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Exhibit 10.1
ASSET
PURCHASE AGREEMENT
BY AND
AMONG
GOLDEN
SPIRIT ENTERPRISES LTD.
AND
PORT SOLUTIONS
INTERNATIONAL LTD.
AND
COMPUTAINER SYSTEMS INTERNATIONAL INC.
DATED AS
OF
October
29, 2007
ASSET
PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT, dated October 26, 2007 (the “
Agreement ”), is entered into by and among
Golden Spirit Enterprises Ltd., a public Delaware Corporation, with
offices located at Suite 806 – 1288 Alberni Street,
Vancouver, B.C., V6E 4N5 ( “Parent” ),
Port Solutions International Ltd., a pending British Columbia
Corporation (“ Acquisition Sub ”),
Computainer Systems International Inc., a private Corporation
incorporated under the Canada Corporations Business Act, located at
P.O. Box 132, #205 – 329 North Road, Coquitlam, B.C., V3K-6Z8
(the “ Company ”).
RECITALS
WHEREAS, the
Company desires to sell to the Acquisition Sub, and the Acquisition
Sub desires to purchase from the Company, those assets which relate
to the Company’s Shuffle Systems Technology (as defined
below).The Computainer Shuffle System Technology which is a fully
automated, computer-controlled, handling, sorting, storing and
inventory system for (20’) twenty and (40’) forty foot
ISO shipping containers. The Shuffle System is the result of
over (10) ten years of research, design engineering, functional
models (built and tested), feasibility studies, resulting with the
manufacturing, construction and (2) two years of
independent-testing of a full size, completely operational Shuffle
System combined with over $9,500,000.00 in investment to date.
The Computainer System represents the most significant
milestone within the container shipping industry over the past (40)
forty years.
Acquisition Sub will
acquire the assets and all worldwide proprietary Information, such
as, blueprints, patents, copyrights, marketing and licensing
rights, business plans, data reports, methods of doing business,
contact persons, customer lists, studies, findings and ideas, but
not limited to these items. Company will provide certain of
its representatives to disclose and receive those assets and
Proprietary Information in a timely and organized manner. All
parties will maintain the trade secret status of its respective
assets and Proprietary Information.
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ARTICLE I
Acquisition of Acquired Assets and Consideration
Section 2.01 Acquisition of Acquired Assets . Subject to the
terms and conditions set forth in this Agreement, at the Closing,
the Company will sell, assign, transfer, convey and deliver to the
Acquisition Sub, by bills of sale, assignments and other
instruments of transfer in form consistent with this Agreement, and
the Acquisition Sub will purchase and acquire, all of the
Company’s right, title and interest, as of the Closing Date,
in and to the Computainer’s Assets, Computainer’s
Intellectual Property and Material Contracts (collectively, the
“ Acquired Assets ”) free and clear of
any claims, liabilities, liens, security interests, mortgages,
pledges, encumbrances, or restrictions, except for Permitted
Liens.
Section 2.02 Consideration . In consideration of the sale,
transfer, conveyance, assignment, and delivery to the Acquisition
Sub of the Acquired Assets pursuant to this Agreement, the
Acquisition Sub will deliver at the Closing the Parent Common Stock
and all certificates representing the Parent Common Stock duly
endorsed to the Company (the “ Consideration
”).
Section 2.03 Purchase Price Allocation . The Consideration
payable hereunder for the Acquired Assets shall be allocated among
the various Acquired Assets by Acquisition Sub in a manner
reasonably acceptable to the Company (the “ Purchase
Price Allocation ”). The Purchase Price Allocation
shall be attached as Exhibit “A” to this
Agreement at or within sixty (60) days following the Closing.
Section 2.04 Closing Date and Place . The Closing will be
held at the offices of Dumoulin Black, 10 th floor 595
Howe Street, Vancouver, B.C.,V6C 2T5 as promptly as practicable
following satisfaction or waiver of the conditions set forth in
Article V , other than those conditions which by their terms
are to be satisfied at the closing on December 31, 2007.
ARTICLE
II
Representations and Warranties of the Company
Section 3.01 Organization and Standing . The Company is a
corporation duly organized, validly existing and needs to be in
good standing under the laws of the Federal Government of Canada,
and is duly qualified or licensed to transact business as a foreign
corporation in every other jurisdiction in which the absence of
such qualification might reasonably be expected to have a material
adverse effect on the business, condition (financial or otherwise),
results of operations, prospects or property of the Company or the
Acquired Assets (a “ Company Material Adverse
Effect ”). Parent will assist Company to bring
all filings current within (60) sixty days of signing this
agreement. Port Solutions International Ltd., a B.C. corporation,
is a corporation duly organized, validly existing and in good
standing under the laws of B.C., and is duly qualified or licensed
to transact business as a foreign corporation in every jurisdiction
in which the absence of such qualification might reasonably be
expected to have a Company Material Adverse Effect. Golden Spirit
Enterprises Ltd. is a corporation duly organized, validly existing
and in good standing under the Laws of Delaware, and is duly
qualified or licensed to transact business as a foreign corporation
in every jurisdiction in which the absence of such qualification
might reasonably be expected to have a Material Adverse Effect.
Section 3.02 Subsidiaries . Port Solutions International
Ltd. is a wholly-owned subsidiary of Golden Spirit Enterprises
Ltd..
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Section 3.03 Authorization . The
Company is authorized to sell the asset known as the Computainer
Shuffle System.
Section 3.04 Financial
Statements; The Company will make available to the Acquisition
Sub or Parent its unaudited financial statements (including balance
sheet, income statement and statement of cash flow).
Section 3.05 Assets and Liabilities of the Computainer
Business . The Company has good and marketable title to or a
valid leasehold interest in, or license to property and assets of
the Computainer Business (the “ Comptainer
Assets ”), all of which are set forth on Section
3.05(a) of the Company Disclosure Schedule , free and
clear of all mortgages, liens, security interests, charges, claims,
encumbrances, options and other rights.
Section 3.06 Governmental and Third-Party Consents . No
consent, approval, order, authorization or action of, or
registration, declaration, notice or filing with, any corporation,
person, firm or other third party or any Governmental Entity is
required (i) by or with respect to the execution and delivery of
this Agreement by the Company, the performance by the Company of
its obligations under this Agreement by the Company or the
consummation of the transactions contemplated hereby, or (ii) to
continue to have vested in Acquisition Sub as of the Closing Date
all rights, title, interests and benefits of the Company in the
Acquired Assets (including, without limitation, the Material
Contracts).
Section 3.07 Compliance with Other Instruments . The Company
will not, at the Closing, be in violation of any provisions of its
bylaws, each as in effect as of the Closing, or in any material
respect of any provision of any indenture, instrument or contract
to which it is a party, or of any provision of any federal or state
judgment, writ, decree, order, statute, rule or governmental
regulation applicable to the Company. The execution, delivery and
performance of the Company Agreements will not result in any such
violation or be in conflict with or constitute a default under any
such provision, or result in the creation or imposition of any
lien, charge, restriction, claim or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
There is no such provision that materially and adversely affects
the business, prospects, condition, affairs, operations, properties
or assets of the Computainer Business.
Section 3.08 Litigation, Compliance with Laws . There is no
action, suit, claim, governmental investigation, arbitration or
other legal or administrative proceeding pending or, to the
knowledge of the Company, threatened against the Company at law or
in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, and to the Company’s
knowledge there is no basis for any of the foregoing. The Company
is not in default with respect to any judgment, order, writ,
injunction or decree of any court or of any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which is
known to or as has been served upon the Company. There is no action
or suit by the Company pending or threatened against any other
party. The Company has complied with all laws, rules, regulations
and orders applicable to its current business, operations,
properties, assets, products and services which, if not complied
with, would have a Company Material Adverse Effect. The Company has
all necessary permits, licenses and other authorizations required
to conduct its business as currently conducted which, if not
obtained, would have a Company Material Adverse Effect. There is no
existing law, rule, regulation or order, and the Company after due
inquiry is not aware of any proposed law, rule, regulation or
order, whether foreign or domestic, that would prohibit or restrict
the Company from, or otherwise materially and adversely affect the
Company in conducting its business in any jurisdiction in which it
currently conducts or proposes to conduct its business.
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Section 3.09 Licenses; Permits .
The Company has all licenses and permits it needs to conduct its
business and all such licenses and permits are valid and in effect
and the Company is in compliance with all of the terms and
conditions of each such license and permit.
Section 3.10 Employment, No Conflicting Agreements . To the
knowledgeof the Company, no employee of or consultant to the
Company is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or
subject to any judgment, writ, decree or order of any court or
administrative agency, that would conflict with his or her
obligation to use his or her best efforts to promote the
Company’s business as currently conducted and as proposed to
be conducted. Neither the execution and delivery of the Company
Agreements, nor the carrying on of the Company’s business by
such persons as such business is currently conducted and proposed
to be conducted, will conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under,
any contract, covenant, agreement or other instrument under which
any of the officers, directors or employees of the Company is now
obligated.
Section 3.11 Proprietary Information of Third Parties . No
third party has made a claim against the Company or, to the
knowledge of the Company, has reason to make a claim against the
Company that any person employed by or engaged as an employee,
consultant, agent or representative of the Company has (a) violated
or may be violating any of the terms or conditions of his or her
employment, noncompetition or nondisclosure agreement with such
third party, (b) disclosed or may be disclosing or utilized or may
be utilizing any trade secret or proprietary information or
documentation of such third party or (c) interfered or may be
interfering in the employment relationship between such third party
and any of its current or former employees. To the knowledge of the
Company, no person employed by or engaged as a consultant, agent or
representative of the Company has employed or proposes to employ
any trade secret or any information or documentation proprietary to
any third party, and to the knowledge of the Company, no person
employed by or engaged as a consultant, agent or representative of
the Company has violated any confidential relationship that such
person may have or have had with any third party, in connection
with the development or sale of any proposed service or product of
the Company. Each employee of the Company has entered into an
Employee Confidential Information and Inventions Agreement
substantially in the form provided to Acquisition Sub or Parent,
all of which are considered Material Contracts being assigned to
Acquisition Sub to the extent relating to the Computainer Business.
The Company does not believe it is or will be necessary to utilize
any inventions of any of its employees (or people it currently
intends to hire) made prior to their employment by the Company that
will not be permitted by a license or other agreement that the
Company will enter into relating to such inventions.
Section 3.12 Tax Matters . ” Tax ”
means any federal, state, local or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital
stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty or addition thereto,
whether disputed or not. “ Tax Returns ”
mean all returns, schedules, statements, reports, estimates,
declarations, forms and information returns pertaining to any Tax,
including any schedule or attachment thereto, and including any
amendment thereof, relating to the business operations of the
Company and due on or before the Closing Date.
(a) Filings . The Company has timely filed all Tax
Returns required to be filed by it. All such Tax Returns were
correct and complete in all material respects at the time they were
filed. All Taxes owed by the Company (whether or not shown on any
Tax Return) have been paid when due. The Company is not the
beneficiary of any extension of time within which to file any Tax
Return. No claim has ever been made by any Governmental Entity in a
jurisdiction where the Company does not file Tax Returns that the
Company is or may be subject to taxation by that jurisdiction. There are no liens on any of the properties
or assets of the Company that arose in connection with any failure
(or alleged failure) to pay any Tax.
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(b)
Withholding . the Company has withheld and paid all Taxes
required to have been withheld and paid by it in connection with
amounts paid or owing to any employee, shareholder, independent
contractor, creditor or other third party.
(c)
Assessments and Disputes; Audit . There is no assessment of
or additional Tax owing for any period for which Tax Returns have
been filed by the Company. There is no dispute or claim concerning
any Tax liability of the Company either (i) claimed by any
Governmental Entity or (ii) as to which the Company has
knowledge.
(d)
Statutes of Limitation . The Company has not waived any
statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment or
deficiency.
Section 3.13 Corporate Records . All material transactions
to date to which the Company is or has been a party or in which it
is or has been otherwise involved have been fairly reflected in its
financial records and other appropriate corporate books and records
(which have been made available to Acquisition Sub or Parent).
Section 3.14 Employee Matters . The Company has not
maintained or contributed to nor is it required to contribute to
any “employee welfare benefit plan
Section 3.15 Absence of Environmental Liabilities . At all
times prior to the Closing Date, the Company has been in material
compliance with all applicable environmental laws and regulations
relating to the conduct of its business. The Company’s
operations are not in any material violation of any federal, state
or local law or regulation relating to industrial hygiene, worker
safety, or Hazardous Materials, including soil and waste water
conditions. For the purposes of this Agreement, “
Hazardous Materials ” means any material or
substance that is prohibited or regulated by any environmental law
or that has been designated by any governmental authority to be
radioactive, toxic, hazardous or otherwise a danger to health,
reproduction or the environment. The Company’s environmental
licenses, permits, clearances, covenants and authorizations
material to its operations are in full force and effect.
Section 3.16 Information Statement . None of the information
contained in the Information Statement (as defined below) (and any
amendments thereof or supplements thereto) will at the time of the
mailing of the Information Statement to the stockholders of the
Company and at the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading, except that no representation is made by the
Company with respect to statements made or omitted in the
Information Statement based on information supplied by Acquisition
Sub or Parent for inclusion in the Information Statement.
Section 3.17 Disclosure . Neither this Agreement nor any
schedule or exhibit attached to this Agreement, the Financial
Statements, or any certificate, letter or other instrument or
document referred to herein and furnished to the Acquisition Sub or
Parent by the Company contains any untrue statement of a material
fact or omits to state a material fact necessary to make the
statements contained therein or herein, in the light of the
circumstances under which they were made, not misleading.
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Section 3.18 No Broker . No
finder, broker, agent or other intermediary has acted for or on
behalf of the Company in connection with the transaction
contemplated by the Agreement and the Company hereby agrees to
indemnify and hold the Parent and Acquisition Sub harmless from and
against any claims for brokerage commissions, finder’s fees
or similar payments as the result of actions by the Company.
Section 3.19 Material Contracts . Section 3.19 of the
Company Disclosure Schedule is a complete list of all notes,
mortgages, indentures, leases, licenses, contracts, instruments and
agreements relating to the Computainer Business.
Section 3.20 Insurance . Section 3.20 of the
Company Disclosure Schedule lists all insurance policies of
the Company now in force relating to the Computainer Business and
all real and personal properties thereof, including in each
instance the name of the carrier, the term of the policy, the
periods for which it has been continuously in effect, the annual
premium, the scope of coverage and deductibles, a list of all
claims made in the last five (5) years and a list of all pending
claims and claims which have not been finally settled or
adjudicated with all rights of appeal expired. The premiums for
such insurance policies are fully paid and will be kept current
through the Closing Date. There are no loans outstanding against
any of such policies. Such insurance shall continue in full force
through the Closing Date. The Company has complied in all material
respects with the terms and provisions of its insurance policies.
The Company has never applied for and been refused or denied any
policy of insurance with respect to product or other liability
matters, environmental matters, workers’ compensation or any
other matter.
Section 3.21 Loss on Contracts . To the knowledge of the
Company, no Material Contract is of a duration that is greater than
is typical or customary for contracts of a similar nature entered
into by businesses of a similar nature to the Company
Section 3.22 Intellectual Property . Section 3.22(a)
of the Company Disclosure Schedule lists with respect to the
Computainer Business (i) all patents and patent applications and
all registered and unregistered trademarks, trade names and service
marks and applications therefor, registered and unregistered
copyrights and mask works and applications therefor, that are
included in the Computainer Intellectual Property, including the
jurisdictions in which each such Computainer Intellectual Property
right has been issued or registered or in which any application for
such issuance and registration has been filed, (ii) all licenses,
sublicenses and other agreements to which the Company is a party
and pursuant to whi
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