1
EXHIBIT 8.2
AMALGAMATION AGREEMENT BY AND BETWEEN ▇▇▇▇▇▇
RESOURCES LIMITED, ENVIRO INDUSTRIAL TECHNOLOGIES,
INC. AND ENVIRO INDUSTRIAL TECHNOLOGIES (CANADA), INC.
2
AMALGAMATION AGREEMENT
THIS AGREEMENT made as of the 1st day of December, 2000.
A M O N G:
▇▇▇▇▇▇ RESOURCES LIMITED, a corporation existing under the
laws of the Province of Ontario
(hereinafter referred to as "▇▇▇▇▇▇")
- and -
ENVIRO INDUSTRIAL TECHNOLOGIES, INC., a corporation existing
under the laws of the State of Delaware
(hereinafter referred to as "Enviro US")
- and -
ENVIRO INDUSTRIAL TECHNOLOGIES (CANADA), INC., a corporation
existing under the laws of the Province of Ontario
(hereinafter referred to as "Enviro Canada")
RECITALS:
1. ▇▇▇▇▇▇ and Enviro US are parties to a binding letter of intent (the
"Letter of Intent"), dated June 5, 2000, pursuant to which Enviro US
and ▇▇▇▇▇▇ agreed to the acquisition by Enviro US of ▇▇▇▇▇▇.
2. The Letter of Intent provides that the transactions contemplated by
the Letter of Intent shall be incorporated into a definitive
agreement.
3. The parties have determined that they wish to effect the transaction
contemplated by the Letter of Intent by way of amalgamation and
therefore propose to amalgamate ▇▇▇▇▇▇ and Enviro Canada upon the
terms and conditions hereinafter set out.
4. The authorized capital of ▇▇▇▇▇▇ is an unlimited number of common
shares, of which 28,283,035 common shares are issued and outstanding.
5. The authorized capital of Enviro US is 50,000,000 shares of common
stock, par value US$0.001, of which stock 13,750,000 shares are issued
and outstanding and 10,000,000 shares of preferred stock, par value
US$0.001 per share, none of which stock is issued and outstanding.
3
-2-
6. The authorized capital of Enviro Canada is an unlimited number of
common shares, of which one common share is issued and outstanding.
In consideration of the premises contained herein and other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged by each of the parties hereto), the parties hereby agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this agreement and the schedules hereto:
"ACT" means the Business Corporations Act (Ontario), R.S.O. 1990, c.B.16 as
amended;
"AGREEMENT" means this amalgamation agreement;
"AMALCO" means the corporation continuing as a result of the Amalgamation;
"AMALGAMATION" means the amalgamation of ▇▇▇▇▇▇ and Enviro Canada as
contemplated by this Agreement;
"ARTICLES OF AMALGAMATION" means articles of amalgamation filed with the
Director pursuant to the Act.
"BUSINESS DAY" means any day other than a Saturday, Sunday or a civic or
statutory holiday in the city of Toronto, Ontario;
"CERTIFICATE OF AMALGAMATION" means a certificate of amalgamation issued by the
Director in respect of the Amalgamation;
"CIRCULAR" means the management information circular of ▇▇▇▇▇▇, which is
anticipated to be dated December ______, 2000, to be sent in connection with
the Meeting;
"DIRECTOR" means the Director appointed under Section 278 of the Act;
"DISSENTING SHAREHOLDER" means a Shareholder of ▇▇▇▇▇▇ who, in connection with
the special resolution of the Shareholders which approves and adopts this
Agreement, has duly exercised the right to dissent pursuant to Section 185 of
the Act in strict compliance with the provisions thereof;
"EFFECTIVE DATE" means the date shown on the Certificate of Amalgamation, which
is anticipated to be December 15, 2000.
"ENVIRO US COMMON SHARES" means the common shares of Enviro US;
"▇▇▇▇▇▇ COMMON SHARES" means the common shares of ▇▇▇▇▇▇;
"▇▇▇▇▇▇ STOCK OPTIONS" means the options issued under the ▇▇▇▇▇▇ Stock Option
Plan to purchase ▇▇▇▇▇▇ Common Shares.
"▇▇▇▇▇▇ STOCK OPTION PLAN" means the ▇▇▇▇▇▇ Resources Limited Stock Option
Plan, a copy of which is set forth in the Circular as an appendix to Schedule F
thereto.
4
-3-
"▇▇▇▇▇▇ WARRANTS" means the warrants issued by ▇▇▇▇▇▇ to purchase ▇▇▇▇▇▇ Common
Shares.
"MEETING" means the special meeting of Shareholders to be held to consider the
approval of the special resolution which approves and adopts this Agreement;
"OTCBB" means NASD Over-the-Counter Bulletin Board; and
"SHAREHOLDER" means a registered shareholder of ▇▇▇▇▇▇ Common Shares
immediately prior to the filing of Articles of Amalgamation pursuant to Section
2.3 hereof.
"VERMICULITE PROPERTY" means the mining claims acquired by Enviro US from
Krystar, abstracts of which are annexed to this agreement as Schedule 1.
ARTICLE 2
AMALGAMATION
2.1 AGREEMENT TO AMALGAMATION
▇▇▇▇▇▇ and Enviro Canada hereby agree to amalgamate under the provisions of the
Act and to continue as one corporation under the terms and conditions
hereinafter set out. On the Effective Date:
(a) the issued and outstanding ▇▇▇▇▇▇ Common Shares shall be
converted into issued and fully paid Enviro US Common Shares
on the basis of one (1) Enviro US Common Share for every two
(2) ▇▇▇▇▇▇ Common Shares;
(b) the one (1) issued and outstanding common share of Enviro
Canada shall be converted into one (1) issued and fully paid
common share of Amalco; and
(c) a Dissenting Shareholder will become entitled to be paid the
fair value for such shareholder's ▇▇▇▇▇▇ Common Shares by
Enviro US upon strict compliance with the relevant provisions
of the Act.
5
-4-
2.2 FRACTIONAL SHARES
No fractional shares shall be issued. If any Shareholder would otherwise be
entitled to receive a fractional Enviro US Common Share as a result of the
Amalgamation, such Shareholder shall receive a cash payment in respect of such
fractional share on the basis that one (1) Enviro US Common Share has a value
equal to the simple average of the closing price for Enviro US Common Shares on
the OTCBB for the first five days which the Enviro US Common Shares are traded
on that exchange, following the Effective Date. Payment to Shareholders for
fractional shares will be made by Enviro US in US dollars, based upon the rate
of exchange on the Effective Date.
2.3 DELIVERY OF ARTICLES OF AMALGAMATION
Upon and subject to the shareholders of each of ▇▇▇▇▇▇, Enviro US and Enviro
Canada approving the Amalgamation and adopting this Agreement and subject to
Article 7 of this Agreement, Articles of Amalgamation in prescribed form shall
be sent to the Director under the Act, together with the documents required by
Section 178 of the Act.
2.4 EFFECT OF AMALGAMATION
Upon the Amalgamation of ▇▇▇▇▇▇ and Enviro Canada and their continuance as one
corporation becoming effective:
(a) their respective property(ies) shall be the property(ies) of
Amalco;
(b) Amalco shall be liable for their respective obligations;
(c) an existing cause of action, claim or liability to prosecution
relating to one or both of them shall be unaffected;
(d) a civil, criminal or administrative action or proceeding
pending by or against one or both of them may be continued to
be prosecuted by or against Amalco;
(e) a conviction against, or ruling, order or judgment in favour
of or against, one or both of them may be enforced by or
against Amalco; and
(f) Amalco's Articles of Amalgamation shall be deemed to be its
articles of incorporation and Amalco's Certificate of
Amalgamation shall be deemed to be its certificate of
incorporation.
ARTICLE 3
AMALCO
3.1 AMALCO
The name of Amalco shall be Enviro Industrial Technologies (Canada), Inc.
6
-5-
3.2 REGISTERED OFFICE
The place in Canada where the registered office of Amalco is to be situated is
in the City of Toronto, in the Province of Ontario, until changed in accordance
with the Act.
3.3 AUTHORIZED CAPITAL
Amalco shall be authorized to issue an unlimited number of common shares
without par value. The rights, privileges, restrictions and conditions
attaching to each class of share shall be as set forth in Schedule 1 to this
Agreement.
3.4 RESTRICTIONS ON TRANSFER
Subject to the rights of Dissenting Shareholders, if any, the right to transfer
any share or shares of Amalco shall be restricted in that no shareholder of
Amalco shall be entitled to transfer any share or shares of Amalco without
either:
(a) the consent of the directors of Amalco, expressed by a
resolution passed at a meeting of the board of directors or
by an instrument or instruments in writing signed by all of
the directors; or
(b) the consent of the holders of at least a majority of the
shares of Amalco entitling the holders thereof to vote in all
circumstances, expressed by a resolution passed at a meeting
of such shareholders or by an instrument or instruments in
writing signed by all such shareholders.
3.5 DIRECTORS
The minimum number of directors of Amalco shall be one (1) and the maximum
number of directors of Amalco shall be ten (10). The names and residence
addresses of the first directors of Amalco are as follows:
NAME RESIDENCE ADDRESS
---- -----------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shirley, New York
The said first directors shall hold office until the first meeting of the
shareholders of Amalco or until their successors are elected or appointed in
accordance with the Act.
3.6 NO RESTRICTIONS ON BUSINESS
There shall be no restrictions on the business that Amalco may carry on.
3.7 OTHER PROVISIONS
The following provisions shall apply to Amalco:
(a) the number of shareholders of Amalco exclusive of persons who
are in the employment of Amalco and exclusive of persons who,
having been formerly in the employment of Amalco, were, while
in that employment and have continued after the termination
of that employment to be, shareholders of Amalco, is limited
to not more than fifty, two or more persons who are joint
registered owners of one or more shares being counted as one
shareholder;
7
-6-
(b) any invitation to the public to subscribe for securities of Amalco
is prohibited; and
(c) the directors of Amalco may, without authorization of the
shareholders:
(i) borrow money upon the credit of Amalco;
(ii) issue, reissue, sell or pledge debt obligations of Amalco;
(iii) give a guarantee on behalf of Amalco to secure
performance of an obligation of any person; and
(iv) mortgage, hypothecate, pledge or otherwise create a
security interest in all or any property of Amalco, owned
or subsequently acquired, to secure any debt obligation
of Amalco.
The words "debt obligation" and "security interest" as used in this
paragraph shall have the meanings ascribed thereto subsection 2(1) of
the Act.
3.8 ISSUED CAPITAL
On the Effective Date there shall be one common share in the capital of Amalco
issued and outstanding and registered in the name of Enviro US.
3.9 STATED CAPITAL
On the Effective Date, the stated capital account of Amalco shall be equal to
the stated capital account for the issued and outstanding shares of Enviro
Canada.
3.10 SHARE CERTIFICATES
Following the Amalgamation, Shareholders (other than Dissenting Shareholders)
shall, upon request therefor by Amalco, surrender for cancellation the
certificates representing the ▇▇▇▇▇▇ Shares held by them and shall, where
applicable, be entitled to receive, without charge, a certificate for Enviro US
Common Shares in accordance with Article 2 of this Agreement.
8
-7-
3.11 BY-LAWS
To the extent the same are not inconsistent with this Agreement, the by-laws of
Amalco shall be those of Enviro Canada, until repealed, amended, altered or
added to in accordance with the Act.
3.12 OFFICERS
Until changed by the directors, the officers of Amalco shall be as follows:
NAME OFFICE
---- ------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President
▇▇▇▇▇ ▇▇▇▇▇ Secretary
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Treasurer
ARTICLE 4
ENVIRO US
Enviro US covenants and agrees that, as at the Effective Date, the following
provisions shall be applicable in respect of Enviro US:
4.1 REGISTERED OFFICE
The place in the United States where the registered office of Enviro US is to
be situated is in the city of New York, in the State of New York, until changed
in accordance with the Delaware General Corporate Law.
4.2 AUTHORIZED CAPITAL
The authorized capital of Enviro US shall consist of 50,000,000 shares of
common stock, par value US$.001 per share and 10,000,000 preferred stock, par
value US$.001 per share. The rights, privileges, restrictions and conditions
attaching to each class of shares shall be as set forth in Schedule 2 hereto.
4.3 RESTRICTIONS ON SHARE TRANSFER
There shall be no restrictions on the transfer of shares of Enviro US.
4.4 RESTRICTIONS ON BUSINESS
There shall be no restrictions on the business in which Enviro US is authorized
to carry on.
4.5 BY-LAWS
The by-laws of Enviro US shall be in the form of Schedule 3 to this Agreement.
9
-8-
4.6 DIRECTORS
The minimum number of directors of Enviro US shall be three (3) and the maximum
number of directors of Enviro US shall be 10. The names and residence addresses
of the directors as at the Effective Date shall be as follows:
NAME ADDRESS
---- -------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Shirley, New York, USA
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ Fairfield, Connecticut, USA
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Lively, Ontario, Canada
4.7 OFFICERS
Until changed by the directors of Enviro US, the officers of Enviro US shall be
as follows:
NAME OFFICE
---- ------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Chairman
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ President
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 MUTUAL REPRESENTATIONS AND WARRANTIES
Each of the parties represents and warrants to and in favour of each of the
other parties as follows and acknowledges that each of the other parties is
relying upon such representations and warranties in connection with the matters
contemplated by this Agreement:
(a) it has been duly formed and is validly existing under the
laws of its jurisdiction of incorporation and has all
necessary corporate power, authority and capacity to own its
property and assets and to carry on its business as conducted
at present;
(b) it has the corporate capacity and power to enter into this
Agreement and, subject to obtaining the requisite approvals
contemplated hereby, to perform its obligations hereunder;
(c) the execution and delivery of this Agreement and the
completion of the transactions contemplated hereby to which
it is a party have been duly approved by its board of
directors;
(d) this Agreement constitutes a valid and binding obligation of
it, enforceable against it in accordance with its terms,
subject to the availability of
10
-9-
equitable remedies and laws affecting the enforceability of
creditors' rights generally;
(e) the execution and delivery of this Agreement and the
completion of the transactions contemplated hereby will not
result in a violation or breach of or default under any of
the terms and provisions of its articles or by-laws or any
indenture or another agreement or instrument, written or
oral, to which it is a party or by which it is bound or
result in the creation of any lien, charge or encumbrance
upon any of its material assets under such agreement or
instrument and do not breach any provisions of any law or
administrative regulation or any judicial or administrative
award, judgement or decree applicable to it, the breach of
which would have a material adverse effect on it;
(f) the information (including the financial information) set
forth in the Circular relating to it and its subsidiaries and
other interests, their respective businesses and properties
and the effect of the Amalgamation thereon is true, correct
and complete in all material respects as at the date as of
which such information is given and does not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading in light
of the circumstances in which they were made; and
(g) there are no actions, suits, proceedings or investigations
commenced, contemplated or threatened against or affecting it
at law or in equity, before or by any governmental
department, commission, board, bureau, court, agency,
arbitrator or instrumentality, domestic or foreign, of any
kind nor are there any existing facts or conditions which may
reasonably be expected to be a proper basis for any actions,
suits, proceedings or investigations which, in any case,
would prevent or hinder the consummation of the transactions
contemplated by this Agreement.
5.2 REPRESENTATIONS AND WARRANTIES OF ENVIRO US
Enviro US represents and warrants to and in favour of ▇▇▇▇▇▇ as follows and
acknowledges that ▇▇▇▇▇▇ is relying upon such representations and warranties in
connection with the matters contemplated by this Agreement;
(a) Enviro US is the registered holder and beneficial owner of
one common share in the capital of Enviro Canada with good
and marketable title thereto, free and clear of all
encumbrances;
(b) the authorized capital of Enviro Canada consists of an
unlimited number of common shares;
(c) the only outstanding share in the capital of Enviro Canada is
the one common share held by Enviro US, which has been duly
and validly issued and is outstanding as fully paid and
non-assessable;
(d) the authorized capital of Enviro US consists of 50,000,000
common shares, par value US$0.001 and 10,000,000 preferred
shares, par value US$0.001;
(e) the only outstanding shares in the capital of Enviro US are
13,750,000 Enviro US Common Shares, all of which have been
duly and validly issued and are outstanding as fully paid and
non-assessable shares;
11
-10-
(f) no person has any agreement, option, warrant, right or
privilege (whether by law, pre-emptive or contractual)
capable of becoming an agreement for the purchase,
subscription, allotment or issuance of any unissued shares in
the capital of Enviro US or Enviro Canada or any other
securities of either of them; and
(g) neither Enviro US nor Enviro Canada carries on any business
and neither has any employees. Enviro Canada has no property
or assets or liabilities; Enviro US has no property or assets
or material liabilities other than the Vermiculite Property
or as disclosed in the Circular, including, for further
certainty, all Schedules thereto. Enviro US is the legal and
beneficial owner with good and marketable title to the
Vermiculite Property, free and clear of all title defects and
encumbrances.
5.3 REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇
▇▇▇▇▇▇ represents and warrants to and in favour of Enviro US as follows and
acknowledges that Enviro US is relying on such representations and warranties
in connection with the matters contemplated by this Agreement:
(a) the authorized capital of ▇▇▇▇▇▇ consists of an unlimited
number of common shares;
(b) the only outstanding shares in the capital of ▇▇▇▇▇▇ are
28,283,035 Common Shares, all of which have been duly and
validly issued and are outstanding as fully paid and
non-assessable shares;
(c) except in connection with the ▇▇▇▇▇▇ Warrants and the ▇▇▇▇▇▇
Stock Options and as otherwise contemplated by this
Agreement, no person has any agreement, option, warrant,
right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement for the
purchase, subscription, allotment or issuance of any unissued
▇▇▇▇▇▇ Common Shares or any other securities of ▇▇▇▇▇▇;
(d) there are outstanding ▇▇▇▇▇▇ Warrants to purchase 13,713,653
▇▇▇▇▇▇ Common Shares and ▇▇▇▇▇▇ Stock Options to purchase
295,000 ▇▇▇▇▇▇ Common Shares; and
(e) ▇▇▇▇▇▇ has no material property or assets or material
liabilities other than as disclosed in the Circular,
including for further certainty, all schedules thereto and
all documents incorporated by reference therein.
ARTICLE 6
COVENANTS
6.1 COVENANTS OF ENVIRO US, ENVIRO CANADA, ▇▇▇▇▇▇
Each of the parties covenants and agrees with the other as follows:
(a) the information set forth in the Circular relating to it and
its subsidiaries and other interests, their respective
business and property and the effect of the Amalgamation
thereon will, at the Effective Date, be true, correct and
complete in all material respects and will not contain any
untrue statement of any material fact or omit to state any
material fact required to be stated
12
-11-
therein or necessary in order to make the statements therein
not misleading in light of the circumstances in which they
are made;
(b) until the Effective Date or the earlier termination of this
Agreement in accordance with Article 8, except with the
written consent of the other parties hereto or as
contemplated hereby, each of the parties shall:
(i) carry on its business in the ordinary course of
substantially the same manner as heretofore
conducted and shall preserve in tact its present
business organization;
(ii) not declare any dividends or make any other
distribution in respect of any of its outstanding
securities;
(iii) not issue, set aside, reserve or authorize or
propose the issuance of, or purchase or redeem or
propose a purchase or redemption of any shares of
any class or series in its capital or securities
convertible into shares, or rights, warrants or
options to acquire, any such shares or other
convertible securities, except the exercise in the
ordinary course in respect of the ▇▇▇▇▇▇ Warrants or
▇▇▇▇▇▇ Stock Options, respectively;
(iv) not guarantee the payment of indebtedness or incur
indebtedness from money borrowed or issue or sell
any debt securities, except in the ordinary course;
and
13
-12-
(v) not amalgamate, merge or consolidate with any
corporation or body corporate;
(c) it shall perform the obligations required to be performed by
it under this Agreement and shall do all such acts and things
as may be necessary or required in order to give effect to
the Amalgamation and, without limiting the generality of the
foregoing, it shall use its best efforts to:
(i) obtain the approvals, including the approval of its
shareholders, required for the completion of the
Amalgamation;
(ii) file Articles of Amalgamation in respect of the
Amalgamation;
(iii) obtain such other consents, orders and approvals as
counsel may advise are necessary or desirable for
the completion of the Amalgamation, including those
referred to in section 7.1 hereof.
(d) give prompt notice to the other parties of the occurrence or
failure to occur, at any time prior to the Effective Date of
any event, the occurrence or failure to occur of which would,
or would be likely to:
(i) cause any of its representations or warranties
contained herein to be untrue or inaccurate in any
material respect; or
(ii) result in its failure to comply with or satisfy any
covenant, condition or agreement to be complied with
or satisfied by it hereunder,
provided, however, that no such notification shall affect the
representations or warranties of the parties or the
conditions to the obligations of the parties hereunder.
6.2 COVENANTS OF ENVIRO US
Enviro US covenants and agrees with ▇▇▇▇▇▇ as follows:
(a) it shall use all reasonable commercial efforts to obtain all
trading approvals from the OTCBB for the Enviro US shares,
including any such approvals as are required to cause the
free tradability of the Enviro US Common Shares to be issued
in respect of the exercise of ▇▇▇▇▇▇ Warrants or ▇▇▇▇▇▇ Stock
Options following the Amalgamation;
(b) it shall cause Enviro US to make, in a timely manner, all
necessary filings with the United States Securities and
Exchange Commission;
(c) to shall use all reasonable efforts to establish a stock
option plan, in form and having such terms and conditions as
are satisfactory to ▇▇▇▇▇▇, acting reasonably; and
(d) it shall obtain such consents, orders and approvals as are
necessary to enable the ▇▇▇▇▇▇ Warrants and ▇▇▇▇▇▇ Stock
Options to be exercised for Enviro US Common Shares as
contemplated by with section 7.1 of this Agreement.
6.3 COVENANTS OF ▇▇▇▇▇▇
14
-13-
▇▇▇▇▇▇ covenants and agrees with the other parties that it shall expeditiously
file and mail the Circular in accordance with all applicable laws and
regulatory requirements.
ARTICLE 7
CONDITIONS PRECEDENT
7.1 MUTUAL CONDITIONS PRECEDENT
The obligations of each party hereto to complete the transactions contemplated
by this Agreement and to file Articles of Amalgamation to give effect to the
Amalgamation shall be subject to the satisfaction, on or before the Effective
Date, of the following conditions precedent:
(a) the Amalgamation, with or without amendment, shall have been
approved by the shareholders of each of the parties to the
Amalgamation;
(b) the Articles of Amalgamation shall have been accepted by the
Director for filing;
(c) all consents, order, rulings, approvals and assurances,
including any regulatory approvals which are required,
necessary or desirable for the completion of the Amalgamation
shall have been obtained;
(d) there shall not be in force any order or decree restraining
or enjoining the implementation of the transactions
contemplated by this Agreement involving such party and there
shall be no proceeding of a judicial or administrative nature
or otherwise, in progress or threatened, that relates to or
results from the transactions contemplated by this Agreement
involving such party that could, if successful, result in an
order or ruling that would preclude completion of the
transactions contemplated by this Agreement;
(e) none of the consents, orders or approvals required for the
completion of the Amalgamation shall contain terms or
conditions that require undertakings or security considered
unsatisfactory or unacceptable to such party, acting
reasonably;
(f) all covenants of the other parties hereto under this
Agreement to be performed for such party's benefit on or
before the Effective Date shall have been duly performed in
all material respects;
(g) all representations and warranties of the other parties
hereto in favour of such party under this Agreement shall be
true and correct on the date hereof and as of the Effective
Date, with the same effect as if such representations and
warranties had been made at and as of such date, and such
party shall have received certificates, addressed to it and
dated the Effective Date, of a senior officer of each of the
other corporate parties hereto, confirming the same;
(h) the board of directors of the other parties hereto shall have
passed all necessary resolutions, and all other necessary
corporate action shall have been taken by such parties to
authorize and complete the transactions contemplated by this
Agreement involving such party;
(i) ▇▇▇▇▇▇ shall not have received, collectively, notices of the
exercise of rights of dissent under section 185 of the Act in
respect of more than 5%
15
-14-
of the aggregate number of ▇▇▇▇▇▇ Common Shares issued and
outstanding as at the date of the Circular; and
(j) this Agreement shall not have been terminated pursuant to
section 8. 2.
7.2 CONDITIONS PRECEDENT FOR THE BENEFIT OF ▇▇▇▇▇▇
The obligation of ▇▇▇▇▇▇ to complete the transactions contemplated by this
Agreement and to file Articles of Amalgamation to give effect to the
Amalgamation shall be subject to the satisfaction on or before the Effective
Date, of the following conditions precedent:
(a) ▇▇▇▇▇▇ shall be satisfied, in its discretion, with the
results of its due diligence investigations of Enviro US and
Enviro Canada, including the quality of and title to the
Vermiculite Property;
(b) Enviro US shall have adopted a stock option plan in form and
substance satisfactory to ▇▇▇▇▇▇, acting reasonably;
(c) ▇▇▇▇▇▇ shall be satisfied that the holders of outstanding
▇▇▇▇▇▇ Warrants shall be entitled to exercise such ▇▇▇▇▇▇
Warrants for Enviro US Common Shares, following the Effective
Date, on a two-for-one basis and that such Enviro US Common
Shares are freely-trading;
(d) ▇▇▇▇▇▇ shall be satisfied that the holders of outstanding
▇▇▇▇▇▇ Stock Options shall be entitled to exercise such Stock
Options for Enviro US Common Shares following the Effective
Date, on a two-for-one basis, or that holders of outstanding
▇▇▇▇▇▇ Stock Options shall otherwise be granted stock options
under the Enviro US Stock Option Plan on a comparable basis,
and further provided that any such Enviro US Common Shares
issued in respect of the exercise of any ▇▇▇▇▇▇ Stock Options
or pursuant to the exercise of options under the Enviro US
Stock Option Plan are freely-trading.
16
-15-
7.3 CONDITIONS PRECEDENT FOR THE BENEFIT OF ENVIRO US
The obligation of Enviro US to complete the transactions contemplated by this
Agreement and to file Articles of Amalgamation to give effect to the
Amalgamation shall be subject to the satisfaction, in its discretion, on or
before the Effective Date, of Enviro US with the results of its due diligence
investigations.
7.4 MERGER OF CONDITIONS
The conditions precedent set forth in this Agreement shall be conclusively
deemed to have been satisfied, waived or released when the Certificate of
Amalgamation in respect of the Amalgamation is issued by the Director; provided
that nothing in this section 7.4 shall relieve any party from its obligations
relating to such party's representations and warranties contained herein.
ARTICLE 8
AMENDMENT AND TERMINATION
8.1 AMENDMENTS IN RESPECT OF AMALGAMATION
Subject as hereinafter provided and to applicable law, the provisions of this
Agreement with respect to the Amalgamation may, at any time before or after the
holding of the Meeting, be amended without further notice to, or authorization
of, the shareholders of any of the parties, by written agreement of the parties
hereto, provided that any such amendment does not materially adversely affect
the shareholders of any of the parties.
8.2 TERMINATION
(a) If any condition herein for the benefit of a party hereto is
not satisfied at or before the Effective Date to the
satisfaction of such party, then such party, by notice to the
other party hereto, may terminate this Agreement, but without
detracting from the rights of such party arising from any
breach of covenant by another party hereto but for which the
condition would have been satisfied; and
(b) This Agreement may at any time, before or after the Meeting,
be terminated by the mutual agreement of the parties hereto
without further action on the part of their respective
shareholders.
8.3 EFFECT OF TERMINATION
Upon the termination of this Agreement pursuant to section 8.2, this Agreement
shall forthwith terminate and, except in the case of a party hereto that is not
in compliance with its obligations hereunder, no party hereto shall have any
liability or further obligation to any other party hereto.
17
-16-
ARTICLE 9
GENERAL
9.1 SECTIONS AND HEADINGS
The division of this Agreement into sections and the insertion of headings are
for convenience of reference only and shall not affect the interpretation of
this Agreement. Unless otherwise indicated, any reference in this Agreement to
a Section refers to the specified Section of this Agreement.
9.2 NUMBER, GENDER AND PERSONS
In this Agreement, words importing the singular number only shall include the
plural and vice versa, words importing gender shall include all genders and
words importing persons shall include individuals, corporations, partnerships,
associations, trusts, unincorporated organizations, governmental bodies and
other legal or business entities.
9.3 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral,
including for further certainty, the Letter of Intent. There are no conditions,
covenants, agreements, representations, warranties or other provisions, express
or implied, collateral, statutory or otherwise, relating to the subject matter
hereof except as herein provided.
9.4 TIME OF ESSENCE
Time shall be of the essence of this Agreement.
9.5 APPLICABLE LAW
This Agreement shall be construed, interpreted and enforced in accordance with,
and the respective rights and obligations of the parties shall be governed by,
the laws of Canada applicable therein, and each party hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of such
province and all courts competent to hear appeals therefrom.
9.6 SEVERABILITY
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision in hereby
declared to be separate, severable and distinct.
9.7 SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and shall be binding on and
enforceable by the parties and, where the context so permits, their respective
successors and permitted assigns. No party may assign any of its rights or
obligations hereunder without the prior written consent of the other parties.
9.8 COUNTERPARTS
18
-17-
This Agreement may be executed in one or more counterparts by facsimile
transmission, each of which shall constitute an original and all of which when
taken together shall constitute one and the same Agreement.
IN WITNESS WHEREOF this Agreement has been duly executed by the
parties hereto under their respective seals as of the date first referred to
above.
▇▇▇▇▇▇ RESOURCES LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
ENVIRO INDUSTRIAL TECHNOLOGIES, INC.
By: /s/ [SIG]
----------------------------------------------
Name:
Title:
ENVIRO INDUSTRIAL TECHNOLOGIES (CANADA), INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name:
Title:
19
SCHEDULE 1
COMMON SHARES
A. PAYMENT OF DIVIDENDS: The holders of the common shares shall be entitled
to receive dividends if, as and when declared by the board of directors of the
Corporation out of the assets of the Corporation properly applicable to the
payment of dividends in such amount and payable at such times and at such place
or places in Canada as the board of directors may from time to time determine.
B. PARTICIPATION UPON LIQUIDATION, DISSOLUTION OR WINDING-UP: In the event of
the liquidation, dissolution or winding-up of the Corporation or other
distribution of assets of the Corporation among its shareholders for the
purpose of winding-up its affairs, the holders of the common shares shall be
entitled to participate rateably in any distribution of the assets of Amalco.
C. VOTING RIGHTS: The holders of the common shares shall be entitled to
receive notice of and to attend all annual and special meetings of the
shareholders of the Corporation and to one vote in respect of each common share
held at all such meetings.