(a) pay to each Transferred Employee all amounts such employee would have
received from BLive or Infobuild under an incentive or performance bonus plan;
(b) pay each Transferred Employee for such employee’s unused vacation time
accrued but unpaid as of the Closing Date; and (c) pay each Transferred Employee
all wages accrued but unpaid as of the Closing Date (collectively, the
“Transferred
Employee Final Payments”).
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
6
3.6.4 This
Section
3.6
is an
agreement solely between the Purchasers, BLive and Infobuild. Nothing in this
Section
3.6,
whether
express or implied, shall be considered to be a contract between the Purchasers,
BLive or Infobuild and any other person, or shall confer upon any employee
of
BLive or Infobuild, any employee of Purchaser, any Transferred Employee or
any
other person, any rights or remedies that such person did not already have,
including, (a) any right to employment or recall, (b) any right to continued
employment of any specified person, or (c) any right to claim any particular
compensation, benefit or aggregation of benefits of any kind or nature
whatsoever.
3.7. Shareholder
and Board of Director Approval.
At
Closing, the transaction contemplated hereby shall have been approved by the
requisite vote under applicable laws and the certificate of incorporation and
bylaws of BLive, by the stockholders of BLive (the “Stockholder
Approval”)
and
the
transactions contemplated hereby have been duly authorized by the board of
directors of BLive.
ARTICLE
4.
SELLER’S
REPRESENTATIONS AND WARRANTIES
The
Seller, and Petroleum Corp. and Forte where specifically stated, make the
following representations and warranties to the Purchaser, which representations
and warranties are true and correct as of the Closing Date:
4.1. Authority.
The
execution of this Agreement by the Seller and the performance of the
transactions contemplated hereby have been duly authorized by the board of
directors of BLive.
4.2. Capital
Stock of Infobuild.
The
authorized capital stock of Infobuild consists solely of 50,000 authorized
shares of Infobuild stock, of which 100 shares are currently issued and
outstanding. All of the outstanding shares of Infobuild stock are validly
issued, fully paid and nonassessable. There are no outstanding options,
warrants, calls, commitments or subscriptions relating to Infobuild’s
authorized and unissued capital stock. Without Purchaser’s
consent, Infobuild will not issue additional shares of its stock prior to the
expiration of the Option.
4.3. Ownership
of Shares.
BLive
is the owner of forty-nine (49) of the outstanding shares of Infobuild stock,
which equals 49% of the issued and outstanding Infobuild stock and that ▇▇▇▇▇
owns the other fifty-one (51) outstanding shares of Infobuild stock, which
equal
51% of the issued and outstanding Infobuild stock.
4.4. Bank
Account.
That
Infobuild only has one bank account with the Royal Bank of Canada, White Rock
Branch, the account number which is set forth on Schedule
5.4,
and
that this bank account will have a positive cash balance.
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
7
4.5. Review
of Infobuild Operations.
BLive
has provided the financial statements of BLive and Infobuild attached hereto
as
Schedules
5.5(a) and 5.5(b),
which
set out the financial position of BLive and Infobuild as of the dates indicated
thereon. These financial statements and the documents sent to Purchaser by
the
Seller by various emails and faxes (along with an interview of staff which
was
summarized in all material respects back to the Seller in an email of January
2,
2007 from ▇▇▇▇ ▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇) are a materially accurate reflection
of
the BLive Assets and financial position, Assets, and operations of BLive and
Infobuild. There have not been any material adverse changes to the financial
condition of BLive or Infobuild from the date that Schedules
5.5(a) and 5.5(b)
were
provided until Closing.
4.6. Ownership
of Assets.
BLive
has
good and marketable title to all of the BLive Assets it owns, or purports to
own, and a valid leasehold interest in all leased assets included within the
BLive Assets, free and clear of any liens. The execution and delivery of the
Seller Documents by the Seller at the Closing will convey to and vest in
Purchaser good and marketable title to the owned BLive Assets, free and clear
of
any liens. The BLive Assets, including any BLive Assets held under leases or
licenses are transferred AS IS without warranty as to condition. Neither the
execution or delivery of the Seller Documents nor the consummation of the
transactions contemplated thereby, including the sale of the BLive Assets to
Purchaser, will conflict with or result in the breach of any term or provision
of, require consent or violate or constitute a default under (or an event that
with notice or lapse of time or both would constitute a breach or default),
and
contract of Seller which would have a materially adverse impact on Seller or
result in the creation of any lien on the BLive Assets.
4.7. Intellectual
Property Rights.
To the
best of Seller’s knowledge, Seller has the right to use all BLive Intellectual
Property used by Seller or necessary in connection with the operation of the
business of BLive without infringing on or otherwise acting adversely to the
rights or claimed rights of any person, and Seller is not obligated to pay
any
royalty or other consideration to any person in connection with the use of
any
such BLive Intellectual Property. To the knowledge of Seller, no other person
is
infringing the rights of any Seller in any of its BLive Intellectual
Property.
4.8. Litigation.
There
are
currently no pending or, to the knowledge of Seller, threatened lawsuits,
administrative proceedings or reviews, or formal or informal complaints or
investigations or inquiries (including, without limitation, grand jury
subpoenas) (collectively, “Litigation”)
by any
individual, corporation, partnership, governmental body or other entity
(collectively, a “Person”)
against Seller or Infobuild that would result in a material adverse effect.
Seller is not subject to or bound by any currently existing judgment, order,
writ, injunction or decree that relates in any way to the BLive
Assets.
4.9. Taxes.
To
the
best of Seller’s knowledge, all
federal, state, local and other tax returns, notices and reports (including
income, property, sales, use, franchise, withholding, single business, social
security and unemployment tax returns) required to be filed by Seller have
been
accurately prepared and duly and timely filed, all taxes required to be paid
with respect to the periods covered by any such returns have been timely paid
(including any taxes owed on behalf of any third person) and there are no liens
for taxes BLive Assets.
4.10. Transferred
Employees.
The
Transferred Employees have entered into the Transferred Employee Offer
Letters.
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
8
4.11. Accredited
Investors.
Petroleum Corp represents and warrants and
the
person signing on its behalf represent and warrant that either:
(a)
all
owners of equity interests in Petroleum Corp. each:
(i)
have
a
personal net worth or joint net worth with his spouse in excess of $1,000,000,
or (ii) have individual income (not joint income with his spouse) in excess
of
$200,000 in each of the two most recent years or joint income with his spouse
in
excess of $300,000 in each of those years and (in either case) has a reasonable
expectation of reaching the same income level in the current year, and he has
no
reason to anticipate any change in personal circumstances, financial or
otherwise, that may cause or require any resale of their respective PP Shares
or
the shares or warrants issued in connection with Article 2 or (ii) Petroleum
Corp. otherwise qualifies as an “accredited investor” as that term is defined in
Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as
amended (the “Securities
Act”).
Purchasers may rely on the foregoing statement to the extent
necessary.
Seller
makes no representation or warranty regarding this Paragraph 4.11.
4.12. Employee
Benefit Plans.
As of
the Closing there will either (i) be no outstanding commitments, payments or
obligations owed to any Transferred Employee associated with any employee
benefit plans of BLive or Infobuild, or (ii) if there are any such commitments,
payments or obligations, they will be assumed by BLive.
4.13. Registered
Broker.
Forte
represents and warrants that Forte is receiving 150,000 shares of Common Stock
of the Company as an M&A advisory fee and confirms that it is not a
registered broker as that term is defined in the Securities Exchange Act of
1934. Seller makes no representation or warranty regarding this Paragraph
4.13.
4.14. Representations
and Warranties.
Except
for Section
4.12,
the
Representations and Warranties set out in this Article 4 are made as of the
date
hereof and will be deemed to have been made as of the Closing Date.
4.15. Full
Disclosure.
No
representation or warranty of the Seller contained in this Agreement, and
nothing set forth herein or in the Exhibits and Schedules attached hereto,
or in
any document furnished or to be furnished to the Purchaser at the Closing,
or in
any other information or materials delivered by the Seller or Infobuild to
the
Purchaser (when read together), contains any untrue statement of a material
fact
or omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made.
ARTICLE
5.
PURCHASER’S
REPRESENTATIONS AND WARRANTIES
Purchaser
makes the following representations and warranties to the Seller, which
representations and warranties shall survive the execution and delivery of
this
Agreement and are true and correct as of the Closing Date:
5.1. Status.
Purchaser is a corporation with full power (corporate or otherwise) and
authority to enter into this Agreement and execute all documents required
hereunder.
5.2. Authority.
The
execution of this Agreement by Purchaser and the performance of the transactions
contemplated hereby including the issuance of the shares, have been duly
authorized by the board of directors of Purchaser. This Agreement constitutes
a
valid and binding obligation of Purchaser enforceable in accordance with its
terms. When issued to Petroleum Corp. the shares will be duly and validly
issued, and fully paid and nonassessable and will have been issued in compliance
with the securities laws of the United States and the applicable
states.
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
9
5.3. Unregistered
Securities.
Purchaser acknowledges that the Shares being purchased pursuant to this
Agreement are being sold in a transaction that has not been registered under
the
Securities Act.
5.4. Review
of Tribeworks.
The
Purchaser has made available to Seller and Petroleum Corp. its periodic reports
filed with the Securities and Exchange Commission.
5.5. Noncontravention.
Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which the
Purchaser is subject or (B) conflict with, result in a breach of, constitute
a
default under, result in the acceleration of, create in any party the right
to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Purchaser is a party or by which Purchaser is bound or to which any assets
of any Purchaser is subject.
5.6. Litigation.
There
are currently no pending or, to the knowledge of the Purchaser, threatened
lawsuits, administrative proceedings or reviews, or formal or informal
complaints or investigations or inquiries (including, without limitation, grand
jury subpoenas) (collectively, “Litigation”)
by any
individual, corporation, partnership, governmental body or other entity
(collectively, a “Person”)
against
Purchaser that would result in a material adverse effect to Purchaser.
5.7. Taxes.
To the
best of Purchaser’s
knowledge, all federal, state, local and other tax returns, notices and reports
(including income, property, sales, use, franchise, withholding, single
business, social security and unemployment tax returns) required to be filed
by
Purchaser have been accurately prepared and duly and timely filed, all taxes
required to be paid with respect to the periods covered by any such returns
have
been timely paid (including any taxes owed on behalf of any third person) and
there are no liens for taxes.
5.8. Full
Disclosure.
No
representation or warranty or other statement contained in this Agreement or
made in connection with the purchase of shares, and nothing set forth herein
or
in the Exhibits and Schedules attached hereto, or in any document furnished
or
to be furnished to the Seller at the Closing, or in any other information or
materials delivered by Purchaser to the Seller (when read together), contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were
made.
ARTICLE
6.
INDEMNIFICATION
6.1. Indemnification
of Purchasers.
6.1.1. The
Seller shall indemnify and hold the Purchaser harmless from any and all
liabilities, obligations, claims, contingencies, damages, costs and expenses,
including all court costs, litigation expenses and reasonable attorneys’ fees,
that Purchaser may suffer or incur as a result of or relating to
the
breach of any representation or warranty made by the Seller in this Agreement
or
pursuant hereto (“Losses”).
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
10
6.1.2. Indemnification
of Purchasers.
The
Seller and Petroleum Corp. shall indemnify and hold the Purchaser harmless
from
any and all liabilities, obligations, claims, contingencies, damages, costs
and
expenses, including all court costs, litigation expenses and reasonable
attorneys’ fees, that Purchaser may suffer or incur as a result of or relating
to the breach of any representation or warranty made by the Seller in this
Agreement or pursuant hereto (“Losses”), provided that 1) Petroleum Corp.’s
liability under this Section 6.1 shall be limited to losses resulting from
third
party claims against Tribeworks and 2) the maximum of Petroleum Corp.’s
liability in regards under this Section 6.1 and under the “Escrow
Agreement”,
in
substantially the same form attached as Exhibit
D
in
aggregate shall not exceed the value of the PP Shares (intitially 300,000)
held
in escrow.
6.2. Indemnification
of Seller.
Purchaser shall indemnify and hold the Seller and Petroleum Corp. harmless
from any and all liabilities, obligations, claims, contingencies, damages,
costs
and expenses, including all court costs, litigation expenses and reasonable
attorneys’ fees, that Seller or Petroleum Corp. may suffer or incur as a result
of or relating to:
6.2.1. the
breach of any representation or warranty made by Purchaser in this Agreement
or
pursuant hereto;
6.2.2. the
breach of any covenant or agreement made by Purchaser in this Agreement or
pursuant hereto or a violation of law; or
6.2.3. any
claim
for brokers’
or
finders’
fees or
agents’
commissions arising from or through Purchaser or any of its affiliates in
connection with the negotiation or consummation of the transactions contemplated
by this Agreement;
Purchaser’s
liability under this Agreement shall not exceed the value of three hundred
thousand (300,000) shares of Common Stock
6.3. Survival.
The
representations and warranties of the Seller, Petroleum Corp. and the Purchaser
made in or pursuant to this Agreement will survive the execution and delivery
of
this Agreement and the consummation of the transactions contemplated hereby
until the one-year anniversary of the Closing Date; provided, that: (a) if
the
violation of any representation or warranty would constitute a violation of
law,
such representation or warranty will survive until 30 days after expiration
of
the statute of limitations applicable to such violation (including any extension
of such statute of limitations agreed to by the Sellers); and (b) any
representation or warranty the violation of which is made the basis of a claim
for indemnification pursuant to Section
6.1
or
6.2
will
survive until such claim is finally resolved if Purchaser notifies the Sellers,
or if the Sellers notify the Purchaser, as applicable, of such claim in
reasonable detail prior to the date on which such representation or warranty
would otherwise expire hereunder. Without limiting the foregoing, no claim
for
indemnification pursuant to Section
6.1
or
6.2
based on
the breach of a representation or warranty may be asserted after the date on
which such representation or warranty expires hereunder. The covenants and
agreements of Seller, Petroleum Corp. and the Purchaser made in or pursuant
to
this Agreement will survive the execution and delivery of this Agreement and
the
consummation of the transactions contemplated hereby indefinitely.
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
11
6.4. Notice.
Any
party entitled to receive indemnification under this Article 6 (the “Indemnified
Party”)
agrees
to give prompt written notice to the party or parties required to provide such
indemnification (the “Indemnifying
Parties”)
upon
the occurrence of any indemnifiable Loss or the assertion of any claim or the
commencement of any action or proceeding in respect of which such a Loss may
reasonably be expected to occur (each, a “Claim”),
but
the Indemnified Party’s
failure
to give such notice will not affect the obligations of the Indemnifying Party
under this Article 6 except to the extent that the Indemnifying Party is
materially prejudiced thereby. Such written notice will include a reference
to
the event or events forming the basis of such Loss or Claim and the amount
involved, unless such amount is uncertain or contingent, in which event the
Indemnified Party will give a later written notice when the amount becomes
fixed.
6.5. Defense
of Claims.
6.5.1. The
Indemnifying Party may elect to assume and control the defense of any Claim,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of expenses related thereto, if: (a) the Indemnifying
Party acknowledges its obligation to indemnify the Indemnified Party for any
Losses resulting from such Claim; (b) the Claim does not seek to impose any
Liability on the Indemnified Party other than money damages; and (c) the Claim
does not relate to the Indemnified Party’s
relationship with any customer, employee or contractor.
6.5.2. If
the
conditions of Section
6.5.1
are
satisfied and the Indemnifying Party elects to assume and control the defense
of
a Claim, then: (a) the Indemnifying Party will not be liable for any settlement
of such Claim effected by the Indemnified Party without the Indemnifying
Party’s
consent, which consent will not be unreasonably withheld; (b) the Indemnifying
Party may settle such Claim without the consent of the Indemnified Party; and
(c) the Indemnified Party may employ separate counsel and participate in the
defense thereof, but the Indemnified Party will be responsible for the fees
and
expenses of such counsel unless: (i) the Indemnifying Party has failed to
adequately assume and actively conduct the defense of such Claim or to employ
counsel with respect thereto; or (ii) in the reasonable opinion of the
Indemnified Party, a conflict of interest exists between the interests of the
Indemnified Party and the Indemnifying Party that requires representation by
separate counsel, in which case the fees and expenses of such separate counsel
will be paid by the Indemnifying Party.
6.5.3. If
the
conditions of Section
6.5.1
are not
satisfied, the Indemnified Party may assume the exclusive right to defend,
compromise, or settle such Claim, but the Indemnifying Party will not be bound
by any determination of a Claim so defended or any compromise or settlement
effected without its consent (which may not be unreasonably
withheld).
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
12
ARTICLE
7.
MISCELLANEOUS
7.1. Notices.
Any
notices or other communications required or permitted hereunder shall be
sufficiently given if in writing and (a) hand delivered, (b) transmitted by
facsimile, or (c) sent by certified mail, return receipt requested, postage
prepaid, addressed as shown below, or to such other address as the party
concerned may substitute by written notice to the other. All notices hand
delivered or transmitted by facsimile shall be deemed received on the date
of
delivery. All notices forwarded by mail shall be deemed received on a date
three
(3) days immediately following date of deposit in the U.S. Mail; provided,
however, the return receipt indicating the date upon which all notices were
received shall be prima facie
evidence
that such notices were received on the date on the return receipt.
| If to Purchaser: |
Tribeworks, Inc.
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, CEO
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
With
a copy (which shall not constitute notice) to:
|
||
|
▇▇▇▇▇▇
& ▇▇▇▇, LLP
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attn:
I. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Partner
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
||
| If to the Seller: | BLive Networks Inc
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇,
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
With
a copy (which shall not constitute notice) to:
|
||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇ ▇▇▇▇
|
||
| If to Petroleum Corp.: | Petroleum Corporation of Canada
Limited
▇▇▇▇,
▇▇▇-▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
Facsimilie:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
13
|
With
a copy (which shall not constitute notice) to:
|
||
|
Shea,
Nerland, ▇▇▇▇▇▇ LLP
▇▇▇▇,
▇▇▇-▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimilie:
(▇▇▇) ▇▇▇-▇▇▇▇
|
||
| If to Indemnitor: |
Forte Finance Limited
▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ VLT 08
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
The
addresses and addressees may be changed by giving notice of such change in
the
manner provided herein for giving notice. Unless and until such written notice
is received, the last address and addressee given shall be deemed to continue
in
effect.
7.2. Assignment.
This
Agreement shall not be assigned by either party without the prior written
consent of the other party.
7.3. Public
Announcements.
Neither
party shall make any public announcement or press release concerning this
Agreement nor the transactions contemplated hereby except as may be mutually
agreed upon by the parties in writing; provided,
however,
that
the Purchaser shall be permitted to make any disclosure required pursuant to
applicable securities laws.
7.4. GOVERNING
LAW.
THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY
CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT RESULT IN THE APPLICATION OF
THE
LAWS OF ANOTHER JURISDICTION.
7.5. Drafting.
The
language in all parts of this Agreement will be interpreted, in all cases,
according to its fair meaning and not for or against any party hereto. Each
party acknowledges that it and its legal counsel have reviewed and revised
this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed
in the interpretation of this Agreement.
7.6. Amendment
and Waiver.
This
Agreement may not be amended except in a writing executed by all parties. Waiver
of a term of this Agreement shall not affect any other term or subsequent
performance of the waived term.
7.7. Relationship
of the Parties.
This
Agreement shall not create any relationship between the parties except as
expressly stated herein.
7.8. Prior
Representations.
No
party is relying on any prior representation, agreement or action in executing
this Agreement unless so stated herein.
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
14
7.9. Successors
and Assigns.
This
Agreement and the terms and provisions hereof shall inure to the benefit of
and
be binding upon the parties hereto and their respective successors and permitted
assigns.
7.10. Counterparts.
This
Agreement may be executed in one or more counterparts (including by facsimile
or
portable document format (.pdf)) for the convenience of the parties hereto,
each
of which will be deemed an original, but all of which together will constitute
one and the same instrument.
7.11. Arbitration.
Any
controversy arising out of, or relating to, this Agreement or a breach, shall
be
settled by binding arbitration administered by the American Arbitration
Association in accordance with its rules. A judgment upon an award rendered
by
the arbitrator may be entered in any court having jurisdiction. The initiating
party shall give written notice to the other party of its decision to arbitrate
by providing a specific statement setting forth the nature of the dispute,
the
amount involved, the remedy sought, and the hearing locale requested. The
initiating party shall be responsible for all filing requirements and the
payment of any fees according to the rules of the applicable regional office
of
the American Arbitration Association. The arbitrator shall award to the
prevailing party, if any, as determined by the arbitrator, all of its costs
and
expenses including attorneys’
fees,
arbitrator’s
fees,
and out-of-pocket expenses of any kind. The consideration of the parties to
be
bound by arbitration is not only the waiver of access to determination by a
court and/or jury, but also the waiver of any rights to appeal the arbitration
finding. Arbitration shall take place in Redmond, Washington.
7.12. Name
Changes.
No
later than the fifth (5th) business day following the Closing, BLive will file
all documents necessary to change its name (including any dba’s and including
qualifications in all jurisdictions) to a name bearing no similarity to “BLive
Networks Inc.” (the “BLive Name Change”). No later than the fifth (5th)
business day after the BLive Name Change, Infobuild will file all documents
necessary to change its name (including any dba’s and including qualifications
in all jurisdictions) to “BLive Networks Inc.” if available in the applicable
jurisdiction (including any dba’s and including qualifications in all
jurisdictions.) Following the BLive
Name Change, Seller will also open a bank account in the new name of BLive
to be
owned and controlled by Purchaser.
7.13. Further
Assurances.
At or
after the Closing, and without further consideration, the Seller and ▇▇▇▇▇
will
execute and deliver to Purchaser such further instruments of conveyance and
transfer, and take such other action, as Purchaser may reasonably request in
order more effectively to convey and transfer the BLive Assets to Purchaser
and
to put Purchaser in operational control of the BLive Assets, for aiding,
assisting, collecting and reducing to possession any of the BLive Assets and
exercising rights with respect thereto or for fulfilling the obligations of
the
Seller and ▇▇▇▇▇.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
BLIVE
STOCK AND ASSET PURCHASE AGREEMENT
PAGE
15
IN
WITNESS WHEREOF,
the
parties have executed this instrument as of the date first written
above.
|
SELLER:
|
||
|
BLIVE
NETWORKS INC.,
|
||
| By: | ||
| Name: |
|
|
| Title: |
|
|
|
|
||
|
PETROLEUM
CORP.:
|
||
|
PETROLEUM
CORPORATION OF CANADA LIMITED
|
||
| By: | ||
| Name: |
|
|
| Title: |
|
|
|
|
||
|
FORTE:
|
||
|
FORTE
FINANCE LIMITED
|
||
| By: | ||
| Name: |
|
|
| Title: |
|
|
|
|
||
[SIGNATURE
PAGE TO STOCK AND ASSET PURCHASE
AGREEMENT]
|
PURCHASER:
|
||
|
TRIBEWORKS,
INC.
|
||
| |
|
|
| By: | ||
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: Chief
Executive Officer
|
||
|
|
||
[SIGNATURE
PAGE TO STOCK AND ASSET PURCHASE AGREEMENT]
EXHIBIT
A
Transferred
Employee Offer Letter
EXHIBIT
B
▇▇▇▇
of Sale
EXHIBIT
C
Tribeworks
Registration Rights Agreement
EXHIBIT
D
Escrow
Agreement
EXHIBIT
E
Officer’s
Certificate
EXHIBIT
F
Intentionally
Omitted
EXHIBIT
G
Tribeworks
Subscription Agreement
EXHIBIT
H
Warrant
EXHIBIT
I
Transferred
Employees
EXHIBIT
J
BLive
Shareholders
EXHIBIT
K
Assignment
of Trademarks
Exhibit
L
Warrant
Subscription Agreement
SCHEDULE
A
Balance
Sheet of BLive Networks Inc. at December 31, 2006
SCHEDULE
B
BLive
Networks Inc. Book
Asset Detail at December 31, 2006
SCHEDULE
4.5
BLive
Bank Accounts
SCHEDULE
5.4
Infobuild
Bank Accounts
SCHEDULE
5.5(a)
Unaudited
Financial Statements of BLive Networks Inc at December 31,
2006
SCHEDULE
5.5(b)
Unaudited
Financial Statements of Infobuild Networks (Canada) Inc at December 31,
2006