SHARE PURCHASE AGREEMENT
THIS AGREEMENT made this 18" day of February 2000.
BETWEEN:
Alttech Ventures Corporation, a British Columbia company having an office at
888-1199 West ▇▇▇▇▇▇ Street, Vancouver, British Columbia
("Alttech" or "AVC")
OF THE FIRST PART
AND
Lexus Capital Inc, a Nevada company, having its registered office at Bermuda
Street, Las Vegas, Nevada, and it's B.C. office at ▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
("Lexus'')
OF THE SECOND PART
AND
The Shareholders of Common and Class 'A' Alttech shares set out in Schedule "A"
and Schedule "B" hereto
(the "Alttech Members")
OF THE THIRD PART
WHEREAS:
A. The Alttech Members are, or at the Closing Date (as defined herein) will
be the beneficial owners of all the issued and outstanding shares of Alttech
(the "Alttech Shares"). The particulars of the names of the Alttech Members and
the number of Alttech shares held or to be held by each Alttech Shareholder are
set out in Schedule "A" and Schedule "B" attached hereto and forming a material
part of this Agreement;
B. The Alttech Members have agreed to sell and Lexus has agreed to purchase
all of the Alttech Shares; and
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C. The parties wish to record their agreement relating to the sale by the
Alttech Members and the purchase by Lexus of the Alttech Shares pursuant to the
terms and conditions of this Agreement as set forth below.
THIS AGREEMENT WITNESSES THAT in consideration of the premises, mutual
covenants, agreements, representations and warranties contained herein, the
parties hereto covenant and agree as follows:
Article 1
INTERPRETATION
1.1 Definitions: In this Agreement, including the recitals hereto, the
following expressions will have the following respective meanings:
"Agreement" means this agreement and all amendments made hereto by written
agreement of all of the Parties.
"Arbitration" means the process of dispute resolution described in Article 9.
"Business Day' means a day on which banks are generally open for business in the
city of Vancouver, British Columbia.
"Closing" means the completion of the purchase and sale of the Alttech Shares
contemplated by this Agreement.
"Closing Date" means May 16th, 2000 or such other date as the parties may agree
to in writing.
"Defaulting Part" has the meaning ascribed to it in Section 11.1.
"Exchange" means the OTC:BB
"GAAP" means generally accepted accounting principals and practices in the
United States.
"Information" has the meaning ascribed to it in Section 8.1.
"Alttech" means Alttech Ventures Corporation, a British Columbia company.
"Alttech Asset" means all assets, contracts, equipment, goodwill and inventory
of Alttech, and includes all tangible things and intangible things owned by
Alttech as at the date of this Agreement, as more particularly described to in
Schedule "C" attached to and forming a material part of this Agreement.
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"Alttech Share," means all of the issued and outstanding shares in the capital
of Alttech (including unissued shares which will be issued prior to the Closing
Date) set out in Section 2.1 below and Schedule "A" and Schedule "B" attached
hereto, which Alttech Shares are being acquired by Lexus pursuant to the terms
of this Agreement.
"Alttech Member" means all Persons owning Alttech Common and Class "A" Shares,
as set forth and detailed in Schedule "A" and Schedule "B" of this Agreement.
"Alttech Shares Outstanding" means all shares issued or allotted by Alttech to
Alttech Members.
"Alttech Stock Option" means those stock options which have been issued to
Alttech Optionees.
"Non-Defaulting Party" has the meaning ascribed to it in Section 11.1.
"Party", "party", or "party hereto" and similar expressions means a signatory to
this Agreement unless the context otherwise requires.
"Person" means an individual, partnership, corporation, or other business or
legal entity or any duly constituted government or any minister, department,
commissioner, board, bureau, authority, instrumentality, or court or the like of
any such government.
"Purchase Price" has the meaning ascribed to it in Section 2.3.
"Regulation" means any and all enactments, statues, rules, regulations,
standards, orders, bylaws, codes, decisions, directives, permits, licences,
authorizations or consents of any governmental or regulatory authority and all
decisions, orders, awards, judgments, decrees, and directions of courts and
quasi judicial bodies of competent jurisdiction, in force from time to time.
"Lexus" means Lexus Capital Corporation, a Nevada company.
"Lexus Shares" means the aggregate of 4,142,425 common shares in the capital
stock of Lexus that will be issued to the Alttech Members in the consideration
for the purchase by Lexus from the Alttech Members of the Alttech Shares
pursuant to the terms of this Agreement.
"Time of Closing" means 02:00pm (Pacific Standard Time) on the Closing Date or
such other time as the parties may agree to in writing.
1.2 Headings, Etc. The division of this Agreement into Articles and Sections
and the insertion of headings are for convenience of reference only and will not
affect the construction or interpretation of this Agreement.
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1.3 Day Not a Business Day. In the event that any day on or before which any
action is required to be taken hereunder is not a Business Day, then such action
will be required to be taken on a Business Day which is the requisite time on
the next succeeding day that is a Business Day.
1.4 Currency. All references to currency herein will be to the lawful money
of the United States of America, unless otherwise specifically noted herein.
1.5 Application of Generally Accepted Accounting Principals. Except to the
extent inconsistent herewith, or as otherwise agreed to in writing by the
parties, GAAP will be adhered to and applied in respect of all financial and
accounting matters herein. No change will be made in the application of GAAP if
such change could have any affect on any calculation contemplated by this
Agreement, unless otherwise agreed between the parties. In the event of a change
in the application of GAAP, such change will not be applied retroactively unless
required by GAAP.
1.6 Expanded Meanings. Unless the context otherwise necessarily requires,
the following provisions will govern the interpretation of this Agreement:
(a) words importing the singular number only will include the plural and
vice versa, and words importing the use of any gender will include all genders;
(b) the term "in writing or "written" include printing, typewriting, or any
electronic means of communication by which words are capable of being visually
reproduced at a distant point or reception, including by telecopier or like
devices;
(c) references to any agreement or instrument, including this Agreement will
be deemed to be references to the agreement or instrument as varied, amended,
modified, supplemented, or replaced from time to time in writing and any
specific references to any enactment, regulation, order, ruling, or decision,
will be deemed to be references to such enactment, regulation, order, ruling, or
decision as the same may be re-enacted, varied, amended, modified, supplemented,
or replaced from time to time; and
(d) "this Agreement, "the Agreement", "hereto", "herein", "hereby,
"hereunder", "hereof, and similar expressions refer to this Agreement and
includes each schedule attached hereto, and not to any particular Article,
Section, Subsection, Clause, or other subdivision or portion hereof and include
each and every instrument amending or supplementing this Agreement.
1.7 Schedules. The following Schedules attached hereto are incorporated by
reference and deemed to be part of this Agreement:
Schedule "A" - the Alttech Members and Shareholdings of Common Shares
Schedule "B" - the Alttech Members and Shareholdings of Class "A"
Shares
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Schedule "C" - the Alttech Assets
Schedule "D" - Audited Financial Statements of Alttech as at December
31st, 1999
Schedule "E" - Material Contracts of Lexus
Schedule "F" - Material Contracts of Alttech
Article 2
PURCHASE PRICE
2.1 Purchase & Sale. Subject to the terms and conditions contained in this
Agreement, the Alttech Members agree to sell to Lexus and Lexus agrees to
purchase from the Alttech Members on the Closing date all (but not less than
all) of the Alttech Shares.
2.2 No Obligation. Lexus will have no obligation to purchase any of the
Alttech Shares unless all of the Alttech Shares have been delivered by the
Alttech Members for purchase by Lexus in accordance with the terms of this
Agreement.
2.3 Purchase Price. The purchase price payable (the "Purchase Price") for
the Alttech Shares will be the issuance of an aggregate 4,142,425 Lexus Shares,
which Lexus Shares will be issued to the individual Alttech Members and Alttech
Subscribers proportionate to their shareholdings in Alttech at the Closing Date,
and in such number as are more particularly set out in Schedule "A" and Schedule
"B" attached hereto and forming a material part of this Agreement.
2.4 Payment of Purchase Price. The parties agree that the Purchase Price
will be paid to Alttech Members on the Closing Date.
2.5 Hold Periods. The Lexus Shares will be issued to the Alttech Members
pursuant to exemptions under applicable securities legislation and will be
subject to such hold periods as are prescribed thereunder and the share
certificates evidencing the Lexus Shares will be legended in accordance with
applicable securities legislation.
2.6 Escrow Agreement. The Alttech Members acknowledge that the Lexus Shares
will be issued to the Alttech Members not subject to an escrow provision,
however Alttech Members hereby acknowledge and agree to execute any and all
agreements or documents that may be required by any stock exchange with respect
to the escrowing of the Lexus Shares should such an agreement or document be
required by such exchange.
Article 3
REPAYMENT OF LOAN
3.1 Repayment of Loan. Alttech agrees that on the Closing Date it will repay
or cause to be repaid to 527049 B.C. Ltd, of ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇.▇., ▇▇▇ ▇▇▇, funds advanced to Alttech in the amount of $100,000 (USD) and
$50,000 (CDN) which will be repaid together with interest thereon at an annual
rate of 6.75 percent, compounded monthly from the date of advance to the date of
payment.
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Article 4
REPRESENTATIONS AND WARRANTIES OF ALTTECH
4.1 Alttech's Representations and Warranties. Alttech and the Alttech
Members, as applicable, represents and warrants to Lexus, as at the date of this
Agreement and as at the Time of Closing, as follows, and Alttech and the Alttech
Members acknowledge and confirm that Lexus is relying on such representations
and warranties in connection with the purchase by Lexus of the Alttech Shares
and the completion by Lexus of the transactions contemplated by this Agreement:
(a) Incorporation. Alttech is duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation and in good standing with
respect to all statutory filings required by the applicable corporate laws.
(b) Qualified to do Business. Alttech has the requisite power and authority
to own or lease its property and assets and to carry on its business as now
being conducted by it and is duly registered, licensed, or otherwise qualified
under all Regulations applicable to it to do business in each jurisdiction in
which the nature of its business or the property owned or leased by it makes
such qualification necessary.
(c) Power and Authority - Alttech. Alttech has the full power and authority
to enter into this Agreement and any agreement or instrument referred to or
contemplated by this Agreement.
(d) Power and Authority - Alttech Members. Each of the Alttech Members has
the power and mental capacity to enter into this Agreement and to perform each
of its obligations as herein contemplated.
(e) Execution and Delivery. The execution and delivery of this Agreement and
the performance by Alttech of all of its obligations hereunder has been duly
authorized by all necessary corporate action required to be taken by it or on
its behalf, and subject to the approval of the shareholders of Lexus, no
consents, approvals, waivers, or authorizations are required to be obtained by
it to authorize or complete the transactions contemplated herein, other than
obtaining the consent of the Alttech Members and the Board of Directors of
Alttech to the transfer of Alttech Shares, as provided herein.
(f) Enforceability. This Agreement will, upon execution and delivery by
Alttech and the Alttech Members, constitute a legal, valid, and binding
obligation of each of the Alttech Members and Alttech, enforceable against them
in accordance with the terms of this Agreement, except as enforcement may be
limited by laws of general application affecting the rights of creditors.
(g) No Dissolution, Winding-Up or Bankruptcy. No proceedings are pending for
and neither Alttech nor any of the Alttech Members are aware of any basis for
the institution of any proceedings leading to the dissolution or winding-up of
Alttech, the placing of Alttech in bankruptcy, or of Alttech being subject to
any other laws governing the affairs of insolvent companies.
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(h) No Conflict. The execution and delivery of this Agreement and the
performance by Alttech and the Alttech Members of all of their obligations
hereunder do not and will not:
(i) conflict with, result in the breach of or violate any of the terms,
conditions, or provisions of the constating documents of Alttech;
(ii) conflict with, result in a breach of or violate any of the terms,
conditions, or provisions of any law, judgment, order, injunction, decree,
regulation or ruling of any court or governmental authority, domestic or
foreign, to which Alttech is subject, or constitute or result in a default under
any agreement, contract, or commitment to which Alttech is a party;
(iii) give to any party the right of termination, cancellation, or
acceleration in or with respect to any agreement, contract, commitment, to which
it is a party; or
(iv) give to any government or governmental authority, or any municipality
or any subdivision thereof, including any governmental department, commission,
bureau, hoard or administration agency, any right of termination, cancellation
or suspension of, or constitute a breach of or result in a default under, any
permit, license, control, or authority issued to it which is necessary or
desirable in connection with the conduct and operations of its respective
business and the ownership or leasing of its respective business assets.
(i) Authorized Capital. The authorized capital of Alttech at the Closing
Date will consist of 200,000,000 shares, comprising 100,000,000 common shares
without par value, and 100,000,000 Class A common shares without par value.
(j) Fully Diluted Share Capital. At the Closing Date, the outstanding
capital of Alttech will be as set out in Schedule "A" and Schedule "B" hereto.
(k) Options. At the Time of Closing, no Person will have any written or oral
agreement, option, understanding, or commitment to any right or privilege
capable of becoming an agreement or option for the purchase of any common shares
of Alttech other than Lexus.
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(l) Ownership of Alttech Shares. Each of the Alttech Members is, or will at
the Closing Date be, the legal and beneficial owners of the Alttech Common
Shares as set out opposite each of their names in Schedule "A", attached hereto,
and each of the Alttech Members will at the Closing Date have legal claim and
beneficial ownership claim to the Alttech Class "A" Shares as set opposite each
of their names in Schedule "B", attached hereto with good and marketable title
thereto, and the Alttech Shares have been or will be duly subscribed to and
issued at the Closing Date, and will be outstanding as fully paid and
non-assessable, and all of the Alttech shares are free and clear of liens,
charges, encumbrances, pledges, mortgages, hypothecations and adverse claims, of
any and all nature whatsoever, including without limitation options, pre-emptive
rights and other rights of acquisition in favor of any Person whether
conditional or absolute.
(m) Shareholders Loans. At the Time of Closing, there will be no outstanding
Shareholders Loans in Alttech which exceed $10,000 (CDN) in the aggregate.
(n) No Adverse Change. Alttech is not in violation of or in default with
respect to, and no event has occurred which, with the lapse of time or action by
any Person, might reasonably be expected to result in the violation of or a
default with respect to, any indenture, contract, agreement, lease or other
instrument to which it is a party or by which it is bound and which individually
or in the aggregate might reasonably be expected to result in a material adverse
change, financial or otherwise, in its business, financial condition, assets,
properties, liabilities or operations.
(o) Title. Alttech holds good, marketable and unencumbered title to all of
its right, title and interest in and to the Alttech Assets which are capable of
ownership.
(p) Financial Position. The audited financial statements for Alttech, dated
December 31st, 1999, attached hereto as Schedule "D", where prepared in
accordance with GAAP applied consistently and present fairly the financial
position and results of the operations of Alttech as at the dates indicated and
for the periods indicated, and no material adverse change in such financial
position or such results has occurred since, other than those incurred in the
normal course of business.
(q) No Litigation. There are no claims, actions, suits, judgments,
litigation or proceedings threatened, pending, or existing as against or
affecting Alttech of any of its respective directors or officers involving any
of the Alttech Assets nor does Alttech nor the Alttech Members know of or have
reasonable grounds to know of any basis for any such claim, actions, suits,
judgments, litigation, or proceedings except as may be disclosed to Lexus prior
to the Closing Date.
(r) Right to Use, Exploit, and Deal. Alttech has the right to use, exploit,
and deal with the Alttech Assets.
(s) Full Disclosure. The representations, warranties, and statements of fact
contained herein or otherwise furnished by or on behalf of Alttech or the
Alttech Members to Lexus do not omit to state any material fact necessary to
make any such statement or representation not misleading to Lexus.
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Article 5
REPRESENTATIONS AND WARRANTIES OF LEXUS
5.1 Lexus' Representations and Warranties. Lexus represents and warrants to
Alttech and the Alttech Members, as at the date of this Agreement and as at the
Time of Closing, as follows and Lexus acknowledges and confirms that Alttech and
the Alttech Members are relying on such representations and warranties in
connection with the sale by them of the Alttech Shares:
(a) Incorporation. Lexus is duly incorporated and validly existing under the
laws of the jurisdiction of its incorporation of its incorporation, is in good
standing with respect to the filing of annual reports, unless otherwise
disclosed by management.
(b) Reporting Issuer. Lexus is not a reporting issuer and is not in default
under the Securities Act (United States).
(c) Power and Authority. Lexus has the full power and authority to enter
into this Agreement and any agreement or instrument referred to or contemplated
by this Agreement, unless otherwise disclosed by management.
(d) Qualified to do Business. Lexus has the requisite power and authority to
own or lease its property and assets and to carry on its business as now being
conducted by it and is duly registered, licensed or otherwise qualified under
all Regulations applicable to it to do business in each jurisdiction in which
the nature of its business or the property owned or leased by it makes such
qualification necessary.
(e) Execution and Delivery. The execution and delivery of this Agreement and
the performance by Lexus of all of its obligations hereunder has been duly
authorized by all necessary corporate action required to be taken or by or on
behalf of Lexus, and subject to the approval of the shareholders of Lexus, no
consents, approvals, waivers, or authorizations are required to be obtained by
it to authorize or complete the transactions contemplated herein, unless
otherwise disclosed by management.
(f) Constating Documents. Lexus' constating documents are in the form
contained in Lexus' minute books and on file with the Registrar of Companies in
the State of Nevada and no modifications or alterations have been proposed or
approved by the shareholders of Lexus.
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(g) Minute Books. The corporate records and minute books of Lexus, which are
complete and accurate in an material respects, of all proceedings and
resolutions of the directors and shareholders of Lexus since the incorporation
of Lexus and the register of directors, register of debentures and
debentureholders, and register of indebtedness of Lexus are complete and
accurate, unless otherwise disclosed by management.
(h) Enforceability. This Agreement will, upon execution and delivery by
Lexus constitute a legal, valid, and binding obligation of Lexus enforceable
against it in accordance with the terms of this Agreement.
(i) No Conflict. The execution and delivery of this Agreement and the
performance by Lexus of all of its obligations hereunder do not and will not:
(i) conflict with, result in the breach of or violate any of the terms,
conditions, or provisions of the constating documents of Lexus;
(ii) conflict with, result in a breach of or violate any of the terms,
conditions, or provisions of any law, judgment, order, injunction, decree,
regulation, or ruling of any court or governmental authority, domestic or
foreign, to which Lexus is subject, or constitute or result in a default under
any agreement, contract, or commitment to which Lexus is a party;
(iii) give to any party the right of termination, cancellation, or
acceleration in or with respect to any agreement, contract, or commitment to
which it is a party; or
(iv) give to any government or governmental authority, or any municipality
or any subdivision thereof, including any governmental department, commission,
bureau, board or administration agency, any right of termination, cancellation,
or suspension of, or constitute a breach of or result in a default under, any
permit, license, control, or authority issued to it which is necessary or
desirable in connection with the conduct and operations of its respective
business and the ownerships or leasing of its respective business assets.
(j) Authorized Capital. The authorized capital of Lexus consists of
200,000,000 common shares with a par value of $0.001.
(k) Fully Diluted Share Capital. Immediately prior to the Time of Closing,
the issued and outstanding shares of Lexus will not be greater than 3,000,000
common shares.
(l) Options and Rights. At the Time of Closing, no Person will have any
written or oral agreement, option, understanding, or commitment or any right or
privilege capable of becoming an agreement or option for the purchase of any
common shares of Lexus, other than the Alttech Members. The parties acknowledge
that immediately following the Time of Closing, it is intended that the then
incumbent board of directors of Lexus will do all things necessary to create a
stock option plan, subject to shareholder approval.
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(m) Issuance of Lexus Shares. The Lexus Shares will, at Closing, be duly and
validly created, authorized, allotted, and issued as fully paid and
non-assessable.
(n) No Dissolution, Winding-Up, or Bankruptcy. No proceedings are pending
for and Lexus is not aware of any basis for the institution of any proceedings
leading to the dissolution or winding up of Lexus, the placing of Lexus in
bankruptcy, or of Lexus being subject to any other laws governing the affairs of
insolvent companies.
(o) No Third Party Debts, Liabilities, Etc. Lexus is not liable for the
debts, liabilities, or other obligations of any third party, whether by way of
guarantee, indemnity, or other contingent or indirect obligation.
(p) No Undisclosed Liabilities. At the Time of Closing, there will be no
liabilities (contingent, accruing, or otherwise) of Lexus, other than those set
out in Schedule "E" which shall not exceed $1.1 million, and debts incurred in
the ordinary course of business or in relation to completion of the transactions
contemplated herein.
(q) Material Contracts. Unless otherwise disclosed by management, other than
the material contracts listed in Schedule "E" attached hereto and forming a
material part of this Agreement, there are no agreements of Lexus which:
(i) commit to capital expenditures or involve liabilities in excess of
$5,000; or
(ii) are in any way otherwise than in the ordinary and normal course of
business.
(s) No Litigation. There are no claims, actions, suits, judgments,
litigation, or proceedings threatened, pending, or existing as against or
affecting Lexus or any of its respective directors or officers or involving any
of its properties or assets, nor does Lexus know of or have reasonable grounds
to know of any basis for such claims, actions, suits, judgments, litigation or
proceedings, other than those claims resulting from material contracts listed in
full and attached as Schedule "E" hereto.
(t) Full Disclosure. The representations, warranties, and statements of fact
contained herein or otherwise furnished by or on behalf of Lexus to Alttech and
Alttech Members do not omit to state any material fact necessary to make any
such statement or representation not misleading to Alttech or Alttech Members,
unless otherwise disclosed by management.
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Article 6
CONDITIONS TO CLOSING
6.1 For the Benefit of Lexus. The obligations of Lexus to complete the
purchase of the Alttech Shares are subject to and conditional upon the
fulfillment at or prior to the Time of Closing of each of the following
conditions, which are for the exclusive benefit of Lexus:
(a) Representations and Warranties. The representations and warranties in
favor of Lexus contained in this Agreement will be true and correct at the Time
of Closing with the same force and effect as if they were made or given at such
time;
(b) Due Diligence Investigations. Lexus will be reasonably satisfied with a
financial and business due diligence review of Alttech, such due diligence
investigation to be completed on or before April 27, 2000;
(c) Cancellation of Options. All Alttech Stock Options outstanding as at the
date of this Agreement, will be cancelled on or before Closing without being
executed.
(d) Shares Outstanding. All Alttech Members will have executed the transfer
of those Share Certificates bearing their names and number of shares to Lexus.
(e) Directors and Officers Contracts. All Directors and Officers, current
and future, of Alttech, will have executed Non-Competition and Non-Circumvention
agreements.
(f) Full Closing Performance. The Alttech Members and Alttech will have
performed or fulfilled all of their obligations which by the terms of this
Agreement are required to have been performed at or prior to the Time of
Closing.
6.2. For the Benefit of Alttech and the Alttech Members. The obligations of
Alttech and the Alttech Members to complete the sale of the Alttech Shares are
subject to and conditional upon the fulfillment at or prior to the Time of
Closing of each of the following conditions, which are for the exclusive benefit
of Alttech and the Alttech Members:
(a) Representations and Warranties. The representations and warranties in
favor of Alttech and Alttech Members contained in this Agreement will be true
and correct at the Time of Closing with the same force and effect as if they
were made or given at such time;
(b) Due Diligence Investigations. Alttech and Alttech Members will be
reasonably satisfied with a financial and business due diligence review of
Lexus, such due diligence investigation to be completed on or before April 27,
2000;
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(c) Capital. Lexus will have received funds, net to treasury, of not less
than an amount equivalent to $1,000,000 USD.
(d) Full Closing Performance. Lexus will have performed or fulfilled all of
its obligations which by the terms of this Agreement are required to have been
performed or fulfilled at or prior to the Time of Closing.
6.3 Examination of Business for Due Diligence. With respect to the due
diligence required to be completed prior to Closing, pursuant to Sections
6.1.(b), and 6.2.(b), above, at all reasonable times during ordinary business
hours up to the Time of Closing, Lexus and Alttech will:
(a) permit the other, and each will permit, Lexus and Alttech to examine and
inspect, in organized form, and to take extracts from, their respective books,
records, accounts, data systems, and files; and
(b) furnish the other and Lexus and Alttech, as required, with such
information relating to their respective affairs, businesses, prospects,
operations, conditions and assets, as may be reasonably requested from time to
time and as they respectively have access to or control over. The rights under
this section will be extended to the respective representatives and professional
advisors of Lexus and Alttech,
Article 7
CLOSING ARRANGEMENTS
7.1 Conveyance of Alttech Shares. Subject to Section 7.3 at the Time of
Closing, Alttech and Alttech Members will do all things required in order to
deliver good and marketable title to the Alttech Shares to Lexus free and clear
of all liens, interests, claims or other encumbrances of any nature or kind
whatsoever, including without limitation the delivery of all governmental
releases, transfers, assignments, conveyances, approvals, or declarations as may
be reasonably required.
7.2 Closing Obligations of Lexus. At the Closing, Lexus will deliver or
cause to have delivered to Alttech and the Alttech Members, the following
documents in a form satisfactory to Alttech:
(a) this Agreement duly executed by Lexus;
(b) a copy of the resolutions of the directors and/or shareholders of Lexus
approving this Agreement, the allotment and issuance of the Lexus Shares, and
the creation of a stock option plan;
(c) a resolution or series of resolutions of the directors of Lexus
evidencing the removal or resignation of each of the current directors of Lexus
other than ▇▇▇▇▇▇ Klychak and all of the officers of Lexus, and the appointment
or election of up to seven directors of Lexus designated by Alttech at the Time
of Closing;
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(d) share certificates representing those Lexus Shares to be delivered to
the Agent and Power of Attorney for Alttech Members, in accordance with the
amounts set out in Schedule "A" and Schedule "B" attached hereto, duly and
validly registered in the name of that Alttech Member;
(f) a letter from the Board of Lexus confirming that the conditions to
closing for the benefit of Alttech and the Alttech Members provided for in
Section 6.2 of this Agreement are completed, and that unless otherwise disclosed
by management:
(i) Lexus is a company duly incorporated under the laws of its jurisdiction
of incorporation, is validly existing and is in good standing with respect to
all statutory filings required by the applicable corporate laws;
(ii) the number of authorized and issued shares in the capital of Lexus
(relying on a certificate of the registrar and transfer agent of Lexus as to the
number of securities issued) are as warranted by Lexus assessable;
(iii) all necessary steps and corporate proceedings have been taken by Lexus
in connection with the execution, delivery, and performance of this Agreement
and the transactions contemplated herein;
(iv) the due issuance of the Lexus Shares as fully paid and non-assessable
and having been issued in accordance with an applicable registration and
prospectus exemption available under the Securities Act (United States of
America);
(v) based on actual knowledge and belief, such solicitors know of no claims,
judgments, actions, suits, litigation, proceedings, or investigations, actual,
pending, or threatened against Lexus which might materially affect Lexus or
Lexus' Assets or which could result in any material liability to either Lexus or
Lexus' Assets;
(vi) as to all other legal matters of a like nature pertaining to Lexus and
Lexus Assets and to the transactions contemplated in this Agreement as Alttech,
the Alttech Members, and Alttech's counsel may reasonably require; and
(vii) confirmation in a form acceptable to Alttech, acting reasonably, that
Lexus has received and has funds in treasury of not less than $1,000,000; and
(h) all other documents as Alttech may reasonably request pursuant to the
terms and conditions contained in this Agreement.
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7.3 Closing Obligations of Alttech and Alttech Members. Subject to the terms
and conditions of this Agreement, Alttech and the Alttech Members covenant and
agree with Lexus that, at the Closing, they will deliver to Lexus:
(a) this Agreement, duly executed by Alttech and the Alttech Members;
(b) a copy of the resolutions of the directors and officers of Alttech,
approving the transaction and all documents contemplated pursuant to this
Agreement, and the transfer of the Alttech Shares from each of the Alttech
Members;
(c) consents to act as a Director of Lexus from each of the Alttech
nominees;
(d) certificates representing all of the Alttech Shares duly endorsed for
transfer, indicating the transfer of those Alttech Shares from each of the
Alttech Members to Lexus, or alternately stock transfer powers of attorney duly
executed by the Alttech Members directing the transfer of the Alttech Shares to
Lexus;
(e) agreements evidencing the cancellation of the Alttech Options;
(f) a letter from an officer of Alttech confirming that the conditions to
closing for the benefit of Lexus provided for in Section 6.1 of this Agreement,
are satisfied;
(g) an opinion from Alttech's counsel, dated as of the date of Closing, and
addressed to Lexus and its counsel, in form and substance satisfactory to Lexus'
counsel, acting reasonably, to the effect that:
(i) Alttech is a company duly incorporated under the laws of its respective
jurisdiction of incorporation, is validly existing, and is in good standing with
respect to all statutory filings required by the applicable corporate laws;
(ii) the number of authorized and issued shares in the capital of Alttech
are as warranted by Alttech, and all of such issued shares are duly authorized,
validly issued, and outstanding as fully paid and non-assessable;
(iii) all necessary steps and corporate proceedings have been taken by
Alttech and Alttech Members to permit the Alttech Shares to be duly and validly
transferred to and registered in the name of Lexus at Closing;
(iv) based on actual knowledge and belief, such solicitors know of no
claims, judgments, actions, suits, litigation, proceedings, or investigations,
actual, pending, or threatened against Alttech, other than as may be
specifically disclosed, which might materially affect either Alttech or
Alttech's Assets or which could result in any material liability to either
Alttech or Alttech's Assets; and
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(v) as to all other legal matters of a like nature pertaining to Alttech and
Alttech's Assets and to the transactions contemplated in this Agreement as Lexus
and Lexus' counsel may reasonably require; and
(i) all other documents as Lexus has reasonably requested pursuant to the
terms and conditions contained in this Agreement.
7.4 Closing Venue. The Closing will take place at the Time of Closing at the
offices of Alttech, 888-1199 West ▇▇▇▇▇▇ Street, British Columbia, or at such
other place as may be agreed to by the parties.
7.5 Time of Closing. The Time of Closing will be 2pm on the Closing Date.
7.6 Rights of the Alttech Members on Failure of Conditions. If any of the
conditions for the exclusive benefit of Alttech and the Alttech Members, as set
forth in Section 6.2 above, have not been fulfilled at or prior to the Time of
Closing, the Alttech Members will be entitled by notice to Lexus to terminate
their obligations hereunder effective as of the date of such notice.
7.7 Rights of Lexus on Failure of Conditions. If any of the conditions for
the exclusive benefit of Lexus, as set forth in Section 6.1 above, have not been
fulfilled at or prior to the Time of Closing, Lexus will be entitled by notice
to Alttech and the Alttech Members, to terminate its obligations hereunder
effective as of the date of such notice.
Article 8
NON-DISCLOSURE
8.1 Secrecy Arrangement. Subject to Sections 8.2 and 8.3 below, each party
will not disclose any information relating to this Agreement or the Alttech
Assets (collectively, the "Information") to any Person, other than another
party, except for Information which:
(a) is or becomes part of the public domain through no fault of any party;
(b) is received by such party from another Person who is not obligated to
keep it secret and which Person did not acquire such Information directly or
indirectly from any party;
(c) in the case of Alttech and the Alttech Members, Lexus has provided its
prior written approval for such disclosure, such approval not to be unreasonably
withheld; or
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(d) in the case of Lexus, Alttech has provided its prior written approval
for such disclosure, such approval not to be unreasonably withheld.
8.2 Permitted Disclosure. Any party to this Agreement may disclosure
Information which:
(a) is required to be disclosed to governmental agencies, financial
institutions, insurance companies, and other persons due to binding legal and/or
regulatory requirements, or for the conduct of its business, if such Information
is disclosed subject to an obligation of confidentiality or due to such legal
and/or regulatory requirements;
(b) is required by Regulations to be disclosed; or
(c) it is required to be disclosed during the course of or in connection
with any litigation, investigation, Arbitration or other proceeding based upon
or in connection with the subject matter of this Agreement including without
limitation, the failure of the transactions contemplated hereby to be
consummated.
8.3 Public Announcements. Lexus and Alttech will consult with each other
before any press release is issued or other public statement made with respect
to this Agreement and the transactions contemplated herein and, except as may be
required by law or Regulations, pursuant to any Securities Act in any
jurisdiction, no such press release or public statement will be issued or made
without the prior consent of the other, such consent not to be unreasonably
withheld.
Article 9
ARBITRATION
9.1 Arbitration. Any dispute between the parties hereto arising out of or in
connection with this Agreement which cannot be settled amicably will be
transferred and settled finally by arbitration in accordance with the Commercial
Arbitration Act (British Columbia) and such arbitration will be held in
Vancouver, British Columbia.
Article 10
FORCE MAJEURE
10.1 Events. If any party is at any time prevented or delayed in complying
with any provisions of this Agreement by reason of strikes, walk-outs, labour,
shortages, power shortages, fires, wars, acts of God, earthquakes, storms,
floods, explosions, accidents, protests or demonstrations by environmental
lobbyists or native rights groups, delays in transportation, breakdown of
machinery, inability to obtain necessary materials in the open market,
unavailability of equipment, governmental regulations restricting normal
operations, shipping delays or any other reason or reasons beyond the control of
that party , then the time limited for the performance by that party of its
respective obligations will be extended by a period of time equal in length to
the period of each such prevention or delay.
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10.2 Notice. A party will, within seven calendar days, give notice to the
other parties of each event of force majeure under Section 10.1 above, and upon
cessation of such event will furnish the other parties with notice of that event
together with particulars of the number of days by which the obligations of that
party have been extended by virtue of such event of force majeure and all
preceding events of force majeure.
Article 11
DEFAULT AND TERMINATION
11.1 Default. The parties agree that if any party is in default with respect
to any of the provisions of this Agreement (the "Defaulting Party"), the
non-defaulting parties (collectively, the "Non-Defaulting Parties") will give
notice to the Defaulting party designating such default, and within 10 calendar
days after its receipt of such notice, the Defaulting party will either:
(a) cure such default or commence proceedings to cure such default and
prosecute the same to completion without undue delay; or
(b) give the Non-Defaulting Parties notice that it denies that such default
has occurred and that it is submitting the question to arbitration as herein
provided.
11.1 Arbitration. If arbitration is sought, a party will not be deemed in
default until the matter has been determined finally by appropriate arbitration
under the provisions of Article 9.
11.2 Curing the Default. If:
(a) the default is not so cured or the Defaulting Party does not commence or
diligently proceed to cure the default; or
(b) arbitration is not so sought; or
(c) the Defaulting Party is found in arbitration proceedings to be in
default, and fails to cure it within five (5) calendar days after the rendering
of the arbitration aware the Non-Defaulting Parties may, by written notice given
to the Defaulting Party at any time while the default continues, terminate the
interest of the Defaulting Party in and to this Agreement.
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Article 12
NOTICES
12.1 Notices. All notices, reports or other communication required or
permitted to be given by this Agreement must be in writing and will be sent by
double-registered mail to the addresses specified below:
(a) if to Alttech:
888 -1199 West ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(b) if to Lexus:
▇▇▇▇ ▇▇ - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ 1138
Attention: ▇▇▇▇▇▇ Klychak
(c) if to the Alttech Members
888 -1199 West ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Any notice or any other documents required to be delivered under this Agreement
will be deemed to have been given and received, on the day on which it was
delivered. A party may change its address for notices by delivering a notice
setting forth the new address in accordance with the provisions of this
Agreement.
Article 13
GENERAL PROVISIONS
13.1 Entire Agreement. This Agreement constitutes the entire agreement to
date between the parties and supersedes every previous agreement, communication,
expectation, negotiation, representation or understanding, whether oral or
written, express or implied, statutory or otherwise between the parties with
respect to the transactions contemplated herein.
13.2 Further Assurances. A party will, upon request of another party,
execute and deliver or cause to be executed and delivered all such documents,
deeds and other instruments of further assurance and do or cause to be done all
such acts and things as may be reasonably necessary or advisable to implement
and give full effect to the provisions of this Agreement.
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13.3 Enurement. This Agreement will enure to the benefit of and will be
binding upon the parties hereto and their respective heirs, executors,
administrators and assigns.
13.4 Time of Essence. Time will be of the essence of this Agreement.
13.5 Survival of Terms. This entire Agreement, including, without limiting
the generality of the foregoing, all covenants, agreements, representations,
warranties and indemnities contained in this Agreement will;
(d) survive the Closing and, notwithstanding the Closing or any documents
delivered or investigations made in connection therewith, will continue in full
force and effect for the benefit of Alttech, the Alttech Members and Lexus; and
(e) survive and continue in full force and effect notwithstanding any
amalgamation, winding-up or dissolution or sale of shares of the Alttech
Members, Alttech or Lexus, as the case may be.
13.6 Waiver. Each of the parties hereto will be entitled to waive
fulfillment or performance with any of the terms and conditions for its
exclusive benefit, in whole or in part, without prejudice to any right of
termination it may have in the event of non- performance or non-fulfillment of
any other such term or condition, and without prejudice to its right to claim
damages with respect to breaches, non-compliance or non-fulfillment of any other
term or condition, provided that every such waiver will be in writing and
provided further that any waiver by any party of any violation of, breach of or
default under any provision of this Agreement by any other party will not be
construed as, or constitute, a continuing waiver of such provision, or waiver of
any other violation of, breach of or default under any other provision of this
Agreement.
13.7 Expenses. Except as herein otherwise expressly provided, each party
will bear its own costs incurred in connection with the completion of the
transactions contemplated herein.
13.8 Amendments. This Agreement will not be varied, modified, amended,
supplemented or replaced except by a written agreement executed by all parties.
13.9 Severability. If anyone or more of the provisions or parts contained in
this Agreement should be or become invalid, illegal or unenforceable in any
respect in any jurisdiction, the remaining provisions or parts contained herein
will be and will be conclusively deemed to be, as to such jurisdiction,
severable therefrom and:
(f) the validity, legality or enforceability or such remaining provisions or
parts of this Agreement will not in any way be affected or impaired by the
severance of the provisions or parts so severed; and
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(g) the invalidity, illegality or unenforceability of any provision or any
part contained in this Agreement in any jurisdiction will not effect or impair
such provision or part or any other provisions of this Agreement in any other
jurisdiction.
13.10 Conflicts. In the event a conflict arises between any provision of
this Agreement and any provision of any other documents or agreements between
the parties relating to the Alttech Shares, the provision of this Agreement will
govern.
13.11 Laws of British Columbia This Agreement will be deemed to have been
made and will be construed in accordance with the laws of the Province of
British Columbia and the federal laws of Canada applicable herein. Each of the
patties hereby irrevocably atoms to the jurisdiction of the Courts of British
Columbia.
13.12 No Partnership or Agency. The parties have not created a partnership
and nothing contained in this Agreement will in any manner whatsoever constitute
any party the partner, agent or legal representative of any other party, nor
create any fiduciary relationship between them for any purpose whatsoever. No
party will have any authority to act for, or to assume any obligations or
responsibility on behalf of any other party except as may be, from time to time,
agreed upon in writing between the parties or as otherwise expressly provided,
13.13 Counterpart Execution. This Agreement may be executed in as many
counterparts as may be necessary, each of which so signed will be deemed to be
an original (and each signed copy sent by electronic facsimile transmission will
be deemed to be an original) and such counterparts together will constitute one
and the same instrument and notwithstanding the date of execution will be deemed
to bear the date as set forth herein,
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as
of the date first above written.
ALTTECH VENTURES CORPORATION
Per:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
LEXUS CAPITAL INC,
Per.
/s/
-----------------------------
Authorized Signatory
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ for herself and in her
Capacity as Agent and Attorney-in-Fact for
each of the ALLTECH MEMBERS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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