Purchase Agreement - Bryan Lieu and Communicate.com Inc.
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of November 8, 2000 (the "Effective Date") between Bryan Liew ("Liew")
and Communicate.com Inc., a Nevada corporation ("CMNN") with respect to the
following facts:
A. Liew owns Eleven Million Seven Hundred Fourteen Thousand
eighty (11,714,080) shares (the "Liew Stock") of common stock of Communicate.com
Inc., an Alberta corporation ("AlbertaCo").
B. Liew has previously entered into agreements with CMNN
regarding the disposition of the Liew Stock.
C. Liew now desires to sell to CMNN, and CMNN now desires to
purchase from Liew, the Liew Stock. Pursuant to this Agreement, Liew shall be
paid an aggregate of (United States) One Million Five Hundred Thousand Dollars
(US$1,500,000), together with one million (1,000,000) shares of newly issued
CMNN common stock (the "CMNN Stock") in exchange for the Liew Stock, to enter
into mutual general releases and to take other actions as contemplated in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. Purchase and Sale of the Liew Stock. Concurrently with the
execution of this Agreement:
(a) CMNN shall purchase from Liew, and Liew shall sell and
deliver to CMNN, the the original certificate or certificates evidencing
issuance of the Liew Stock, and shall execute and deliver a Stock Assignment
Separate from Certificate substantially in the form of Exhibit B hereto (the
"Stock Assignment"); and
(b) AlbertaCo shall issue to CMNN one or more certificates
representing an aggregate of Eleven Million Seven Hundred Fourteen Thousand
eighty (11,714,080) shares of common stock of the AlbertaCo (the "New Shares").
2. Purchase Price of the Liew Stock; Security Therefor.
(a) CMNN shall pay Liew for the purchase of the Liew Stock
the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00), together
with one million (1,000,000) shares of newly issued CMNN common stock (the "CMNN
Stock") payable as follows:
(i) at the Closing: $400,000 and 1,000,000 shares of
CMNN Stock;
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(ii) on or before thirty days after the Closing,
$275,000;
(iii) on or before sixty days after the Closing,
$275,000;
(iv) on or before ninety days after the Closing,
$275,000; and
(v) on or before one hundred twenty days after the
Closing, $275,000.
(b) All payments required hereunder shall be in United States
Dollars, with payment made by check or, at the option of Liew, by wire transfer
to an account designated by Liew in writing to CMNN, and shall be net of any
wire transfer fees. If payment is to be made by wire transfer, Liew shall
provide written wire transfer instructions to CMNN on the earlier of (a) at
least two (2) business days prior to the due date of the payment, or (b) two (2)
business days after CMNN"s request. CMNN may, at any time at its option, pay any
amounts due hereunder prior to the date set forth above. For the purposes of
determining the date of payment, payment shall be deemed made by CMNN as
evidenced by the date of a confirmation of wire transfer delivered to Liew by
CMNN. Liew shall, promptly upon receipt, deliver to CMNN written notification of
the receipt of any payment hereunder.
(c) If CMNN fails to pay any amount hereunder within fifteen
(15) days after receipt of written notice of non-payment, Liew shall, as his
sole remedy for and in full satisfaction of non-payment, receive shares of CMNN
Stock at the rate of two (2) shares for each dollar unpaid. Thus, for purposes
of illustration only, if CMNN fails to make the payment due pursuant to Section
2(a) above, and if CMNN fails to pay such amount within fifteen (15) days after
receipt of written notice from Liew of non-payment, CMNN shall, promptly
following such fifteen (15) day period, issue to Liew 550,000 shares of CMNN
Stock in full satisfaction of such payment.
3. Resignation by Liew; Shareholders' and Directors'
Resolutions.
(a) At the Closing, Liew shall execute and deliver to
CMNN and the AlbertaCo a Resignation (the "Resignation") from all positions,
including as a director and officer, of CMNN and the AlbertaCo, each in form and
substance acceptable to CMNN.
(b) At the Closing, Liew shall deliver to CMNN a
Unanimous Written Consent of the Board of Directors in Lieu of Special Meeting
and a Written Consent of Shareholders in Lieu of Special Meeting (collectively,
the "Consents"), approving the performance by AlbertaCo of the issuance of the
AlbertaCo Common Stock to CMNN and all exhibits hereto to which it is a party,
each in form and substance acceptable to CMNN.
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4. Representations and Warranties of CMNN. CMNN represents and
warrants to the other parties hereto, and each of them, as follows:
(a) Full Authority of CMNN. CMNN has all authority
necessary to enter into this Agreement and all of the exhibits hereto to which
it is a party and to carry out the transactions contemplated hereby and thereby.
Upon execution, this Agreement and all of the exhibits hereto to which it is a
party will be fully binding and enforceable against it in accordance with their
respective terms. No other consents or approvals of any persons are required or
necessary for this Agreement, and all of the exhibits hereto to which it is a
party, to be so binding.
(b) Issuance of CMNN Stock. When issued, the CMNN Stock
shall have been duly authorized and validly issued, fully paid and
non-assessable, and free from any lien, claim or encumbrance.
(c) Disclosure. No representation or warranty contained in
this Agreement by CMNN and no statement contained in any writing furnished
pursuant hereto contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements herein or
therein not misleading.
5. Representations and Warranties of Liew. Liew hereby
represents and warrants to the other parties hereto, and each of them, as
follows:
(a) Full Authority. Liew has all authority necessary to
execute this Agreement and all exhibits hereto to which he is a party and to
carry out the transactions contemplated hereby and thereby. Upon execution, this
Agreement and all exhibits hereto to which he is a party will be fully binding
and enforceable against him in accordance with their respective terms. No other
consents or approvals of any parties are required or necessary for this
Agreement, and all of the exhibits hereto to which he is a party, to be so
binding.
(b) Title to the Liew Stock. Liew has good and marketable
title to the Liew Stock, free and clear of all liens, encumbrances and
restrictions, except conditions restricting transfer imposed by the laws of the
United States of America, the State of Nevada, the Province of Alberta and the
by the federal laws of Canada. The Liew Stock has been duly authorized and
validly issued, and is fully paid and non-assessable. None of the Liew Stock is
subject to any irrevocable proxy or any voting, voting trust or other agreement.
Liew does not know of and has no expectancies of any claims, demands,
liabilities or causes of action of any kind or nature arising from Liew's
ownership of the Liew Stock.
(c) Investment Intent. Liew is acquiring the CMNN Stock
for investment purposes only, for his own account, not as a nominee or agent,
and not with a view to, or for resale in connection with, any distribution
thereof. Liew has no contract, undertaking, agreement or arrangement with any
person to sell, transfer or otherwise distribute to such person or to have any
person sell, transfer or otherwise distribute for Liew any of the CMNN Stock or
any interest therein.
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(d) Restriction. Liew understands that the shares of CMNN
Stock it is acquiring hereunder are characterized as "restricted securities"
under United States securities laws inasmuch as they are being acquired from
CMNN in a transaction not involving a public offering and that under such laws
and applicable regulations such securities may be resold without registration
under the Securities Act only in certain limited circumstances. In this
connection, Liew represents that he is familiar with SEC Rule 144, as presently
in effect, and understands the resale limitations imposed thereby and by the
United States Securities Act of 1933, as amended.
(e) Legend Condition. Liew understands that the
certificates representing the CMNN Shares, when and if issued, shall contain the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, THEY HAVE BEEN ACQUIRED BY THE HOLDER FOR
INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
AS MAY BE AUTHORIZED UNDER THE SECURITIES ACT OF
1933 AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER."
(f) Ownership of Assets. AlbertaCo has good and
marketable title to all of the assets of AlbertaCo (the "Assets"), including
without limitation the assets and properties listed in Exhibit A hereto, free
and clear of liens, encumbrances, assignments, mortgages, actions and charges
held by any person or persons, corporations, governmental bodies against the
Assets, and no taxes or payments are due in respect of any of the Assets. None
of the Assets are in the possession of any other person. The Assets constitute
all of the assets used or required to be used in connection with the business of
AlbertaCo. No person has any right, whether present or future, contingent or
absolute, to purchase or acquire any of the Assets, with the exception of the
uniform resource locators "dance.com," techno-music.com," and "trance.com,"
which are being transferred to Liew as part of a severance agreement with
AlbertaCo. AlbertaCo has granted no person the authority or right to sell,
transfer or encumber any of the Assets. All transactions and proposed
transactions involving any of the Asests have been fully documented in the
records of AlbertaCo.
(g) Disclosure. No representation or warranty contained
in this Agreement and no statement contained in any writing furnished pursuant
hereto contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements herein or therein not
misleading.
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6. Indemnifications.
(a) Liew shall indemnify and hold CMNN harmless from, and
defend CMNN in any action (with counsel selected by CMNN) asserting, any
liability, obligation, claim, loss, cost, damage, or expense (including
attorneys' fees and litigation expenses) (i) which may arise or be asserted to
be a result of Liew's willful misconduct in any matter relating to CMNN, (ii)
with respect to the breach of any representation, warranty or covenant of Liew
contained herein, or (iii) both (i) and (ii).
(b) CMNN shall indemnify and hold Liew harmless from, and
defend Liew in any action (with counsel selected by Liew) asserting, any
liability, obligation, claim, loss, cost, damage, or expense (including
attorneys' fees and litigation expenses) (i) which may arise or be asserted to
be a result of CMNN's willful misconduct in any matter relating to Liew, (ii)
with respect to the breach of any representation, warranty or covenant of CMNN
contained herein, or (iii) both (i) and (ii).
7. The Closing. The closing (the "Closing") for the
consummation of the purchase and sale of the Liew Stock and the other
transactions contemplated by this Agreement shall take place at the offices of
Boughton Peterson Yang Anderson, Suite 1000, 595 Burrard Street, Vancouver, BC
V7X 1S8) on November 10, 2000, at 9:00 A.M., or at such other place and time as
the parties may agree upon.
8. Conditions of Performance.
(a) Conditions to Obligations of Liew. The obligations of
Liew to perform this Agreement are subject to the satisfaction of the following
conditions, unless waived in writing by Liew:
(i) The representations and warranties of the other
parties hereto set forth in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and as of the Closing, as
though made on and as of the Closing.
(ii) CMNN shall have performed in all material
respects the obligations required to be performed by it under this Agreement
prior to the Closing.
(iii) CMNN shall have paid to Liew the sum of
$400,000.00 and issued 1,000,000 shares of CMNN stock as required by section
2(a) hereof.
(b) Conditions to Obligations of CMNN. The obligations of
CMNN to perform this Agreement are subject to the satisfaction of the following
conditions, unless waived in writing by CMNN:
(i) The representations and warranties of Liew set
forth in this Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing, as though made on and as of
the Closing.
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(ii) Liew shall have performed in all material
respects the obligations required to be performed by him under this Agreement
prior to the Closing.
(iii) Liew shall have delivered to CMNN at Closing
the Stock Assignment, the Resignation and the Consents, all executed by Liew.
(c) If the Closing does not occur because either (i) a
condition precedent described in subsection (a) is not complied with and is not
otherwise waived in writing by Liew, or (ii) a condition precedent described in
subsection (b) is not complied with and is not otherwise waived in writing by
CMNN, then this Agreement shall automatically be deemed canceled, null and void,
the parties shall bear their own expenses incident to the preparation of this
Agreement, and all agreements, rights and remedies, claims, and obligations of
or between the parties heretofore existing shall remain in effect as though this
Agreement were never executed.
9. Termination. This Agreement may be terminated, and the
transactions contemplated hereunder abandoned, only by the written agreement of
the parties hereto to terminate.
10. Survival of Covenants, Representations and Warranties. All
covenants, representations and warranties made by the parties herein, or in any
instrument or other writing provided for herein, shall survive the execution of
this Agreement, the Closing and the delivery of the Liew Stock.
11. Release. This section 11 becomes effective upon the
Closing.
(a) For good and valuable consideration, including the
execution by CMNN of this Agreement, Liew releases and forever discharges CMNN
and its respective heirs, predecessors, successors, representatives, assigns,
agents, officers, directors, employees and attorneys, and each of them (herein
collectively called the "the CMNN Releasees"), of and from any and all claims,
debts, liabilities, demands, obligations, costs, expenses, actions and causes of
action, of every nature, character and description, known or unknown, which Liew
now owns or holds, or has at any time heretofore owned or held, or may at any
time own or hold, by reason of any matter, cause or thing whatsoever occurred,
done, omitted or suffered to be done prior to the date of this Agreement, except
as provided in this Agreement or the exhibits contemplated hereby, and except
for any claim based on the fraud, negligence or breach of fiduciary duty of the
CMNN Releasees.
(b) For good and valuable consideration, including the
execution by Liew of this Agreement, CMNN releases and forever discharges Liew
and his heirs, successors, representatives, assigns, agents, and attorneys, and
each of them (herein collectively called the "the Liew Releasees"), of and from
any and all claims, debts, liabilities, demands, obligations, costs, expenses,
actions and causes of action, of every nature, character and description, known
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or unknown, which CMNN, now owns or holds, or has at any time heretofore owned
or held, or may at any time own or hold, by reason of any matter, cause or thing
whatsoever occurred, done, omitted or suffered to be done prior to the date of
this Agreement, except as provided in this Agreement or the exhibits
contemplated hereby, and except for any claim based on the fraud, negligence or
breanch of fiduciary duty of the Liew Releasees.
(c) Each party represents and warrants that he has not
heretofore assigned or transferred, or purported to assign or transfer, to any
person, firm, or corporation whomsoever any claim, debt, liability, demand,
obligation, cost, expense, action or cause of action herein released. Liew
agrees to indemnify and hold harmless the other parties against any claim, debt,
liability, demand, obligation, cost, expense, action or cause of action based
on, arising out of or in connection with any such transfer or assignment or
purported transfer or assignment.
(d) Each party acknowledges that, except as herein
expressly set forth, no representations of any kind or character have been made
to him by the other party, or by any of the other party's agents,
representatives or attorneys, to induce the execution of this Agreement.
(e) Each party acknowledges that this Agreement effects
the settlement of claims which are denied and contested by the other parties,
and that nothing contained herein shall be construed as an admission of
liability by or on behalf of the other parties, by whom liability is expressly
denied.
(f) All of the covenants and agreements herein contained
in favor of the CMNN Releasees are for the express benefit of each and all of
said parties. All of the covenants and agreements herein contained in favor of
the Liew Releasees are for the express benefit of each and all of said parties.
(g) Each party agrees that he will forever refrain and
forbear from commencing, instituting or prosecuting any lawsuit, action or other
proceeding against the other parties based on, arising out of, or in connection
with any claim, debt, liability, demand, obligation, cost, expense, action or
cause of action that is released and discharged by reason of this Agreement.
12. Confidentiality. Each of the parties hereto agree to
maintain in strict confidence the existence and terms of this Agreement, and
shall not disclose to any person or entity the existence or terms of this
Agreement without the prior written consent of the other party, which consent
may be granted or withheld in such party"s sole discretion. Notwithstanding the
foregoing, neither party shall be deemed to have breached this Agreement if it
is obligated to disclose the existence or terms of this Agreement in order to
comply with applicable law, regulation or order; provided, that the disclosing
party shall advise the other party as soon as reasonably possible of such
disclosure.
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13. Attorneys' Fees. Should any party hereto engage an
attorney or institute any action or proceeding at law or in equity, or in
connection with an arbitration, to enforce any provision of this Agreement,
including an action for declaratory relief, or for damages by reason of an
alleged breach of any provision of this Agreement, or otherwise in connection
with this Agreement, or any provision hereof, the prevailing party shall be
entitled to recover from the losing party or parties reasonable attorneys' fees
and costs for services rendered to the prevailing party in such action or
proceeding.
14. Notices. Unless applicable law requires a different method
of giving notice, any and all payment notices, demands or other communications
required or desired to be given hereunder by any party shall be in writing and
shall be validly given or made to another party if served personally or if
transmitted by telegraph, facsimile transmission or other electronic written
transmission device. If such notice, demand or other communication is served
personally, service shall be conclusively deemed made at the time of such
personal service. If such notice, demand or other communication is given by
telegraph or if by other carrier service, upon confirmation of delivery by the
carrier, addressed to the party to whom such notice, demand or other
communication or payment required to be given under this Agreement as follows:
To CMNN: Mr. Graham Heal
360 " 220 Cambie Street
Vancouver, BC V6B 2M9
Canada
Facsimile: (604) 687-2192
To Liew: c/o Boughton Peterson Yang Anderson
Barristers & Solicitors
Suite 1000 " 595 Burrard Street
P.O. Box 49290
Vancouver, BC V7X 1S8
Canada
Facsimile: (604) 683-5317
Any party hereto may change its address for the purpose of receiving notices,
demands and other communications as herein provided by a written notice given in
the manner aforesaid to the other party or parties hereto.
15. Time of the Essence. Time is of the essence of this
Agreement and exhibits hereto, and in all the terms, provisions, covenants and
conditions hereof and thereof.
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16. Miscellaneous.
(a) Applicable Law. Except as to matters relating to the
corporate status and authority of CMNN, this Agreement shall, in all respects,
be governed by the laws of the Province of British Columbia applicable to
agreements executed and to be wholly performed within the Province of British
Columbia. Any controversy arising out of the terms of or performance under this
Agreement shall be heard exclusively in the courts of the Province of British
Columbia.
(b) Severability. Nothing contained herein shall be
construed so as to require the commission of any act contrary to law, and
wherever there is any conflict between any provisions contained herein and any
present or future statute, law, ordinance or regulation, the latter shall
prevail; but the provision of this Agreement which is affected shall be
curtailed and limited only to the extent necessary to bring it within the
requirements of the law, and the remainder of this Agreement shall not be
affected thereby.
(c) Further Assurances. Each of the parties hereto shall
execute and deliver any and all additional papers, documents and other
assurances, and shall do any and all acts and things reasonably necessary in
connection with the performance of their obligations hereunder, to carry out the
intent of the parties hereto.
(d) Modification or Amendments. No amendment, change or
modification of this Agreement shall be valid, unless in writing and signed by
all the parties hereto.
(e) Successors and Assigns. All of the terms and
provisions contained herein shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, legal representatives,
successors and assigns. Notwithstanding the foregoing, no party may assign his
rights or obligations hereunder without the express written consent of the other
parties hereto, except that CMNN may assign its obligations hereunder to any
subsidiary or affiliate of CMNN.
(f) Entire Agreement. This Agreement, together with its
exhibits, constitutes the entire understanding and agreement of the parties with
respect to its subject matter, and effective upon the Closing, any and all prior
agreements, understandings or representations with respect to its subject matter
are hereby terminated and canceled in their entirety and are of no further force
or effect.
(g) Non-Waiver. No waiver by any party hereto of a breach
of any provision of this Agreement shall constitute a waiver of any preceding or
succeeding breach of the same or any other provision hereof.
(h) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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(i) Number and Gender. In this Agreement, the masculine,
feminine or neuter gender, and the singular or plural number, shall each be
deemed to include the others whenever the context so requires.
(j) Captions. The captions appearing at the commencement
of the sections hereof are descriptive only and for convenience in reference.
Should there be any conflict between any such caption and the section at the
head of which it appears, the section and not such caption shall control and
govern in the construction of this Agreement.
(k) Expenses. Each of the parties shall pay all of his or
its own costs, legal fees, accounting fees, and any other expenses incurred or
to be incurred by it or him in negotiating and preparing this Agreement, and
closing and carrying out the transactions contemplated by this Agreement.
(l) Parties in Interest. Nothing in this Agreement,
whether express or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the parties and their
respective successors and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third persons to any
party to this Agreement, nor shall any provision give any third person any right
of subrogation or action over or against any party to this Agreement.
(m) Exhibits. All exhibits attached hereto are hereby
incorporated by reference.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and at the place first above written.
"Liew":
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Bryan Liew
"CMNN": Communicate.com Inc., a Nevada
corporation
By
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Its
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CONSENT OF [SPOUSE]
The undersigned spouse of Bryan Liew acknowledges and consents
(a) to the execution of the foregoing Agreement, together with its exhibits, and
the consummation of the transactions contemplated thereby, and (b) that the
foregoing Agreement, together with its exhibits, constitutes a relinquishment of
any of her community property or other interest in the Liew Stock in exchange
for the consideration recited therein.
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EXHIBIT A
DOMAIN NAMES AND URLS
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EXHIBIT B
ASSIGNMENT SEPARATE FROM CERTIFICATE
For value received, the undersigned hereby sells, assigns and transfers
to Communicate.com, Inc., a Nevada corporation Eleven Million Seven Hundred
Fourteen Thousand eighty (11,714,080) shares of the common stock of
Communicate.com, Inc., an Alberta corporation, standing in the name of Bryan
Liew on the books of said corporation represented by certificate number(s)
_____, and herewith and do hereby irrevocably constitute and appoint
_________________________ attorney to transfer the said stock on the books of
the within named Corporation with full power of substitution.
Dated:
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Bryan Liew
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