EXHIBIT 7.2
SERIES A CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
BETWEEN
▇▇▇▇▇▇ TREE CONSTRUCTION, INC.
(THE COMPANY)
AND
CANADIAN ADVANTAGE LIMITED PARTNERSHIP
(THE PURCHASER)
DATED AS OF JANUARY 11, 2002
SERIES A CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
This Series A Convertible Preferred Stock Purchase Agreement (this
"Agreement") is made and entered into as of January 11, 2002 (the "Effective
Date"), between ▇▇▇▇▇▇ Tree Construction, Inc. (the "Company"), a Nevada
corporation, and Canadian Advantage Limited Partnership (the "Purchaser"), a
limited partnership organized under the laws of the Province of Ontario, Canada.
BACKGROUND
The Company has authorized the issuance, sale, and delivery of 200,000
shares (the "Shares") of the Company's Series A Convertible Preferred Stock, par
value $0.001 (the "Series A Preferred") at a price per Share of $.01, in
currency of the United States of America, for a total purchase price of $20,000.
Each Share of Series A Preferred is convertible into one share of the Company's
common stock, $0.001 par value ("Common Stock"). The Purchaser wishes to
purchase the Shares upon the terms and conditions stated in this Agreement. The
Purchaser is purchasing the Shares in reliance upon the exemption from the
registration requirements of Section 5 of the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and the safe harbor afforded by Rule 903
promulgated by the U.S. Securities and Exchange Commission (the "SEC").
AGREEMENT
For and in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
hereby agree as follows:
SECTION 1. SERIES A PREFERRED.
SECTION 1.1. ISSUANCE AND SALE OF SERIES A PREFERRED SHARES
The Company agrees to issue and sell the Shares to the Purchaser, and
the Purchaser agrees to purchase the Shares from the Company, at the Closing,
for the purchase price of US$20,000 (the "Purchase Price").
SECTION 1.2. CLOSING.
The closing of the purchase and sale of the Shares (the "Closing")
shall take place at the offices of the Purchaser, Sixteenth Floor, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, at 4:00pm, Toronto time, on
Monday, January 14, 2002 (the "Closing Date"), or on such other date or such
other time or place as the parties may agree.
SECTION 1.3. DELIVERIES AT CLOSING
At the Closing the Company shall deliver to Purchaser:
(a) this Agreement, executed by the Company;
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(b) a certificate for the Shares, registered in the
Purchasers' name, free and clear of any claims, and containing a legend
complying with the requirements of SEC Rule 903(b)(3)(iii)(B)(3); and
(c) the Registration Rights Agreement (defined in Section 4.9
below), executed by the Company, in substantially the form of Exhibit A
hereto; and
The Purchaser shall deliver the Purchase Price to the Company.
SECTION 2. PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Company:
SECTION 2.1. INVESTMENT PURPOSE
The Purchaser is acquiring the Shares, for their own account for
investment only and not with a view towards, or for resale in connection with,
the public sale or distribution thereof, provided however, that by making the
representations herein, the Purchaser do not agree to hold any Shares for any
minimum or other specific term. The Purchaser acknowledges that the Shares may
not be resold in the United States, or to or for the account of a U.S. person as
defined by SEC Rule 902(k), except pursuant to an effective registration
statement under the Securities Act or after the expiration of the one-year
distribution compliance period provided in SEC Rule 903(b)(3)(iii)(A).
SECTION 2.2. ACCREDITED PURCHASER STATUS
The Purchaser is an "accredited investor" as that term is defined in
Rule 501(a)(3) of Regulation D of the SEC.
SECTION 2.3. RELIANCE ON REGULATION S EXEMPTION
The Purchaser understands that the Shares are being offered and sold to
it in reliance on the exemption from the registration requirements of Section 5
of the Securities Act for offshore transactions as defined in SEC Rule 902(h),
and that the Company is relying in part upon the truth and accuracy of, and the
Purchaser's compliance with, the representations, warranties, agreements,
acknowledgments, and understandings of the Purchasers set forth herein in order
to determine the availability of such exemptions and the eligibility of the
Purchaser to acquire such Shares. With respect to that exemption, the Purchaser
further represents and warrants to the Company that:
(a) The Purchaser is not a U.S. Person as defined in SEC Rule
902(k).
(b) The offer to sell the Shares to the Purchaser was not made
in the United States, and was made in Toronto, Ontario.
(c) The Purchaser's buy orders for the Shares were made
outside the United States, and were made in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
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(d) The Purchaser has complied with all of the conditions
required of then by SEC Rule 903(b)(3).
SECTION 2.4. INFORMATION
The Purchaser and its advisors, if any, have been furnished with all
materials relating to the proposed business, financial condition, and operations
of the Company and materials relating to the offer and sale of the Shares, that
have been requested by the Purchaser. The Purchaser and its advisors, if any,
have been afforded the opportunity to ask questions of the Company. Neither such
inquiries nor any other due diligence investigations conducted by the Purchaser
or its advisors, if any, or their representatives shall modify, amend, or affect
the Purchaser's right to rely on the Company's representations and warranties
contained in Section 3 below. The Purchaser understands that its investment in
the Shares involves a high degree of risk. The Purchaser has sought such
accounting, legal, and tax advice as it has considered necessary to make an
informed investment decision with respect to their acquisition of the Shares.
SECTION 2.5. NO GOVERNMENTAL REVIEW
The Purchaser understands that no United States federal or state agency
or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Shares, or the fairness or suitability of
the investment in the Shares, nor have such authorities passed upon or endorsed
the merits of the offering of the Shares.
SECTION 2.6. AUTHORIZATION ENFORCEMENT
This Agreement has been duly and validly authorized, executed, and
delivered by the Purchaser and is a valid and binding agreement of the Purchaser
enforceable in accordance with its terms, subject as to enforceability to
general principles of equity and to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors' rights and
remedies.
SECTION 2.7. ORGANIZATION
The Purchaser is a limited partnership organized under the laws of the
Province of Ontario, Canada.
SECTION 2.8. NO SCHEME TO EVADE REGISTRATION.
The acquisition of the Shares is not a transaction (or any element of a
series of transactions) that is part of a plan or scheme by the Purchaser to
evade the registration provisions of the Securities Act.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that:
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SECTION 3.1. ORGANIZATION AND QUALIFICATION
The Company is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Nevada, and has the requisite
corporate power to own its properties and to carry on its business as now being
conducted. The Company is not qualified as a foreign corporation to do business
in any other jurisdiction. The Company has no subsidiaries.
SECTION 3.2. AUTHORIZATION, ENFORCEMENT, COMPLIANCE WITH OTHER
INSTRUMENTS.
(a) The Company has the requisite corporate power and
authority to enter into and perform this Agreement and to issue the
Shares;
(b) the execution and delivery of this Agreement by the
Company, and the consummation by it of the transactions contemplated
hereby, including without limitation the issuance of the Shares, have
been duly authorized by the Company's Board of Directors and no further
consent or authorization is required by the Company, its Board of
Directors or its stockholders;
(c) this Agreement has been duly executed and delivered by the
Company and the persons signing on behalf of the Company have full
power and authority to do so; and
(d) this Agreement constitutes the valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, or similar laws relating to,
or affecting generally, the enforcement of creditors' rights and
remedies.
SECTION 3.3. CAPITALIZATION
Immediately prior to Closing, the authorized capital stock of the
Company consisted of 25,000,000 shares, divided into (i) 20,000,000 shares of
Common Stock, $0.001 par value, of which 312,000 are issued and outstanding; and
(ii) 5,000,000 shares of Preferred Stock, $0.001 par value, of which 200,000
shares have been designated Class A Convertible Preferred Stock. No shares of
Preferred Stock are issued and outstanding.
SECTION 3.4. ISSUANCE OF SHARES
The Shares are duly authorized and, upon issuance in accordance with
the terms hereof, shall be validly issued, fully paid, and nonassessable, are
free from all taxes, liens, and charges with respect to the issue thereof and
are entitled to the rights and preferences set forth in the Shares. The Shares
are "restricted securities" as defined by SEC rules, and may be transferred,
assigned or resold by the Purchaser only in accordance with the Securities Act
and the SEC rules promulgated thereunder.
SECTION 3.5. NO CONFLICTS
The execution, delivery, and performance of this Agreement and the
Acquisition Agreement by the Company, and the consummation by the Company of the
transactions
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contemplated hereby and thereby, will not (a) result in a violation of the
Certificate of Incorporation, any Certificate of Designation applicable to any
Preferred Stock of the Company, or the Bylaws of the Company or (b) conflict
with, constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration, or cancellation of, any agreement, indenture, or
instrument to which the Company is a party, or result in a violation of any law,
rule, regulation, order, judgment, or decree (including federal and state
securities laws and regulations) applicable to the Company or by which any
property or asset of the Company is bound or affected. The Company is not in
violation of any term of, or in default under, its Certificate of Incorporation
or Bylaws, or any material contract, agreement, mortgage, indebtedness,
indenture, instrument, judgment, decree, or order or any statute, rule, or
regulation applicable to the Company. The business of the Company is not being
conducted and shall not be conducted in violation of any law, ordinance, or
regulation of any governmental entity. Except as specifically contemplated by
this Agreement, and as required under the Securities Act and any applicable
state securities laws, the Company is not required to obtain any consent,
authorization, or order of, or make any filing or registration with, any court
or governmental agency in order for it to execute, deliver, and perform any of
its obligations under or contemplated by this Agreement and the Acquisition
Agreement in accordance with the terms hereof or thereof. All consents,
authorizations, orders, filings, and registrations which the Company is required
to obtain pursuant to the preceding sentence have been obtained or effected on
or prior to the date hereof. The Company is unaware of any facts or
circumstances which might give rise to any of the foregoing.
SECTION 3.6. REPORTING STATUS
The Common Stock is registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Company is a
"reporting company" as defined under the rules and regulations of the SEC
adopted under the Exchange Act. The Common Stock is quoted on the Nasdaq OTC
Bulletin Board. Since January 31, 2001, the Company has filed in a timely manner
all statements, reports and other instruments (collectively, the "SEC Reports"),
required by the rules and regulations of the SEC to be filed by a reporting
company under the Exchange Act. The SEC Reports, including without limitation
the Company's financial statements contained therein, when filed, were true,
accurate and complete in all material respects. No SEC Report, including any
exhibits thereto, contained any material misstatement of fact or omitted to
state a material fact or any fact necessary to make the statements contained
therein not materially misleading.
SECTION 3.7. ABSENCE OF CERTAIN CHANGES
Since the date of the Company's most recent quarterly report filed with
the SEC on Form 10Q-SB, there has been no material adverse change and no
material adverse development in the business, properties, operations, financial
condition, results of operations, or prospects of the Company that has not been
reported on a Form 8-K filed with the SEC. The Company has not taken any steps,
and does not currently expect to take any steps, to seek protection pursuant to
any bankruptcy law nor does the Company have any knowledge or reason to believe
that its creditors intend to initiate involuntary bankruptcy proceedings.
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SECTION 3.8. ABSENCE OF LITIGATION
There is no action, suit, proceeding, inquiry, or investigation before
or by any court, public board, government agency, self-regulatory organization,
or body pending or, to the knowledge of the Company, threatened against or
affecting the Company or the Series A Preferred, in which an unfavorable
decision, ruling or finding would (a) have a material adverse effect on the
transactions contemplated hereby, (b) adversely affect the validity or
enforceability of, or the authority or ability of the Company to perform its
obligations under this Agreement or the Acquisition Agreement, or any of the
other documents contemplated herein or therein, or (c) have a material adverse
effect on the business, operations, properties, financial condition, or results
of operation of the Company.
SECTION 3.9. PURCHASE OF SHARES
The Company's decision to enter into this Agreement has been based
solely on the independent evaluation by the Company and its representatives.
SECTION 3.10. NO UNDISCLOSED EVENTS, LIABILITIES, DEVELOPMENTS, OR
CIRCUMSTANCES
No event, liability, development, or circumstance has occurred or
exists, or is contemplated to occur, with respect to the Company or its
businesses, properties, prospects, operations, or financial condition, which
could be material but which has not been publicly announced or disclosed in
writing to the Purchaser.
SECTION 3.11. NO GENERAL SOLICITATION
Neither the Company, nor any of its affiliates, nor any person acting
on its or their behalf, has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D under the Securities
Act) in connection with the offer or sale of the Shares.
SECTION 3.12. NO INTEGRATED OFFERING
Neither the Company, nor any of its affiliates, nor any person acting
on its or their behalf has, directly or indirectly, made any offers or sales of
any security or solicited any offers to buy any security, under circumstances
that would require registration of the Shares under the Securities Act or cause
this offering of the Shares to be integrated with prior offerings by the Company
for purposes of the Securities Act or any applicable stockholder approval
provisions.
SECTION 3.13. INTERNAL ACCOUNTING CONTROLS
The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (a) transactions are executed in
accordance with management's general or specific authorizations, (b)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (c) access to assets is permitted only in
accordance with management's general or specific authorization, and (d) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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SECTION 3.14. NO MATERIALLY ADVERSE CONTRACTS, ETC.
The Company is not subject to any charter, corporate, or other legal
restriction, or any judgment, decree, order, rule, or regulation which in the
judgment of the Company's officers has, or is expected in the future to have, a
material adverse effect on the business, properties, operations, financial
condition, results of operations, or prospects of the Company. The Company is
not a party to any contract or agreement which in the judgment of the Company's
officers has, or is expected to have, a material adverse effect on the business,
properties, operations, financial condition, results of operations, or prospects
of the Company.
SECTION 3.15. TAX STATUS
The Company has made or filed all federal and state income and all
other tax returns, reports, and declarations required by any jurisdiction to
which it is subject (unless and only to the extent that the Company has set
aside on its books provisions reasonably adequate for the payment of all unpaid
and unreported taxes), and has paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such
returns, reports, and declarations, except those being contested in good faith
and has set aside on its books provision reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports,
or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim.
SECTION 3.16. CERTAIN TRANSACTIONS
Except for arm's length transactions pursuant to which the Company
makes payments in the ordinary course of business upon terms no less favorable
than the Company could obtain from third parties, none of the officers,
directors, or employees of the Company is presently a party to any transaction
with the Company (other than for services as employees, officers, and
directors), including any contract, agreement, or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any
officer, director, or such employee or, to the knowledge of the Company, any
corporation, partnership, trust, or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee, or partner.
SECTION 3.17. FEES AND RIGHTS OF FIRST REFUSAL
The Company is not obligated to offer the securities offered hereunder
on a right of first refusal basis or otherwise to any third parties including,
but not limited to, current or former shareholders of the Company, underwriters,
brokers, agents, or other third parties. The Company is not obligated to pay any
commission or fee in connection with the issuance and sale of the Shares for
which the Agent or any Purchaser is or may become liable.
SECTION 3.18. REGULATION S EXEMPTION
The Company understands that the Purchaser is purchasing the Shares in
reliance on the exemption from the registration requirements of Section 5 of the
Securities Act for offshore transactions as defined in SEC Rule 902(h), and that
the Purchaser is relying in part upon the
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truth and accuracy of, and the Company's compliance with, the representations,
warranties, agreements, acknowledgments, and understandings of the Company set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Company to issue and sell the Shares to the Purchaser without
having complied with those registration requirements. With respect to that
exemption, the Company further represents and warrants to the Purchaser that:
(a) The Company has not offered any of the Shares to a U.S.
Person (as defined in SEC Rule 902(k)) or to a person in the United
States.
(b) The offer and sale of the Shares to the Purchasers are
being made in an offshore transaction as defined in SEC Rule 902(h).
(c) The Company has not engaged in any directed selling
efforts, as defined in SEC Rule 902(c), with respect to the Shares.
(d) The Company has complied with all of the conditions
required of it under SEC Rule 902(b)(3).
SECTION 4. COVENANTS
SECTION 4.1. BEST EFFORTS
Each party shall use its best efforts timely to satisfy each of the
conditions to be satisfied by it as provided in Sections 5 and 6 of this
Agreement.
SECTION 4.2. COMPLIANCE WITH REGULATION S
Each party shall comply with all of the terms of SEC Rule 903(b)(3)
required of it with respect to the Shares.
SECTION 4.3. USE OF PROCEEDS
The Company will use the proceeds from the sale of the Shares for
general working capital purposes.
SECTION 4.4. REPORTING STATUS
The Company will file in a timely manner all SEC Reports required to be
filed by a reporting company under the Exchange Act and the rules and
regulations of the SEC. Such SEC Reports shall be true, accurate and complete in
all material respects, and shall not contain any material misstatement of fact
or omit to state a material fact or any fact necessary to make the statements
contained therein not materially misleading.
SECTION 4.5. LISTINGS
The Company shall maintain the listing of its Common Stock on the
NASDAQ OTC Bulletin Board, and upon the NASDAQ Small Cap Market as soon
thereafter as it is eligible therefor.
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SECTION 4.6. CORPORATE EXISTENCE
So long as the sum of the number of shares of (i) Common Stock into
which the Shares held by the Purchaser are convertible, and (ii) Common Stock
held by the Purchaser exceeds 1% of the outstanding Common Stock, the Company
shall not directly or indirectly consummate any merger, reorganization,
restructuring, consolidation, sale of all or substantially all of the Company's
assets, or any similar transaction or related transactions (each such
transaction, a "Sale of the Company") except if the surviving or successor
entity in such transaction is a publicly traded corporation whose Common Stock
is listed for trading on the New York Stock Exchange, Inc., the American Stock
Exchange, or the NASDAQ National Market.
SECTION 4.7. TRANSACTIONS WITH AFFILIATES
So long as the sum of the number of shares of (i) Common Stock into
which the Shares held by the Purchaser are convertible, and (ii) Common Stock
held by the Purchaser, exceeds 1% of the outstanding Common Stock, the Company
shall not, and shall cause each of its subsidiaries not to, enter into, amend,
modify, or supplement, or permit any subsidiary to enter into, amend, modify, or
supplement any agreement, transaction, commitment, or arrangement with any of
its or any subsidiary's officers, directors, persons who were officers or
directors at any time during the previous two years, stockholders who
beneficially own 5% or more of any class of the Company's capital stock, or
affiliates, or with any individual related by blood, marriage, or adoption to
any such individual or with any entity in which any such entity or individual
owns a 5% or more beneficial interest (each, a "Related Party"), except for (i)
transactions contemplated by the Acquisition Agreement, (ii) customary
employment arrangements and benefit programs on reasonable terms, (iii) any
agreement, transaction, commitment, or arrangement on an arms-length basis on
terms no less favorable than terms which would have been obtainable from a
person other than such Related Party, (vi) any agreement, transaction,
commitment, or arrangement which is approved by a majority of the disinterested
directors of the Company, for purposes hereof, any director who is also an
officer of the Company or any subsidiary of the Company shall not be
disinterested director with respect to any such agreement, transaction,
commitment, or arrangement. "Affiliate" for purposes hereof means, with respect
to any person or entity, another person or entity that, directly or indirectly,
(1) has a 5% or more equity interest in that person or entity, (2) has 5% or
more common ownership with that person or entity, (3) controls that person or
entity, or (4) share common control with that person or entity. "Control" or
"controls" for purposes hereof means that a person or entity has the power,
direct or indirect, to conduct or govern the policies of another person or
entity.
SECTION 4.8. REGISTRATION RIGHTS
As soon as is practicable after the date of this Agreement, the Company
shall file a registration statement (the "Registration Statement") with the SEC
to register the resale of the shares of Common Stock into which the Shares are
convertible, and shall use its best efforts to cause the Registration Statement
to become effective, all as provided in the Registration Rights Agreement (the
"Registration Rights Agreement") attached as Exhibit B to this Agreement.
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SECTION 5. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
The obligation of the Company hereunder to issue and sell the Shares to
the Purchaser at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion:
(a) The Purchaser shall have executed this Agreement and
delivered the same to the Company.
(b) The Purchaser shall have delivered the Purchase Price for
the Shares to the Company.
(c) The representations and warranties of the Purchaser shall
be true and correct in all material respects as of the date when made
and as of the Closing Date as though made at that time, and the
Purchaser shall have performed, satisfied, and complied in all material
respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied, or complied with by the Purchaser
at or prior to the Closing Date.
SECTION 6. CONDITIONS TO THE PURCHASERS' OBLIGATION TO PURCHASE
The obligation of the Purchaser hereunder to purchase the Shares at the
Closing is subject to the satisfaction, at or before the Closing Date, of each
of the following conditions, provided that these conditions are for the
Purchaser's sole benefit and may be waived by the Purchaser at any time in its
sole discretion:
(a) The Company shall have executed this Agreement.
(b) The Company shall have executed the Registration Rights
Agreement.
(c) The representations and warranties of the Company shall be
true and correct in all material respects (except to the extent that
any of such representations and warranties is already qualified as to
materiality in Section 3 above, in which case, such representations and
warranties shall be true and correct without further qualification) as
of the date when made and as of the Closing Date as though made at that
time (except for representations and warranties that speak as of a
specific date) and the Company shall have performed, satisfied, and
complied in all material respects with the covenants, agreements, and
conditions required by this Agreement to be performed, satisfied, or
complied with by the Company at or prior to the Closing Date.
SECTION 7. INDEMNIFICATION
In consideration of the Purchaser's execution and delivery of this
Agreement and acquiring the Shares hereunder and in addition to all of the
Company's other obligations under this Agreement, the Company shall defend,
protect, indemnify, and hold harmless the Purchaser, and all of its general and
limited partners, officers, directors, employees, and agents (including, without
limitation, those retained in connection with the transactions contemplated by
this
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Agreement) (collectively, the "Indemnitees") from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities, and damages, and expenses in connection therewith (irrespective of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements
(the "Indemnified Liabilities"), incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to (a) any misrepresentation or breach
of any representation or warranty made by the Company in this Agreement, or any
other certificate, instrument, or document contemplated hereby or thereby, (b)
any breach of any covenant, agreement, or obligation of the Company contained in
this Agreement, or (c) any cause of action, suit, or claim brought or made
against such Indemnitee and arising out of or resulting from the execution,
delivery, performance, or enforcement of this Agreement, or any other
instrument, document, or agreement executed pursuant hereto by any of the
Indemnities, any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of the issuance of the Shares, or the
status of the Purchaser or holder of the Shares, as a stockholder in the
Company. To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
SECTION 8. GENERAL PROVISIONS
SECTION 8.1. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the Province of Ontario and the national laws of Canada; provided,
however, that if any provision of this Agreement is unenforceable under such law
but is enforceable under the laws of the U.S. State of Nevada, then Nevada law
shall govern the construction and enforcement of that provision. The courts of
the Province of Ontario, Canada, sitting in Toronto (the "Toronto Courts") shall
have exclusive jurisdiction to hear, adjudicate, decide, determine and enter
final judgment in any action, suit, proceeding, case, controversy or dispute,
whether at law or in equity or both, and whether in contract or tort or both,
arising out of or related to this Agreement, or the construction or enforcement
hereof or thereof (any such action, suit, proceeding, case, controversy or
dispute, a "Related Action"). The Company and the Consultant hereby irrevocably
consent and submit to the exclusive personal jurisdiction of the Toronto Courts
to hear, adjudicate, decide, determine and enter final judgment in any Related
Action. The Company and the Consultant hereby irrevocably waive and agree not to
assert any right or claim that it is not personally subject to the jurisdiction
of the Toronto Courts in any Related Action, including any claim of forum non
conveniens or that the Toronto Courts are not the proper venue or form to
adjudicate any Related Action. If any Related Action is brought or maintained in
any court other than the Toronto Courts, then that court shall, at the request
of the Company or the Consultant, dismiss that action.
SECTION 8.2. COUNTERPARTS
This Agreement may be executed in two or more identical counterparts,
all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party. In the event any signature page is delivered by facsimile
transmission, the party using such means of delivery shall cause four (4)
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additional original executed signature pages to be physically delivered to the
other party within five (5) days of the execution and delivery hereof.
SECTION 8.3. HEADINGS
The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
SECTION 8.4. SEVERABILITY
If any provision of this Agreement shall be invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
SECTION 8.5. ENTIRE AGREEMENT, AMENDMENTS
This Agreement supersedes all other prior oral or written agreements
between the Purchaser, the Company, their affiliates and persons acting on their
behalf with respect to the issuance and sale of the Shares, and this Agreement
and the instruments referenced herein contain the entire understanding of the
parties with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company, nor the Agent,
nor any Purchaser makes any representation, warranty, covenant, or undertaking
with respect to such matters. No provision of this Agreement may be waived or
amended other than by an instrument in writing signed by the party to be charged
with enforcement.
SECTION 8.6. NOTICES
Any notices, consents, waivers, or other communications required or
permitted to be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered (a) upon receipt, when delivered
personally, (b) upon receipt, when sent by facsimile, provided a copy is mailed
by U.S. certified mail, return receipt requested, (c) three (3) days after being
sent by certified mail, return receipt requested, or (d) one (1) day after
deposit with a nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If to the Company: If to the Purchaser:
Canadian Advantage Limited Partnership
▇▇▇▇▇▇ Tree Construction, Inc. c/o VMH Management Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, President Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Each party shall provide five (5) day's prior written notice to the
other party of any change in address or facsimile number.
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SECTION 8.7. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. The Company shall not
assign this Agreement or any rights or obligations hereunder without the prior
written consent of the Purchaser
SECTION 8.8. NO THIRD PARTY BENEFICIARIES
This Agreement is intended for the benefit of the parties hereto and
their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
SECTION 8.9. CURRENCY. All dollar amounts expressed in this Agreement
are currency of the United States of America.
IN WITNESS WHEREOF, the Company and the Purchaser have caused this Series A
Convertible Preferred Stock Purchase Agreement to be duly executed as of the
date first written above.
Each party shall provide five (5) day's prior written notice to the
other party of any change in address or facsimile number.
SECTION 8.10. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. The Company shall not
assign this Agreement or any rights or obligations hereunder without the prior
written consent of the Purchaser.
SECTION 8.11. NO THIRD PARTY BENEFICIARIES
This Agreement is intended for the benefit of the parties hereto and
their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
SECTION 8.12. CURRENCY. All dollar amounts expressed in this Agreement
are currency of the United States of America.
IN WITNESS WHEREOF, the Company and the Purchaser have caused this
Series A Convertible Preferred Stock Purchase Agreement to be duly executed as
of the date first written above.
▇▇▇▇▇▇ Tree Construction, Inc. Canadian Advantage Limited Partnership
By VMH Management Ltd., General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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