SHARE TENDER AND CANCELLATION AGREEMENT re Option Grants
re
Option Grants
THIS SHARE TENDER AND CANCELLATION
AGREEMENT (the “Agreement”) is effective as of the
19th
day of April, 2010 by and among Loto Inc., a corporation incorporated in the
State of Nevada (referred to herein as “Loto”
and the “Company”) and each of the signatory
shareholders hereto (the “Shareholders”).
WHEREAS, the Shareholders are
the registered and beneficial owners of shares of the Company’s common stock,
$0.0001 par value (“Shares”);
and
WHEREAS, the Shareholders and
the Company have agreed that it is in the best interests of the Company that the
Shareholders will each tender 500,000 shares of the Company’s common stock for
cancellation, and that the Company may thereafter issue such number of shares
for purposes related to the development of the Company.
NOW, THEREFOR, in
consideration of the premises and mutual covenants contained in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties, intending to be legally bound hereby,
agree as follows:
1.
TENDER AND CANCELLATION OF SHARES
The
Shareholders hereby each tender and agree to the cancellation of 500,000 Shares
and deliver a certificate (or certificates) representing such shares to the
Company for cancellation and return to treasury (the “Surrendered
Shares”).
2.
CONSIDERATION
The
Shareholders recognize and acknowledge that the consideration given hereby for
canceling the Surrendered Shares is deemed to be of adequate and sufficient
value and the Shareholders hereby irrevocably covenant and agree to perform any
and all obligations herein and pursuant to the terms and conditions
hereto.
3.
REPRESENTATIONS
Each of
the Shareholders represent and warrant to the Company that:
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a.
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It
is the owner of the Shares;
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b.
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It
has good and marketable title to the Shares;
and
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c.
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The
Shares are free and clear of all liens, security interests, pledges,
encumbrances or liabilities of any kind
whatsoever.
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4.
STOCK POWER
The
undersigned Shareholders, by the hand of its duly authorized undersigned
officers or directors, hereby assigns and transfers title to the Company of the
Surrendered Shares, as represented by the stock certificate(s) of such
Shareholder, at such time as all terms and conditions in this Agreement are
satisfied or waived, subject to delivery and acceptance by the Company’s
Transfer Agent, and the Shareholder does hereby irrevocably constitute and
appoint the law firm of Wuersch & ▇▇▇▇▇▇ LLP as agent (the “Agent”) to cause
the transfer of title of said shares of Common Stock on the books of the within
named Company, with full power of substitution in the premises, effective as of
the date of delivery to the Transfer Agent. This provision shall be
deemed to serve as a Stock Power and shall have the same full power, force and
effect as a separate Stock Power instrument, which may be fully relied upon by
the Company, the Agent and the Company’s Transfer Agent to the same and full
extent as a separately endorsed Stock Power.
5.
TRANSFER AGENT
The Transfer Agent is hereby expressly
authorized by the Company and by the Shareholders to accept delivery of this
Agreement and any related instruction letter via fax, or scan and e-mail, and
the Transfer Agent is furthermore expressly authorized to accept the stock power
contained herein without a medallion signature guarantee or notary
authentication. The Company shall indemnify the Transfer Agent, its
principals and their successors and assigns from and against all losses or
damages that may arise by reason thereof, and all costs, charges, expenses and
all actions or suits, whether groundless or otherwise, it being the purpose of
this Agreement of indemnity to fully protect said Transfer Agent and its
principals, their successors and assigns in the premises.
6.
MISCELLANEOUS
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6.1
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Presumption. This
Agreement or any section thereof shall not be construed against any party
due to the fact that said Agreement or any section thereof was drafted by
said party.
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6.2
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Titles and
Captions. All
article, section and paragraph titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the
context nor affect the interpretation of this
Agreement.
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6.3
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Further
Action. The parties
hereto shall execute and deliver all documents, provide all information
and take or forbear from all such action as may be necessary or
appropriate to achieve the purposes of this
Agreement.
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6.4
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Good Faith,
Cooperation and Due Diligence. The parties
hereto covenant, warrant and represent to each other good faith, complete
cooperation, due diligence and honesty in fact in the performance of all
obligations of the parties pursuant to this Agreement. All
promises and covenants are mutual and
dependent.
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6.5
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Assignment. This
Agreement may not be assigned by either party hereto without the written
consent of the other, but shall be binding upon the successors of the
parties.
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6.6
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Notices. All notices
and other communications required or permitted to be given pursuant to
this Agreement shall be in writing signed by the sender, and shall be
considered given by the sender and received by the recipient as
follows: (a) on the date delivered, if personally delivered;
(b) on the date sent by telecopy, if sent on a business day by 6:00 p.m.
(EST) with automatic confirmation by the transmitting machine showing the
proper number of pages were transmitted without error; or if sent after
that time, on the next succeeding business day; (c) on the next business
day after being sent by recognized overnight mail service in time for and
specifying next day or next business day delivery; or (d) five (5)
business days after mailing, if mailed by United States postage-paid,
certified or registered mail, return receipt requested, in each case
addressed to the parties at their respective addresses or telecopier
numbers on file with the Company as of the date hereof. All addresses for
notice may be changed or modified only in accordance with the provisions
for notice herein.
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6.7
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Entire
agreement. This
Agreement contains the entire understanding and agreement among the
parties. There are no other agreements, conditions or representations,
oral or written, express or implied, with regard thereto. This Agreement
may be amended only in writing signed by all
parties.
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6.8
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Waiver. A delay or
failure by any party to exercise a right under this Agreement, or a
partial or single exercise of that right, shall not constitute a waiver of
that or any other right.
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6.9
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Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
Agreement. In the event that the document is signed by one
party and faxed to another the parties agree that a faxed signature shall
be binding upon the parties to this Agreement as though the signature was
an original.
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6.10
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Successors. The
provisions of this Agreement shall be binding upon all parties, their
successors and assigns.
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6.11
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Counsel. The parties
expressly acknowledge that each has been advised to seek separate counsel
for advice in this matter and has been given a reasonable opportunity to
do so.
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6.12
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Jurisdiction. Any
controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be settled exclusively by binding arbitration in
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ pursuant to the rules of an arbitral forum
mutually agreed upon by the Shareholders. In the event that an
arbitral forum is not agreed upon after delivery of notice by the
Shareholder initiating such arbitration and forty-five days after
confirmed receipt of such notice by the other Shareholder, then any court
having competent jurisdiction over the Shareholder shall have full power
and authority to appoint an arbitrator in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, who
shall be a solicitor with not less than ten years corporate transactional
experience. The fees and costs of such arbitration shall be
paid by the non-prevailing party.
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[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties have duly executed and delivered this Agreement as of the date first
written above.
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
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Chief
Financial Officer
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Shareholder:
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A
FEW BRILLIANT MINDS INC.
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇
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Title:
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President
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Shareholder:
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MHALKA
CAPITAL INVESTMENTS LTD.
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By:
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/s/ Perpetum Finance
Inc.
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Name:
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Perpetum
Finace Inc.
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Title:
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Director
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