Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - Business Marketing Services Inc | f8k031210_business.htm |
| EX-10.4 - PLEDGE AGREEMENT - Business Marketing Services Inc | f8k031210ex10iv_business.htm |
| EX-10.3 - PROMISSORY NOTE - Business Marketing Services Inc | f8k031210ex10iii_business.htm |
Exhibit 10.2
|
GTRADE
|
1
| TABLE | OF | CONTENTS |
| 1 Background | 1 |
| 5 Assets | 1 |
| 11 Purchase Price | 2 |
| 13 Assigned contracts, licenses and transfer of Intellectual Property | 2 |
| 16 Assumed liabilities | 2 |
| 18 Conditions Precedent to Buyer’s obligations | 3 |
| 21 Closing | 3 |
| 24 Representations and Warranties of the Seller | 4 |
| 31 Co-operation by the Seller | 4 |
| 33 Indemnification | 5 |
| 34 Non-Competition | 5 |
| 35 Entire Agreement | 5 |
| 36 Amendments and Waivers | 5 |
| 39 Notices | 5 |
| 42 Assignments | 6 |
| 43 Interpretation | 6 |
| 44 Partial Invalidity | 6 |
| 45 Governing Law and Disputes | 6 |
APPENDICES:
|
Appendix
|
Assets
|
2
BETWEEN:
|
(1)
|
|
(2)
|
Business Marketing Services,
Inc, One Broadway Street, 10th
floor, Cambridge, MA 02142, USA (the
“Buyer”).
|
The
Seller and the Buyer are in the following referred to as the “Parties” and
individually the “Party”.
|
1
|
Background
|
|
2
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The
Seller is presently engaged in the development of a trading
platform.
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3
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The
Buyer is engaged in the development, marketing and operation of new
services and wishes to acquire certain assets of the Seller in order to
expand its capabilities.
|
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4
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The
Parties therefore have agreed that certain assets shall be sold and
transferred by the Seller to the Buyer on the terms and conditions set out
in this Agreement.
|
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5
|
Assets
|
|
6
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Upon
the terms and subject to the conditions set out in this Agreement, the
Seller agrees to sell and the Buyer agrees to purchase the assets listed
in Appendix A.
(the “Assets”). In this regard, the Seller hereby informs the Buyer
that the trademarks transferred have been free for unlicensed use by the
public for a long time and are considered to be in the public domain,
including commercial use. All software transferred is also in the public
domain, including commercial use and as such not protected by copyright.
No copies of the site source code or the database structure have however
for security reasons been distributed to the public or outside the
Seller’s and previous owners’ circle of
knowledge.
|
3
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7
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The
Assets shall be transferred to the Buyer on the date set out in clauses 23
to 25 of this Agreement (the “Closing
Date”).
|
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8
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All
revenues, costs, risks, liabilities and expenses related to the Assets
due, attributable to or accrued before an on the Closing Date shall be for
the account of the Seller and all revenues costs, risks, liabilities and
expenses related to the Assets due, attributable to or accrued after the
Closing Date shall be for the account of the
Buyer.
|
|
9
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The
excluded assets not to be sold or transferred to the Buyer include e.g.
any and all existing hardware and any legal entity or business entity used
for conducting the Seller’s
business.
|
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10
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All
domain names included in the Assets shall be transferred to the Buyer
on Closing.
|
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11
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Purchase
Price
|
|
12
|
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13
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Assigned
contracts, licenses and transfer of Intellectual
Property
|
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14
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In
so far as any contract or license, relevant to the full enjoyment of the
Assets by the Buyer, cannot effectively be assigned to the Buyer through,
e.g. consent or novation, as long as a need for such a contract or license
prevails and to the extent the contract or license so permits, the Buyer
shall perform on behalf of the Seller all the obligations of the Seller
which fall to be performed after the Closing Date and receive all the
benefits from such contract or license in respect of the period after the
Closing Date.
|
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15
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The
Seller undertakes to promptly upon the request of the Buyer execute all
transfer documents and to do all necessary acts and things in order to
validly transfer to the Buyer, or aid the Buyer in registering or
otherwise protecting or enjoying, the Intellectual Property
Rights.
|
|
16
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Assumed
liabilities
|
|
17
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The
Buyer shall not assume any obligations, debts or liabilities of the
Seller’s business of whatever kind or nature, whether known or unknown and
whether actual or contingent.
|
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18
|
Liability
of the Seller
|
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19
|
With
the exception for the provision of the aforementioned 'Representations and
Warranties of the Seller' clause, the Sellers shall not be accountable for
any liability, financial or otherwise, arising as a result of death,
personal injury, damage to property, financial harm or detriment of any
kind, caused directly or indirectly, immediate or consequential, by the
Buyer's purchase and enjoyment of the assets described in Appendix
A.
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4
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20
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Conditions
Precedent to Buyer’s obligations
|
|
21
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The
obligations of the Buyer to complete the transaction contemplated by this
Agreement shall be subject to:
|
|
(a)
|
the
Buyer being satisfied, it its sole discretion, that the Assets are not
being used in any illegal or inappropriate
activities;
|
|
(b)
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the
Buyer having obtained financing on terms and in such amounts as the Buyer
may in its sole discretion deem acceptable and
appropriate;
|
|
(c)
|
any
required approvals or authorizations of the transaction contemplated by
this Agreement having been given by the shareholders meeting of the Buyer
(e.g. changes to the Articles of Association of the Buyer, authorisations
of the issuance of the Promissory Note,
etc.);
|
|
(d)
|
the
Buyer having, in its sole discretion, duly resolved to issue the
Promissory Note, and the Buyer being satisfied that the Buyer has the
necessary authority and capacity to issue the Promissory
Note.
|
|
22
|
In
the event the Buyer has used all reasonable endeavours to fulfil the
conditions precedents but they have not been fulfilled on or before the
Closing Date, the Buyer shall be entitled, in its sole discretion, to
terminate this Agreement forthwith in writing, and the Seller shall not be
entitled to any compensation of any kind due to such
termination.
|
|
23
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Closing
|
|
24
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Closing
shall take place at Law Office of Marcus G. Bodet, P.A., 1825 Main Street,
Weston, Florida 33326, Tel: (786) 327-2062, Fax: (786)
515-9337, Email: mbodet@bodetlaw.com, and at the Sydney Office of Arnold
Bloch Leibler, Level 24, Chifley Tower, 2 Chifley Square, Sydney NSW 2000,
Australia DX489 Sydney, T: +61 2 9226 7100 on February 24, 2010, or in
such other place or by such other manner or time as the parties mutually
agree (“Closing”).
|
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25
|
At
Closing:
|
|
(a)
|
the
Seller shall deliver to the Buyer all such of the Assets as are capable of
being transferred by physical
delivery;
|
|
(b)
|
the
Seller shall deliver to the Buyer all such documents as are required by
the Buyer to complete the sale and purchase of the Assets to the Buyer and
vest title in the Assets in the
Buyer;
|
5
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(c)
|
the
Seller shall deliver to the Buyer all relevant computer programs, web
hosting agreements, access codes, IP-addresses etc, and any digital
transfer verifications that the relevant Assets have been
transferred;
|
|
(d)
|
the
Seller shall deliver to the Buyer proof of release to the Buyer of any
Assets held in escrow for the benefit of the
Buyer;
|
|
(e)
|
the
Buyer shall make Payment of the Purchase Price by Providing a Promissory
Note to the Seller in the amount of USD 300,000 in the form set out in
Appendix B
|
The Buyer
may in its sole discretion waive any requirement placed on the Seller contained
in this Section.
|
26
|
Representations
and Warranties of the Seller
|
|
27
|
The
Seller lawfully owns and has good and marketable title to the Assets, free
and clear of all encumbrances and there exists no agreement to create any
encumbrance over any of the Assets. The Buyer will through this Agreement
acquire good and marketable title to the Assets free of any and all
encumbrances.
|
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28
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The
Seller warrants that none of the Assets are restricted from commercial use
by way of licensing terms or limited consents in any form, and the
consummation of the transaction contemplated by this Agreement will not
cause any impairment of any of the
Asset.
|
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29
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|
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30
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If
after Closing Date the Buyer discovers that there are Assets that have not
been properly transferred to the Buyer in accordance with this Agreement,
the Seller undertakes to take any reasonable measure to assist the Buyer
to promptly complete such transfer.
|
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31
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The
Seller represents that it shall in no way act so as to diminish or impair
the value of the Assets, or obstruct the full enjoyment of the Assets by
the Buyer.
|
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32
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There
are no facts or circumstances relating to the Assets which have not been
disclosed to the Buyer and which, if disclosed, might reasonably have been
expected to influence the decision of the Buyer to purchase the Assets on
the terms of this Agreement.
|
|
33
|
Co-operation
by the Seller
|
6
|
34
|
The
Seller shall, at any time and from time to time, whether before, at, or
after the Closing Date, execute and deliver any further instruments or
documents and, at its own cost, take all such further action as the Buyer
may reasonably request in order to consummate effectively the transactions
contemplated by this Agreement and to deliver to the Buyer legal title to
the Assets. The Seller will use its best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary to
consummate and make effective as promptly as possible the transactions
contemplated by this Agreement and to co-operate with others in connection
with the foregoing. The Seller shall use its best efforts to obtain the
authorisations, consents, orders and approvals of regulatory bodies and
officials that may be or become necessary for the performance of its
obligations pursuant to this Agreement and the consummation of the
transactions contemplated by it.
|
|
35
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Indemnification
|
The
Seller shall be liable and indemnify and hold the Buyer harmless from and
against any and all losses attributable to a breach of the representations and
warranties given by the Seller in this Agreement or covenants or agreements made
or to be performed by the Seller pursuant to this Agreement.
|
36
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Non-Competition
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37
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The
Seller may not for a period of three (3) years as from the Closing Date,
not directly or indirectly, have an ownership interest in, carry on any
business or be engaged in the development, marketing and operation of a
Securities Trading Services that, directly or indirectly, compete with the
business related to the Assets transferred to the Buyer pursuant to this
Agreement. The scope of Securities Trading Services is limited to the
trading and exchange of financial instruments including common stock,
futures contracts, bonds but not including trading of wagers such as a
Betting Exchange.
|
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38
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Entire
Agreement
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Each of
the Parties to this Agreement confirms that this Agreement represents the entire
understanding and constitutes the whole agreement between the Parties relating
to the subject matter hereof and supersedes all prior agreements, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, agent, employee or representative of either of the
Parties.
7
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39
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Amendments
and Waivers
|
|
40
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This
Agreement may only be amended, changed or modified by an instrument in
writing duly executed by the
Parties.
|
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41
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In
no event shall any delay, failure or omission of a Party in enforcing,
exercising or pursuing any right, claim or remedy under this Agreement be
deemed as a waiver thereof, unless such right, claim or remedy has been
expressly waived in writing.
|
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42
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Notices
|
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43
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All
notices and other communications required or permitted under this
Agreement must be in writing in the English language and shall be deemed
to have been received by a Party
when:
|
|
(a)
|
delivered
by post, unless actually received earlier, on the third Business Day after
posting, if posted within the USA, or the fifth Business Day, if posted to
or from a place outside the USA;
|
|
(b)
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delivered
by hand, on the day of delivery;
|
|
(c)
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delivered
by E-mail.
|
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44
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All
notices and communications required or permitted under this Agreement
shall be addressed as set out below or to such other addresses as may be
given by written notice in accordance with this
Section.
|
| If to the Seller: | Emil Koutanov | ekoutanov@obsidiandynamics.com | |
| Guy Havenstein | guy.havenstein@gmail.com | ||
| Tony Fle-Danijelovich | tonyfle@hotmail.com | ||
| If to the Buyer: | Business Marketing Services, Inc | ||
| Attention: Mr. Hans Pandeya | |||
| President | |||
| Business Marketing Services, Inc | |||
| PO Box 55071 #40022 | |||
| Boston, MA 02205-5071 | |||
| hans.pandeya@gmail.com |
|
45
|
Assignments
|
This
Agreement, and the rights and obligations hereunder, shall be binding upon and
inure to the benefit of the successors of the Parties but shall not be
assignable by any of the Parties without the prior written consent of the other
Party. However, this Agreement may be assigned by either of the Parties to any
company directly or indirectly controlling, controlled by or under common
control of the assignor, provided that the assignor shall remain liable as for
its own debt for
all obligations under this Agreement.
8
|
46
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Interpretation
|
The
headings in this Agreement are for ease of reference only and shall not affect
the interpretation of any provision of this Agreement.
|
47
|
Partial
Invalidity
|
If any
provision of this Agreement or the application of it shall be declared or deemed
void, invalid or unenforceable in whole or in part for any reason, the remaining
provisions of this Agreement shall continue in full force and effect. The
Parties shall seek to amend such void, invalid or unenforceable provisions and
thereby this Agreement in order to give effect to, so far as is possible, the
spirit of this Agreement and to achieve the purposes intended by the
Parties.
|
48
|
Governing
Law and Disputes
|
|
49
|
This
Agreement shall be governed by and construed in accordance with the laws
of the courts of NSW, Australia.
|
|
50
|
Any
dispute, controversy or claim arising out of, or in connection with, this
Agreement, or the breach, termination or invalidity of the Agreement,
shall be settled by arbitration in accordance with the Arbitration Rules
of the International Arbitration Institute in
Australia.
|
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51
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The
place of arbitration shall be Sydney,
Australia.
|
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52
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The
language to be used in the arbitral proceedings shall be
English.
|
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53
|
The
Parties undertake and agree that all arbitral proceedings conducted with
reference to this arbitration clause will be kept strictly confidential.
This confidentiality undertaking shall cover all information disclosed in
the course of such arbitral proceedings, as well as any decision or award
that is made or declared during the proceedings. Information covered by
this confidentiality undertaking may not, in any form, be disclosed to a
third party without the written consent of the Parties hereto. This
notwithstanding, a Party shall not be prevented from disclosing such
information in order to safeguard in the best possible way his rights
vis-à-vis the other Party in connection with the dispute, or if the Party
is obliged to so disclose pursuant to statute, regulation, a decision by
an authority, a stock exchange contract or
similar.
|
|
54
|
In
case this Agreement or any part of it is assigned or transferred to a
third party, such third Party shall automatically be bound by the
provisions of this arbitration
clause.
|
9
This
Agreement has been duly executed in two original copies, of which each of the
Parties has taken one copy.
BUYER:
Cambridge,
Massachussettes
Business
Marketing Services, Inc
/s/ Hans
Pandeya
Name:Hans
Pandeya
Title:
President
SELLER:
| Name: | Name: | |
| Title: | Title: |
| Name: | |
| Title: |
| /s/ Guy Havenstein | /s/Emil Koutanov | |
| Guy Havenstein | Emil Koutanov | |
| /s/ Tony Fle-Danijelovich | ||
| Tony Fle-Danijelovich |
10