Exhibit 10.61
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement"), dated as of
11:59:59 PM February 29, 2004 ("the effective date"), by and between IVP
TECHNOLOGY CORPORATION D.B.A. ACTIVECORE TECHNOLOGIES, INC., a Nevada Company
with offices at 6121 Lakeside Drive, Suite 260, Reno Nevada, 89511 (the
"Seller") and SILVERBIRCH STUDIOS INC., an Ontario Company, with offices located
at Suite 103, 703 Evans Avenue, Toronto, Ontario, M9C 5E9, (the "Buyer"). The
Purchaser and Seller are sometimes collectively referred to as the "Parties".
WHEREAS, the Seller desires to sell, assign and otherwise transfer and
the Purchaser desires to acquire certain of the properties and assets utilized
by Seller in the operation of SilverBirchStudios.com; BladeofZorro.com;
Recessgames.com and any other assets pertaining to cell phone games, ring tones
and web portals for consumer products otherwise known as the Games Division
("GD") business as they exist as of the effective date, subject only to certain
liabilities enumerated herein, for the purchase price hereinafter described and
upon the terms and conditions hereinafter set forth on the Closing Date
("Closing Date").
NOW, THEREFORE, in consideration of such sale and of the foregoing and
of the mutual agreements hereinafter set forth, the parties hereto do hereby
agree as follows:
1. SALE OF THE ASSETS AND BUSINESS:
1.1. Upon the terms and subject to the conditions set forth in this
Agreement and in consideration of the payment to the Seller of
the purchase price described in Section 2, the Seller hereby
agrees to sell, convey, assign and transfer to the Purchaser
only the following assets (collectively, the "PURCHASED ASSETS")
which relate to the GD business of providing cell phone games
and ring tones through the websites known as RecessGames.com,
SilverBirchStudios.com and BladeOfZorro.com and assets ancillary
thereto:
(a) All contracts for distribution of games and ring tones of
the GD issued pursuant thereto held by Seller, as listed
and annexed in SCHEDULE 1.1 hereto;
(b) All files and records pertinent, relevant or in any way
connected with the performance of services under the
contracts referred to in (a) above including the internet
domain names to Recessgames.com; BladeofZorro.com and
Silverbirchstudios.com;
(c) Personnel files relating to employees assigned to the GD
wherever located, databases maintained by Seller related to
GD sales and personnel assigned to those clients. A list of
current employees or contractors is annexed as SCHEDULE 1.2
("CURRENT EMPLOYEES");
(d) All documents and materials pertaining to Seller's
Recessgames.com website, its Silverbirchstudios.com website
and its BladeOfZorro.com website together with the code to
any completed and un-completed cell phone games and ring
tones and underlying sku, payment tracking, OTA
provisioning mechanism, royalty tracking and related
software infrastructure for Purchaser's exclusive use in
"AS IS" condition annexed as SCHEDULE 1.3;
(e) The registered trade names and registered Domains listed
and annexed as SCHEDULE 1.4;
(f) The computer equipment listed and annexed on SCHEDULE 1.5
in "AS IS" condition; and
(g) Certain leases and rights as listed and annexed on SCHEDULE
1.6.
1.2. Excluded Assets.
(a) Notwithstanding anything to the contrary contained in this
Agreement, it is recognized and agreed that Seller is not
selling any other components of its business but rather
only those certain assets utilized by GD. Accordingly,
Seller shall retain and not transfer to Purchaser any
assets other than those listed in Section 1.1 above. All
the assets not transferred will be referred to as the
"EXCLUDED ASSETS."
(b) In furtherance of this understanding and by way of example
and not limitation, the Excluded Assets shall include the
following:
(i) all billed and unbilled Accounts Receivable of Seller
including Accounts Receivable of the GD to the
effective date;
(ii) all other software code or designs; and
(iii) all assets of the Seller not exclusively indicated in
schedules 1 - 5 annexed hereto.
2. PURCHASE PRICE:
2.1. Upon the terms and subject to the conditions set forth in this
Agreement, and in consideration for the conveyance, transfer and
assignment of the assets and other rights to the Purchaser as
described in Section 1.1 above, the Purchaser shall pay the
Seller a purchase price in accordance with the following:
(a) A promissory note in the form annexed hereto as EXHIBIT A
payable by way of a cash payment in the sum of One Million
Canadian Dollars (CDN $1,000,000.00) dated as at the
effective date, together with a collateral debenture
(general security agreement) securing the said promissory
note in the form annexed hereto as EXHIBIT B;
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(b) A 5% equity interest in the Purchaser together in
consideration of the same per share capital investment rate
as the founder(s) of the Purchaser together with a grant of
pre-emptive rights in respect of the said 5% equity
interest in the form annexed hereto as EXHIBIT C;
(c) A royalty payment equal to 2% of gross sales revenue of
SilverBirch Studios Inc. in respect of the future revenues
of the Purchaser in the form annexed hereto as EXHIBIT D;
(d) A non-exclusive grant of the right to use any games created
by the GD in the form annexed hereto as EXHIBIT E. If such
form is not hereto annexed, the parties agree to negotiate
and settle same in good faith, have reference to the terms
agreed in the Binding Letter of Intent preceding the
creation and execution of this Agreement.
2.2. With respect to the collection of accounts receivables or other
adjustments due and owing to the Purchaser or the Seller after
the effective Date:
(a) To the extent any client incorrectly pays either the
Purchaser or Seller funds due to the other, the Party who
received funds belonging to the other shall promptly notify
and pay the other Party all funds due to it without the
necessity of additional demand.
(b) Each Party agrees to assist the other in the collection of
accounts receivable or other adjustments to the extent
requested by the other Party.
(c) To the extent that the Seller has paid certain prepaid fees
related to the GD, the Parties agree to adjust for said
prepayments or expenses at or before Closing.
(d) The Parties acknowledge that there are certain sales
pending from distribution agreements with Tira Wireless but
not accounted for. Purchaser agrees to be responsible to
pay over any and all commissions or sales revenue earned up
to the effective date to the Seller.
3. NO ASSUMPTION OF LIABILITIES BY PURCHASER:
3.1. Except for those liabilities (the "ASSUMED LIABILITIES") set
forth on SCHEDULE 2.1, Purchaser shall not assume, or in any way
become liable for, any debts, obligations or liabilities of
Seller, whether accrued, absolute, contingent or otherwise, or
whether due or to become due, or otherwise, whether known or
unknown, arising out of events, transactions or facts which
shall have occurred, arisen or existed on, prior to or after the
Effective Date, which liabilities and obligations, if ever in
existence, shall continue to be liabilities and obligations of
Seller except to the extent such liabilities are a result of
acts of the Purchaser.
3.2. Without limiting the generality of the foregoing, the Assumed
Liabilities shall exclude, and Purchaser shall not be liable
for:
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(a) any and all liabilities or obligations in respect of taxes
which are imposed, levied, assessed or payable by, against
or attributable to Seller;
(b) any and all liabilities or obligations of Seller in respect
of civil and criminal fines, penalties and punitive damages
(including, without limitation, fines and penalties imposed
in respect of withholding, income, sales, payroll,
franchise and other taxes) arising out of or relating to
events occurring or actions taken by Seller on or prior to
the effective date except to the extent such liabilities
are a result of acts of the Purchaser or its officers;
(c) any and all liabilities or obligations associated with or
relating to any assets not specifically set forth in
Section 1.1, occurring before the effective date;
(d) any and all liabilities or obligations relating to claims
made by employees or former employees, excluding those
employees included in Schedule 1.2, of Seller occurring on
or before the effective date, including, without
limitation, any liabilities or obligations relating to
claims made by employees or former employees of Seller for
workers' compensation, employer's liability, or the
termination or resignation of employment.
All liabilities retained by Seller under this Section 3 are referred to
herein collectively as the "RETAINED LIABILITIES."
4. SIGNING AND EFFECTIVE DATE:
4.1. The effective date for the transactions contemplated by this
Agreement (the "EFFECTIVE DATE") shall take place on February
29, 2004 at the offices of Seller or such other time and place
as may be mutually approved by the parties.
4.2. At the effective date the Seller and the Vendor shall exchange
and deliver the following:
(a) The Purchaser shall deliver to the Seller a report on the
status of all game development and a listing of all code
files contained on the servers or on the personal computers
of the GD staff for which it claims to be assuming
ownership;
(b) The Seller shall deliver to the Purchaser a General
Conveyance conveying title to the tangible personal
property listed in Section 1.1, in the form annexed hereto
as EXHIBIT F;
(c) A certified copy of resolutions by the Seller's Board of
Directors authorizing the execution, delivery and
performance by the Seller of this Agreement and the
consummation of the sale contemplated hereby;
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(d) An Indemnity in favor of Brian MacDonald and Peter Hamilton
in respect of the certain of the leases listed in SCHEDULE
1.6 in the form annexed hereto as EXHIBIT G;
(e) A Non-Competition Agreement in the form annexed hereto as
EXHIBIT H; and
(f) A "bring down" certificate with respect to accounting
adjustments and all other matters pertaining to the
transactions contemplated in this Agreement by Seller and
Purchaser that all representations are true and accurate as
of the Closing Date.
5. SELLER'S REPRESENTATIONS AND WARRANTIES:
The Seller represents and warrants to Purchaser as follows:
5.1. The Seller is a corporation duly organized, validly existing and
in good standing under and by virtue of the laws of the State of
Nevada.
5.2. The Seller will prior to closing obtain a waiver from any
secured party that may appear to have an interest in the assets
listed in Section 1.1 and will convey to Purchaser good and
marketable title to all of the assets described in Section 1.1,
subject to no mortgage, pledge, lien, conditional sale
agreement, encumbrance, or charge.
5.3. The execution and delivery of this Agreement to the Purchaser
and the sale contemplated hereby has been duly authorized by all
necessary corporate action on the part of the Seller.
5.4. Neither the execution and delivery of this Agreement, nor the
consummation of the sale contemplated hereby will conflict with,
or result in a material breach of, any of the terms, conditions,
or provisions of any law or any regulation, order, writ,
injunction, or decree of any court or governmental
instrumentality, or of the corporate charter or by-laws of the
Seller or of any agreement, whether written or oral, or other
instrument to which the Seller is a party or by which it is
bound, or constitute (with the giving of notice of the passage
of time or both) a default thereunder, or result in any lien or
encumbrance on any of the Seller's assets to be transferred to
the Purchaser pursuant hereto.
5.5. The contracts listed in SCHEDULE 1.1 are "as is" and there
exists to the best of Seller's knowledge and belief no material
breach or default by either party with respect to same. That the
copies of those contracts previously delivered to Purchaser are
accurate and complete and there exist no amendments which were
not previously disclosed. That Seller is not presently aware of
any past deficiencies in its performance of services under such
contracts that might adversely affect the continuation of
supplying services under such contracts.
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5.6. There are no contracts, agreements or arrangements, written or
oral, relating to the conduct of the business of the GD of
Seller relating to the assets to be sold hereunder to which
Seller is a party or is bound for which Purchaser would have
responsibility except as may be referred to in this Agreement or
any Schedule or Exhibit annexed hereto.
5.7. To the best of Seller's knowledge and belief, there are no
claims or threatened claims, no litigation related to the
contracts listed in SCHEDULE 1.1(A), or the other assets being
sold hereunder.
5.8. That "Recessgames.com", "Silverbirchstudios.com" and
"BladeOfZorro.com" are the only names Seller has used in the
operation of its business to be sold hereunder.
5.9. That Seller has conducted its GD business in a legal manner at
all times and has and maintains all licenses, permits and
approvals necessary to the conduct of the business except for
those which would not materially affect the business. Seller
will continue to operate the business in this manner until the
effective date.
5.10. There have been no past proceedings or any proceedings now
pending, nor to Seller's knowledge or belief, threatened against
Seller with regard to the operation of the GD before the
Internal Revenue Service, National Labor Relations Board, Nevada
State Dept. of Labor, State Commission on Human Rights and
Opportunities, State Department of Labor, Equal Employment
Opportunity Commission, Ontario Ministry of Labour, Ontario
Human Rights Commission, Ontario Labour Board, Ontario Workers'
Compensation Board, Canada Labour Relations Board, Canada Human
Rights Commission or any other local, state, provincial or
federal agencies having jurisdiction over employee rights with
respect to hiring, tenure, or conditions of employment within
the statute of limitations period prior to the effective Date.
5.11. Seller has not made any payment or given anything of value to
any person with the reason or understanding that any part of
such payment was to be used for any improper or illegal purpose;
or any purpose contrary to the policies or procedures of that
person's employer.
5.12. The Seller has the sufficient right, title and interest in and
to all intellectual property, know-how, trade secrets,
specifications, designs and other proprietary rights
(collectively, the "INTELLECTUAL PROPERTY") necessary for use in
the GD. To the Seller's knowledge, no person is infringing upon,
nor has any person misappropriated any Intellectual Property.
5.13. All representations and warranties by Seller are true, complete
and accurate in all material respects as of the date of this
Agreement and will remain so as of the effective date and do not
contain and will not contain any untrue statement of any
material fact, or omit to state a material fact necessary in
order to make all of such representations and warranties not
materially misleading as of this date and as of the effective
Date.
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6. PURCHASER'S REPRESENTATIONS AND WARRANTIES:
The Purchaser represents and warrants to the Seller as follows:
6.1. Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the Province of Ontario.
6.2. The execution and delivery of this Agreement to the Seller and
the sale contemplated hereby has been duly authorized by all
necessary corporate action on the part of the Purchaser.
6.3. Neither the execution and delivery of this Agreement, nor the
consummation of the sale contemplated hereby will conflict with,
or result in a material breach of, any of the terms, conditions,
or provisions of any law or any regulation, order, writ,
injunction, or decree of any court or governmental
instrumentality, or of the corporate charter or by-laws of the
Purchaser or of any agreement, whether written or oral, or other
instrument to which the Purchaser is a party or by which it is
bound, or constitute (with the giving of notice of the passage
of time or both) a default hereunder.
6.4. Purchaser has funds available to close the transaction
contemplated by this Agreement.
6.5. There is no litigation pending or threatened that would affect
Purchaser's ability to constitute the transactions contemplated
by this Agreement. The Purchaser or any officer or employee of
the Purchaser warrants that it does not and will not infringe
upon, nor misappropriate any Intellectual Property belonging to
the Seller, including both the excluded assets and the assets
included in SCHEDULE 1.1 prior to the promissory note and all
other amounts owing to the Seller have been paid in full.
7. ACCESS AND INFORMATION:
From and after the Closing Date, and for a period of four years
thereafter,
7.1. The Seller shall have the right, from time to time upon written
request to the Purchaser, to inspect all books and financial
records of the Purchaser and, in the event of an IRS or CCRA
audit, any books and records included in the Purchased Assets,
including the right to make copies thereof.
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8. Indemnification in respect of the management of the GD by SilverBirch
Studios Inc. between the Effective Date and the Closing Date (if
closing documents not signed effective February 29 2004).
Purchaser and Seller agree that the sale of the GD to the Purchaser is
irrevocable as at the effective date and any accommodation extended to
the Purchaser or the Vendor is for convenience only.
8.1. Subject to the limitations hereinafter described, the Purchaser
agrees to indemnify, exonerate, defend and save the Seller and
its officers, directors, employees, investors and
representatives (collectively, the "SELLER" for the purposes of
this Section 8) harmless from, against, for and in respect of
the full amounts of any and all damages, losses, demands,
obligations, tax, interest, penalty, suit, judgment, order,
lien, liabilities, debts, claims, actions, causes of action,
encumbrances, costs and expenses (collectively, the "LOSSES"),
whether administrative, judicial or otherwise, of every kind and
nature, including, without limitation, reasonable attorneys',
consultants', accountants' and expert witness fees, suffered,
sustained, incurred or required to be paid at any time after the
Effective Date by the Seller based upon, arising out of,
resulting from or because of:
(a) a breach of any obligations of the Purchaser incurred in
connection with the making and performance of this
Agreement, including in the absence of a waiver of default
or breach by the Seller, the failure to buy the Purchased
Assets pursuant to Section 1.1 hereof;
(b) the untruth, inaccuracy, violation or breach of any
representation, warranty, agreement, undertaking or
covenant of Purchaser contained in or made pursuant to this
Agreement;
(c) any claims made against or expense incurred by Seller with
respect to the conditions or operations of the GD made by
regulatory or administrative agencies having jurisdiction
over the Seller resulting from violations of local, state,
provincial or federal laws or regulations by Purchaser or
any of their respective agents, servants or employees, or
resulting from a failure to collect or remit state or local
taxes following the effective date;
(d) all reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees, interest, and
penalties) incurred by the Seller in connection with any
action, suit, proceeding, demand, assessment or judgment
incident to any of the matters indemnified against; and
8.2. Purchasers obligations to indemnify pursuant to this Section 8
(and the representations and warranties set forth herein) shall
be for a period of six (6) years following the effective date or
until such time as two years after the collection of the royalty
right in the form annexed hereto as EXHIBIT D.
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8.3. Subject to the limitations hereinafter described, the Purchaser
agrees to indemnify, exonerate, defend and save the Seller and
its and/or their officers, directors, employees, investors and
representatives (collectively, the "SELLER" for the purposes of
this Section 8 harmless from, against, for and in respect of the
full amounts of any and all damages, losses, demands,
obligations, tax, interest, penalty, suit, judgment, order,
lien, liabilities, debts, claims, actions, causes of action,
encumbrances, costs and expenses, whether administrative,
judicial or otherwise, of every kind and nature, including,
without limitation, reasonable attorneys', consultants',
accountants' and expert witness fees, suffered, sustained,
incurred or required to be paid at any time after the Effective
Date by the Seller based upon, arising out of, resulting from or
because of:
(a) a breach of any obligations of the Purchaser incurred in
connection with the making and performance of this
Agreement including the failure to pay the consideration
referenced in Section 2.1 in a timely manner;
(b) the untruth, inaccuracy, violation or breach of any
representation, warranty, agreement, undertaking or
covenant of Purchaser contained in or made pursuant to this
Agreement;
(c) any claims made against or expense incurred by Seller with
respect to the conditions or operations of the Purchaser
made by regulatory or administrative agencies having
jurisdiction over the Purchaser resulting from violations
of local, state, provincial or federal laws or regulations
by Purchaser or any of their respective agents, servants or
employees, or resulting from a failure to collect or remit
state, provincial, federal or local taxes, arising after
the effective date;
(d) all reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees, interest, and
penalties) incurred by the Seller in connection with any
action, suit, proceeding, demand, assessment or judgment
incident to any of the matters indemnified against; and
(e) any claims made against or expense incurred by Seller
related to the employment of any of the employees of the GD
named in SCHEDULE 1.2 annexed hereto accruing after the
effective date and/or claims for termination of employment
of Kevin Birch or the said employees from Seller which
result from this transaction, or the failure to consummate
this transaction as a result of Purchaser's breach or
default.
(f) any claims made by any Customer against Seller for products
delivered or failure to honor any contract occurring after
the effective date.
8.4. Notwithstanding any other provision of this Agreement to the
contrary, each party's liability to the other to indemnify or
pay any monies under this Section 8 shall not exceed the amount
of Two Million U.S. Dollars ($2,000,000.00 USD).
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8.5. Each party agrees to give the other prompt written notice of any
claims subject or allegedly subject to their respective
indemnification obligations. The indemnifying party shall have
the right but not the obligation, exercisable upon written
notice to the notifying party within ten (10) days of its
receipt of the initial notice, to defend any such claim with
counsel of its own choosing (reasonably acceptable to the
indemnified party) and to settle the matter in its own
discretion provided such settlement does not, without the
indemnified party's written consent, inhibit or prohibit the
ongoing business or professional reputation of the indemnified
party.
INDEMNIFICATION BY VENDOR:
8.6. If the transactions contemplated by this Agreement are
consummated, the Vendor agrees to indemnify and hold the
Purchaser harmless against and in respect of any loss, damage,
claim, cost or expense whatsoever, including any and all
incremental out-of-pocket costs, including, without limitation,
all reasonable legal and accounting fees, which the Purchaser
may incur, suffer or be required to pay, pursuant to any claim,
demand, action, suit, litigation, charge, complaint, prosecution
or other proceeding (collectively, a "Claim") that may be made
or asserted against or affect the Purchaser, provided, however,
that the subject matter of any such Claim relates to or arises
out of or in connection with the following matters:
(a) any misrepresentation or breach of any warranty, agreement,
covenant or obligation of the Vendor contained in this
Agreement or in any agreement, schedule, certificate or
other document required to be entered into or delivered by
the Purchaser;
(b) any bulk sales or similar legislation concerning creditors'
rights;
(c) failure by the Vendor to comply with its agreements
provided for herein;
(d) any and all liability of any nature whatsoever under any
Worker's Compensation or similar legislation or regulation
in any jurisdiction for the period prior to the effective
date, including any experience rating assessments,
surcharges or levies based on or related to the Vendor's
record or history of workplace injuries;
(e) the Excluded Assets;
The obligation of the Vendor to indemnify the Purchaser as set
forth in this Section 8.6 for any loss, damage, claim, cost or
expense shall be subject to the limitation period referred to in
Section 8.2 above.
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9. OTHER COVENANTS:
9.1. Until the closing date, Vendor and Purchaser shall conduct the
GD business in the ordinary course and in the same or similar
manner as heretofore conducted and shall maintain its books and
records in the same manner as heretofore maintained; maintain
and utilize reasonable efforts to preserve its business
organization and relationships with employees, customers and
suppliers having business relationships with them, so that the
GD business will be unimpaired following the effective date and
until closing; each notify the other of any material problems or
developments with respect to any events or occurrences which
would constitute a breach of warranty or representation, or make
any warranty or representation untrue or misleading or a breach
or violation of any covenant hereunder; maintain its insurance
coverages in full force and effect; perform in all material
respects its contractual obligations and commitments and not
take action to terminate same; retain the businesses current
employees so that they will remain employable after the closing
date if same is delayed in any way. However, Seller shall not be
responsible for any negative consequences resulting in whole or
in part from Purchaser's negotiations or communication with
Seller's GD employees that the Parties contemplate transferring
to Purchaser's employment or customers contacted for assignments
or novations.
9.2. Seller and Purchaser shall each utilize its best efforts to
secure any assignments and novations for the contracts listed in
SCHEDULE 1.1(A) and shall coordinate their efforts in a manner
most likely to assure the continuation of business with or
without written assignment or novations.
9.3. Seller agrees to work with Purchaser to secure the employment
agreements for Current Employees and to coordinate all such
efforts with it so as to assure the execution of those
agreements. Seller covenants that it will cause its shares held
by any employee to be assumed by the Purchaser to become
unrestricted as soon as practicable or as soon as the Vendor
files its next SB2 filing following closing of this transaction,
whichever may first occur. The Vendor shall deliver all
certificates pertaining to these shares to the parties entitled
thereto at closing. The shares that to the knowledge of the
Purchaser are still outstanding with respect to this covenant
are as follows:
Kevin Birch: 6,642,329
Graham Lowman: 500,000
Fredrick Wahrman 500,000
Steven Ariss 100,000
Jason Azevedo 50,000
9.4. After the effective date the Purchaser shall use its best
efforts to conduct the Business in such away as to maximize the
gross revenues of the Business and to dedicate sufficient
resources to assure its continuation for a period of at least
four (4) years from the date of effective date. In furtherance
of this covenant the Purchaser agrees to the following:
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a. run the business as a going concern;
b. not to postpone or delay product delivery and sales;
c. not to sell or transfer the assets of the Business;
and
d. not to declare voluntary bankruptcy or an assignment
for the benefit of creditors.
e. to provide regular financial reports on sales and
status of the business as requested from time to time
during the four (4) year period following the
effective date, however no later than 30 days
following each calendar quarter end
10. EMPLOYEES:
10.1. Purchaser will offer employment to all Current Employees on
substantially equal terms to those with Seller's GD. All of the
offered employment agreements will contain provisions releasing
the Seller from any claims for termination related compensation
or benefits. However, said Current Employees' failure to perform
in accordance with such employment terms shall not be considered
a breach or a failure to perform by Seller.
11. CONDITIONS PRECEDENT TO THE CLOSING OF THE TRANSACTION:
11.1. Conditions to the Obligations of the Purchaser.
(a) the representations and warranties of the Seller contained
in Section 5 of this Agreement shall be true and correct in
all material respects as of the date of closing of this
Agreement, except those representations and warranties that
speak as of a specific date or time, which shall be true
and correct as of such date or time;
(b) the GD shall have performed and complied in all respects
with the agreements and obligations contained in this
Agreement required to be performed and complied with until
the effective date;
11.2. The Seller shall have delivered to the Purchaser:
(a) copies of the Seller's resolutions of its Board of
Directors authorizing and approving this Agreement and all
of the transactions and agreements contemplated hereby and
thereby;
(b) a General Conveyance for the acquired assets of GD; and
(c) all ancillary documents required pursuant to this
Agreement.
11.3. Conditions to the Obligations of the Seller.
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The obligations of the Seller to close this transaction shall be
subject to the fulfillment at or before the Closing of the following
conditions, any one or more of which may be waived by the Seller.
(a) the representations and warranties of the Purchaser
contained in this Agreement shall be true and correct in
all material respects (except that where any statement in a
representation or warranty expressly includes a standard of
materiality, such statement shall be true in all respects)
as of the date of this Agreement, except those
representations and warranties that speak as of a specific
date or time, which shall be true and correct as of such
date or time;
11.4. The Purchaser shall have delivered to the Seller:
(a) a Certificate of a senior officer of the Purchaser
containing a true and complete copy of the Articles of
Incorporation of the Purchaser and all amendments thereto,
together with a Certificate of Status certifying the
current existence of the Purchaser issued by the Province
of Ontario;
(b) copies of each of the Purchaser's resolutions of its Board
of Directors authorizing and approving this Agreement and
all of the transactions and agreements contemplated hereby
and thereby;
(c) the names of the officer or officers of the Purchaser
authorized to execute this Agreement;
(d) the original promissory note in the form attached hereto as
EXHIBIT A; and
(e) all ancillary documents required pursuant to this
Agreement.
12. NO BROKERS:
12.1. The parties hereto represent and warrant to each other that
there are no claims for brokerage commissions or finders' fees
in connection with the transactions contemplated hereby.
13. FEES AND EXPENSES:
13.1. Except as herein otherwise provided, each of the parties hereto
shall pay its own legal and accounting charges and other
expenses incident to the execution of this Agreement and the
consummation of the transactions contemplated hereby.
14. NOTICES:
14.1. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered
in person, by telecopy or mailed by first class, certified mail,
postage prepaid or by an expedited mail carrier and addressed to
13
the addresses of the parties first above written and to their
respective counsel and advisors at the following addresses:
IF TO SELLER'S COUNSEL AND ADVISORS:
Clay Parker, Esq.
Kirkpatrick & Lockhart LLP
201 South Biscayne Boulevard, Suite 2000
Miami, FL 33131
IF TO PURCHASER'S COUNSEL:
David Fram
Fram Professional Corporation
701 Evans Ave., Suite 901
Toronto, Ontario, Canada
M9C 5E9
15. MISCELLANEOUS:
15.1. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
All covenants and agreements made by or on behalf of any of the
parties hereto shall be binding upon and inure to the benefit of
their respective successors and assigns, unless otherwise
specifically set forth herein. The terms and provisions of this
Agreement may not be modified or amended, except in writing
signed by all parties hereto. No representations, warranties, or
covenants, express or implied, have been made by any party to
this Agreement in connection with the subject matter hereof,
except as expressly set forth in this Agreement and the Exhibits
hereto. The headings in this Agreement are for the convenience
of reference only and shall not limit or otherwise affect the
meaning hereof.
15.2. No terms and provisions hereof, including, without limitation,
the terms and provisions contained in this sentence, shall be
waived, modified or altered so as to impose any additional
obligations or liability or grant any additional right or
remedy, and no custom, payment, act, knowledge, extension of
time, favor or indulgence, gratuitous or otherwise, or words or
silence at any time, shall impose any additional obligation or
liability or grant any additional right or remedy or be deemed a
waiver or release of any obligation, liability, right or remedy
except as set forth in a written instrument properly executed
and delivered by the party sought to be charged, expressly
stating that it is, and the extent to which it is, intended to
be so effective. No assent, express or implied, by either party,
or waiver by either party, to or of any breach of any term or
provision of this Agreement or of the Exhibits or Schedules
shall be deemed to be an assent or waiver to or of such or any
succeeding breach of the same or any other such term or
provision.
14
15.3. The captions of this Agreement are for convenience and reference
only, and in no way define, describe, extend or limit the scope
or intent of this Agreement or the intent of any provisions
hereof.
15.4. This Agreement, including all Exhibits and the Schedules hereto,
supersedes any and all other agreements, oral or written,
between the parties hereto with respect to the subject matter
hereof (including the Letter of Intent between Purchaser and
Seller), and contains the entire agreement between such parties
with respect to the transaction contemplated hereby.
15.5. No amendment of any provision of this Agreement shall be valid
unless the same is in writing and signed by Purchaser and
Seller.
15.6. No waiver by any party of any default, misrepresentation or
breach of warranty or covenant shall be deemed to extend to any
prior or subsequent default, misrepresentation or breach of
warranty or covenant.
15.7. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and may not be assigned by any party hereto
without the prior written consent of the other parties hereto.
Nothing expressed or referred to in this Agreement will be
construed to give any person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under
or with respect to this Agreement or any provision of this
Agreement.
15.8. The Parties will each bear their own fees and expenses incurred
in connection with the negotiations, preparation and execution
of this Agreement.
15.9. This Agreement shall be governed by and construed in accordance
with the laws of the Province of Ontario and any action brought
to enforce the Agreement or for its breach shall be brought
within the exclusive jurisdiction of the Courts within the
Province of Ontario.
15.10. The Exhibits and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
15.11. The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement
shall be constitute as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authority of any of the
provisions of this Agreement.
15.12. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all
of the parties reflected hereon as the signatories. Any
photocopy of this Agreement, with all signatures reproduced on
15
one or more sets of signature pages, shall be considered for all
purposes as if it were an executed counterpart of this
Agreement.
16. FACSIMILES:
Facsimile signatures shall be acceptable to bind the respective parties
to the terms of this Agreement.
17. EFFECT OF CLOSING:
17.1. The terms of this Agreement shall survive the Closing and shall
not become merged therein.
17.2. This Agreement, together with any Exhibits hereto, and any other
documents to be executed pursuant hereto, constitute the entire
agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings,
if any, written or oral, between the parties.
18. TERMINATION:
18.1. Anything to the contrary herein or elsewhere notwithstanding,
this Agreement and any agreement ancillary hereto may be
terminated and the transactions contemplated hereby abandoned at
any time prior to or at Closing by:
(a) mutual consent of the Parties;
(b) the Seller, if any of the conditions to Closing that are
the obligations of Purchaser have not been met and shall
not have been waived by the Seller as of the Closing Date,
and at such time the Seller is not in material breach or
default of its obligations contained in this Agreement; or
(c) the Purchaser, if any of the conditions to Closing that are
the obligations of Seller have not been met and shall not
have been waived by the Seller as of the Closing Date, and
at such time the Purchaser is not in material breach or
default of its obligations contained in this Agreement.
18.2. If this Agreement is terminated in accordance with Section 18.1
then all rights and obligations of the Parties hereunder shall
terminate and be of no further force and effect; PROVIDED THAT
no such termination shall relieve any party of liability for any
breach of its obligations under this Agreement or any prior
agreement between the Parties.
18.3. Prior to any party terminating this Agreement pursuant to
Section 18.1 above, the breaching party shall have the right to
cure any breach or default within fifteen (15) days of its
deemed receipt of notice of such breach or default.
16
19. PUBLIC ANNOUNCEMENT:
The Purchaser recognizes and agrees that the Seller is a public company
and that the Seller and the Purchaser will not make any public
announcement concerning this Agreement or the negotiations and to keep
same confidential unless given written permission from the Seller and
the Purchaser to make any announcement or otherwise disclose the
information. The Seller shall have the right to announce the
transaction contemplated hereby and/or the negotiations between the
parties upon notice to and with the consent of the Purchaser to the
extent the announcement is required by law, regulations or the rules of
any public stock exchange on which Seller's stock is listed. The Seller
will give the Purchaser prior notice of any announcement it believes is
necessary or proper and the Purchaser will not unreasonably withhold
its consent. The Seller in making any announcement will incorporate
within such announcement such information in such form as the Purchaser
may reasonably require to ensure that the future needs of the Purchaser
for public financing and other purposes are satisfied.
20. ARBITRATION:
Any and all disputes arising under or in connection with this Agreement
shall be resolved by submission to final and binding arbitration in
accordance with the then prevailing rules of JAMS. A single arbitrator
shall be chosen and the proceedings shall be conducted in Toronto,
Ontario. In addition, the arbitrator shall base his award upon
substantial evidence and in accordance with Ontario law, and shall
award to the prevailing party all of its reasonable costs and
attorney's fees, expert witness fees, arbitration fees (including any
fees paid by the prevailing party to the arbitrator), but shall have no
power or jurisdiction to award any punitive or exemplary damages.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
ACTIVECORE TECHNOLOGIES, INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
SILVERBIRCH STUDIOS INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
17
SCHEDULE 1.1 - SCHEDULE OF CONTRACTS AND AGREEMENTS FOR DISTRIBUTION OF GAMES
AND RING TONES TO BE TRANSFERRED OR ASSIGNED
Handango distribution contact
Tira Wireless Distribution contract
Chilmark distribution contract
Zorro Development Agreement
Strategic Objectives Marketing Agreement
Strategic Objectives PR Retainer
18
SCHEDULE 1.2 - SCHEDULE OF CURRENT EMPLOYEES
1. Kevin Birch
2. Steve Ariss
3. John Kelly
4. Jason Azevedo
5. Dave Morin
6. Yixiu Zhang
7. Lui Vargas
8. Camilo Cuesta
9. Frederick Wahrman
10. Brady Sheppard
11. Warren Heise
12. Graham Lowman
13. Sukmeet Singh
19
SCHEDULE 1.3:
LIST OF COMPUTER CODE AND INTELLECTUAL PROPERTY CONVEYED:
SOURCE CODE ASSETS:
drwxrwx--- 3 kbirchsbs sbs 4096 Jan 26 15:10 animalsnap-nokia
drwxrwx--- 3 kbirchsbs sbs 4096 Jan 26 11:28 covertsolitaire-nokia
drwxrwxr-x 3 ccuesta sbs 4096 Jan 26 11:29 covertsolitaire-t720
drwxrwxrwx 3 root cvs 4096 Jan 26 11:28 CVSROOT
drwxrwx--- 3 kbirchsbs sbs 4096 Jan 26 11:30 elpresidente-nokia
drwxrwx--- 3 ccuesta sbs 4096 Jan 27 11:05 elpresidente-t720
drwxrwx--- 7 root ac 4096 Jan 16 12:27 emailservice
drwxrwx--- 3 kbirchsbs sbs 4096 Jan 26 11:28 freecellblock-nokia
drwxrwx--- 3 root sbs 4096 Jan 26 11:28 imageviewer
drwxrwx--- 3 root sbs 4096 Jan 26 11:28 rainbow6
drwxrwx--- 5 kbirchac ac 4096 Jan 14 22:31 rgflashservices
drwxrwx--- 6 kbirchac ac 4096 Jan 16 11:24 rggameadmin
drwxrwx--- 9 root ac 4096 Jan 16 11:24 rggameservice
drwxrwx--- 5 kbirchac ac 4096 Dec 27 19:21 rglookup
drwxrwx--- 3 root sbs 4096 Jan 26 11:28 rgslidingpuzzle
drwxrwx--- 5 kbirchac ac 4096 Jan 23 17:58 rgtoneadmin
drwxrwx--- 8 kbirchac ac 4096 Jan 16 11:24 rgtoneservice
drwxrwx--- 6 root ac 4096 Dec 27 19:32 sbswebsite
drwxrwx--- 3 root sbs 4096 Jan 26 11:28 skateandslam
drwxrwx--- 7 root ac 4096 Jan 23 17:31 smsservice
drwxrwx--- 3 kbirchsbs sbs 4096 Jan 26 11:28 zorroep1-s60
RECESS GAMES ASSETS:
drwx------ 1 kbirch admin 16384 27 Jan 23:34 Carriers
drwx------ 1 kbirch admin 16384 25 Jan 18:53 Docs
drwx------ 1 kbirch admin 16384 9 Jan 16:48 Games
drwx------ 1 kbirch admin 16384 8 Jan 18:26 Raw
drwx------ 1 kbirch admin 16384 26 Jan 13:22 Render Farm
drwx------ 1 kbirch admin 16384 8 Jan 18:08 Temporary Items
drwx------ 1 kbirch admin 16384 8 Jan 18:07 Tools
drwx------ 1 kbirch admin 16384 29 Jan 17:30 deploy
drwx------ 1 kbirch admin 16384 8 Jan 18:39 deployemail_templates
drwx------ 1 kbirch admin 16384 8 Jan 18:07 web
RINGTONE ASSETS:
drwx------ 1 kbirch admin 16384 8 Jan 10:04 Documents
20
drwx------ 1 kbirch admin 16384 8 Jan 10:04 OtherAudio
drwx------ 1 kbirch admin 16384 8 Jan 10:04 Ringtones
SILVERBIRCH ASSETS:
drwx------ 1 kbirch admin 16384 8 Jan 19:14 Articles
drwx------ 1 kbirch admin 16384 29 Jan 16:37 Examples
drwx------ 1 kbirch admin 16384 8 Jan 18:59 GBA
drwx------ 1 kbirch admin 16384 26 Jan 17:05 Games
drwx------ 1 kbirch admin 16384 8 Jan 18:53 Mophun
drwx------ 1 kbirch admin 16384 8 Jan 18:53 Raw
drwx------ 1 kbirch admin 16384 8 Jan 18:48 Resources
drwx------ 1 kbirch admin 16384 8 Jan 18:48 Temporary Items
drwx------ 1 kbirch admin 16384 8 Jan 18:48 Tira
drwx------ 1 kbirch admin 16384 23 Jan 15:55 Tools
drwx------ 1 kbirch admin 16384 8 Jan 18:48 web
drwx------ 1 kbirch admin 16384 8 Jan 18:47 webbackup
21
SCHEDULE 1.4:
SCHEDULE OF TRADE NAMES OR DBA DESIGNATIONS TO BE TRANSFERRED OR PERMITTED TO BE
USED: US REGISTRATIONS IN NEVADA
Recess Games
SilverBirch Studios
www.recessgames.com
- -------------------
www.silverbirchstudios.com
- --------------------------
www.bladeofzorro.com
- --------------------
22
SCHEDULE 1.5: LIST OF EQUIPMENT CONVEYED:
- ---------------------------------------------------------------------------------------------------
TYPE MAKE MODEL QUANTITY USED BY: SERIAL: NOTES:
- ---------------------------------------------------------------------------------------------------
MONITORS Lacie 19" electron19blueIV 7 Steve,Warren,Jay,John
Dell 19" 1 David
19" 1 John
17" 1 Testing Machine
Daewoo 19" 1 Servers
NEC LCD1765 1 Kevin
LCD1712 1 Kevin
Cicero 19" 1 Graham
- ---------------------------------------------------------------------------------------------------
SERVERS Dell Dimension XPS B533r 1 Kuerten (server)
PowerEdge 2400 1 Roddick
Compaq Deskpro EXD 1 Graf (server)
Deskpro EPDP P500 1 Henin (server)
Agassi, Rafter, Sampras
Custom XP2800+, A7V 3 (servers)
Macintosh G4 Cube 1 Cubeserv (server)
- ---------------------------------------------------------------------------------------------------
DEVELOPER PCS Dell Dimension X100 1 YiXui
Optiplex 1 Testing Machine
Macintosh G4 2 Warren, Jay
G5 2 Steve, John
Emachines T2200 1 David
T2341 1 Kevin
H2341 1 Graham
- ---------------------------------------------------------------------------------------------------
LAPTOPS Macintosh G4 Powerbook 1 Kevin
Dell 17" Notebook 1 Fredrik
- ---------------------------------------------------------------------------------------------------
PRINTERS HP LaserJet 3330 1
Stylus Photo 1280 1 Steve
- ---------------------------------------------------------------------------------------------------
NETWORKING
HARDWARE 3com 3300xm 24port switch 1
Cybex Autoview 200 1
Powerware Prestige UPS 2
APC SurgeArrest powerbar 4
5-port hub
- ---------------------------------------------------------------------------------------------------
OTHER Wacom CTE630 (Graphite3 2 Warren, Jay
DEVELOPMENT tablet)
Perfection 1200u
Epson G752A scanner 1 Jay
Toshiba 20AF43 Television 1 Kevin
- ---------------------------------------------------------------------------------------------------
CABLING Cybex KVM cables 6
All currently used
cat5
Powerbars 3
- ---------------------------------------------------------------------------------------------------
MICE 14
KEYBOARDS 14
SPEAKER SETS 6
- ---------------------------------------------------------------------------------------------------
SOFTWARE Macintosh OS X 10 user licence 1
Macromedia Studio MX 1
Studio MX 2004 upgrade 1
Newtek Lightwave 3D 7.5 1
Microsoft Windows
Office
RedHat RedHat Linux 9 1
- ---------------------------------------------------------------------------------------------------
23
SCHEDULE 2.1 - ASSUMED LIABILITIES
SCHEDULE OF LIABILITIES RE: EQUIPMENT LEASES
Lease Number 2199045 - National Leasing
Lease commencement date Feb 1 2003
36 months - periodic rent 398.89 plus PST. Remaining payments 24 X 398.89 plus
pst - (430.80) - Lease is for 1 Apple power Mac G4 - 2 monitors - adc powerec
converter 1 power book G$ - 1 stylus - 256 memory.
RELEASE REQUIRED ON PERSONAL GUARANTEE OBLIGATIONS OF PETER HAMILTON AND BRIAN
MACDONALD
Lease number 50177-34921 - MTC Leasing
Lease commencement date February 1, 2003 - 36 months - 487. plus taxes Remaining
payments 24 x 487 plus taxes (525.96) - 1 apple power Mac G4 1 512 mb memory - 2
electron 19" displays, 1 ADC to VGA converter, 1 studio MX mac, 1 256 mb memory,
1 SS3 Switch 3300 xm, 1 msdn Universal 7.0 eng, 1 HP laserjet 3330 mfg, 1 hp jet
direct 310x external print server.
REQUIRE RELEASE FOR PERSONAL GUARANTEE OBLIGATIONS FOR BRIAN MACDONALD AND PETER
HAMILTON.
ITEMIZATION OF ACCRUED PAYROLL AND VACATION PAY LIABILITIES TO BE ASSUMED BY
- --------------------------------------------------------------------------------
PURCHASER
Kevin Birch - None
Steve Ariss - accrued vacation pay
John Kelly - accrued vacation pay
Jason Azevedo- accrued vacation pay
Dave Morin - accrued vacation pay
Yixiu Zhang- accrued vacation pay
Lui Vargas - accrued vacation pay
Camilo Cuesta - none
Frederick Wahrman - none
Brady Sheppard - accrued vacation pay
Warren Heise - accrued vacation pay
Graham Lowman - accrued vacation pay
24
EXHIBIT A:
- ----------
PROMISSORY NOTE
---------------
FOR VALUE RECEIVED, the undersigned, SilverBirch Studios Inc., an
Ontario Incorporation with offices located at Suite 103, 703 Evans Avenue,
Toronto, Ontario, M9C 5E9 ("Debtor"), unconditionally promises to pay without
right to setoff to the order of IVP Technology Corporation, ("Holder"), an
Nevada Corporation, with offices located at Nevada 6121 Lakeside Drive, Suite
260, Reno Nevada, 89511, or at such other address as Holder may from time to
time designate, the principal sum of One Million (Canadian $1,000,000.00)
Dollars on or before March 31, 2005.
This Promissory Note shall be payable in installments of CAD $100,000
per month with the first payment due on March 31, 2005 and thereafter on the
last day of each next ensuing month until paid in full. The outstanding
principal of this Promissory Note will bear interest at the rate of Twelve Per
Cent (12%) per annum, computed on a simple interest basis. Accrued interest
shall be paid on a monthly basis commencing on March 31, 2004, and thereafter on
the last day of each next ensuing month. If payments of interest or principal
are not received as required a penalty for late payment shall be incurred as
provided following:
Penalties for late payment of interest: If an interest payment is not
made on the due date for such payment of interest then a penalty fee equal to
20% of the interest payment shall be added to the interest payment due and the
combined interest payment and the penalty fee shall be added to the principal
outstanding for the calculation of the interest due for the next payment.
Penalty for late payment of principal: If a principal repayment is not
made on the scheduled payment date the interest rate applicable to the
outstanding principal balance of this Promissory Note plus any accrued interest
shall be increased to Eighteen Per Cent (18%) per annum until such time as the
payments of principal and interest are brought up to date as provided for
herein, provided that once all such payments are brought up to date the interest
rate shall revert to the original Twelve Per Cent (12%) per annum interest rate.
Failure to make the payment described above shall constitute a material
default on this Promissory Note, and a material breach of the Purchase Agreement
of even date between the parties hereto.
Debtor may prepay this Note, in whole or in part, at any time, without
penalty or premium. Permitted partial payments shall not affect or vary the duty
of Debtor to pay all obligations when due, and they shall not affect or impair
the right of Holder to pursue all remedies available to it hereunder, or in law
or equity.
25
All payments made hereunder shall in the event of default first be
applied to accrued interest and the balance to principal.
This Note is given pursuant to a Purchase Agreement between Holder and
Debtor whereby Holder is selling certain of the properties and assets utilized
by Seller in the operation of its business division known as the Games Division,
to which this payment is deemed part of the consideration for said sale. The
payment of this Note shall be unconditional and shall not be subject to set off
or any other defense or right that is or may be contained in said Purchase
Agreement or any other agreement between the Parties.
Time is of the essence with respect to this Note and, in case this Note
is collected by law or through an attorney at law, or under advice therefrom,
Debtor agrees to pay all costs of collection, including actual attorneys' fees.
Such attorney's fees and costs shall include, but not be limited to, fees and
costs incurred in all matters of collection and enforcement, construction and
interpretation, before, during and after suit, trial, proceedings and appeals,
as well as appearances in and connected with any bankruptcy proceedings or
creditor's reorganization or arrangement proceedings.
The remedies of Holder, as provided herein shall be cumulative and
concurrent, and may be pursued singularly, successively or together, at the sole
discretion of Holder, and may be exercised as often as occasion therefore shall
arise. No act or omission or commission of Holder, including specifically any
failure to exercise any right, remedy or recourse, shall be deemed to be a
waiver or release of the same, such waiver or release to be effected only
through a written document executed by Holder and then only to the extent
specifically recited therein. A waiver or release with reference to any one
event shall not be construed as continuing, as a bar to, or as a waiver or
release of, any subsequent right, remedy or recourse as to a subsequent event.
All persons or corporations now or at any time liable, whether
primarily or secondarily, for the payment of the indebtedness hereby evidenced,
for themselves, their heirs, legal representatives, successors and assigns
respectively, subject to the notification of default necessary before
acceleration of payment may occur, hereby (a) expressly waive presentment,
demand for payment, notice of dishonor, protest, notice of nonpayment or
protest, and diligence in collection; (b) consent that the time of all payments
or any part thereof may be extended, rearranged, renewed or postponed by Holder
hereof, and further consent that any collateral security or any part thereof may
be released, exchanged, added to or substituted for Holder hereof, without in
any way modifying, altering, releasing, affecting or limiting their respective
liability or the lien of any security instrument; (c) agree that Holder, in
order to enforce payment of this Note, shall not be required first to institute
any suit or to exhaust any of its remedies against Debtor or any other person or
party to become liable hereunder.
This Note may be assigned by Holder upon notice to Debtor. The Debtor
may not assign or otherwise transfer this Note without the express written
permission of the holder, who may withhold or grant such consent in its sole
discretion. Any such assignment or purported assignment by Debtor shall be void
AB INITIO.
26
The Debtor hereby agrees to accept service of process by regular or
certified mail at the address for Debtor first written above in the event of a
default.
This Note and its terms and provisions are to be governed and construed
by the laws of the Province of Ontario and at the option of the Holder the
jurisdiction shall be the Courts located in the Province of Ontario.
This Note shall be binding on the Parties respective successors and
assigns.
DATED effective this 29th day of February, 2004.
SILVERBIRCH STUDIOS INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
27
EXHIBIT B:
GENERAL SECURITY AGREEMENT (ONTARIO)
1. PARTIES TO THIS SECURITY AGREEMENT:
SILVERBIRCH STUDIOS INC.
703 Evans Avenue, Suite 103, Toronto, Ontario, M9C 5E9
(hereinafter referred to as "DEBTOR")
- and -
ACTIVECORE TECHNOLOGIES, INC.
6121 Lakeside Drive, Suite 260, Reno Nevada, 89511
(hereinafter referred to as "SECURED PARTY")
(hereinafter referred to as "SECURED PARTY")
2. CREATION OF SECURITY INTEREST
WHEREAS the Secured Party has provided financing to the Debtor pursuant
to the terms of a Promissory Note dated effective the 1st day of March, 2004
(the "Financing");
AND WHEREAS it is contemplated that other Lenders may make loan
advances to the Debtor to rank in preference to the security granted further to
this agreement provided such lender provides financing in excess of 50% of the
face amount of the financing secured by this General Security Agreement (the
"Priority Financing"):
(1) For value received and as a general and continuing collateral
security for the payment of Indebtedness (as defined below), including any
ultimate unpaid balance thereof, owed to the Secured Party and to secure the
performance of the obligations under this security agreement or any Related
Documents, the Debtor hereby grants to the Secured Party a first ranking
security interest in all the Debtor's personal property as defined in the
PERSONAL PROPERTY SECURITY ACT, R.S.O. 1990, c. P.10 (the "PPSA"), and in the
28
undertaking of the Debtor, which shall constitute Collateral, whether now owned
or hereafter acquired directly or indirectly by the Debtor, whether now existing
or hereafter arising, save and except any leased equipment of the Debtor, which
leased equipment shall be excluded from the security provided hereunder.
(2) Without limiting the foregoing, but for greater certainty,
Collateral includes all of the following:
(a) all Collateral described in Schedule "A" attached to this security
agreement, which Schedule "A" is incorporated by reference in this
security agreement;
(b) all patents, trade marks, copyrights and other industrial and
intellectual property; and
(c) all statutory licences, quotas and other transferable rights,
including an equitable right in the Collateral assigned or charged
under the security agreement which might otherwise at law be
incapable of being collateral creating a security interest.
(3) Any reference to "Collateral" shall, unless the context requires
otherwise, be deemed a reference to "Collateral or any part thereof".
(4) This security interest shall not apply to, and Collateral shall not
include leased equipment, or the last day of the term of any lease or agreement
therefore but upon the enforcement of the security interest the Debtor shall
stand possessed of such last day in trust to assign the same to any person
acquiring such term.
29
3. DEFINITIONS
(1) All phrases which are defined in the PPSA and not otherwise defined
in this security agreement shall have the meaning ascribed by the PPSA, provided
always that the term "goods" shall never include "consumer goods" of the Debtor
as that term is defined in the PPSA.
(2) "Indebtedness" shall mean all liabilities of every kind and
description of the Debtor to the Secured Party in respect of the Financing,
whether now or hereafter owed or any future advance, whether direct, indirect,
contingent, and whether the Debtor be bound alone or with others and whether as
principal or guarantor.
(3) "Related Documents" shall mean the promissory notes, loan
agreements, account agreements, guaranties, trust deeds, mortgages, other
security agreements or any other documents executed in connection with this
security agreement or Indebtedness or related to its operation or
administration, whether already existing or executed now or later.
4. RIGHTS AND OBLIGATIONS OF DEBTOR
4.1 TITLE. The Debtor warrants and covenants that it holds title or has
rights in the Collateral sufficient for a security interest to attach to the
Collateral.
4.2 POSSESSION AND USE OF COLLATERAL. Subject to paragraph 6.2, until
default or unless otherwise agreed with the Secured Party, the Debtor may deal
with Collateral in the ordinary course of the Debtor's business in any manner
consistent with the provisions of this security agreement. Except for inventory
30
sold or accounts collected in the ordinary course of the Debtor's business the
Debtor shall not sell or otherwise transfer the Collateral. All proceeds of the
Collateral, whether or not arising in the ordinary course of the Debtor's
business, will be received by the Debtor as trustee for the Secured Party and
will be immediately paid to the Secured Party pursuant to the fiduciary
obligation as trustee to the extent that such payment is required at such date
pursuant to the Financing. The Debtor shall not encumber or permit the
Collateral to be encumbered without the prior written consent of the Secured
Party, other than by this security agreement or the Priority Financing. .
4.3 REMOVAL OF COLLATERAL. The Collateral (or to the extent the
Collateral consists of intangible property such as accounts, the records
concerning the Collateral) is located at the address of the Debtor shown above
Except in the ordinary course of the Debtor's business, the Debtor shall not
remove the Collateral or the records of the Collateral from its location without
the prior written consent of the Secured Party, which shall not be unreasonably
withheld.
4.4 SECURITIES AS COLLATERAL. Where Collateral includes securities, the
Secured Party may require the Debtor to transfer such securities into the
Secured Party's name so that the Secured Party may appear of record as the sole
owner of the securities. Until default, the Debtor may retain by way of proxy
the voting and dividend rights attached to any such securities and the Secured
Party will facilitate exercise of those dividend and voting rights.
4.5 PRESERVATION OF RIGHTS AND COLLATERAL. The Debtor shall defend its
own and the Secured Party's rights in the Collateral against the claims and
demands of all persons. The Debtor shall maintain the Collateral in a condition
31
and state of repair that preserves the value of the Collateral, reasonable wear
and tear excluded. The Debtor will not commit or permit damage to or destruction
of the Collateral and will effect repair if it occurs. The Debtor shall procure
and maintain policies of fire and other casualty insurance covering the
Collateral on the basis and in at least the amount described above on terms
satisfactory to the Secured Party and with loss payable to the Secured Party and
Debtor jointly.
4.6 MATERIAL CHANGES IN INFORMATION. The Debtor shall notify the
Secured Party promptly of:
(a) any material change in the information contained in this agreement
(including the schedules hereto) relating to the Debtor, the
Debtor's business or Collateral, including any address change or
establishment of an additional place of business;
(b) the details of any change in name of the Debtor;
(c) the details of any significant acquisition or creation of
Collateral; (d) the details of any claims or litigation affecting
the Debtor or Collateral; (e) any loss of or damage to Collateral;
(f) any sale of substantially all of the collateral, including any
general sale of rights to distribute underlying code; and
(g) any default by any account debtor in its obligations with respect
to Collateral.
4.7 DEBTOR'S CONDUCT. The Debtor will conduct its business and affairs
in a proper and efficient manner, in accordance with applicable law and keep
records in accordance with generally accepted accounting procedures. The Debtor
shall pay all charges, such as taxes, assessments, claims, liens and
32
encumbrances relating to the Collateral or the Debtor's business and affairs
when the same become due. The Debtor will deliver to the Secured Party promptly
such information concerning Collateral, the Debtor and the Debtor's business and
affairs as the Secured Party may reasonably request.
4.8 PROTEST. The Debtor waives protest of any instrument constituting
Collateral at any time held by the Secured Party on which the Debtor is in any
way liable and, subject to the notice requirements of the PPSA, notice of any
other action taken by the Secured Party.
4.9 JOINT AND SEVERAL LIABILITY. If more than one Debtor executes this
security agreement the obligations of such Debtors hereunder shall be joint and
several.
5. EVENTS OF DEFAULT
The Debtor shall be in default under this security agreement or Related
Documents upon occurrence of any of the following:
(a) Non-payment when due, whether by acceleration or otherwise, of
Indebtedness.
(b) Failure to comply within seven days after written notice from the
Secured Party demanding compliance with any provision contained in
this security agreement or Related Documents and if compliance is
not practically possible, failure to take steps that will produce
compliance as soon as is reasonably practical.
33
(c) Any warranty, representation or statement made or furnished to the
Secured Party by or on behalf of the Debtor proves in any material
respect to have been false when made or furnished.
(d) Actual or threatened Bankruptcy or insolvency of the Debtor; the
filing against the Debtor of a petition in bankruptcy; the making
of an authorized assignment for the benefit of creditors by the
Debtor; the appointment of a receiver, trustee, monitor, or
liquidator for the Debtor or for any assets of the Debtor; or the
institution by or against the Debtor of any type of insolvency
proceeding or creditor rearrangement.
(e) Death or declaration of incompetency of the Debtor (if the Debtor
is an individual) or cessation of the Debtor's viability as a
going business concern (if the Debtor is not an individual), which
includes the cessation or threat by the Debtor to cease to carry
on in the normal course of the Debtor's business or any material
part thereof.
(f) On the occurrence of such other events where the Secured Party
considers in good faith and on commercially reasonable grounds
that the Collateral is in jeopardy or that the Secured Party's
position is insecure.
6. SECURED PARTY RIGHTS AND OBLIGATIONS
6.1 GENERAL RIGHTS. In addition to the rights granted herein, the
Secured Party may enforce any other rights and remedies it may have at law or in
equity, and specifically shall have all rights and remedies of a Secured Party
under the PPSA. All rights and remedies of the Secured Party are cumulative and
one or more of these rights may be exercised independently or in combination
from time to time, including marshalling. In event that this security is
assigned by the Secured Party to a third party, the third party receiving the
34
assignment shall have all the rights of the Secured party and all reporting
requirements shall be made to the assignee third party.
6.2 COLLECTION OF DEBTS FORMING PART OF COLLATERAL. The Secured Party
may direct account debtors of the Debtor to make all payments owing to the
Debtor on Collateral subject to the security interest directly to the Secured
Party, by notifying such account debtors of the Secured Party's interest, either
before or after default.
6.3 INSPECTION OF COLLATERAL AND RIGHT OF ACCESS. The Secured Party or
any assignee shall have the right at any time to confirm the existence and state
of the Collateral in any manner the Secured Party may consider appropriate and
the Debtor agrees to furnish all assistance as the Secured Party may reasonably
request in connection therewith. The Debtor grants to the Secured Party or its
assignees or agents access to all places where Collateral may be located and to
all premises occupied by the Debtor for the purposes of inspection or obtaining
possession.
6.4 RECEIVERS AND OTHERS. The Secured Party may appoint by instrument
or by application to a court of competent jurisdiction a receiver or other
person to act on its behalf before or after default or in any insolvency or like
proceeding (receiver includes a receiver-manager). The appointee has all the
powers of the Secured Party under this security agreement. In addition, on
instructions from the Secured Party, the receiver shall be entitled to carry on
the business of the Debtor with all the powers that the Debtor would have to
operate its business for such time as the receiver determines it advisable and
in the best interest of the Secured Party. The Secured Party is not liable for
any act or omission by a receiver appointed or selected by a court.
35
6.5 ACCELERATION. The Secured Party may declare all or any part of
Indebtedness which is not by its terms payable on demand to be immediately due
and payable on the occurrence of any default.
6.6 POSSESSION AND DISPOSITION OF COLLATERAL. The Secured Party may
upon default take possession or constructive possession of, collect, demand, sue
on, enforce, recover and receive Collateral and give binding receipts and
discharges therefor. The Secured Party in possession may use Collateral as it
sees fit, subject to the duty of reasonable care contained in the PPSA providing
that any income from Collateral is applied to the Debtor's account. Upon
default, the Secured Party may also sell, lease or otherwise dispose of
Collateral in any commercially reasonable manner.
6.7 COSTS. The Debtor agrees to pay all charges, including solicitors',
auditors', receivers' or like persons' costs and remuneration or other expenses
reasonably incurred by the Secured Party or other party appointed by the Secured
Party in operating the Debtor's accounts and in enforcing this security
agreement. Such sums shall constitute a future advance increasing the
Indebtedness hereunder.
6.8 DEFICIENCIES. The failure of the Secured Party to receive full
payment or satisfaction of Indebtedness through its rights and remedies herein
provided shall not in any way release the Debtor from the obligation to satisfy
any deficiency, including any costs of realization.
6.9 WAIVERS:
36
(1) No variation, amendment (except for any schedules which may be
added hereto pursuant to the provisions of this agreement) or waiver of any
provision of this security agreement shall be effective unless made by written
agreement executed by the parties to this security agreement.
(2) No delay or omission by the Secured Party in exercising any right
or remedy hereunder or with respect to any Indebtedness shall operate as a
waiver of that right or remedy and no single or partial exercise of any right or
remedy shall preclude any other exercise of cumulative rights and remedies.
(3) The Secured Party may remedy any default or perform any duty of the
Debtor hereunder or with respect to any Indebtedness in any reasonable manner
without waiving the default remedied and without waiving any other prior or
subsequent default by the Debtor.
6.10 NOTICE OF INTENTION TO REALIZE. Prior to realization, there is an
obligation on the Secured Party to deliver a notice of intention to realize to
the Debtor under s.244 of the BANKRUPTCY AND INSOLVENCY ACT. Any events which
trigger default, including those within paragraph 5(d), shall be deferred as
required by that legislation. Valid service of this notice will occur upon
sending of the notice to the address herein or as changed by the Debtor through
paragraph 4.6. Pursuant to the PPSA where applicable, the Secured Party shall
also give notice in writing in the appropriate time period to (a) the Debtor;
(b) every person who is known by the Secured Party, before the date that the
notice is served on the Debtor, to be the owner of the collateral or an
obligator who may owe payment or performance of the obligation secured; (c)
every person who has a security interest who has a security interest in the
collateral and whose interest (i) was perfected by possession, the continuance
of which was prevented by the Secured Party who has taken possession of the
collateral, or (ii) is perfected by registration before the date the notice is
37
served on the Debtor; and (d) every person with an interest in the collateral
who has delivered a written notice to the Secured Party of the interest in the
collateral before the date that the notice is served on the Debtor. This notice
shall include the content stipulated by s. 63(5) of the PPSA.
6.11 SUBORDINATION. The Secured Party agrees to subordinate the
security established by this agreement to a new security in support of the
Priority Financing at the request of the Debtor.
7. ADDITIONAL LOAN ADVANCES
The Borrower and the Lender acknowledge and agree that further loan
advances upon the terms pertaining to the Priority Financing set out above by
another Lender or Lenders to the Debtor are contemplated and that such further
advances will rank ahead of the security interests represented by this general
security agreement provided that such advances are equal to at least fifty per
cent (50%) of the amount payable under the promissory note referenced as the
debt.
8. SUBORDINATION
No action by the Secured Party shall constitute a subordination of its
security interest to any other interest in the Collateral unless such
subordination is effected by an agreement in writing, titled "Subordination
Agreement", signed by the Secured Party. The Secured Party shall not unduly
delay delivery of a Subordination Agreement required in accordance with this
agreement.
38
9. SUCCESSOR INTERESTS
This security agreement shall enure to the benefit of and be binding on
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
10. APPLICABLE LAW
This security agreement and Related Documents shall be governed by the
laws of the Province of Ontario.
11. TERMINATION
This security agreement shall remain in full force and effect until the
Indebtedness has been paid and written notice of discharge by the Secured Party
is received by the Debtor.
12. ACKNOWLEDGMENT OF DEBTOR
The Debtor hereby acknowledges receipt of a copy of this security
agreement.
IN WITNESS WHEREOF the Debtor has executed this security agreement this
1st day of March, 2004.
SILVERBIRCH STUDIOS INC.
Per:
Authorized Signing Officer
39
SCHEDULE "A"
www.recessgames.com
-------------------
www.silverbirchstudios.com
--------------------------
www.bladeofzorro.com
--------------------
40
EXHIBIT C:
UNDERTAKING
WHEREAS IVP Technology Corporation d.b.a. ActiveCore Technologies, Inc. has
agreed to sell certain assets to SilverBirch Studios Inc. for certain good and
valuable consideration as set out in a Purchase and Sale Agreement made
effective 11:59:59 PM February 29, 2004:
In consideration of the closing of the above referenced transaction, SilverBirch
Studios Inc. agrees to grant to ActiveCore Technologies, Inc. the following:
1. A 5% equity interest in SilverBirch Studios Inc. in
consideration of the same per share capital investment rate as
the founder(s) of SilverBirch Studios Inc.
2. Pre-emptive rights in respect of the said 5% equity interest in
SilverBirch Studios Inc., with the intention that following the
delivery of the said % equity interest in SilverBirch Studios
Inc. to ActiveCore Technologies, Inc., no further shares of a
class or series in SilverBirch Studios Inc. (the "New Shares")
shall be issued unless such of the New Shares sufficient to
permit ActiveCore Technologies, Inc. to maintain its 5% equity
interest in SilverBirch Studios Inc. have first been offered to
ActiveCore Technologies, Inc. on the same terms and conditions
as such New Shares are offered to others.
Dated effective this 29th day of February, 2004.
SILVERBIRCH STUDIOS INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
41
EXHIBIT D:
ROYALTY AGREEMENT
Between:
SILVERBIRCH STUDIOS INC.
Suite 103, 703 Evans Avenue, Toronto, Ontario, M9C
5E9 (hereinafter referred to as "SILVERBIRCH")
- and -
ACTIVECORE TECHNOLOGIES, INC.
6121 Lakeside Drive, Suite 260, Reno Nevada, 89511
(hereinafter referred to as "ACTIVECORE")
A) WHEREAS SilverBirch has purchased certain assets from ActiveCore or
companies associated with ActiveCore;
B) AND WHEREAS SilverBirch has agreed to pay certain royalties to ActiveCore
as partial consideration for the said purchase of assets:
WITNESSETH THAT IN CONSIDERATION of the premises, the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which being hereby acknowledged, and subject to the
terms and conditions hereinafter set out, the parties agree as follows:
1. SilverBirch shall pay to ActiveCore a royalty equal to Two Per
Cent (2%) of the Gross Revenues of SilverBirch during the term
of this Agreement (the "Royalty").
2. This Agreement shall operate for a term of four (4) years,
commencing at 12:01 AM on the 1st day of March, 2004 and
terminating and ending at 11:59 PM on the 29th day of February,
2008 (the "Term").
3. The Royalty shall be payable on a quarterly basis during the
Term . Payment of the Royalty for each quarter shall be made
within thirty (30) days following each calendar quarter.
42
4. The total Royalty payable pursuant to this Agreement will be
capped at a maximum of CAD $1,300,000.00, following payment of
which sum this Agreement shall terminate and end.
In this agreement "Gross Revenues " means the full proceeds of any
sales or other revenue of any sort net of taxes levied at the time of
5. SilverBirch shall maintain books of account and records of
revenues in connection with all of its business activities.
SilverBirch shall deliver a statement of such revenues to
ActiveCore not less often than quarterly, statements to be
rendered within thirty (30) days of the end of the period to
which they relate and payments due for ActiveCore's Royalties in
respect thereof to be paid with the statement rendered. All of
SilverBirch's books, records, and accounts pertaining to the
foregoing only shall be available for inspection by ActiveCore
or anyone properly authorized on ActiveCore's behalf at
SilverBirch's head office, during normal business hours, upon
seven days advance written notice, a maximum of once per
calendar year, of a maximum duration of two days, and at
ActiveCore's sole expense.
6. Each of the parties covenants and agrees that upon the
reasonable request of any party they will make, do, execute or
cause to be made, done or executed, all such further and other
lawful acts, deeds, things, devices and assurances whatsoever
for the further, better or more perfect and absolute
understanding and performance of the terms and conditions of
this Agreement.
7. It is agreed that this Agreement embodies the entire and
complete Agreement of the parties hereto with regard to the
matters dealt with herein, and that absolutely no understandings
or Agreements, verbal or otherwise, exist between the parties
except as herein expressly set out.
8. This Agreement shall enure to the benefit of and be binding upon
the respective parties, and upon their heirs, personal
representatives, administrators, executors, successors and
assigns.
9. This Agreement shall be construed in accordance with the laws of
the province of Ontario, and shall be enforceable only in the
Courts of the said province.
43
10. The invalidity of any particular provision of this Agreement
shall not affect any other provision thereof, but this Agreement
shall be construed as if such invalid provision were omitted.
Dated at Toronto effective this 1st day of March, 2004.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their respective
corporate seals, attested by the hands of their respective officers, duly
authorized in that behalf, on the day and year first above written.
SILVERBIRCH STUDIOS INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
ACTIVECORE TECHNOLOGIES, INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
44
EXHIBIT F:
THIS INDENTURE made as of the 29th day of February, 2004.
B E T W E E N :
IVP TECHNOLOGY CORPORATION D.B.A. ACTIVECORE TECHNOLOGIES, INC.,
a Nevada Company with offices at 6121 Lakeside Drive, Suite 260,
Reno Nevada, 89511
(hereinafter called the "Vendor")
OF THE FIRST PART
-and-
SILVERBIRCH STUDIOS INC., an Ontario Company, with offices
located at Suite 103, 703 Evans Avenue, Toronto, Ontario, M9C
5E9
(hereinafter called the "Purchaser")
OF THE SECOND PART
WHEREAS the Vendor agreed to sell and the Purchaser agreed to purchase
as at and from the close of business on February 29, 2004, as a going concern
the undertaking and assets (the "Assets") of the Vendor relating to the Games
Division of the Vendor (the "Business");
NOW THIS INDENTURE WITNESSETH that for good and valuable consideration
now paid by the Purchaser to the Vendor (the receipt and sufficiency of which is
hereby acknowledged) the Vendor hereby grants, bargains, sells, assigns,
transfers, conveys and sets over onto the Purchaser, its successors and assigns
as a going concern as at and from the close of business on February 29, 2004 the
undertaking and the Assets of the Business have and except the excluded assets
of the foregoing the following:
All Assets of the Business which relate to the Games Division business of
providing cell phone games and ring tones through the websites known as
RecessGames.com, SilverBirchStudios.com and BladeOfZorro.com and including,
without limiting the generality of the foregoing, all assets ancillary thereto
including:
All contracts for distribution of games and ring tones of the Games Division
issued pursuant thereto held by Vendor, as listed and annexed in a Purchase and
Sale Agreement made effective February 29, 2004 between the Vendor and the
Purchaser;
All files and records pertinent, relevant or in any way connected with the
performance of services under all contracts pertaining to the Games Division,
including the internet domain names to Recessgames.com; BladeofZorro.com and
Silverbirchstudios.com;
Personnel files relating to employees assigned to the Games Division wherever
located, databases maintained by Vendor related to Games Division sales and
personnel assigned to those clients.
45
All documents and materials and rights whatsoever pertaining to Vendor's
Recessgames.com website, its Silverbirchstudios.com website and its
BladeOfZorro.com website together with the code to any completed and
un-completed cell phone games and ring tones and underlying sku, payment
tracking, OTA provisioning mechanism, royalty tracking and related software
infrastructure;
The registered trade names and registered Domains listed in Schedule 1.4
attached to and forming a part of a Purchase and Sale Agreement made effective
February 29, 2004 between the Vendor and the Purchaser;
The computer equipment listed in Schedule 1.5 attached to and forming a part of
a Purchase and Sale Agreement made effective February 29, 2004 between the
Vendor and the Purchaser in "AS IS" condition; and
Certain leases and rights as listed in Schedule 1.6 attached to and forming a
part of a Purchase and Sale Agreement made effective February 29, 2004 between
the Vendor and the Purchaser.
TO HOLD the said hereby sold, assigned, transferred or conveyed undertaking and
Assets and all right, title and interest of the Vendor thereto and therein unto
and to the use of the Purchaser, its successors and assigns.
AND the Vendor doth hereby covenant, promise and agree with the Purchaser in the
manner following, that is to say:
THAT the Vendor is now rightfully and absolutely possessed of and entitled to
the said hereby sold, assigned, transferred or conveyed undertaking and Assets
of the Business and that the Vendor now has in it good right, title and
authority to assign the same unto the Purchaser, its successors and assigns,
according to the true intent and meaning of these presents and that the
Purchaser shall immediately upon the execution and delivery of these presents
have possession of and may from time to time and at all times hereafter
peaceably and quietly have, hold, possess and enjoy the said hereby sold,
assigned, transferred or conveyed undertaking and Assets of the Business and
every part thereof to and for its own use and benefit without any manner of
hindrance, interruption, molestation, claim or demand whatsoever, of, from or by
the Vendor or any person whomsoever and with good and marketable title thereto,
free and clear and absolutely released and discharged from and against all
former and other bargains, sales, gifts, grants, mortgages, pledges, security
interests, adverse claims, liens, charges and encumbrances of any nature or kind
whatsoever.
The Vendor covenants and agrees with the Purchaser, its successors and assigns,
that it will from time to time and at all times thereafter, upon every
reasonable request of the Purchaser, its successors or assigns, make, do and
execute or cause and procure to be made, done and executed all such further
acts, deeds or assurances as may be reasonably required by the Purchaser, its
successors or assigns, whether for more effectually and completely vesting in
the Purchaser, its successors or assigns, the undertaking, and Assets of the
Business hereby sold, assigned, transferred or conveyed in accordance with the
terms hereof or for the purpose of registration or otherwise.
The Vendor hereby declares that, as to any property and assets or interest in
any property or assets of the Vendor intended to be transferred, assigned,
conveyed, bargained, sold and set over to the Purchaser, its successors and
46
assigns, hereby and the title to which may not have passed to the Purchaser, its
successors and assigns, by virtue of this indenture or any transfers or
conveyances which may from time to time be executed and delivered in purchase of
the covenants aforesaid, the Vendor holds the same in trust for the Purchaser,
its successors or assigns, to convey, assign and transfer the same as the
Purchaser may from time to time direct.
IN WITNESS WHEREOF this indenture has been executed by the Vendor and
the Purchaser.
IVP TECHNOLOGY CORPORATION
d.b.a. ACTIVECORE TECHNOLOGIES, INC.
Per: _____________________c/s
SILVERBIRCH STUDIOS INC.
Per: ____________________c/s
47
EXHIBIT G:
INDEMNITY AGREEMENT
-------------------
FOR VALUE RECEIVED, the undersigned agrees to indemnify and save harmless Brian
MacDonald and Peter Hamilton, (the "Indemnitees") from any claim, action,
liability or suit, arising from the following:
Lease Number 2199045 - National Leasing
Lease commencement date Feb 1 2003
36 months - periodic rent 398.89 plus PST. Remaining payments 24 X 398.89 plus
pst - (430.80) - Lease is for 1 Apple power Mac G4 - 2 monitors - adc powerec
converter 1 power book G$ - 1 stylus - 256 memory.
Lease number 50177-34921 - MTC Leasing
Lease commencement date February 1, 2003 - 36 months - 487. plus taxes Remaining
payments 24 x 487 plus taxes (525.96) - 1 apple power Mac G4 1 512 mb memory - 2
electron 19" displays, 1 ADC to VGA converter, 1 studio MX mac, 1 256 mb memory,
1 SS3 Switch 3300 xm, 1 msdn Universal 7.0 eng, 1 HP laserjet 3330 mfg, 1 hp jet
direct 310x external print server.
In the event of any asserted claim, the Indemnitees shall provide the
undersigned with timely notice of same, and thereafter the undersigned shall at
its own expense defend and protect the Indemnitees against said claim.
In the further event that the undersigned shall fail to so defend, then in such
instance the Indemnitees shall have full rights to defend, pay or settle said
claim with full rights of recourse against the undersigned for all fees, costs,
expenses and payments made or agreed to be paid to discharge said claim.
This agreement shall be binding upon and enure to the benefit of the parties,
their successors, assigns and personal representatives.
Dated effective this 29th day of February, 2004.
SILVERBIRCH STUDIOS INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
48
EXHIBIT H:
- ----------
MUTUAL NON-COMPETITION AGREEMENT
--------------------------------
THIS AGREEMENT dated effective March 1, 2004, among SilverBirch Studios Inc., a
corporation incorporated under the laws of Ontario (the "Party of the First
Part"), and ActiveCore Technologies, Inc., incorporated under the laws of the
State of Nevada (the "Party of the Second Part"), collectively the "Parties":
WHEREAS:
A) The Party of the First Part and the Party of the Second Part are the
parties to a purchase agreement dated effective the 29th day of February,
2004, relating to the purchase by the Party of the First Part and the sale
by the Party of the Second Part of certain assets described in the said
purchase agreement (the "Purchase Agreement"),
B) It is a condition of the closing of the transactions contemplated by the
Purchase Agreement that the Parties execute and deliver this Mutual
Non-Competition Agreement; and
C) The Party of the Second Part enters into this Agreement on its own behalf
and also on behalf of any subsidiary or related corporations involved with
the Party of the Second Part in the carrying on of the business of the
Party of the Second Part.
THE PARTIES AGREE:
1. NON-COMPETITION
The Parties acknowledge that they are each familiar with the proprietary aspects
of the business of the other party, including certain of their confidential
information and trade secrets and the Parties agree:
(a) For a period of Five(5) years from the date hereof, the Party of
the First Part will not for themselves, or on behalf of any
other person, partnership, company, corporation or other entity,
provide healthcare services; develop and sell healthcare IT
products and enterprise middleware technology, develop and sell
enterprise mobile applications that compete with the enterprise
mobile applications developed and sold by the Party of the
Second Part, or develop enterprise software for direct marketing
and dedicated list management.
(b) For a period of Five (5) years from the date hereof, the Party
of the Second Part will not for themselves, or on behalf of any
other person, partnership, company, corporation or other entity,
develop or sell cell phone games, cell phone ring tones, or in
any way operate or provide consumer middle-ware or consumer
web-sites that are in any way competitive with the products and
web-sites of the Party of the First Part.
49
(c) Notwithstanding the above, the Party of the First Part may sell
or license its games and those obtained from third parties for
distribution in the direct marketing and list software field,
provided that if the Party of the First Part does so, the Party
of the Second Part shall have a right of first refusal on any
proposed contracts if the terms, capabilities and deliverables
offered by the Party of the Second Part are similar.
2. ARBITRATION
(1) The parties agree that any dispute over the existence of or extent to
which the business or activity of either party competes with the
business or activities of the other party for the purposes of Section 1
or over the time at which the determination shall be made, shall be
submitted to a single arbitrator whose decision on the matters laid
before him shall be final and binding.
(2) The arbitrator shall be chosen from a panel of names jointly selected
by the parties.
(3) The expenses of the arbitrator shall be shared equally by the parties,
irrespective of the award made by the arbitrator.
(4) The arbitrator shall proceed as quickly as possible to hear the
evidence and argument of the parties and to determine the matter
submitted to him.
(5) The parties agree that submission of a dispute dealt with by this
Section shall be a condition precedent to any application or action
brought before any competent court.
3. EQUITABLE REMEDIES
In the event of the breach, or threatened breach, of any term or provision
contained in this Agreement, the party alleging the breach shall be entitled to
both temporary and permanent injunctive relief. The right to such relief shall
not be construed to prevent the party from pursuing, either consecutively or
concurrently, any and all other legal or equitable remedies available to it for
such breach or threatened breach, specifically including without limitation the
recovery of monetary damages.
4. APPLICABLE LAW AND CHOICE OF FORUM
This Agreement shall be interpreted in accordance with the laws of the Province
of Ontario and the laws of Canada applicable therein. The parties attorn (on a
non-exclusive basis) to the courts of the Province of Ontario.
5. SEVERABILITY
If any term, provisions covenant or condition of this Agreement is declared
invalid, illegal, unenforceable, ineffective or inoperative for any reason, such
declaration shall not have the effect of invalidating or voiding the remainder
of this Agreement, and the parties hereto agree that the part or parts of this
50
Agreement so held to be invalid, illegal, unenforceable, ineffective or
inoperative will be deemed to have been stricken herefrom and the remainder
hereof will have the same force and effectiveness as if such part or parts had
never been included herein.
6. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect
to the subject-matter of this Agreement and shall not be altered, modified or
amended, in whole or in part, except by the express written authorization and
consent of the parties. In the event of a conflict between the terms hereof and
those contained in the Purchase Agreement executed contemporaneously herewith,
the terms of this Agreement shall control.
7. WAIVERS
Any waiver by any party, whether express or implied, of any breach of any term,
covenant or condition of this Agreement shall not constitute a waiver as to any
subsequent breach of the same or of any other term, covenant or condition
thereof. Failure of a party to declare any breach upon the occurrence thereof,
or any delay by any party in taking action with respect to any breach, shall not
waive any such breach.
8. NOTICES
Except as otherwise expressly provided herein, any and all notices or demands
which must or may be given hereunder or under any other instrument contemplated
hereby shall be given by delivery in person or by registered or certified mail,
return receipt requested, postage prepaid, or by facsimile transmission as
follows:
IF TO THE PARTY OF THE SECOND PART:
Clay Parker, Esq.
Kirkpatrick & Lockhart LLP
201 South Biscayne Boulevard, Suite 2000
Miami, FL 33131
IF TO THE PARTY OF THE FIRST PART:
David Fram
Fram Professional Corporation
701 Evans Ave., Suite 901
Toronto, Ontario, Canada
M9C 1A3
All such communications, notices or presentations and demands provided for
herein shall be deemed to have been delivered when actually delivered in person
to the respective parties, or if mailed, then on the date of signing of the
return receipt or date of attempted delivery or, if sent by facsimile
transmission, on the date of receipt of confirmation that the transmission has
been received. Any party may change its address hereunder on thirty days' notice
51
to the other party in compliance with this Section.
9. PARTIES IN INTEREST
This Agreement and all terms, covenants and conditions contained herein shall
enure to the benefit of and shall be binding on the undersigned parties and
their respective heirs, executors, administrators, trustees, successors and
assigns.
IN WITNESS WHEREOF this Agreement has been executed by all of the
parties hereto.
ACTIVECORE TECHNOLOGIES, INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
SILVERBIRCH STUDIOS INC.
Per:__________________________
Authorized Signing Officer
(I have authority to bind the
Corporation)
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