Exhibit 10.1
ASSET PURCHASE
AGREEMENT
This Asset Purchase Agreement (this " Agreement "), dated
January ___, 2006, is made between TDR Group LLC, a Wyoming Limited
Liability Corporation (" Seller ") and Big Cat Mining
Corporation, a Nevada corporation (the " Buyer ").
RECITALS
WHEREAS, the Buyer desires to acquire from the Seller, the
assets listed on "Exhibit A" attached hereto (the "Assets"), and
the Seller desires to sell the Assets to the Buyer, all upon the
terms and subject to the conditions of this Agreement; and
WHEREAS, capitalized terms used, and not otherwise defined, in
this Agreement shall have the meanings assigned to such terms in
Section 7.1(a).
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the parties agree as follows:
ARTICLE 1
TRANSFER OF ASSETS AND LIABILITIES
Section 1.1 Sale and Purchase of the
Assets
Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, the Seller shall sell, convey, assign,
deliver and transfer to the Buyer, all of the Assets and the Buyer
shall buy and take possession of, all of the Sellers' right, title
and interest in and to the Assets.
ARTICLE 2
PURCHASE PRICE
Section 2.1 Purchase Price
As consideration for the Assets and the covenants and agreements
of the Seller made herein, the Buyer shall, at the Closing, issue
to Seller a stock certificate representing 12,450,000 fully paid
and non-assessable restricted shares of Buyer's common stock (the
"Purchase Price").
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as
follows:
Section 3.1 Corporate Existence and
Power
Seller is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation
and all other jurisdictions in which it is required to be qualified
to engage in business, and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on
its business substantially as now conducted, except where the
failure to do so would not have, individually or in the aggregate,
a Seller Material Adverse Effect. For purposes of this Agreement,
the term " Seller Material Adverse Effect " means any event,
change, occurrence, circumstance or development which has had or,
to the Knowledge of the Seller, would have a material adverse
effect on the condition (financial or otherwise), business, assets
or results of operations of the Seller, or that materially
adversely affects the ability of the Seller to consummate the
transactions contemplated by this Agreement and the other
Transaction Documents or materially impairs or delays the Seller's
ability to perform its obligations hereunder and thereunder.
Section 3.2 Corporate Authorization
Seller has all necessary corporate power and authority to enter
into this Agreement and the other Transaction Documents and to
consummate the transactions contemplated hereunder and thereunder.
The board of directors of the Seller has approved this Agreement
and the other Transaction Documents and the transactions
contemplated hereby and thereby, and no further corporate or
stockholder action is required on the part of the Seller in
connection with the consummation of the transactions contemplated
by this Agreement and the other Transaction Documents. The
execution, delivery and performance of this Agreement and the other
Transaction Documents to be executed and delivered by the Seller
and the consummation by the Seller of the transactions contemplated
hereunder and thereunder have been duly and validly authorized by
all necessary corporate action on the part of the Seller. This
Agreement has been and the other Transaction Documents have been,
or will be, as applicable, duly executed and delivered by the
Seller and, assuming the due authorization, execution and delivery
hereof by the Sellers, constitute, or will constitute, as
applicable, legal, valid and binding agreements of the Seller.
3.3 Governmental Authorization
The execution, delivery and performance by the Seller of this
Agreement and the other Transaction Documents and the consummation
by the Seller of the transactions contemplated hereby and thereby
do not require any consent, approval, compliance, exemption,
authorization or permit of or other action by, or filing with, any
Governmental Authority, other than such requirements which have
already been completed, filings and approvals which are not
required prior to the consummation of the transactions contemplated
by this Agreement and the other Transaction Documents or where the
failure of any such consent, approval, compliance, exemption,
authorization or permit to be obtained, action to be taken or
filing to be made would not have, individually or in the aggregate,
a Seller Material Adverse Effect.
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Section 3.4 Non-Contravention
The execution, delivery and performance by the Seller of this
Agreement and the other Transaction Documents and the consummation
of the transactions contemplated hereby and thereby do not and will
not (a) contravene or conflict with or result in any violation
or breach of any provision of the certificate of incorporation or
bylaws of the Seller, (b) assuming compliance with the matters
referred to in Section 4.3, contravene or conflict with or
result in a violation or breach of any provision of any Requirement
of Law or Order binding upon or applicable to the Seller, or
(c) require any consent or other action by any Person under,
constitute a default under or give rise to a right of termination,
cancellation or acceleration of any right or obligation or to the
loss of any benefit or material adverse modification of the effect
(including an increase in the price paid by, or cost to, the
Seller) of, or under any provision of any agreement or other
instrument to which any Seller is a party or that is binding upon
any Seller or any license, franchise, permit or other similar
authorization held by any Seller or (d) violate, conflict with
or result in any breach, default or contravention of (with due
notice or lapse of time or both), or the creation or imposition of
any Liens on any asset of the Seller or that would not have,
individually or in the aggregate, a Seller Material Adverse
Effect.
Section 3.5 Absence of Certain Changes
Since October 31, 2005, the Seller has operated its business, in
all material respects, in the ordinary course consistent with past
practices, and there has not been a Seller Material Adverse
Effect.
Section 3.6 Litigation
No litigation (including derivative actions), arbitration
proceeding or governmental investigation or proceeding is pending
or, threatened against the Seller or any of Seller's officers or
directors which, if adversely determined, would reasonably be
expected to have a Seller Material Adverse Effect.
Section 3.7 Taxes
The Seller has timely filed all Tax Returns and reports required
to be filed by it and has paid all Taxes as shown to be owed on
such returns and reports.
Section 3.8 Title to the Assets
The Seller has good and marketable title to the Assets, free of
all encumbrance and is in compliance with all laws.
(1) The Seller is in compliance
with any Requirement of Law, Order, permit, license or other
governmental authorization or approval applicable to its business
or by which any of its properties, assets or operations of its
business is bound or affected, except for failures to comply or
violations that would not have, individually or in the aggregate, a
Seller Material Adverse Effect. To the Seller's knowledge, since
October 31, 2005 the Seller, in the operation of its business, has
not violated any applicable Requirement of Law, Order, permit,
license or other governmental authorization or approval, except for
violations which, individually or in the aggregate, would not have
a Seller Material Adverse Effect.
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(2) The Seller holds all orders
and all consents, permits, licenses, variances, exemptions and
approvals from Governmental Authorities that are material to the
operation of its business. The Seller is in compliance with the
terms of such consents, permits, licenses, variances, exemptions,
orders and approvals, except where the failure to so comply would
not have, individually or in the aggregate, a Seller Material
Adverse Effect.
Section 3.9 Environmental Matters
(1) The Seller has complied with
and is in compliance with all Environmental Laws applicable to its
business, except for such instances of noncompliance that would not
have, individually or in the aggregate, a Seller Material Adverse
Effect;
(2) The Seller holds and has
held all permits required pursuant to Environmental Laws in
connection with its business and is and has been in compliance with
such permits, except for the failure to hold such permits and such
instances of noncompliance that would not have, individually or in
the aggregate, a Seller Material Adverse Effect; and
(3) There is no action,
suit, claim, investigation or proceeding (whether judicial,
arbitral, administrative or other) pending or, to the Seller's or
KM's Knowledge threatened against Seller pursuant to Environmental
Laws that would have, individually or in the aggregate, a Seller
Material Adverse Effect.
Section 3.10 Insurance
The Seller is not covered by insurance.
Section 3.11 Accuracy of Statements
The representations and warranties of the Seller contained in
this Agreement, taken together and as modified by any Schedules or
Exhibits, do not contain any untrue statement of a material fact
and do not omit to state a material fact that would make the
representations and warranties untrue in a material respect.
Section 3.12 Finders and Investment
Bankers
There is no broker, finder or other intermediary who has been
retained by or is authorized to act on behalf of the Seller who
might be entitled to any fee or commission in connection with the
transactions contemplated by this Agreement and the other
Transaction Documents.
Section 3.13 No Other Representations
Except as specifically set forth in this Article IV, the
Seller has not made, and the Seller agrees that it has not relied
upon, any other representations or warranties, whether expressed or
implied.
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Section 3.14 Seller Reliance
The Seller acknowledges that it and its representatives have had
a reasonable opportunity to meet with the Seller to discuss the
Assets and that it has relied upon its own independent
investigation of the Assets in reaching the determination to
purchase the Assets. The Seller acknowledges that neither the
Seller nor any other person has made any representation or
warranty, expressed or implied, as to the accuracy or completeness
of any information regarding the Assets furnished or made available
to the Seller and its representatives, except as expressly set
forth in this Agreement.
Section 3.15 No Material Liabilities or
Obligations
Seller has no material liabilities or future obligations
contingent, contractual or otherwise including but not limited to
notes payable and accounts payable and is not a party to any
executory agreements.
Section 3.16 Seller Not Subject To
Bankruptcy .
Seller is not and has not been the subject of any voluntary or
involuntary bankruptcy proceedings.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Buyer represents and warrants to the Selleras
follows:
Section 4.1 Corporate Existence and
Power
Buyer is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation
and all other jurisdictions in which it is required to be qualified
to engage in business, and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on
its business substantially as now conducted, except where the
failure to do so would not have, individually or in the aggregate,
a Buyer Material Adverse Effect. For purposes of this Agreement,
the term " Buyer Material Adverse Effect " means any event,
change, occurrence, circumstance or development which has had or,
to the Knowledge of the Buyer, would have a material adverse effect
on the condition (financial or otherwise), business, assets or
results of operations of the Buyer, or that materially adversely
affects the ability of the Buyer to consummate the transactions
contemplated by this Agreement and the other Transaction Documents
or materially impairs or delays the Buyer's ability to perform its
obligations hereunder and thereunder.
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Section 4.2 Corporate Authorization
Buyer has all necessary corporate power and authority to enter
into this Agreement and the other Transaction Documents and to
consummate the transactions contemplated hereunder and thereunder.
The board of directors of the Buyer has approved this Agreement and
the other Transaction Documents and the transactions contemplated
hereby and thereby, and no further corporate or stockholder action
is required on the part of the Buyer in connection with the
consummation of the transactions contemplated by this Agreement and
the other Transaction Documents. The execution, delivery and
performance of this Agreement and the other Transaction Documents
to be executed and delivered by the Buyer and the consummation by
the Buyer of the transactions contemplated hereunder and thereunder
have been duly and validly authorized by all necessary corporate
action on the part of the Buyer. This Agreement has been and the
other Transaction Documents have been, or will be, as applicable,
duly executed and delivered by the Buyer and, assuming the due
authorization, execution and delivery hereof by the Sellers,
constitute, or will constitute, as applicable, legal, valid and
binding agreements of the Buyer.
Section 4.3 Governmental Authorization
The execution, delivery and performance by the Buyer of this
Agreement and the other Transaction Documents and the consummation
by the Buyer of the transactions contemplated hereby and thereby do
not require any consent, approval, compliance, exemption,
authorization or permit of or other action by, or filing with, any
Governmental Authority, other than such requirements which have
already been completed, filings and approvals which are not
required prior to the consummation of the transactions contemplated
by this Agreement and the other Transaction Documents or where the
failure of any such consent, approval, compliance, exemption,
authorization or permit to be obtained, action to be taken or
filing to be made would not have, individually or in the aggregate,
a Buyer Material Adverse Effect.
Section 4.4 Non-Contravention
The execution, delivery and performance by the Buyer of this
Agreement and the other Transaction Documents and the consummation
of the transactions contemplated hereby and thereby do not and will
not (a) contravene or conflict with or result in any violation
or breach of any provision of the certificate of incorporation or
bylaws of the Buyer, (b) assuming compliance with the matters
referred to in Section 4.3, contravene or conflict with or
result in a violation or breach of any provision of any Requirement
of Law or Order binding upon or applicable to the Buyer, or
(c) require any consent or other action by any Person under,
constitute a default under or give rise to a right of termination,
cancellation or acceleration of any right or obligation or to the
loss of any benefit or material adverse modification of the effect
(including an increase in the price paid by, or cost to, the Buyer)
of, or under any provision of any agreement or other instrument to
which any Buyer is a party or that is binding upon any Buyer or any
license, franchise, permit or other similar authorization held by
any Buyer or (d) violate, conflict with or result in any
breach, default or contravention of (with due notice or lapse of
time or both), or the creation or imposition of any Liens on any
asset of the Buyer or that would not have, individually or in the
aggregate, a Buyer Material Adverse Effect.
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Section 4.5 Financial Condition
The Buyer has delivered to the Seller true and correct copies of
(i) the audited financial statements of Buyer for the fiscal
year ended April 30, 2005 (the " Buyer Annual
Financials ") and (ii) the unaudited financial statements
of the Buyer for the fiscal quarters ended July 31, 2005 and
October 31, 2005 (the " Buyer Interim Financials ").
The Buyer Annual Financials and the Buyer Interim Financials have
been prepared in accordance with GAAP and present fairly in all
material respects the combined or consolidated financial condition
(as applicable) of the applicable entities, as the case may be, as
of the dates thereof, and the combined or consolidated results of
operations (as applicable) of the applicable entities for the
period then ended.
Section 4.6 Absence of Certain Changes
Since October 31, 2005, the Buyer has operated its business, in
all material respects, in the ordinary course consistent with past
practices, and there has not been a Buyer Material Adverse
Effect.
Section 4.7 Litigation
No litigation (including derivative actions), arbitration
proceeding or governmental investigation or proceeding is pending
or, threatened against the Buyer or any of Buyer's officers or
directors which, if adversely determined, would reasonably be
expected to have a Buyer Material Adverse Effect.
Section 4.8 Taxes
The Buyer has timely filed all Tax Returns and reports required
to be filed by it and has paid all Taxes as shown to be owed on
such returns and reports.
Section 4.9 Title to Properties; Leases
The Buyer has good and marketable title to, or in the case of
leased property and assets, valid leasehold interests in, all of
its tangible personal properties and assets used or held for use in
the conduct of its business, and such properties and assets are
free and clear of any Liens.
Section 4.10 Compliance with Laws; Government
Approvals
(1) The Buyer is in compliance
with any Requirement of Law, Order, permit, license or other
governmental authorization or approval applicable to its business
or by which any of its properties, assets or operations of its
business is bound or affected, except for failures to comply or
violations that would not have, individually or in the aggregate, a
Buyer Material Adverse Effect. To the Buyer's knowledge, since
October 31, 2005 the Buyer, in the operation of its business, has
not violated any applicable Requirement of Law, Order, permit,
license or other governmental authorization or approval, except for
violations which, individually or in the aggregate, would not have
a Buyer Material Adverse Effect.
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(2) The Buyer holds all orders
and all consents, permits, licenses, variances, exemptions and
approvals from Governmental Authorities that are material to the
operation of its business. The Buyer is in compliance with the
terms of such consents, permits, licenses, variances, exemptions,
orders and approvals, except where the failure to so comply would
not have, individually or in the aggregate, a Buyer Material
Adverse Effect.
Section 4.11 Environmental Matters
(1) The Buyer has complied with
and is in compliance with all Environmental Laws applicable to its
business, except for such instances of noncompliance that would not
have, individually or in the aggregate, a Buyer Material Adverse
Effect;
(2) The Buyer holds and has held
all permits required pursuant to Environmental Laws in connection
with its business and is and has been in compliance with such
permits, except for the failure to hold such permits and such
instances of noncompliance that would not have, indi
