Warranties, representations and covenants by the Purchaser. In order to induce the Vendor to enter into and consummate this Agreement, the Purchaser hereby warrants to and represents to the Vendor that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry: (a) the Purchaser is duly incorporated under the laws of its jurisdiction of incorporation and is validly existing and in good standing with respect to all statutory filings required by the applicable corporate laws; (b) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part; (c) there are no consents, approvals or conditions precedent to the performance of this Agreement; (d) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors; (e) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies; (f) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it; (g) there has been and there will be prepared and filed on a timely basis all federal and state income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations of the Purchaser, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respects; (h) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not: (i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser; (ii) conflict with or 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 the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party; (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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or (v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument; (i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading; (j) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and (k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Tradeshow Marketing Co. Ltd.), Asset Purchase Agreement (Tradeshow Marketing Co. Ltd.), Asset Purchase Agreement (Tradeshow Marketing Co. Ltd.)
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Vendors to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors, with the intent that the Vendors will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction the State of incorporation and Nevada, U.S.A., is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate lawsNevada Revised Statutes;
(b) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill the Purchaser's obligations under this Agreement, and the Purchaser has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(c) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its the Purchaser's part;
(cd) prior to the Subject Removal Date the Purchaser will have obtained all authorizations, approvals, including Regulatory Approval, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all Regulatory Authorities from whom any such authorization, approval or other action is required to be obtained or to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser who will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser may be subject;
(e) except for Regulatory Approval of this Agreement by the appropriate Regulatory Authorities, there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(i) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it the Purchaser is subject or which apply to itthe Purchaser;
(gj) there the Purchaser will save the Vendors harmless in respect of all claims, liabilities and expenses arising out of the Purchaser's activities on any of the mineral property interests comprising the Property;
(k) the Purchaser will do all work on the Property in a good and minerlike fashion and in accordance with all applicable laws, regulations, orders and ordinances of any governmental authority;
(l) the Purchaser is not in breach of any provision or condition of, nor has been and there will be prepared and filed on the Purchaser done or omitted anything that, with or without the giving of notice or lapse or both, would constitute a timely basis all federal and state income tax returnsbreach of any provision or condition of, elections and designationsor give rise to any right to terminate or cancel or accelerate the maturity of any payment under, and all any deed of trust, contract, certificate, consent, permit, license or other governmental returns, notices and reports of instrument to which the Purchaser hadis a party, by which the Purchaser is bound or from which the Purchaser derives benefit, any judgment, decree, order, rule or regulation of any court or governmental authority to which the Purchaser is subject, or ought reasonably to have had, knowledge required to be any statute or reasonably capable of being filed with respect regulation applicable to the operations Purchaser, to an extent that, in the aggregate, has a material adverse affect on the Purchaser;
(m) the Purchaser will give to the Vendors, within at least five calendar days prior to the Closing Date (as hereinafter defined), by written notice, particulars of:
(i) each occurrence within the Purchaser's knowledge after the Effective Date of this Agreement that, if it had occurred before the Effective Date, would have been contrary to any of the Purchaser, and no such returns, elections, designations, notices 's representations or reports contain warranties contained herein; and
(ii) each occurrence or will contain omission within the Purchaser's knowledge after the Effective Date that constitutes a breach of any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete of the Purchaser's covenants contained in all material respectsthis Agreement;
(hn) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating incorporation documents of the Purchaser;
(ii) conflict with or 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 court or governmental authority, domestic or foreign, to which the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its the Purchaser's business and the ownership or leasing of its the Purchaser's business assets; or
(v) constitute a default by the Purchaser, Purchaser or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(io) neither this Agreement nor any other document, certificate or statement furnished to the Vendor Vendors by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;; and
(jp) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor Vendors which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor Vendors to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.
Appears in 2 contracts
Samples: Mineral Property Acquisition Agreement (Silica Resources Corp), Mineral Property Acquisition Agreement (Zoro Mining Corp.)
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor, with the intent that the Vendor will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction the State of incorporation and Nevada, U.S.A., is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate lawsNevada Revised Statutes;
(b) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill the Purchaser's obligations under this Agreement, and the Purchaser has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(c) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its the Purchaser's part;
(cd) prior to the Subject Removal Date the Purchaser will have obtained all authorizations, approvals, including Regulatory Approval, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all Regulatory Authorities from whom any such authorization, approval or other action is required to be obtained or to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser who will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser may be subject;
(e) except for Regulatory Approval of this Agreement by the appropriate Regulatory Authorities, there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(i) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it the Purchaser is subject or which apply to itthe Purchaser;
(gj) there the Purchaser will save the Vendor harmless in respect of all claims, liabilities and expenses arising out of the Purchaser's activities on any of the mineral property interests comprising the Property;
(k) the Purchaser will do all work on the Property in a good and minerlike fashion and in accordance with all applicable laws, regulations, orders and ordinances of any governmental authority;
(l) the Purchaser is not in breach of any provision or condition of, nor has been and there will be prepared and filed on the Purchaser done or omitted anything that, with or without the giving of notice or lapse or both, would constitute a timely basis all federal and state income tax returnsbreach of any provision or condition of, elections and designationsor give rise to any right to terminate or cancel or accelerate the maturity of any payment under, and all any deed of trust, contract, certificate, consent, permit, license or other governmental returns, notices and reports of instrument to which the Purchaser hadis a party, by which the Purchaser is bound or from which the Purchaser derives benefit, any judgment, decree, order, rule or regulation of any court or governmental authority to which the Purchaser is subject, or ought reasonably to have had, knowledge required to be any statute or reasonably capable of being filed with respect regulation applicable to the operations Purchaser, to an extent that, in the aggregate, has a material adverse affect on the Purchaser;
(m) the Purchaser will give to the Vendor, within at least five calendar days prior to the Closing Date (as hereinafter defined), by written notice, particulars of:
(i) each occurrence within the Purchaser's knowledge after the Effective Date of this Agreement that, if it had occurred before the Effective Date, would have been contrary to any of the Purchaser, and no such returns, elections, designations, notices 's representations or reports contain warranties contained herein; and
(ii) each occurrence or will contain omission within the Purchaser's knowledge after the Effective Date that constitutes a breach of any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete of the Purchaser's covenants contained in all material respectsthis Agreement;
(hn) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating incorporation documents of the Purchaser;
(ii) conflict with or 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 court or governmental authority, domestic or foreign, to which the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its the Purchaser's business and the ownership or leasing of its the Purchaser's business assets; or
(v) constitute a default by the Purchaser, Purchaser or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(io) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;; and
(jp) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.
Appears in 2 contracts
Samples: Mineral Property Acquisition Agreement (Douglas Lake Minerals Inc.), Mineral Property Acquisition Agreement (Douglas Lake Minerals Inc.)
Warranties, representations and covenants by the Purchaser. In order to induce each of the Vendor Vendors and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors and the Company, with the intent that each of the Vendors and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:inquiry (and for the purposes of the following warranties, representations and covenants, "Purchaser" shall mean the Purchaser and any subsidiary of the Purchaser, if any, as the context so requires):
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of their respective business assets and to carry on their respective businesses as presently conducted by them;
(c) save and except as set forth in the "Purchaser Disclosure Schedule" which will accompany the Purchaser's execution and delivery of this Agreement, the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, save and except for those actual or threatened liens, charges, encumbrances, demands, limitations and restrictions which are listed in Schedule "I" which is attached hereto and which forms a material part hereof and as forth in the Purchaser Disclosure Schedule;
(i) save and except as set forth in the Purchaser Disclosure Schedule, the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all laws, zoning and other by-laws, building and other restrictions, rules, regulations and ordinances applicable to the Purchaser and its business and assets, and neither the execution and delivery of this Agreement nor the completion of the transactions contemplated hereby will give any person the right to terminate or cancel any said license or permit or affect such compliance;
(j) the authorized capital of the Purchaser consists of 200,000,000 common shares, with a par value of U.S. $0.00025 per common share which, according to the records of the Purchaser, an aggregate of 18,627,523 common shares of the Purchaser are and will be issued and outstanding as fully paid and non-assessable just prior to the Closing Date, and there are at present no other shares in the capital of the Purchaser issued or allotted or agreed to be issued or allotted to any person;
(k) all of the issued and outstanding shares of the Purchaser are listed and posted for trading on each of the NASD Over-the-Counter Bulletin Board (the "OTCBB"), and the Purchaser is not in material default of any of its listing requirements of the OTCBB or any rules or policies of the United States Securities and Exchange Commission (the "Commission");
(l) save and except as set forth in the Purchaser Disclosure Schedule, all registration statements, reports and proxy statements filed by the Purchaser with the Commission, and all registration statements, reports and proxy statements required to be filed by the Purchaser with the Commission, have been filed by the Purchaser under the United States Securities Act of 1934 (the "1934 Act"), were filed in all material respects in accordance with the requirements of the 1934 Act and the rules and regulations thereunder and no such registration statements, reports or proxy statements contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) the Purchaser will allot and issue the Shares on the Closing Date in accordance with section "2.2" hereinbelow as fully paid and non-assessable in the capital of the Purchaser, free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, other than hold periods or other restrictions imposed under applicable securities legislation;
(n) from September 22, 2005 to and up to and including the Closing Date the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Company, to:
(i) redeem or acquire any shares in its share capital;
(ii) declare or pay any dividend;
(iii) make any reduction in or otherwise make any payment on account of its paid-up capital; or
(iv) effect any subdivision, consolidation or reclassification of its share capital;
(o) from September 22, 2005 to and up to and including the Closing Date the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Company, to:
(i) acquire or have the use of any property from a person, corporation or entity with whom it was not dealing with at arm's length; or
(ii) dispose of anything to a person, corporation or entity with whom it was not dealing with at arm's length for proceeds less than the fair market value thereof;
(p) save and except as set forth in Schedule "I" which is attached hereto and as set forth in the Purchaser Disclosure Schedule, from September 22, 2005 to and up to and including the Closing Date the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Company, to provide any person, firm or corporation with any agreement, option or right, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, option or right:
(i) to require it to issue any further or other shares in its share capital, or any other security convertible or exchangeable into shares in its share capital, or to convert or exchange any securities into or for shares in its share capital;
(ii) for the issue and allotment of any of the authorized but unissued shares in its share capital;
(iii) to require it to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its share capital; or
(iv) to purchase or otherwise acquire any shares in its share capital;
(q) the Purchaser is not aware of any court order which restricts or prevents the issuance by the Purchaser of any shares from treasury;
(r) save and except for those matters which are listed in Schedule "I" which is attached hereto and as set forth in the Purchaser Disclosure Schedule, there are no material liabilities, contingent or otherwise, existing on the Execution Date hereof in respect of which the Purchaser may be liable on or after the completion of the transactions contemplated by this Agreement other than:
(i) liabilities disclosed or referred to in this Agreement; and
(ii) liabilities incurred in the ordinary course of business, none of which are materially adverse to the business, operations, affairs or financial conditions of the Purchaser;
(s) save and except as set forth in Schedule "I" which is attached hereto and as set forth in the Purchaser Disclosure Schedule, no other dividend or other distribution by the Purchaser has been made, declared or authorized since its incorporation, and from September 22, 2005 to and up to and including the Closing Date the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Company, to confer upon, or pay to or to the benefit of, any entity, any benefit having monetary value, any bonus or any salary increases except in the normal course of its business;
(t) save and except as set forth in Schedule "I" which is attached hereto and as set forth in the Purchaser Disclosure Schedule, there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(u) save and except as set forth in the Purchaser Disclosure Schedule, the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(gv) the Purchaser is not a party to any collective agreement with any labour union or other association of employees, and there is no pending application for certification of any of the Purchaser's employees as a collective bargaining unit. In addition, and to the best of the knowledge, information and belief of the Purchaser, after having made due inquiry, the Purchaser is not presently a party to any complaint, grievance, arbitration or other labour matter referred to any board or labour authority;
(w) there are no pension, profit sharing, group insurance or similar plans or other deferred compensation plans affecting the Purchaser or any of its directors, officers or employees;
(x) save and except as set forth in the Purchaser Disclosure Schedule, the Purchaser has not experienced, nor is the Purchaser aware of, any occurrence or event which has had, or might reasonably be expected to have, a materially adverse affect on its business or on the results of its operations;
(y) save and except as set forth in the Purchaser Disclosure Schedule, the Purchaser holds or has applied for all permits, licenses, consents and authorities issuable by any federal, state, regional or municipal government or agency thereof which are necessary or desirable in connection with its operations;
(z) save and except for those matters which are listed in Schedule "I" which is attached hereto and as set forth in the Purchaser Disclosure Schedule, from September 22, 2005 to and up to and including the Closing Date there has been and there will be prepared and filed on a timely basis all federal and state income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed up to the Closing Date, with respect to the operations of the Purchaser, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respects;
(haa) the making of this Agreement save and the completion of the transactions contemplated hereby except for those matters which are listed in Schedule "I" which is attached hereto and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result as set forth in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser;
(ii) conflict with or 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 the Purchaser is subjectDisclosure Schedule, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser is a party;
(iii) give has been assessed for all federal, state and municipal income tax for all years to any party and including its most recent taxation year, and at the right of termination, cancellation or acceleration in or with respect to any agreement, contract or commitment to which the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;
(j) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(k) Closing Date the Purchaser will employ good faithhave paid in full or accrued in accounts all amounts (including but not limited to sales, use and consumption taxes and taxes measured on income and all installments of taxes) due diligenceand payable to all federal, state and best efforts municipal taxation authorities up to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.Closing Date;
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Vendors and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors and the Company, with the intent that each of the Vendors and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction the State of incorporation and Nevada, U.S.A., is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser's subsidiaries, if any, are corporations duly incorporated under the laws of their respective jurisdictions of incorporation, are validly existing and are in good standing with respect to all statutory filings required by the applicable corporate laws with the exception of subisidiary interests no longer of value to the Purchaser including International Gold Corporation, a Nevada corporation;
(c) the Purchaser and each of the Purchaser's subsidiaries, if any, have the requisite power, authority and capacity to own and use all of their respective business assets and to carry on their respective businesses as presently conducted by them; - Share Exchange Agreement - - Intergold Corporation changing its name to Lexington Resources, Inc. -
(d) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(e) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(cf) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(dg) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eh) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companiesPurchaser;
(fi) the Purchaser is not in breach and each of the Purchaser's subsidiaries, if any, own and possess and have good and marketable title to and possession of all of their respective business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, save and except for those actual or threatened liens, charges, encumbrances, demands, limitations and restrictions which are listed in Schedule "F": which is attached hereto and which forms a material part hereof;
(j) the Purchaser and each of the Purchaser's subsidiaries, if any, hold all licenses and permits required for the conduct in the ordinary course of the operations of their businesses and for the uses to which their respective business assets have been put and are in good standing, and such conduct and uses are in compliance with all laws, ordinances, statutes, regulations, zoning and other by-laws, orders or decrees to which it is subject or which apply to it;
(g) there has been building and there will be prepared other restrictions, rules, regulations and filed on a timely basis all federal and state income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect ordinances applicable to the operations Purchaser, to any of the Purchaser's subsidiaries, if any, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement that should have been includedtheir respective businesses and assets, and each such return, election, designation, notice or report, including accompanying schedules neither the execution and statements, is and will be true, correct and complete in all material respects;
(h) the making delivery of this Agreement and nor the completion of the transactions contemplated hereby and will give any person the performance of and compliance with the terms hereof does not and will not:right to terminate or cancel any said license or permit or affect such compliance; - Share Exchange Agreement - - Intergold Corporation changing its name to Lexington Resources, Inc. -
(ik) conflict with or result in a breach of or violate any the authorized capital of the termsPurchaser consists of 200,000,000 common shares without par value of which, conditions or provisions of according to the constating documents records of the Purchaser;
(ii) conflict with or result in a breach , an aggregate of or violate any 521,184 common shares of the termsPurchaser will be issued and outstanding as fully paid and non-assessable as at the Closing Date (as hereinafter determined), conditions or provisions and there are at present no other shares in the capital of any law, judgment, order, injunction, decree, regulation or ruling of any Court or governmental authority, domestic or foreign, to which the Purchaser is subject, issued or constitute allotted or result in a default under any agreement, contract agreed to be issued or commitment to which the Purchaser is a party;
(iii) give allotted to any party the right of terminationperson, cancellation or acceleration in or with respect to any agreement, contract or commitment to which the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct save and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness except for certain shares of the Purchaser which would give any party have been allotted and reserved for issuance by the Purchaser pursuant to that agreement, contract, indenture or other instrument the right to accelerate terms of certain outstanding stock options which have been approved by the maturity for directors of the payment Purchaser; the details of any amount payable under that agreement, contract, indenture or other instrumentwhich allotted and reserved shares of the Purchaser being set forth in Schedule "F": which is attached hereto;
(il) neither this Agreement nor any other document, certificate or statement furnished to all of the Vendor by or on behalf issued and outstanding shares of the Purchaser are listed and posted for trading on each of the NASD Over-the-Counter Bulletin Board (the "OTCBB"), and the Purchaser is not in connection material default of any of its listing requirements of the OTCBB, or policies of the United States Securities and Exchange Commission (the "COMMISSION");
(m) all registration statements, reports and proxy statements filed by the Purchaser with the transactions contemplated hereby knowingly Commission, and all registration statements, reports and proxy statements required to be filed by the Purchaser with the Commission, have been filed by the Purchaser under the United States SECURITIES ACT of 1934 (the "1934 ACT"), were filed in all material respects in accordance with the requirements of the 1934 Act and the rules and regulations thereunder and no such registration statements, reports or negligently contains proxy statements contained any untrue or incomplete statement of a material fact or omits omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(j) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(kn) the Purchaser will employ good faith, due diligence, allot and best efforts to perform its obligations of this Agreement issue the Shares on the Closing Date in accordance with sections "2.2" and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement."
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor to enter into 4.1 Warranties, representations and consummate this Agreement, the Purchaser hereby warrants to and represents to the Vendor that, to the best of the informed knowledge, information and belief of covenants by the Purchaser, after having made due inquiry:.
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and is validly existing and in good standing with respect to all statutory filings required by the applicable corporate lawsincorporation;
(b) the Purchaser has the requisite power, authority and capacity to carry on the Purchaser’s Business as presently conducted by it;
(c) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever;
(i) the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all applicable laws, and other restrictions, rules, regulations and ordinances applicable to the Purchaser, and neither the execution and delivery of this Agreement nor the completion of the transactions contemplated hereby will give any person the right to terminate or cancel any said license or permit or affect such compliance;
(j) the authorized capital of the Purchaser is unlimited and at the Closing Date, the Purchaser will have completed a share consolidation of 1 new for 6 existing issued and outstanding common shares, which will result in approximately 18,881,740 common shares issued and outstanding as fully paid and non- assessable in the capital of the Purchaser;
(k) the Purchaser will have approximately 1,583,335 incentive stock options issued to its directors, officers/employees, and consultants at the Closing Date, each of which entitles the holder to purchase one common share in the capital of the Purchaser at a price of $0.60 per share on or before April 20, 2016;
(l) the Purchaser will have approximately 5,250,000 common share purchase warrants issued and outstanding. Each warrant will entitle the holder to acquire one common share in the Purchaser for a period of three years from the date of issuance, at a price of $0.30 per common share until February 25, 2015 and $0.60 per common share thereafter;
(m) following the closing of this Agreement, the Purchaser will endeavor to arrange a non-brokered $1,000,000 private placement (the “Financing”) through Jacob Securities following the completion of the Transaction;
(n) as soon as possible after closing as permitted under applicable corporate laws or CSE policies, the Purchaser will appoint to its board of directors at least one individual nominated by the investor in the Companies’ Private Placement, the investor so requires;
(o) the Purchaser will have received conditional approval for all of its issued and outstanding shares to be listed and posted for trading on the CSE and is not in material default of any applicable CSE rules or any rules or policies of the British Columbia Securities Commission (the “Commission”);
(p) the Purchaser will allot and issue the Consideration Shares and any Earn-Out Shares in accordance with Section 2.2 hereinabove as fully paid and non−assessable in the capital of the Purchaser. The Consideration Shares and any Earn-Out Shares will be subject to trading restrictions described in Section 2.4. Once the Consideration Shares are released from the Stock Restriction Agreements, the Consideration Shares will be free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions, other than hold periods or other restrictions imposed under applicable securities legislation;
(q) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board, bureau or agency;
(r) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-lawsby−laws, orders or decrees to which it is subject or which apply to it;
(gs) there has been is not now, and there will not be prepared and filed on a timely basis all federal and state income tax returnsby the Closing Date, elections and designationsany proceeding, and all other governmental returnsclaim or, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations best of the knowledge, information and belief of the Purchaser, and no after making due inquiry, any investigation by any federal, provincial or municipal taxation authority, or any matters under discussion or dispute with such returnstaxation authorities, electionsin respect of taxes, designationsgovernmental charges, notices assessments or reports contain or will contain any material misstatement or omit any material statement that should have been includedreassessments in connection with the Purchaser, and each such returnthe Purchaser is not aware of any contingent tax liabilities or any grounds that could result in an assessment, electionreassessment, designationcharge or potentially adverse determination by any federal, notice provincial or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respectsmunicipal taxation authority as against the Purchaser;
(ht) the Purchaser has no equipment, other than the personal property or fixtures in the possession or custody of the Purchaser which, as of the date hereof, are leased or are held under license or similar arrangement;
(u) there are no liabilities, contingent or otherwise of the Purchaser not disclosed;
(v) none of the directors, officers or employees of the Purchaser are now indebted or under obligation to the Purchaser on any account whatsoever, other than in the ordinary course of business or as otherwise disclosed in the Purchaser’s financial statements;
(w) all material transactions of the Purchaser and including, without limitation, all directors’ and shareholders’ resolutions, have been promptly and properly recorded or filed in or with the Purchaser’s books and records;
(x) the Purchaser will have obtained all authorizations, approvals, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all Regulatory Authorities required to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser, which will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser may be subject;
(y) until the Closing Date the Purchaser will:
(i) maintain its assets in a manner consistent with and in compliance with applicable law; and
(z) the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Vendor and the Companies, to:
(i) declare or pay any dividend, or make any distribution of its properties or assets to its shareholders, or purchase or retire any of its shares; or
(ii) sell all or any part of its assets or agree to do or perform any act or enter into any transaction or negotiation which could reasonably be expected to interfere with this Agreement or which would render inaccurate any of the representations, warranties and covenants set forth in this Agreement;
(aa) the shares in the capital of the Purchaser are not subject to or affected by any actual or, to the knowledge of the Purchaser, pending or threatened cease trading, compliance or denial of use of exemptions orders of, or action, investigation or proceeding by or before, any securities regulatory authority, court, administrative agency or other tribunal;
(bb) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser;
(ii) conflict with or 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 court or governmental authority, domestic or foreign, to which the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its business businesses and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, Purchaser or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(icc) neither this Agreement nor any other document, certificate or statement furnished to the Vendor or the Companies by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;; and
(jdd) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor and the Companies which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor and the Companies to enter into this Agreement; and.
(k) 4.2 Continuity of the Purchaser will employ good faithrepresentations, due diligence, warranties and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete covenants by the objects and intent of this AgreementPurchaser.
Appears in 1 contract
Samples: Share Exchange Agreement
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Gareste to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of Gareste, with the Vendor intent that Gareste will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a limited liability company duly incorporated organized under the laws of its jurisdiction the country of incorporation and Chile, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate lawsChilean law;
(b) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill the Purchaser’s obligations under this Agreement, and the Purchaser has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(c) the execution and delivery of this Agreement and the agreements contemplated hereby has have been duly authorized by all necessary corporate action on its the Purchaser’s part;
(cd) prior to the Closing Date the Purchaser will have obtained all authorizations, approvals, including Regulatory Approval, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all Regulatory Authorities from whom any such authorization, approval or other action is required to be obtained or to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser who will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser may be subject;
(e) except for Regulatory Approval of this Agreement by the appropriate Regulatory Authorities, there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies; — Mineral Property Acquisition Agreement —
(h) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(fi) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it the Purchaser is subject or which apply to it;
(g) there has been and there will be prepared and filed on a timely basis all federal and state income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations of the Purchaser, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respects;
(h) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser;
(iij) conflict the Purchaser will save Gareste harmless in respect of all claims, liabilities and expenses arising out of the Purchaser’s activities on any of the mineral property interests comprising the Property;
(k) the Purchaser will do all work on the Property in a good and minerlike fashion and in accordance with all applicable laws, regulations, orders and ordinances of any governmental authority;
(l) the Purchaser is not in breach of any provision or condition of, nor has the Purchaser done or omitted anything that, with or result in without the giving of notice or lapse or both, would constitute a breach of any provision or violate condition of, or give rise to any of right to terminate or cancel or accelerate the terms, conditions or provisions maturity of any lawpayment under, any deed of trust, contract, certificate, consent, permit, license or other instrument to which the Purchaser is a party, by which the Purchaser is bound or from which the Purchaser derives benefit, any judgment, decree, order, injunction, decree, rule or regulation or ruling of any Court court or governmental authority, domestic or foreign, authority to which the Purchaser is subject, or constitute any statute or result regulation applicable to the Purchaser, to an extent that, in the aggregate, has a default under any agreement, contract or commitment material adverse affect on the Purchaser’s ability to which the Purchaser is a partyperform this Agreement;
(iiim) the Purchaser will give to any party the right of terminationGareste, cancellation or acceleration in or with respect to any agreement, contract or commitment to which the Purchaser is a party;
(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 within at least five calendar days prior to the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
Closing Date (v) constitute a default as hereinafter defined), by the Purchaserwritten notice, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;particulars of:
(i) neither each occurrence within the Purchaser’s knowledge after the Effective Date of this Agreement nor that, if it had occurred before the Effective Date, would have been contrary to any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly Purchaser’s representations or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;warranties contained herein; and
(jii) each occurrence or omission within the Purchaser is not aware Purchaser’s knowledge after the Effective Date that constitutes a breach of any fact or circumstance which has not been disclosed to of the Vendor which should be disclosed in order to prevent the representations, warranties and Purchaser’s covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this — Mineral Property Acquisition Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.—
Appears in 1 contract
Samples: Mineral Property Acquisition Agreement (Pacific Copper Corp.)
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Vendors to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors, with the intent that the Vendors will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction the State of incorporation and Nevada, U.S.A., is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate lawsNevada Revised Statutes;
(b) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill the Purchaser’s obligations under this Agreement, and the Purchaser has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(c) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its the Purchaser’s part;
(cd) prior to the Subject Removal Date the Purchaser will have obtained all authorizations, approvals, including Regulatory Approval, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all Regulatory Authorities from whom any such authorization, approval or other action is required to be obtained or to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser who will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser may be subject;
(e) except for Regulatory Approval of this Agreement by the appropriate Regulatory Authorities, there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(i) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it the Purchaser is subject or which apply to itthe Purchaser;
(gj) there the Purchaser will save the Vendors harmless in respect of all claims, liabilities and expenses arising out of the Purchaser’s activities on any of the mineral property interests comprising the Property;
(k) the Purchaser will do all work on the Property in a good and minerlike fashion and in accordance with all applicable laws, regulations, orders and ordinances of any governmental authority;
(l) the Purchaser is not in breach of any provision or condition of, nor has been and there will be prepared and filed on the Purchaser done or omitted anything that, with or without the giving of notice or lapse or both, would constitute a timely basis all federal and state income tax returnsbreach of any provision or condition of, elections and designationsor give rise to any right to terminate or cancel or accelerate the maturity of any payment under, and all any deed of trust, contract, certificate, consent, permit, license or other governmental returns, notices and reports of instrument to which the Purchaser hadis a party, by which the Purchaser is bound or from which the Purchaser derives benefit, any judgment, decree, order, rule or regulation of any court or governmental authority to which the Purchaser is subject, or ought reasonably to have had, knowledge required to be any statute or reasonably capable of being filed with respect regulation applicable to the operations Purchaser, to an extent that, in the aggregate, has a material adverse affect on the Purchaser;
(m) the Purchaser will give to the Vendors, within at least five calendar days prior to the Closing Date (as hereinafter defined), by written notice, particulars of:
(i) each occurrence within the Purchaser’s knowledge after the Effective Date of this Agreement that, if it had occurred before the Effective Date, would have been contrary to any of the Purchaser, and no such returns, elections, designations, notices ’s representations or reports contain warranties contained herein; and
(ii) each occurrence or will contain omission within the Purchaser’s knowledge after the Effective Date that constitutes a breach of any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete of the Purchaser’s covenants contained in all material respectsthis Agreement;
(hn) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating incorporation documents of the Purchaser;
(ii) conflict with or 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 court or governmental authority, domestic or foreign, to which the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its the Purchaser’s business and the ownership or leasing of its the Purchaser’s business assets; or
(v) constitute a default by the Purchaser, Purchaser or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(io) neither this Agreement nor any other document, certificate or statement furnished to the Vendor Vendors by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;; and
(jp) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor Vendors which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor Vendors to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.
Appears in 1 contract
Samples: Mineral Property Acquisition Agreement (Brock Paul Douglas)
Warranties, representations and covenants by the Purchaser. In order to induce each of the Vendor Vendors and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors and the Company, with the intent that each of the Vendors and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:inquiry (and for the purposes of the following warranties, representations and covenants, "the Purchaser" shall mean the Purchaser and any subsidiaries of the Purchaser, if any, as the context so requires):
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of its respective business assets and to carry on its respective business as presently conducted by it;
(c) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) there are no other consents, approvals or conditions precedent to the Purchaser's performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of an insolvent companiesCompany;
(fh) all issued and outstanding common shares of the Purchaser are fully paid and non-assessable as at the Execution Date hereof;
(i) the Purchaser is not in material default of any rules or policies of the Commission;
(j) all registration statements and reports filed by the Purchaser with the Commission, and all registration statements, and reports required to be filed by the Purchaser with the Commission, have been filed by the Purchaser under the Exchange Act were filed in all material respects in accordance with the requirements of the Exchange Act and the rules and regulations thereunder and no such registration statements or reports contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(k) the Purchaser will allot and/or issue the Shares on the Closing Date in accordance with section "2.2" hereinabove as fully paid and non-assessable in the capital of the Purchaser, free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, other than hold periods or other restrictions imposed under applicable securities legislation;
(l) the Purchaser is not aware of any court order which restricts or prevents the issuance by the Purchaser of any shares from treasury;
(m) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(gn) there has been prior to the Subject Removal Date the Purchaser will have obtained all authorizations, approvals, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and there will other actions by, and have made all filings with, any and all Regulatory Authorities required to be prepared and filed on a timely basis all federal and state income tax returns, elections and designationsmade in connection with the transactions contemplated herein, and all such authorizations, approvals and other governmental returnsactions will be in full force and effect, notices and reports all such filings will have been accepted by the appropriate Regulatory Authorities and the Purchaser will be in compliance with, and will have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser hadmay be subject;
(o) the Purchaser will give to each of the Vendors and the Company, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect within at least five business days prior to the operations Closing Date, by written notice, particulars of:
(i) each occurrence within the Purchaser's knowledge after the Execution Date of this Agreement that, if it had occurred before the Execution Date, would have been contrary to any of the Purchaser's representations or warranties contained herein; and
(ii) each occurrence or omission within the Purchaser's knowledge after the Execution Date that constitutes a breach of any of the Purchaser's covenants contained in this Agreement;
(p) the shares in the capital of the Purchaser are not subject to or affected by any actual or, to the knowledge of the Purchaser, and no such returnspending or threatened cease trading, electionscompliance or denial of use of exemptions orders of, designationsor action, notices investigation or reports contain proceeding by or will contain before, any material misstatement securities regulatory authority, Court, administrative agency or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respectsother tribunal;
(hq) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser;; or
(ii) conflict with or 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 the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(ir) neither this Agreement nor any other document, certificate or statement furnished to the Vendor Vendors or the Company by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;; and
(js) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor Vendors or the Company which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor Vendors and the Company to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce each of the Vendor Company and the Vendors to enter into this Agreement and to consummate this Agreementthe transactions hereby, the Purchaser hereby represents and warrants to each of the Company and represents to the Vendor Vendors that, to the best of the informed knowledge, information and belief of the Purchaser (and for the purposes of the following warranties, representations and covenants "Purchaser" shall mean the Purchaser and any subsidiary of the Purchaser, after having made due inquiry:if any, as the context so requires):
(a) the Purchaser is duly incorporated under the laws of its jurisdiction of incorporation and incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of its business assets and to carry on its business as presently conducted by it;
(c) except set forth in the "Purchaser's Disclosure Schedule"; an updated copy of such Purchaser's Disclosure Schedule accompanying the Purchaser's delivery of this Agreement; the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened Liens;
(d) except as set forth in the Purchaser's Disclosure Schedule, the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance in all material respects with all laws, zoning and other by-laws, building and other restrictions, rules, regulations and ordinances applicable to the Purchaser, and neither the execution and delivery of this Agreement and nor the agreements completion of the transactions contemplated hereby has been duly authorized by all necessary corporate action on its partwill give any person the right to terminate or cancel any said license or permit or affect such compliance;
(c) there are no consents, approvals or conditions precedent to the performance of this Agreement;
(de) this Agreement constitutes a legal, valid and binding obligation of the Purchaser Purchaser, enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(ef) the authorized capital of the Purchaser consists of 100,000,000 common shares, with a par value of U.S. $0.001 per common share, of which 5,660,000 pre-Split common shares are currently issued and outstanding. All of the outstanding shares of capital stock or other equity interest of the Purchaser are duly authorized, validly issued, fully paid and non-assessable. Except as set forth in the Purchaser's Disclosure Schedule, (i) all of the issued and outstanding shares of capital stock or other equity interest of the Purchaser are free and clear of all Liens, (ii) there are no outstanding securities convertible into or exchangeable for capital stock or other equity interests of the Purchaser, (iii) there are no outstanding or authorized options, preferred stock, restricted stock, warrants, calls, rights (preemptive or otherwise), subscriptions, rights of first refusal or first offer, or other rights, benefit plan, agreements, arrangements or commitments of any character, obligating the Purchaser to issue, transfer or sell or cause to be issued, transferred or sold any shares of its capital stock or other equity interest (other than to the Vendors pursuant to this Agreement), (iv) there are no outstanding or authorized stock appreciation, phantom stock or similar rights with respect to the Purchaser, (v) no proceedings shares of capital stock or other equity interests of the Purchaser are pending forreserved for issuance or are held as treasury shares, (vi) there are no contracts, understandings or restrictions relating to the capital stock or other equity interest of the Purchaser, whether or not outstanding, (vii) there are no contracts affecting or relating to the voting, issuance, purchase, redemption, registration, repurchase or transfer of any of the capital stock or other equity interests of the Purchaser, or securities or obligations of any kind convertible into any shares of the capital stock or other equity interests of the Purchaser and (viii) none of the issued and outstanding capital stock or other equity interests of the Purchaser were issued in violation of any preemptive rights or rights of first refusal or first offer;
(g) all of the issued and outstanding shares of the Purchaser are listed and posted for trading on the NASD Over-the-Counter Bulletin Board (the "OTCBB"), and the Purchaser is unaware in compliance in all material respects with all of its requirements of the OTCBB, the Securities Act, the United States Securities Exchange Act of 1934, as amended (the "1934 Act") and any rules and regulations promulgated thereunder by the United States Securities and Exchange Commission (the "Commission");
(h) all registration statements, reports and proxy statements filed by the Purchaser with the Commission, and all registration statements, reports and proxy statements required to be filed by the Purchaser with the Commission, will have been filed by the Purchaser under the 1934 Act, will have been filed in all material respects in accordance with the requirements of the 1934 Act and the rules and regulations thereunder and no such registration statements, reports or proxy statements will have contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(i) the Purchaser will allot and issue the Shares on the Closing Date in accordance with section "2.2" hereof as fully paid and non-assessable in the capital of the Purchaser free and clear of all Liens, other than hold periods or other restrictions imposed under applicable securities legislation;
(j) up to and including the Closing Date the Purchaser will not commit itself to:
(i) redeem or acquire any shares in its share capital;
(ii) declare or pay any dividend;
(iii) make any reduction in or otherwise make any payment on account of its paid-up capital; or
(iv) effect any subdivision, consolidation (except as required by the terms of this Agreement) or reclassification of any of its share capital;
(k) up to and including the Closing Date the Purchaser will not commit itself to:
(i) acquire or have the use of any property from a person, corporation or entity with whom it was not dealing with at arm's length; or
(ii) dispose of anything to a person, corporation or entity with whom it was not dealing with at arm's length for proceeds less than the fair market value thereof;
(l) except for the proposed payment and/or issuance of common shares of the Purchaser to FBP Capital Corp. ("FBP"), or its designate or designates, as a finder's fee in conjunction with the successful completion of this Agreement, and except for any finder's fees or commissions which may be payable or issuable by the Purchaser in conjunction with the completion of its proposed Private Placement (as hereinafter determined) as set forth hereinbelow, the Purchaser has not retained, employed or introduced any other broker, finder or other person who would be entitled to a brokerage commission or finder's fee arising out of the transactions contemplated hereby;
(m) except as otherwise contemplated herein, up to and including the Closing Date the Purchaser will not commit itself to provide any person, firm or corporation with any agreement, option or right, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, option or right:
(i) to require it to issue any further or other shares in its share capital, or any other security convertible or exchangeable into shares in its share capital, or to convert or exchange any securities into or for shares in its share capital;
(ii) for the issue and allotment of any of the authorized but unissued shares in its share capital;
(iii) to require it to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its share capital; or
(iv) to purchase or otherwise acquire any shares in its share capital;
(n) except as set forth in section "3.1(n)" of the Purchaser's Disclosure Schedule, there are no material liabilities, contingent or otherwise, in respect of which the Purchaser may be liable on or after the completion of the transactions contemplated hereby other than liabilities incurred in the ordinary course of business, none of which are materially adverse to the business, operations, affairs or financial conditions of the Purchaser;
(o) no dividend or other distribution by the Purchaser will have been made, declared or authorized since its incorporation, nor will any be declared, paid or authorized up to and including the Closing Date, and the Purchaser will not commit itself to confer upon, or pay to or to the benefit of, any basis for entity, any benefit having monetary value, any bonus or any salary increases except in the institution normal course of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companiesits business;
(fp) except as set forth in the Purchaser's Disclosure Schedule, there are no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(q) except as set forth in the Purchaser's Disclosure Schedule, the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(gr) except as set forth in the Purchaser's Disclosure Schedule, the Purchaser will have not experienced, nor will the Purchaser be aware of, any occurrence or event which has had, or might reasonably be expected to have, a materially adverse affect on the Purchaser's business or on the results of its operations;
(s) up to and including the Closing Date there has been and there will be prepared and filed on a timely basis all federal and state provincial income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, had or ought reasonably to have hadhad knowledge, knowledge required to be or reasonably capable of being filed up to the Closing Date, with respect to the operations of the Purchaser, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respects;
(ht) save and except as set forth in the making of this Agreement Purchaser Disclosure Schedule, adequate provision has been made and will be made for taxes payable by the completion Purchaser for the current period for which a tax return is not yet required to be filed and, to the best of the transactions contemplated hereby knowledge, information and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating documents belief of the Purchaser;
(ii) conflict with or result in a breach of or violate any , after having made due inquiry, there are no contingent tax liabilities of the termsPurchaser or any grounds which would prompt a re-assessment of the Purchaser and including, conditions or provisions without limiting the generality of any lawthe foregoing, judgmentthe aggressive treatment of income and expenses in the filing of earlier tax returns by the Purchaser; (u) except as set forth in the Purchaser's Disclosure Schedule, order, injunction, decree, regulation or ruling of any Court or governmental authority, domestic or foreign, to which the Purchaser is subjectnot, nor until or constitute at the Closing Date will it be, in breach of any provision or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 condition of, nor has it done or constitute a breach of or result in a default under, any permit, license, control or authority issued to the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event whichomitted anything that, with or without the giving of notice or lapse of time or both, might would constitute an event a breach of defaultany provision or condition of, under or give rise to any agreementright to terminate or cancel or accelerate the maturity of any payment under, any deed of trust, contract, indenture certificate, consent, permit, license or other instrument relating to which it is a party, by which it is bound or from which it derives benefit, any indebtedness of the Purchaser which would give any party to that agreementjudgment, contractdecree, indenture order, rule or other instrument the right to accelerate the maturity for the payment regulation of any amount payable under that agreementcourt or governmental authority to which it is subject, contractor any statute or regulation applicable to it, indenture or other instrument;
(i) neither this Agreement nor any other documentto an extent that, certificate or statement furnished to in the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state aggregate, has a material fact necessary in order to make the statements therein not misleadingadverse affect on it;
(j) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce each of the Vendor Company and the Vendors to enter into this Agreement and to consummate this Agreementthe transactions hereby, the Purchaser hereby represents and warrants to each of the Company and represents to the Vendor Vendors that, to the best of the informed knowledge, information and belief of the Purchaser (and for the purposes of the following warranties, representations and covenants "Purchaser" shall mean the Purchaser and any subsidiary of the Purchaser, after having made due inquiry:if any, as the context so requires):
(a) the Purchaser is duly incorporated under the laws of its jurisdiction of incorporation and incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of its business assets and to carry on its business as presently conducted by it;
(c) except set forth in the "Purchaser's Disclosure Schedule"; an updated copy of such Purchaser's Disclosure Schedule accompanying the Purchaser's delivery of this Agreement; the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened Liens;
(d) except as set forth in the Purchaser's Disclosure Schedule, the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance in all material respects with all laws, zoning and other by-laws, building and other restrictions, rules, regulations and ordinances applicable to the Purchaser, and neither the execution and delivery of this Agreement and nor the agreements completion of the transactions contemplated hereby has been duly authorized by all necessary corporate action on its partwill give any person the right to terminate or cancel any said license or permit or affect such compliance;
(c) there are no consents, approvals or conditions precedent to the performance of this Agreement;
(de) this Agreement constitutes a legal, valid and binding obligation of the Purchaser Purchaser, enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(ef) the authorized capital of the Purchaser consists of 525,000,000 common shares, with a par value of U.S. $0.001 per common share, of which 38,990,000 common shares are currently issued and outstanding. All of the outstanding shares of capital stock or other equity interest of the Purchaser are duly authorized, validly issued, fully paid and non-assessable. Except as set forth in the Purchaser's Disclosure Schedule, (i) all of the issued and outstanding shares of capital stock or other equity interest of the Purchaser are free and clear of all Liens, (ii) there are no outstanding securities convertible into or exchangeable for capital stock or other equity interests of the Purchaser, (iii) there are no outstanding or authorized options, preferred stock, restricted stock, warrants, calls, rights (preemptive or otherwise), subscriptions, rights of first refusal or first offer, or other rights, benefit plan, agreements, arrangements or commitments of any character, obligating the Purchaser to issue, transfer or sell or cause to be issued, transferred or sold any shares of its capital stock or other equity interest (other than to the Vendors pursuant to this Agreement), (iv) there are no outstanding or authorized stock appreciation, phantom stock or similar rights with respect to the Purchaser, (v) no proceedings shares of capital stock or other equity interests of the Purchaser are pending forreserved for issuance or are held as treasury shares, (vi) there are no contracts, understandings or restrictions relating to the capital stock or other equity interest of the Purchaser, whether or not outstanding, (vii) there are no contracts affecting or relating to the voting, issuance, purchase, redemption, registration, repurchase or transfer of any of the capital stock or other equity interests of the Purchaser, or securities or obligations of any kind convertible into any shares of the capital stock or other equity interests of the Purchaser and (viii) none of the issued and outstanding capital stock or other equity interests of the Purchaser were issued in violation of any preemptive rights or rights of first refusal or first offer;
(g) all of the issued and outstanding shares of the Purchaser are listed and posted for trading on the OTCBB, and the Purchaser is unaware in compliance in all material respects with all of its requirements of the OTCBB, the Securities Act, the United States Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any rules and regulations promulgated thereunder by the SEC;
(h) all registration statements, reports and proxy statements filed by the Purchaser with the SEC, and all registration statements, reports and proxy statements required to be filed by the Purchaser with the SEC, will have been filed by the Purchaser under the Exchange Act, will have been filed in all material respects in accordance with the requirements of the Exchange Act and the rules and regulations thereunder and no such registration statements, reports or proxy statements will have contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(i) the Purchaser will allot and issue the Purchase Price Shares on the Closing Date in accordance with section "2.2" hereof as fully paid and non-assessable in the capital of the Purchaser free and clear of all Liens, other than hold periods or other restrictions imposed under applicable securities legislation;
(j) up to and including the Closing Date the Purchaser will not commit itself to:
(i) redeem or acquire any shares in its share capital;
(ii) declare or pay any dividend;
(iii) make any reduction in or otherwise make any payment on account of its paid-up capital; or
(iv) effect any subdivision, consolidation (except as required by the terms of this Agreement) or reclassification of any of its share capital;
(k) up to and including the Closing Date the Purchaser will not commit itself to:
(i) acquire or have the use of any property from a person, corporation or entity with whom it was not dealing with at arm's length; or
(ii) dispose of anything to a person, corporation or entity with whom it was not dealing with at arm's length for proceeds less than the fair market value thereof;
(l) except for the proposed payment and/or issuance of common shares of the Purchaser as a finder's fee in conjunction with the successful completion of this Agreement, and except for any finder's fees or commissions which may be payable or issuable by the Purchaser in conjunction with the completion of its proposed Private Placement as set forth hereinbelow, the Purchaser has not retained, employed or introduced any other broker, finder or other person who would be entitled to a brokerage commission or finder's fee arising out of the transactions contemplated hereby;
(m) except as otherwise contemplated herein, up to and including the Closing Date the Purchaser will not commit itself to provide any person, firm or corporation with any agreement, option or right, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, option or right:
(i) to require it to issue any further or other shares in its share capital, or any other security convertible or exchangeable into shares in its share capital, or to convert or exchange any securities into or for shares in its share capital;
(ii) for the issue and allotment of any of the authorized but unissued shares in its share capital;
(iii) to require it to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its share capital; or
(iv) to purchase or otherwise acquire any shares in its share capital;
(n) except as set forth in the Purchaser's Disclosure Schedule, there are no material liabilities, contingent or otherwise, in respect of which the Purchaser may be liable on or after the completion of the transactions contemplated hereby other than liabilities incurred in the ordinary course of business, none of which are materially adverse to the business, operations, affairs or financial conditions of the Purchaser;
(o) no dividend or other distribution by the Purchaser will have been made, declared or authorized since its incorporation, nor will any be declared, paid or authorized up to and including the Closing Date, and the Purchaser will not commit itself to confer upon, or pay to or to the benefit of, any basis for entity, any benefit having monetary value, any bonus or any salary increases except in the institution normal course of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companiesits business;
(fp) except as set forth in the Purchaser's Disclosure Schedule, there are no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(q) except as set forth in the Purchaser's Disclosure Schedule, the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(gr) except as set forth in the Purchaser's Disclosure Schedule, the Purchaser will have not experienced, nor will the Purchaser be aware of, any occurrence or event which has had, or might reasonably be expected to have, a materially adverse affect on the Purchaser's business or on the results of its operations;
(s) up to and including the Closing Date there has been and there will be prepared and filed on a timely basis all federal and state provincial income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, had or ought reasonably to have hadhad knowledge, knowledge required to be or reasonably capable of being filed up to the Closing Date, with respect to the operations of the Purchaser, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respects;
(ht) save and except as set forth in the making of this Agreement Purchaser Disclosure Schedule, adequate provision has been made and will be made for taxes payable by the completion Purchaser for the current period for which a tax return is not yet required to be filed and, to the best of the transactions contemplated hereby knowledge, information and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any belief of the termsPurchaser, conditions or provisions after having made due inquiry, there are no contingent tax liabilities of the constating documents Purchaser or any grounds which would prompt a re-assessment of the Purchaser and including, without limiting the generality of the foregoing, the aggressive treatment of income and expenses in the filing of earlier tax returns by the Purchaser;
(iiu) conflict with or result except as set forth in a breach of or violate any of the termsPurchaser's Disclosure Schedule, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any Court or governmental authority, domestic or foreign, to which the Purchaser is subjectnot, nor until or constitute at the Closing Date will it be, in breach of any provision or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 condition of, nor has it done or constitute a breach of or result in a default under, any permit, license, control or authority issued to the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event whichomitted anything that, with or without the giving of notice or lapse of time or both, might would constitute an event a breach of defaultany provision or condition of, under or give rise to any agreementright to terminate or cancel or accelerate the maturity of any payment under, any deed of trust, contract, indenture certificate, consent, permit, license or other instrument relating to which it is a party, by which it is bound or from which it derives benefit, any indebtedness of the Purchaser which would give any party to that agreementjudgment, contractdecree, indenture order, rule or other instrument the right to accelerate the maturity for the payment regulation of any amount payable under that agreementcourt or governmental authority to which it is subject, contractor any statute or regulation applicable to it, indenture or other instrumentto an extent that, in the aggregate, has a material adverse affect on it;
(iv) neither this Agreement nor except as set forth in the Purchaser's Disclosure Schedule, no payments of any other document, certificate kind will have been made or statement furnished to the Vendor authorized by or on behalf of the Purchaser in connection to or on behalf of directors, officers, shareholders or employees of the Purchaser or under any management agreements with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleadingPurchaser;
(jw) except as set forth in the Purchaser's Disclosure Schedule, the Purchaser does not have any contracts, agreements, benefit plans, undertakings or arrangements, whether oral, written or implied, with employees, lessees, licensees, managers, accountants, suppliers, agents, distributors, directors, officers, lawyers or others which cannot be terminated, without penalty, on no more than three month's notice without premium or penalty;
(x) except as set forth in the Purchaser's Disclosure Schedule, none of directors, officers or employees of the Purchaser prior to Closing are indebted or under obligation to the Purchaser on any account whatsoever;
(y) the Purchaser is will not aware have committed to making and until the Closing Date will not make or commit itself to:
(i) guarantee, or agree to guarantee, any indebtedness or other obligation of any fact person or circumstance which has not been disclosed to corporation; or
(ii) waive or surrender any right of material value;
(z) until the Vendor which should be disclosed Closing Date the Purchaser will:
(i) maintain its assets in order to prevent the representations, warranties a manner consistent with and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreementcompliance in all material respects with applicable law; and
(kii) not enter into any material transaction or assume or incur any material liability outside the normal course of its business (except as required by the terms herein);
(aa) the shares in the capital of the Purchaser will employ good faithnot be subject to or affected by any actual or, to the best of the knowledge, information and belief of the Purchaser, after making due diligenceinquiry, and best efforts to perform its obligations pending or threatened cease trade, compliance or denial of this Agreement and will enter into such additional use of exemptions orders of, or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.action, investigation or proceeding by or before, any securities regulatory authority, court, administrative agency or other tribunal;
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor to enter into 4.1 Warranties, representations and consummate this Agreement, the Purchaser hereby warrants to and represents to the Vendor that, to the best of the informed knowledge, information and belief of covenants by the Purchaser, after having made due inquiry:.
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and is validly existing and in good standing with respect to all statutory filings required by the applicable corporate lawsincorporation;
(b) the Purchaser has the requisite power, authority and capacity to carry on the Purchaser’s Business as presently conducted by it;
(c) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) other than the approvals required to meet the conditions set out in Section 5, there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever;
(i) the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all applicable laws, and other restrictions, rules, regulations and ordinances applicable to the Purchaser, and neither the execution and delivery of this Agreement nor the completion of the transactions contemplated hereby will give any person the right to terminate or cancel any said license or permit or affect such compliance;
(j) the authorized capital of the Purchaser is unlimited and at the Closing Date, the Purchaser will have completed a share consolidation of 1 new for 6 existing issued and outstanding common shares, which will result in approximately 18,881,740 common shares issued and outstanding as fully paid and non- assessable in the capital of the Purchaser;
(k) the Purchaser will have approximately 1,583,335 incentive stock options issued to its directors, officers/employees, and consultants at the Closing Date, each of which entitles the holder to purchase one common share in the capital of the Purchaser at a price of $0.60 per share on or before April 20, 2016;
(l) the Purchaser will have approximately 5,250,000 common share purchase warrants issued and outstanding. Each warrant will entitle the holder to acquire one common share in the Purchaser for a period of three years from the date of issuance, at a price of $0.30 per common share until February 25, 2015 and $0.60 per common share thereafter;
(m) the Purchaser will raise $400,000 in net proceeds within 45 days following its shares commencing trading on the CSE;
(n) the Purchaser will endeavor to arrange a non-brokered $1,000,000 private placement (the “Financing”) following the completion of the Transaction;
(o) upon Closing, the Purchaser will ensure that Xxxxx Xxxxxxx, Xxxx Xxxxxxx and Xxxx Xxxxxxxxxx resign from its Board;
(p) upon Closing, the Purchaser will appoint to its Board Xxxx Xxxxxx and two additional appointees of the Companies, if provided to the Purchaser by the Companies in writing before Closing. These appointments will be effective immediately upon closing but in the event that the CSE does not accept an individual as a director or officer, that person will resign and Xxxx Xxxxxx or the Companies will make an appropriate, alternate nomination until the positions have been filled by individuals accepted by the CSE. The Purchaser will request of the CSE to not require a full PIF review but permit the appointments following receipt of the PIFs and a preliminary review;
(q) the Purchaser will deliver to the Companies on or before Closing, the resignation of Xxxxx Xxxxxx, dated three months from the Closing;
(r) upon Closing, the Purchaser will appoint as President and CEO, Xxxx Xxxxxx. Xxxxx Xxxxxx will remain as CFO. The appointment of Xxxx Xxxxxx as President and CEO will be effective immediately upon closing but in the event that the CSE does not accept Xx. Xxxxxx in one or both of those roles, Xx. Xxxxxx will resign and Xxxx Xxxxxx or the Companies must make appropriate, alternate nominations until the positions have been filled by individuals accepted by the CSE. The Purchaser will request of the CSE to not require a full PIF review but permit the appointments following receipt of the PIFs and a preliminary review;
(s) The Purchaser will ensure that the listing and trading on the CSE of its issued and outstanding shares will not take place until the appointment of Xxxx Xxxxxx, or his appointee(s), as described in Sections 4.1 (p) and (r) above, to the positions of director, CEO and President is accepted and approved by the CSE;
(t) the Purchaser will have received conditional approval for its issued and outstanding shares to be listed and posted for trading on the CSE and is not in material default of any applicable CSE rules or any rules or policies of the British Columbia Securities Commission (the “Commission”);
(u) the Purchaser will allot and issue the Consideration Shares and any Earn-Out Shares in accordance with Section 2.2 hereinabove as fully paid and non−assessable in the capital of the Purchaser. The Consideration Shares and any Earn-Out Shares will be subject to trading restrictions described in Section 2.5. Once the Consideration Shares are released from trading restrictions, the Stock Restriction Agreements and any escrow agreements required by the CSE, the Consideration Shares will be free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions, other than hold periods or other restrictions imposed under applicable securities legislation;
(v) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board, bureau or agency;
(w) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-lawsby−laws, orders or decrees to which it is subject or which apply to it;
(gx) there has been is not now, and there will not be prepared and filed on a timely basis all federal and state income tax returnsby the Closing Date, elections and designationsany proceeding, and all other governmental returnsclaim or, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations best of the knowledge, information and belief of the Purchaser, and no such returnsafter making due inquiry, electionsany investigation by any federal, designations, notices provincial or reports contain or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respects;
(h) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser;
(ii) conflict with or 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 the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(iv) give to any government or governmental municipal taxation authority, or any municipality matters under discussion or any subdivision thereofdispute with such taxation authorities, including any in respect of taxes, governmental departmentcharges, commission, bureau, board assessments 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 the Purchaser which is necessary or desirable reassessments in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;
(j) and the Purchaser is not aware of any fact contingent tax liabilities or circumstance which has not been disclosed to any grounds that could result in an assessment, reassessment, charge or potentially adverse determination by any federal, provincial or municipal taxation authority as against the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; andPurchaser;
(ky) the Purchaser will employ good faithhas no equipment, due diligenceother than the personal property or fixtures in the possession or custody of the Purchaser which, and best efforts as of the date hereof, are leased or are held under license or similar arrangement;
(z) there are no liabilities, contingent or otherwise of the Purchaser not disclosed; (aa) none of the directors, officers or employees of the Purchaser are now indebted or under obligation to perform its obligations the Purchaser on any account whatsoever, other than in the ordinary course of this Agreement and will enter into such additional business or collateral agreements as may be reasonably required to effect and complete otherwise disclosed in the objects and intent of this Agreement.Purchaser’s financial statements;
Appears in 1 contract
Samples: Share Exchange Agreement
Warranties, representations and covenants by the Purchaser. In order to induce each of the Vendor and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor and the Company, with the intent that each of the Vendor and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:inquiry (and for the purposes of the following warranties, representations and covenants, "Purchaser" shall mean the Purchaser and any subsidiary of the Purchaser, if any, as the context so requires):
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of its business assets and to carry on its business as presently conducted by it;
(c) save and except as set forth in the "Purchaser's Disclosure Schedule" which will accompany the Purchaser's execution and delivery of this Agreement, the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of an insolvent companiesCompany;
(fh) the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, save and except for those actual or threatened liens, charges, encumbrances, demands, limitations and restrictions which are listed in Schedule "I" which is attached hereto and which forms a material part hereof and as forth in the Purchaser's Disclosure Schedule;
(i) save and except as set forth in the Purchaser's Disclosure Schedule, the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all laws, zoning and other by-laws, building and other restrictions, rules, regulations and ordinances applicable to the Purchaser and its business and assets, and neither the execution and delivery of this Agreement nor the completion of the transactions contemplated hereby will give any person the right to terminate or cancel any said license or permit or affect such compliance;
(j) the authorized capital of the Purchaser consists of 10,000 common shares of common stock, with a par value of U.S. $0.001 per common share, which, according to the records of the Purchaser, one common share of the Purchaser is and will be issued and outstanding as fully paid and non-assessable and held by UEC just prior to the Closing Date, and there are at present no other shares in the capital of the Purchaser issued or allotted or agreed to be issued or allotted to any person;
(k) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(l) save and except as set forth in the Purchaser's Disclosure Schedule, the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(gm) there has been the Purchaser is not a party to any collective agreement with any labour union or other association of employees, and there will be prepared and filed on is no pending application for certification of any of the Purchaser's employees as a timely basis all federal and state income tax returns, elections and designationscollective bargaining unit. In addition, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations best of the knowledge, information and belief of the Purchaser, and no such returnsafter having made due inquiry, electionsthe Purchaser is not presently a party to any complaint, designationsgrievance, notices arbitration or reports contain other labour matter referred to any board or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respectslabour authority;
(hn) there are no pension, profit sharing, group insurance or similar plans or other deferred compensation plans affecting the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with Purchaser or result in a breach of or violate any of the termsits directors, conditions officers or provisions of the constating documents of the Purchaseremployees;
(iio) conflict with or result save and except as set forth in a breach of or violate any of the termsPurchaser's Disclosure Schedule, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any Court or governmental authority, domestic or foreign, to which the Purchaser has not experienced, nor is subjectthe Purchaser aware of, any occurrence or event which has had, or constitute might reasonably be expected to have, a materially adverse affect on its business or result in a default under any agreement, contract or commitment to which on the Purchaser is a partyresults of its operations;
(iiip) give to any party save and except as set forth in the right of terminationPurchaser's Disclosure Schedule, cancellation or acceleration in or with respect to any agreement, contract or commitment to which the Purchaser is a party;
(iv) give to holds or has applied for all permits, licenses, consents and authorities issuable by any federal, state, regional or municipal 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 the Purchaser agency thereof which is are necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; oroperations;
(vq) constitute a default there is not now, and there will not be by the Closing Date, any proceeding, claim or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, any investigation by any federal, state or municipal taxation authority, or any event whichmatters under discussion or dispute with such taxation authorities, in respect of taxes, governmental charges, assessments or reassessments in connection with the Purchaser, and the Purchaser is not aware of any contingent tax liabilities or any grounds that could result in an assessment, reassessment, charge or potentially adverse determination by any federal, state or municipal taxation authority as against the Purchaser;
(r) the Purchaser is not in breach of any provision or condition of, nor have they done or omitted anything that, with or without the giving of notice or lapse of time or both, might would constitute an event a breach of defaultany provision or condition of, under or give rise to any agreementright to terminate or cancel or accelerate the maturity of any payment under, any deed of trust, contract, indenture certificate, consent, permit, license or other instrument relating to which it is a party, by which it is bound or from which it derives benefit, any indebtedness judgment, decree, order, rule or regulation of any court or governmental authority to which it is subject, or any statute or regulation applicable to it, to an extent that, in the aggregate, has a material adverse affect on it;
(s) the Purchaser has good and marketable title to all of its assets, properties and interests in properties, real and personal, free and clear of all encumbrances, and none of the Purchaser's assets or properties is in the possession of or under the control of any other person;
(t) the Purchaser has no equipment, other than the personal property or fixtures in the possession or custody of the Purchaser which, as of the date hereof, are leased or are held under license or similar arrangement;
(u) except for the material contracts which would give any are set forth in Schedule "I" which is attached hereto and which forms a material part hereof, the Purchaser is not party to that agreement, or bound by any other material contract, indenture whether oral or written, other instrument than the right contracts as set forth in Schedule "I";
(v) save and except as set forth in the Purchaser's Disclosure Schedule, as to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;contracts listed in Schedule "I" which is attached hereto:
(i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser each such contract is in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleadingfull force and effect and unamended;
(jii) no material default exists in respect thereof on the part of either the Purchaser or any other party thereto;
(iii) each such contract does not involve any non-arm's length party except where described; and
(iv) the Purchaser is not aware of any fact intention on the part of any other party thereto to terminate or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representationsmaterially alter any such contract;
(w) there are no liabilities, warranties and covenants contained in this section from being misleading contingent or which would likely affect the decision otherwise of the Vendor to enter into this Agreement; andPurchaser not disclosed;
(kx) no payments of any kind have been made or authorized by or on behalf of the Purchaser to or on behalf of directors, officers, shareholders or employees of the Purchaser or under any management agreements with the Purchaser other than in the ordinary course of business;
(y) the Purchaser will employ good faithhas not retained, due diligenceemployed or introduced any other broker, finder or other person who would be entitled to a brokerage commission or finder's fee arising out of the transactions contemplated hereby;
(z) none of the directors, officers or employees of the Purchaser are now indebted or under obligation to the Purchaser on any account whatsoever, other than in the ordinary course of business;
(aa) save and best efforts to perform except as set forth in the Purchaser's Disclosure Schedule, all material transactions of the Purchaser and including, without limitation, all directors' and shareholders' resolutions, have been promptly and properly recorded or filed in or with its obligations of this Agreement books and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.records;
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce each of the Vendor Vendors and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors and the Company, with the intent that each of the Vendors and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:inquiry (and for the purposes of the following warranties, representations and covenants, "Purchaser" shall mean the Purchaser and any subsidiary of the Purchaser, if any, as the context so requires):
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of its business assets and to carry on its business as presently conducted by it;
(c) save and except as set forth in the "Purchaser's Disclosure Schedule" which will accompany the Purchaser's execution and delivery of this Agreement, the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, save and except for those actual or threatened liens, charges, encumbrances, demands, limitations and restrictions which are listed in Schedule "J" which is attached hereto and which forms a material part hereof and as set forth in the Purchaser's Disclosure Schedule;
(i) save and except as set forth in the Purchaser's Disclosure Schedule, the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all laws, zoning and other by-laws, building and other restrictions, rules, regulations and ordinances applicable to the Purchaser and its business and assets, and neither the execution and delivery of this Agreement nor the completion of the transactions contemplated hereby will give any person the right to terminate or cancel any said license or permit or affect such compliance;
(j) the authorized capital of the Purchaser consists of 1,000,000,000 common shares of common stock, with a par value of U.S. $0.001 per common share, which, according to the records of the Purchaser, there are 36,153,278 common shares issued and outstanding as fully paid and non-assessable as at the Execution Date hereof;
(k) all of the issued and outstanding shares of the Purchaser are listed and posted for trading on FINRA's Over-the-Counter Bulletin Board and the Purchaser is not in material default of any applicable FINRA rules or any rules or policies of the United States Securities and Exchange Commission (the "Commission");
(l) save and except as set forth in the Purchaser's Disclosure Schedule, all registration statements, reports and proxy statements filed by the Purchaser with the Commission, have been filed by the Purchaser under the United States Securities Act of 1934 (the "1934 Act"), were filed in all material respects in accordance with the requirements of the 1934 Act and the rules and regulations thereunder and no such registration statements, reports or proxy statements contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) the Purchaser will allot and issue the Shares on the Closing Date in accordance with section "2.2" hereinabove as fully paid and non-assessable in the capital of the Purchaser, free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, other than hold periods or other restrictions imposed under applicable securities legislation;
(n) the Purchaser is not aware of any court order which restricts or prevents the issuance by the Purchaser of any shares from treasury;
(o) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(p) save and except as set forth in the Purchaser's Disclosure Schedule, the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(gq) there has been the Purchaser is not a party to any collective agreement with any labour union or other association of employees, and there will be prepared and filed on is no pending application for certification of any of the Purchaser's employees as a timely basis all federal and state income tax returns, elections and designationscollective bargaining unit. In addition, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations best of the knowledge, information and belief of the Purchaser, and no such returnsafter having made due inquiry, electionsthe Purchaser is not presently a party to any complaint, designationsgrievance, notices arbitration or reports contain other labour matter referred to any board or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respectslabour authority;
(hr) there are no pension, profit sharing, group insurance or similar plans or other deferred compensation plans affecting the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with Purchaser or result in a breach of or violate any of the termsits directors, conditions officers or provisions of the constating documents of the Purchaseremployees;
(iis) conflict with or result save and except as set forth in a breach of or violate any of the termsPurchaser's Disclosure Schedule, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any Court or governmental authority, domestic or foreign, to which the Purchaser has not experienced, nor is subjectthe Purchaser aware of, any occurrence or event which has had, or constitute might reasonably be expected to have, a materially adverse affect on its business or result in a default under any agreement, contract or commitment to which on the Purchaser is a partyresults of its operations;
(iiit) give to any party save and except as set forth in the right of terminationPurchaser's Disclosure Schedule, cancellation or acceleration in or with respect to any agreement, contract or commitment to which the Purchaser is a party;
(iv) give to holds or has applied for all permits, licenses, consents and authorities issuable by any federal, state, regional or municipal 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 the Purchaser agency thereof which is are necessary or desirable in connection with its operations;
(u) there is not now, and there will not be by the conduct Closing Date, any proceeding, claim or, to the best of the knowledge, information and operations belief of its business the Purchaser, after making due inquiry, any investigation by any federal, state or municipal taxation authority, or any matters under discussion or dispute with such taxation authorities, in respect of taxes, governmental charges, assessments or reassessments in connection with the Purchaser, and the ownership Purchaser is not aware of any contingent tax liabilities or leasing of its business assets; orany grounds that could result in an assessment, reassessment, charge or potentially adverse determination by any federal, state or municipal taxation authority as against the Purchaser;
(v) constitute a default by the PurchaserPurchaser is not in breach of any provision or condition of, nor have they done or any event whichomitted anything that, with or without the giving of notice or lapse of time or both, might would constitute an event a breach of defaultany provision or condition of, under or give rise to any agreementright to terminate or cancel or accelerate the maturity of any payment under, any deed of trust, contract, indenture certificate, consent, permit, license or other instrument relating to which it is a party, by which it is bound or from which it derives benefit, any indebtedness judgment, decree, order, rule or regulation of any court or governmental authority to which it is subject, or any statute or regulation applicable to it, to an extent that, in the aggregate, has a material adverse affect on it;
(w) the Purchaser has good and marketable title to all of its assets, properties and interests in properties, real and personal, free and clear of all encumbrances, and none of the Purchaser's assets or properties is in the possession of or under the control of any other person;
(x) the Purchaser has no equipment, other than the personal property or fixtures in the possession or custody of the Purchaser which, as of the date hereof, are leased or are held under license or similar arrangement;
(y) except for the material contracts which would give any are set forth in Schedule "J" which is attached hereto and which forms a material part hereof, the Purchaser is not party to that agreement, or bound by any other material contract, indenture whether oral or written, other instrument than the right contracts as set forth in Schedule "J";
(z) save and except as set forth in the Purchaser's Disclosure Schedule, as to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;contracts listed in Schedule "J" which is attached hereto:
(i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser each such contract is in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleadingfull force and effect and unamended;
(jii) no material default exists in respect thereof on the part of either the Purchaser or any other party thereto;
(iii) each such contract does not involve any non-arm's length party except where described; and
(iv) the Purchaser is not aware of any fact intention on the part of any other party thereto to terminate or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representationsmaterially alter any such contract;
(aa) there are no liabilities, warranties and covenants contained in this section from being misleading contingent or which would likely affect the decision otherwise of the Vendor to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.not disclosed;
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Vendors and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors and the Company, with the intent that each of the Vendors and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
: Corporate Status of the Purchaser (a) the Purchaser is a company with limited liability duly incorporated and properly incorporated, organized and validly subsisting under the laws of the State of Nevada being the only jurisdiction where it is required to be registered for the purpose of enabling it to carry on its jurisdiction of incorporation business and is validly existing own its property as presently carried on and in good standing with respect to all statutory filings required by the applicable corporate laws;
owned; (b) the execution Purchaser has good and delivery of sufficient power, authority and right to own or lease its property, to enter into this Agreement and the agreements contemplated hereby to perform its obligations hereunder; Authorization (c) this Agreement has been duly authorized authorized, executed and delivered by all necessary corporate action on its part;
(c) there are no consents, approvals or conditions precedent to the performance of this Agreement;
(d) this Agreement constitutes Purchaser and is a legal, valid and binding obligation of the Purchaser Purchaser, enforceable against the Purchaser Purchaser, as the case may be, by the Vendors and/or the Company in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency and other laws of general application affecting the rights of creditors;
creditors generally and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction; Share Capital (d) the authorized capital of the Purchaser consists of 500,000,000 shares of common stock of which 61,779,765 shares of common stock of the Purchaser have been duly issued and are outstanding as fully paid and non-assessable; (e) no proceedings are pending for, all of the issued and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up outstanding shares of the Purchaser or are listed and posted for trading on the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
Exchange; (f) the Purchaser is not will allot and issue the Common Shares on the Closing Date in breach of any laws, ordinances, statutes, regulations, byaccordance with sections “2.2” and “2.3” hereinabove as fully paid and non-laws, orders or decrees to which it is subject or which apply to it;
(g) there has been and there will be prepared and filed on a timely basis all federal and state income tax returns, elections and designations, and all other governmental returns, notices and reports of which assessable in the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations capital of the Purchaser, free and clear of all actual or threatened liens, charges, security interests, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, other than hold periods or other restrictions imposed under applicable securities legislation or by securities regulatory authorities; Options (g) no such returnsperson has any agreement or option or any right or privilege (whether by law, electionspre-emptive or contractual) capable of becoming an agreement, designationsincluding convertible securities, notices warrants or reports contain convertible obligations of any nature, for the purchase, subscription, allotment or will contain issuance of any material misstatement unissued shares or omit any material statement that should other securities of the Purchaser except for 4,567,000 stock options exercisable at prices ranging from US$1.47 to US$3.05 per share which have been includedgranted to directors, officers, employees and each such return, election, designation, notice or report, including accompanying schedules consultants of the Purchaser; Directors and statements, is and will be true, correct and complete in all material respects;
Officers (h) the making of this Agreement present directors and the completion officers of the transactions contemplated hereby Purchaser are as follows: Name Position Xxxxxxxx Xxxx President, CEO and Director Xxxxx Xxxx Secretary and Treasurer Xxxxxxx Xx CFO and Director Xxxxxx Xxxx Director Xxxxx Xxxxxxx Director Support for Separate Listing of the performance of and compliance with the terms hereof does not and will not:
Company (i) conflict with or result in a breach of or violate any if the sales revenue of the terms, conditions or provisions Company reaches RMB 200 million within three year of the constating documents date of the Purchaser;
(ii) conflict with or result in a breach of or violate any of the termsthis Agreement, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any Court or governmental authority, domestic or foreign, then Purchase agrees to which the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 provide support to the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary Company in order to make have the statements therein not misleading;
Company’s Business listed separately on the Exchange; Independent Operation of the Company from Purchaser (j) the Purchaser is agrees that the Company will operate independently and any profits made by the Company will not aware be distributed but instead be used to fund research and development for new products as well as for the expansion of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.production;
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Gareste to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of Gareste, with the Vendor intent that Gareste will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a limited liability company duly incorporated organized under the laws of its jurisdiction the country of incorporation and Chile, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate lawsChilean law;
(b) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill the Purchaser’s obligations under this Agreement, and the Purchaser has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(c) the execution and delivery of this Agreement and the agreements contemplated hereby has have been duly authorized by all necessary corporate action on its the Purchaser’s part;
(cd) prior to the Closing Date the Purchaser will have obtained all authorizations, approvals, including Regulatory Approval, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all Regulatory Authorities from whom any such authorization, approval or other action is required to be obtained or to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser who will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser may be subject;
(e) except for Regulatory Approval of this Agreement by the appropriate Regulatory Authorities, there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(i) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it the Purchaser is subject or which apply to itthe Purchaser;
(gj) there the Purchaser will save Gareste harmless in respect of all claims, liabilities and expenses arising out of the Purchaser’s activities on any of the mineral property interests comprising the Property;
(k) the Purchaser will do all work on the Property in a good and minerlike fashion and in accordance with all applicable laws, regulations, orders and ordinances of any governmental authority;
(l) the Purchaser is not in breach of any provision or condition of, nor has been and there will be prepared and filed on the Purchaser done or omitted anything that, with or without the giving of notice or lapse or both, would constitute a timely basis all federal and state income tax returnsbreach of any provision or condition of, elections and designationsor give rise to any right to terminate or cancel or accelerate the maturity of any payment under, and all any deed of trust, contract, certificate, consent, permit, license or other governmental returns, notices and reports of instrument to which the Purchaser hadis a party, by which the Purchaser is bound or from which the Purchaser derives benefit, any judgment, decree, order, rule or regulation of any court or governmental authority to which the Purchaser is subject, or ought reasonably to have had, knowledge required to be any statute or reasonably capable of being filed with respect regulation applicable to the operations Purchaser, to an extent that, in the aggregate, has a material adverse affect on the Purchaser’s ability to perform this Agreement;
(m) the Purchaser will give to Gareste, within at least five calendar days prior to the Closing Date (as hereinafter defined), by written notice, particulars of:
(i) each occurrence within the Purchaser’s knowledge after the Effective Date of this Agreement that, if it had occurred before the Effective Date, would have been contrary to any of the Purchaser, and no such returns, elections, designations, notices ’s representations or reports contain warranties contained herein; and
(ii) each occurrence or will contain omission within the Purchaser’s knowledge after the Effective Date that constitutes a breach of any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete of the Purchaser’s covenants contained in all material respectsthis Agreement;
(hn) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating incorporation documents of the Purchaser;
(ii) conflict with or 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 court or governmental authority, domestic or foreign, to which the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its the Purchaser’s business and the ownership or leasing of its the Purchaser’s business assets; or
(v) constitute a default by the Purchaser, Purchaser or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(io) neither this Agreement nor any other document, certificate or statement furnished to the Vendor Gareste by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;; and
(jp) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor Gareste which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor Gareste to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.
Appears in 1 contract
Samples: Mineral Property Acquisition Agreement (Pacific Copper Corp.)
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Gareste to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of Gareste, with the Vendor intent that Gareste will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a limited liability company duly incorporated organized under the laws of its jurisdiction the country of incorporation and Chile, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate lawsChilean law;
(b) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill the Purchaser’s obligations under this Agreement, and the Purchaser has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement; -- San Exxxxxx Mineral Property Acquisition Agreement -- -- Pacific Copper Chile Limitada --
(c) the execution and delivery of this Agreement and the agreements contemplated hereby has have been duly authorized by all necessary corporate action on its the Purchaser’s part;
(cd) prior to the Closing Date the Purchaser will have obtained all authorizations, approvals, including Regulatory Approval, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all Regulatory Authorities from whom any such authorization, approval or other action is required to be obtained or to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser who will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser may be subject;
(e) except for Regulatory Approval of this Agreement by the appropriate Regulatory Authorities, there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(i) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it the Purchaser is subject or which apply to itthe Purchaser;
(gj) there the Purchaser will save Gareste harmless in respect of all claims, liabilities and expenses arising out of the Purchaser’s activities on any of the mineral property interests comprising the Property; -- San Exxxxxx Mineral Property Acquisition Agreement -- -- Pacific Copper Chile Limitada --
(k) the Purchaser will do all work on the Property in a good and minerlike fashion and in accordance with all applicable laws, regulations, orders and ordinances of any governmental authority;
(l) the Purchaser is not in breach of any provision or condition of, nor has been and there will be prepared and filed on the Purchaser done or omitted anything that, with or without the giving of notice or lapse or both, would constitute a timely basis all federal and state income tax returnsbreach of any provision or condition of, elections and designationsor give rise to any right to terminate or cancel or accelerate the maturity of any payment under, and all any deed of trust, contract, certificate, consent, permit, license or other governmental returns, notices and reports of instrument to which the Purchaser hadis a party, by which the Purchaser is bound or from which the Purchaser derives benefit, any judgment, decree, order, rule or regulation of any court or governmental authority to which the Purchaser is subject, or ought reasonably to have had, knowledge required to be any statute or reasonably capable of being filed with respect regulation applicable to the operations Purchaser, to an extent that, in the aggregate, has a material adverse affect on the Purchaser’s ability to perform this Agreement;
(m) the Purchaser will give to Gareste, within at least five calendar days prior to the Closing Date (as hereinafter defined), by written notice, particulars of:
(i) each occurrence within the Purchaser’s knowledge after the Effective Date of this Agreement that, if it had occurred before the Effective Date, would have been contrary to any of the Purchaser, and no such returns, elections, designations, notices ’s representations or reports contain warranties contained herein; and
(ii) each occurrence or will contain omission within the Purchaser’s knowledge after the Effective Date that constitutes a breach of any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete of the Purchaser’s covenants contained in all material respectsthis Agreement;
(hn) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating incorporation documents of the Purchaser;
(ii) conflict with or 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 court or governmental authority, domestic or foreign, to which the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;; -- San Exxxxxx Mineral Property Acquisition Agreement -- -- Pacific Copper Chile Limitada --
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its the Purchaser’s business and the ownership or leasing of its the Purchaser’s business assets; or
(v) constitute a default by the Purchaser, Purchaser or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(io) neither this Agreement nor any other document, certificate or statement furnished to the Vendor Gareste by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;; and
(jp) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor Gareste which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor Gareste to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.
Appears in 1 contract
Samples: Mineral Property Acquisition Agreement (Pacific Copper Corp.)
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Vendors and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors and the Company, with the intent that each of the Vendors and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction the State of incorporation and Nevada, U.S.A., is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser's subsidiaries, if any, are corporations duly incorporated under the laws of their respective jurisdictions of incorporation, are validly existing and are in good standing with respect to all statutory filings required by the applicable corporate laws;
(c) the Purchaser and each of the Purchaser's subsidiaries, if any, have the requisite power, authority and capacity to own and use all of their respective business assets and to carry on their respective businesses as presently conducted by them;
(d) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(e) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(cf) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(dg) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eh) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser Purchaser, or of any of the Purchaser's subsidiaries, if any, or the placing of the Purchaser or any of the Purchaser's subsidiaries, if any, in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fi) the Purchaser is not in breach and each of the Purchaser's subsidiaries, if any, own and possess and have good and marketable title to and possession of all of their respective business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, save and except for those actual or threatened liens, charges, encumbrances, demands, limitations and restrictions which are listed in Schedule "K" which is attached hereto and which forms a material part hereof;
(j) the Purchaser and each of the Purchaser's subsidiaries, if any, hold all licenses and permits required for the conduct in the ordinary course of the operations of their businesses and for the uses to which their respective business assets have been put and are in good standing, and such conduct and uses are in compliance with all laws, ordinances, statutes, regulations, zoning and other by-laws, orders or decrees to which it is subject or which apply to it;
(g) there has been building and there will be prepared other restrictions, rules, regulations and filed on a timely basis all federal and state income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect ordinances applicable to the operations Purchaser, to any of the Purchaser's subsidiaries, if any, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement that should have been includedtheir respective businesses and assets, and each such return, election, designation, notice or report, including accompanying schedules neither the execution and statements, is and will be true, correct and complete in all material respects;
(h) the making delivery of this Agreement and nor the completion of the transactions contemplated hereby and will give any person the performance of and compliance with the terms hereof does not and will not:right to terminate or cancel any said license or permit or affect such compliance;
(ik) conflict with or result in a breach of or violate any the authorized capital of the termsPurchaser consists of 100,000,000 common shares without par value of which, conditions or provisions of according to the constating documents records of the Purchaser;
(ii) conflict with or result in a breach , and after the completion of or violate any its proposed Consolidation, an aggregate of 2,078,251 consolidated common shares of the termsPurchaser will be issued and outstanding as fully paid and non-assessable as at the Closing Date (as hereinafter determined), conditions or provisions and there are at present no other shares in the capital of any law, judgment, order, injunction, decree, regulation or ruling of any Court or governmental authority, domestic or foreign, to which the Purchaser is subject, issued or constitute allotted or result in a default under any agreement, contract agreed to be issued or commitment to which the Purchaser is a party;
(iii) give allotted to any party the right of terminationperson, cancellation or acceleration in or with respect to any agreement, contract or commitment to which the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct save and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness except for certain shares of the Purchaser which would give any party have been allotted and reserved for issuance by the Purchaser pursuant to that agreement, contract, indenture or other instrument the right to accelerate terms of certain outstanding stock options which have been approved by the maturity for directors of the payment Purchaser; the details of any amount payable under that agreement, contract, indenture or other instrumentwhich allotted and reserved shares of the Purchaser being set forth in Schedule "K" which is attached hereto;
(il) neither this Agreement nor any other document, certificate or statement furnished to all of the Vendor by or on behalf issued and outstanding shares of the Purchaser are listed and posted for trading on each of the NASD Over-the-Counter Bulletin Board (the "OTCBB") and the Frankfurt Stock Exchange ("DAX"), and the Purchaser is not in connection material default of any of its listing requirements of the OTCBB, the DAX or any rules or policies of the United States Securities and Exchange Commission (the "COMMISSION");
(m) all registration statements, reports and proxy statements filed by the Purchaser with the transactions contemplated hereby knowingly Commission, and all registration statements, reports and proxy statements required to be filed by the Purchaser with the Commission, have been filed by the Purchaser under the United States SECURITIES ACT of 1934 (the "1934 ACT"), were filed in all material respects in accordance with the requirements of the 1934 Act and the rules and regulations thereunder and no such registration statements, reports or negligently contains proxy statements contained any untrue or incomplete statement of a material fact or omits omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(j) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(kn) the Purchaser will employ good faith, due diligence, allot and best efforts to perform its obligations of this Agreement issue the Shares on the Closing Date in accordance with sections "2.2" and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement."
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce each of the Vendor Group and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Group and the Company, with the intent that each of the Vendor Group and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiryinquiry (and for the purposes of the following warranties, representations and covenants, "Purchaser" shall mean the Purchaser and any subsidiary of the Purchaser, if any, as the context so requires)::
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of their respective business assets and to carry on their respective businesses as presently conducted by them;
(c) save and except as set forth in the updated "Purchaser Disclosure Schedule" which will accompany the Purchaser's execution and delivery of this Agreement, the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser Purchaser, or of any of the Purchaser's subsidiaries, if any, or the placing of the Purchaser or any of the Purchaser's subsidiaries, if any, in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, save and except for those actual or threatened liens, charges, encumbrances, demands, limitations and restrictions which are listed in Schedule "J" which is attached hereto and which forms a material part hereof and as forth in the Purchaser Disclosure Schedule;
(i) save and except as set forth in the Purchaser Disclosure Schedule, the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all laws, zoning and other by-laws, building and other restrictions, rules, regulations and ordinances applicable to the Purchaser and its business and assets, and neither the execution and delivery of this Agreement nor the completion of the transactions contemplated hereby will give any person the right to terminate or cancel any said license or permit or affect such compliance;
(j) the authorized capital of the Purchaser consists of 100,000,000 common shares, with a par value of U.S. $0.001 per common share which, according to the records of the Purchaser, an aggregate of 18,750,000 common shares of the Purchaser are and will be, subject to the Cancellation of Shares (as hereinafter determined), issued and outstanding as fully paid and non-assessable just prior to the Closing Date (as hereinafter determined), and there are at present no other shares in the capital of the Purchaser issued or allotted or agreed to be issued or allotted to any person;
(k) all of the issued and outstanding shares of the Purchaser are listed and posted for trading on each of the NASD Over-the-Counter Bulletin Board (the "OTCBB"), and the Purchaser is not in material default of any of its listing requirements of the OTCBB or any rules or policies of the United States Securities and Exchange Commission (the "Commission");
(l) save and except as set forth in the Purchaser Disclosure Schedule, all registration statements, reports and proxy statements filed by the Purchaser with the Commission, and all registration statements, reports and proxy statements required to be filed by the Purchaser with the Commission, have been filed by the Purchaser under the United States Securities Act of 1934 (the "1934 Act"), were filed in all material respects in accordance with the requirements of the 1934 Act and the rules and regulations thereunder and no such registration statements, reports or proxy statements contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) the Purchaser will allot and issue the Shares on the Closing Date in accordance with section "2.2" hereinbelow as fully paid and non-assessable in the capital of the Purchaser, free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, other than hold periods or other restrictions imposed under applicable securities legislation;
(n) from August 22, 2005 (that being the reference date of the Agreement In Principle) to and up to and including the Closing Date (as hereinafter determined) the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Company, to:
(i) redeem or acquire any shares in its share capital;
(ii) declare or pay any dividend;
(iii) make any reduction in or otherwise make any payment on account of its paid-up capital; or
(iv) effect any subdivision, consolidation or reclassification of its share capital;
(o) from August 22, 2005 to and up to and including the Closing Date (as hereinafter determined) the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Company, to:
(i) acquire or have the use of any property from a person, corporation or entity with whom it was not dealing with at arm's length; or
(ii) dispose of anything to a person, corporation or entity with whom it was not dealing with at arm's length for proceeds less than the fair market value thereof;
(p) save and except as set forth in Schedule "J" which is attached hereto and as set forth in the Purchaser Disclosure Schedule, from August 22, 2005 to and up to and including the Closing Date (as hereinafter determined) the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Company, to provide any person, firm or corporation with any agreement, option or right, consensual or arising by law, present or future, contingent or absolute, or capable of becoming an agreement, option or right:
(i) to require it to issue any further or other shares in its share capital, or any other security convertible or exchangeable into shares in its share capital, or to convert or exchange any securities into or for shares in its share capital;
(ii) for the issue and allotment of any of the authorized but unissued shares in its share capital;
(iii) to require it to purchase, redeem or otherwise acquire any of the issued and outstanding shares in its share capital; or
(iv) to purchase or otherwise acquire any shares in its share capital;
(q) the Purchaser is not aware of any court order which restricts or prevents the issuance by the Purchaser of any shares from treasury;
(r) save and except for those matters which are listed in Schedule "K" which is attached hereto and as set forth in the Company Disclosure Schedule, there are no material liabilities, contingent or otherwise, existing on the Execution Date hereof in respect of which the Purchaser may be liable on or after the completion of the transactions contemplated by this Agreement other than:
(i) liabilities disclosed or referred to in this Agreement; and
(ii) liabilities incurred in the ordinary course of business, none of which are materially adverse to the business, operations, affairs or financial conditions of the Purchaser;
(s) save and except as set forth in Schedule "J" which is attached hereto and as set forth in the Purchaser Disclosure Schedule, no other dividend or other distribution by the Purchaser has been made, declared or authorized since its incorporation, and from August 22, 2005 to and up to and including the Closing Date (as hereinafter determined) the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Company, to confer upon, or pay to or to the benefit of, any entity, any benefit having monetary value, any bonus or any salary increases except in the normal course of its business;
(t) save and except as set forth in Schedule "J" which is attached hereto and as set forth in the Purchaser Disclosure Schedule, there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(u) save and except as set forth in the Purchaser Disclosure Schedule, the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(gv) the Purchaser is not a party to any collective agreement with any labour union or other association of employees, and there is no pending application for certification of any of the Purchaser's employees as a collective bargaining unit. In addition, and to the best of the knowledge, information and belief of the Purchaser, after having made due inquiry, the Purchaser is not presently a party to any complaint, grievance, arbitration or other labour matter referred to any board or labour authority;
(w) there are no pension, profit sharing, group insurance or similar plans or other deferred compensation plans affecting the Purchaser or any of its directors, officers or employees;
(x) save and except as set forth in the Purchaser Disclosure Schedule, the Purchaser has not experienced, nor is the Purchaser aware of, any occurrence or event which has had, or might reasonably be expected to have, a materially adverse affect on its business or on the results of its operations;
(y) save and except as set forth in the Purchaser Disclosure Schedule, the Purchaser holds or has applied for all permits, licenses, consents and authorities issuable by any federal, state, regional or municipal government or agency thereof which are necessary or desirable in connection with its operations;
(z) save and except as set forth in the Purchaser Disclosure Schedule, from August 22, 2005 to and up to and including the Closing Date (as hereinafter determined) there has been and there will be prepared and filed on a timely basis all federal and state income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed up to the Closing Date, with respect to the operations of the Purchaser, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respects;
(haa) the making of this Agreement save and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result except as set forth in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser;
(ii) conflict with or 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 the Purchaser is subjectDisclosure Schedule, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser is a party;
has been assessed for all federal, state and municipal income tax for all years to and including its most recent taxation year, and at the Closing Date (iii) give to any party the right of termination, cancellation or acceleration in or with respect to any agreement, contract or commitment to which the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;
(j) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(kas hereinafter determined) the Purchaser will employ good faithhave paid in full or accrued in accounts all amounts (including but not limited to sales, use and consumption taxes and taxes measured on income and all installments of taxes) due diligenceand payable to all federal, state and best efforts municipal taxation authorities up to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.Closing Date;
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor Vendors and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors and the Company, with the intent that each of the Vendors and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:
(a) the Purchaser is a corporation duly incorporated and properly incorporated, organized and validly subsisting under the laws of the State of Nevada, such state being the only jurisdiction where it is required to be registered for the purpose of enabling it to carry on its jurisdiction of incorporation business and is validly existing own its property as presently carried on and in good standing with respect to all statutory filings required by the applicable corporate lawsowned;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of its business assets and to carry on its business as presently conducted by it, to enter into this Agreement and to perform its obligations hereunder;
(c) the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all laws, zoning and other by-laws, building and other restrictions, rules, regulations and ordinances applicable to the Purchaser, and neither the execution and delivery of this Agreement and nor the agreements completion of the transactions contemplated hereby has been duly authorized by all necessary corporate action on its part;
(c) there are no consents, approvals will give any person the right to terminate or conditions precedent to the performance of this Agreementcancel any said license or permit or affect such compliance;
(d) this Agreement constitutes has been duly authorized, executed and delivered by the Purchaser and is a legal, valid and binding obligation of the Purchaser Purchaser, enforceable against the Purchaser Purchaser, as the case may be, by the Vendors and/or the Company in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency and other laws of general application affecting the rights of creditors;
(e) no proceedings are pending for, creditors generally and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(f) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(g) there has been and there will be prepared and filed on a timely basis all federal and state income tax returns, elections and designations, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations of the Purchaser, and no such returns, elections, designations, notices or reports contain or will contain any material misstatement or omit any material statement except that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respects;
(h) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser;
(ii) conflict with or 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 the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;
(j) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as equitable remedies may be reasonably required to effect and complete granted only in the objects and intent discretion of this Agreement.a court of competent jurisdiction;
Appears in 1 contract
Warranties, representations and covenants by the Purchaser. In order to induce each of the Vendor Vendors and the Company to enter into and consummate this Agreement, the Purchaser hereby warrants to, represents to and represents to covenants with each of the Vendor Vendors and the Company, with the intent that each of the Vendors and the Company will rely thereon in entering into this Agreement and in concluding the transactions contemplated herein, that, to the best of the informed knowledge, information and belief of the Purchaser, after having made due inquiry:inquiry (and for the purposes of the following warranties, representations and covenants, “Purchaser” shall mean the Purchaser and any subsidiary of the Purchaser, if any, as the context so requires):
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(b) the Purchaser has the requisite power, authority and capacity to own and use all of its business assets and to carry on its business as presently conducted by it;
(c) save and except as set forth in the “Purchaser’s Disclosure Schedule” which will accompany the Purchaser’s execution and delivery of this Agreement, the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, save and except for those actual or threatened liens, charges, encumbrances, demands, limitations and restrictions which are listed in Schedule “H” which is attached hereto and which forms a material part hereof and as set forth in the Purchaser’s Disclosure Schedule;
(i) save and except as set forth in the Purchaser’s Disclosure Schedule, the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all laws, zoning and other by-laws, building and other restrictions, rules, regulations and ordinances applicable to the Purchaser and its business and assets, and neither the execution and delivery of this Agreement nor the completion of the transactions contemplated hereby will give any person the right to terminate or cancel any said license or permit or affect such compliance;
(j) the authorized capital of the Purchaser consists of 66,666,666 common shares of common stock, with a par value of U.S. $0.001 per common share, which, according to the records of the Purchaser, there are 52,612,392 common shares issued and outstanding as fully paid and non-assessable as at the Execution Date hereof;
(k) all of the issued and outstanding shares of the Purchaser are listed and posted for trading on FINRA’s Over-the-Counter Bulletin Board and the Purchaser is not in material default of any applicable FINRA rules or any rules or policies of the United States Securities and Exchange Commission (the “Commission”);
(l) all registration statements, reports and proxy statements filed by the Purchaser with the Commission, have been filed by the Purchaser under the United States Securities Act of 1934 (the “1934 Act”), were filed in all material respects in accordance with the requirements of the 1934 Act and the rules and regulations thereunder and no such registration statements, reports or proxy statements contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) the Purchaser will allot and issue the Shares on the Closing Date in accordance with section “2.2” hereinabove as fully paid and non-assessable in the capital of the Purchaser, free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, other than hold periods or other restrictions imposed under applicable securities legislation;
(n) the Purchaser is not aware of any court order which restricts or prevents the issuance by the Purchaser of any shares from treasury;
(o) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency;
(p) save and except as set forth in the Purchaser’s Disclosure Schedule, the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which it is subject or which apply to it;
(gq) there has been the Purchaser is not a party to any collective agreement with any labour union or other association of employees, and there will be prepared and filed on is no pending application for certification of any of the Purchaser’s employees as a timely basis all federal and state income tax returns, elections and designationscollective bargaining unit. In addition, and all other governmental returns, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations best of the knowledge, information and belief of the Purchaser, and no such returnsafter having made due inquiry, electionsthe Purchaser is not presently a party to any complaint, designationsgrievance, notices arbitration or reports contain other labour matter referred to any board or will contain any material misstatement or omit any material statement that should have been included, and each such return, election, designation, notice or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respectslabour authority;
(hr) there are no pension, profit sharing, group insurance or similar plans or other deferred compensation plans affecting the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with Purchaser or result in a breach of or violate any of the termsits directors, conditions officers or provisions of the constating documents of the Purchaseremployees;
(iis) conflict with or result save and except as set forth in a breach of or violate any of the termsPurchaser’s Disclosure Schedule, conditions or provisions of any law, judgment, order, injunction, decree, regulation or ruling of any Court or governmental authority, domestic or foreign, to which the Purchaser has not experienced, nor is subjectthe Purchaser aware of, any occurrence or event which has had, or constitute might reasonably be expected to have, a materially adverse affect on its business or result in a default under any agreement, contract or commitment to which on the Purchaser is a partyresults of its operations;
(iiit) give to any party save and except as set forth in the right of terminationPurchaser’s Disclosure Schedule, cancellation or acceleration in or with respect to any agreement, contract or commitment to which the Purchaser is a party;
(iv) give to holds or has applied for all permits, licenses, consents and authorities issuable by any federal, state, regional or municipal 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 the Purchaser agency thereof which is are necessary or desirable in connection with its operations;
(u) there is not now, and there will not be by the conduct Closing Date, any proceeding, claim or, to the best of the knowledge, information and operations belief of its business the Purchaser, after making due inquiry, any investigation by any federal, state or municipal taxation authority, or any matters under discussion or dispute with such taxation authorities, in respect of taxes, governmental charges, assessments or reassessments in connection with the Purchaser, and the ownership Purchaser is not aware of any contingent tax liabilities or leasing of its business assets; orany grounds that could result in an assessment, reassessment, charge or potentially adverse determination by any federal, state or municipal taxation authority as against the Purchaser;
(v) constitute a default by the PurchaserPurchaser is not in breach of any provision or condition of, nor have they done or any event whichomitted anything that, with or without the giving of notice or lapse of time or both, might would constitute an event a breach of defaultany provision or condition of, under or give rise to any agreementright to terminate or cancel or accelerate the maturity of any payment under, any deed of trust, contract, indenture certificate, consent, permit, license or other instrument relating to which it is a party, by which it is bound or from which it derives benefit, any indebtedness judgment, decree, order, rule or regulation of any court or governmental authority to which it is subject, or any statute or regulation applicable to it, to an extent that, in the aggregate, has a material adverse affect on it;
(w) the Purchaser has good and marketable title to all of its assets, properties and interests in properties, real and personal, free and clear of all encumbrances, and none of the Purchaser’s assets or properties is in the possession of or under the control of any other person;
(x) the Purchaser has no equipment, other than the personal property or fixtures in the possession or custody of the Purchaser which, as of the date hereof, are leased or are held under license or similar arrangement;
(y) except for the material contracts which would give any are set forth in Schedule “H” which is attached hereto and which forms a material part hereof, the Purchaser is not party to that agreement, or bound by any other material contract, indenture whether oral or written, other instrument than the right contracts as set forth in Schedule “H”;
(z) save and except as set forth in the Purchaser’s Disclosure Schedule, as to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;contracts listed in Schedule “H” which is attached hereto:
(i) neither this Agreement nor any other document, certificate or statement furnished to the Vendor by or on behalf of the Purchaser each such contract is in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleadingfull force and effect and unamended;
(jii) no material default exists in respect thereof on the part of either the Purchaser or any other party thereto;
(iii) each such contract does not involve any non-arm’s length party except where described; and
(iv) the Purchaser is not aware of any fact intention on the part of any other party thereto to terminate or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representationsmaterially alter any such contract;
(aa) there are no liabilities, warranties and covenants contained in this section from being misleading contingent or which would likely affect the decision otherwise of the Vendor to enter into this Agreement; and
(k) the Purchaser will employ good faith, due diligence, and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete the objects and intent of this Agreement.not disclosed;
Appears in 1 contract
Samples: Share Exchange Agreement (Morgan Creek Energy Corp)
Warranties, representations and covenants by the Purchaser. In order to induce the Vendor to enter into 4.1 Warranties, representations and consummate this Agreement, the Purchaser hereby warrants to and represents to the Vendor that, to the best of the informed knowledge, information and belief of covenants by the Purchaser, after having made due inquiry:.
(a) the Purchaser is a corporation duly incorporated under the laws of its jurisdiction of incorporation and is validly existing and in good standing with respect to all statutory filings required by the applicable corporate lawsincorporation;
(b) the Purchaser has the requisite power, authority and capacity to carry on the Purchaser’s Business as presently conducted by it;
(c) the Purchaser is qualified to do business in those jurisdictions where it is necessary to fulfill its obligations under this Agreement, and it has the full power and authority to enter into this Agreement and any agreement or instrument referred to or contemplated by this Agreement;
(d) the execution and delivery of this Agreement and the agreements contemplated hereby has been duly authorized by all necessary corporate action on its part;
(ce) there are no other consents, approvals or conditions precedent to the performance of this AgreementAgreement which have not been obtained;
(df) this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(eg) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the dissolution or winding up of the Purchaser or the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent companies;
(fh) the Purchaser owns and possesses and has good and marketable title to and possession of all of its business assets free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever;
(i) the Purchaser holds all licenses and permits required for the conduct in the ordinary course of the operations of its business and for the uses to which its business assets have been put and are in good standing, and such conduct and uses are in compliance with all applicable laws, and other restrictions, rules, regulations and ordinances applicable to the Purchaser, and neither the execution and delivery of this Agreement nor the completion of the transactions contemplated hereby will give any person the right to terminate or cancel any said license or permit or affect such compliance;
(j) the authorized capital of the Purchaser is unlimited and according to the records of the Purchaser, there are 13,024,607 common shares issued and outstanding as fully paid and non-assessable as at the Effective Date;
(k) all of the issued and outstanding shares of the Purchaser are listed and posted for trading on the CSE and the Purchaser is not in material default of any applicable CSE rules or any rules or policies of the British Columbia Securities Commission (the “Commission”);
(l) the Purchaser will allot and issue the Consideration Shares in accordance with section 2.2 hereinabove as fully paid and non−assessable in the capital of the Purchaser. The Consideration Shares will be held in escrow by the Purchaser’s counsel until the Consideration Shares are released in accordance with the release schedule in section 2.4. Once the Consideration Shares are released, the Consideration Shares will be free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions, other than hold periods or other restrictions imposed under applicable securities legislation;
(m) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending or, to the best of the knowledge, information and belief of the Purchaser, after making due inquiry, threatened against or affecting the Purchaser at law or in equity or before or by any federal, provincial, municipal or other governmental department, commission, board, bureau or agency;
(n) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-lawsby−laws, orders or decrees to which it is subject or which apply to it;
(go) there has been is not now, and there will not be prepared and filed on a timely basis all federal and state income tax returnsby the Closing Date, elections and designationsany proceeding, and all other governmental returnsclaim or, notices and reports of which the Purchaser had, or ought reasonably to have had, knowledge required to be or reasonably capable of being filed with respect to the operations best of the knowledge, information and belief of the Purchaser, and no after making due inquiry, any investigation by any federal, provincial or municipal taxation authority, or any matters under discussion or dispute with such returnstaxation authorities, electionsin respect of taxes, designationsgovernmental charges, notices assessments or reports contain or will contain any material misstatement or omit any material statement that should have been includedreassessments in connection with the Purchaser, and each such returnthe Purchaser is not aware of any contingent tax liabilities or any grounds that could result in an assessment, electionreassessment, designationcharge or potentially adverse determination by any federal, notice provincial or report, including accompanying schedules and statements, is and will be true, correct and complete in all material respectsmunicipal taxation authority as against the Purchaser;
(hp) the Purchaser has no equipment, other than the personal property or fixtures in the possession or custody of the Purchaser which, as of the date hereof, are leased or are held under license or similar arrangement;
(q) there are no liabilities, contingent or otherwise of the Purchaser not disclosed;
(r) none of the directors, officers or employees of the Purchaser are now indebted or under obligation to the Purchaser on any account whatsoever, other than in the ordinary course of business or as otherwise disclosed in the Purchaser’s financial statements;
(s) all material transactions of the Purchaser and including, without limitation, all directors’ and shareholders’ resolutions, have been promptly and properly recorded or filed in or with the Purchaser’s books and records;
(t) the Purchaser will have obtained all authorizations, approvals, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all Regulatory Authorities required to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser, which will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any Regulatory Authority to which the Purchaser may be subject;
(u) until the Closing Date the Purchaser will:
(i) maintain its assets in a manner consistent with and in compliance with applicable law; and
(v) the Purchaser has not committed to making and until the Closing Date will not make or commit itself, without the written consent of the Vendor and the Company, to:
(i) declare or pay any dividend, or make any distribution of its properties or assets to its shareholders, or purchase or retire any of its shares;
(ii) sell all or any part of its assets or agree to do or perform any act or enter into any transaction or negotiation which could reasonably be expected to interfere with this Agreement or which would render inaccurate any of the representations, warranties and covenants set forth in this Agreement; or
(w) the shares in the capital of the Purchaser are not subject to or affected by any actual or, to the knowledge of the Purchaser, pending or threatened cease trading, compliance or denial of use of exemptions orders of, or action, investigation or proceeding by or before, any securities regulatory authority, court, administrative agency or other tribunal;
(x) the making of this Agreement and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof does not and will not:
(i) conflict with or result in a breach of or violate any of the terms, conditions or provisions of the constating documents of the Purchaser;
(ii) conflict with or 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 court or governmental authority, domestic or foreign, to which the Purchaser is subject, or constitute or result in a default under any agreement, contract or commitment to which the Purchaser 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 the Purchaser is a party;
(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 the Purchaser which is necessary or desirable in connection with the conduct and operations of its business businesses and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser, Purchaser or any event which, with the giving of notice or lapse of time or both, might constitute an event of default, under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any party to that agreement, contract, indenture or other instrument the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture or other instrument;
(iy) neither this Agreement nor any other document, certificate or statement furnished to the Vendor or the Company by or on behalf of the Purchaser in connection with the transactions contemplated hereby knowingly or negligently contains any untrue or incomplete statement of material fact or omits to state a material fact necessary in order to make the statements therein not misleading;; and
(jz) the Purchaser it is not aware of any fact or circumstance which has not been disclosed to the Vendor and the Company which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor and the Company to enter into this Agreement; and.
(k) 4.2 Continuity of the Purchaser will employ good faithrepresentations, due diligence, warranties and best efforts to perform its obligations of this Agreement and will enter into such additional or collateral agreements as may be reasonably required to effect and complete covenants by the objects and intent of this AgreementPurchaser.
Appears in 1 contract
Samples: Share Exchange Agreement
