SHARE EXCHANGE AGREEMENT
Exhibit 4.2
THIS AGREEMENT made with
effect as of the 22 day of AUGUST, 2007.
AMONG:
UNGAVA
MINERALS CORP.
a company continued under the laws of
the Dominion of Canada
having its head office at 1155
Xxxx-Xxxxxxxx Blvd. West, Suite 3100,
Montreal, Quebec H3B 3S8
(the “Vendor”)
AND:
XXXXX AMERICOR
INC.
an
Ontario Corporation having its head office at
0000
Xxxxxxxxx Xxxx. Xxxx, Xxxxx 0000,
Xxxxxxx,
Xxxxxxx X0X 0X0
(the
"Purchaser")
WITNESSES
THAT WHEREAS:
A. The
Vendor is the legal and beneficial owner of all of the issued and outstanding
shares and warrants(collectively, the "Shares") in the capital of Ungava Mines
Inc. ("Ungava");
B. The Vendor
wishes to sell the Shares to the Purchaser and the Purchaser wishes to purchase
the Shares from the Vendor in accordance with the terms set out
herein;
NOW THEREFORE in consideration
of the covenants and agreements herein and the payment of $1 made by each party
to the other. the receipt and sufficiency of which is acknowledged by each
party, the parties agree as follows:
1. PURCHASE AND
SALE
1.1 Agreement - The Vendor agrees to
assign, sell and transfer the Shares to the Purchaser and the Purchaser agrees
to purchase the Shares from the Vendor, on the terms and subject to the
conditions contained in this Agreement.
1.2 Purchase
Price - The
purchase price for the Shares will be paid by the Purchaser's issuance to the
Vendor, seventy five million eight hundred and sixty eight thousand three
hundred and sixty two (75,868,362) common shares in the capital of the Purchaser
at a paid up value of Cd $0.60 per share (the "Purchase Shares") and ten million
(10,000,000) common share purchase Warrants, each exercisable to purchase a
further common share at the price of Cd $0.75 on or before August 31, 2012, (the
Warrants).
2. VENDOR’S
REPRESENTATIONS AND WARRANTIES
2.1 Vendor’s
Representations and Warranties -
In order to induce the Purchaser to enter into and consummate this
Agreement, the Vendor represents and warrants to the Purchaser
that:
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(a)
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the
Vendor owns and have the right to sell the Shares as the legal and
beneficial owner, free of all liens, claims, charges, restrictions on
transfer, voting agreements, voting trusts, escrow conditions and
encumbrances whatsoever;
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(b)
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the
Vendor has due and sufficient right and authority to enter into this
Agreement on the terms and conditions herein set forth and all necessary
action has been taken by or on the part of the Vendor to authorize the
execution, delivery and performance of this Agreement and all other
documents contemplated hereby;
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(c)
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the
Vendor acknowledges and agrees that the Purchase Shares and Warrants have
not been and will not be qualified or registered under the securities laws
of Ontario or under any federal or state laws of the United States and as
such, the Vendor may be restricted from selling or transferring such
Purchase Shares under applicable
law;
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(d)
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the
Vendor will deliver a certificate prior to closing stating its
jurisdiction of incorporation, and that all negotiations and
other acts in furtherance of the execution and delivery of this Agreement
by the Vendor in connection with and transactions contemplated herein have
taken place and will take place solely in
Ontario;
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| (e) | Ungava was duly incorporated under the laws of the Province of Ontario and is in goodstanding with respect to all statutory filings required by the applicable corporate laws; |
| (f) |
the
Shares have been duly and validly issued and are outstanding as fully paid
andnon-assessable shares and warrants in the capital of
Ungava;
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| (g) |
the
authorized capital of Ungava consists of unlimited number of common and
preferredsharesof which there are 90,000,000 common shares issued and
outstanding as fully paid and non-assessable and 10,000,000 warrants
exercisable at Cd $0.75 per
share;
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(h)
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no
person, firm or corporation has any right, agreement or option or a right
capable of becoming a right, agreement or option, whether oral or in
writing, for the purchase of the Shares or to require Ungava to purchase,
redeem or otherwise acquire the Shares or any right capable of becoming a
right, agreement or option for the purchase, subscription or issuance of
any of the unissued shares in the capital of
Ungava;
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(i)
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Ungava
has the corporate capacity and power to own the assets owned by it and to
carry on the business presently carried on by it and is duly qualified or
licensed to carry on business in all places where it presently conducts
its business;
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(j)
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The
audited financial statements of Ungava for the period ended May 31, 2007,
"Ungava’s Financial Statements") which will he delivered at Closing, will
be true and correct in every material respect and present fairly the
financial position of Ungava as at the date of such statements and the
results of its operations for the period then ended in accordance with
generally accepted accounting principles on a basis consistently
applied;
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(k)
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since
the date of Ungava's Financial
Statements:
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(i)
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there
has not been any material adverse change in the financial position or
condition of Ungava or any damage, loss or other change in circumstances
materially affecting the business or property of Ungava or its right or
capacity to carry on business,
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(ii)
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Ungava
has not waived or surrendered any
right of material value,
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(iii)
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Ungava
has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary
course of business,
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| (iv) | the business of Ungava has been carried on in the ordinary course, and |
| (v) | the constating documents of Ungava have not been amended; |
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(l)
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the
only contracts, agreements or understandings to which Ungava is legally
bound and which are material to the business or financial position to
Ungava are those contracts, agreements or understandings referred to in
the Ungava financial statements or described in Schedule "A" to
this Agreement (the "Material
Contracts');
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(m)
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there
are no liabilities, contingent or otherwise, of Ungava not disclosed or
reflected in Ungava's audited Financial Statements except liability
arising under the Material Contracts, and those incurred in the ordinary
course of the business of Ungava since the date of Ungava's Financial
Statement and Ungava has not guaranteed, or agreed to guarantee any debt,
liability or other obligation of any person, firm or
corporation;
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(n)
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Ungava
is indebted to the Vendor in the amount of Cd $
1,500,000 on a demand note
basis;
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(o)
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no
dividends or other distribution of any kind on any shares in the capital
of Ungava and no distribution of assets in any form or manner have been
made, declared or authorized since its incorporation nor will any be
declared, paid or authorized after the date hereof and up to the
Closing;
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(p)
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no
payments of any kind have been made or authorized by or on behalf of
Ungava to or on behalf of the Vendors or to or on behalf of officers,
directors, shareholders or employees of Ungava or under any management
agreements with Ungava, other than in the ordinary course of
business;
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(q)
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The
Vendor and Ungava through its subsidiary Ungava Minerals Exploration Inc.,
is currently involved in litigation regarding its mineral property with
Xxxxx Xxxxxxx, and the University of Toronto in Ontario and in Quebec is
involved in actions regarding the Option Agreement of January
12, 2001 with Canadian Royalties Inc., and various trespasses and other
torts regarding which full disclosure had not been made to the Purchaser,
other than that, the Vendor knows of no basis for and there are no
actions, suits, judgments, investigations or proceedings outstanding or
pending or threatened against or affecting Ungava at law or in equity or
before or by any federal, provincial, state, municipal or other
governmental department. commission, board, bureau or
agency;
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(r)
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Ungava
does not have a pension plan, profit sharing plan, group insurance or
similar plans or other deferred compensation plans or any hospitalization
plan, disability plan or other employee benefit plan, program or policy
with respect to any of its
employees;
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(s)
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Ungava
has good and marketable title to all its properties and assets as
reflected in Ungava's Financial Statements and such properties and assets
are not subject to any mortgage, pledge, deed of trust, lien, conditional
sale agreement, option, encumbrance or
charge;
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(t)
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at
the Closing Date, neither the Vendor nor any officers, directors or
employees of Ungava are now indebted or under obligation to Ungava on any
account whatsoever;
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(u)
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all
tax returns and reports of Ungava required by law to be filed prior to the
date hereof have been or will be filed prior to the Time of Closing and
are or will be substantially true, complete and correct and all taxes and
government charges have been paid or
accrued;
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(v)
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neither
this Agreement nor the performance of the transactions contemplated in
this Agreement will conflict with or result in a violation of the
incorporating documents of Ungava, any resolutions of its directors or
shareholders or of any agreement to which any of the Vendor or Ungava is a
party or any law, rule or regulation, judgment or order to which any of
them are subject and will not give any person any right to terminate or
cancel any agreement or any right enjoyed by Ungava or result in the
creation or imposition of any lien, encumbrance or restriction of any
nature whatsoever in favour of a third party upon or against the Shares or
the assets of Ungava:
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(w)
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there
are no liabilities of Ungava of any kind whatsoever, contingent or
otherwise, existing on the date hereof in respect of which Ungava or the
Purchaser may be liable on or after the completion of the transactions
contemplated by this Agreement other
than:
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(i) liabilities
disclosed or referred to in this Agreement, or Ungava’s Financial Statements,or
arising out of the Material Contracts and the litigation referred to;
and
(ii) liabilities
incurred in the ordinary course of business, none of which are materiallyadverse
to the business, operations, affairs or financial condition of
Ungava;
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(x)
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all
material transactions of Ungava have been properly recorded in the books
and records of Ungava and the minute book of Ungava contains records of
all material contracts and meetings and proceedings of shareholders and
directors thereof;
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(y)
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the
Shares are not subject to or affected by any actual or, to the
knowledge of the Vendor, pending or threatened cease trading,
compliance or denial of use of exemptions order of, or action,
investigation or proceeding by or before, any securities regulatory
authority, court, administrative agency or other tribunal;
and
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(z)
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the
Officers of Ungava are:
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Xxxxx
Xxxxxx, President
Xxxx
Xxxxxxxxxx, CFO
Xxxxx
Xxxxx, Secretary-Treasurer
Xxxx
Xxxxxxxxx, Vice President
the Directors of Ungava
are:
Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxx Xxxxxxxxx,
Xxxxx Xxxxxxx and Xxxx
Xxxxxxxxx.
2.2 Survival - The representations and
warranties of the Vendor contained in this Agreement or any certificates or
documents delivered pursuant to the provisions hereof or in connection with the
transactions contemplated hereby will be true at and as of the Time of Closing
as though such representations and warranties were made at and as of such time.
Notwithstanding any investigations or enquiries made by the Purchaser prior to
Closing or the waiver of any condition by the Purchaser, the representations and
warranties of the Vendor will survive the Closing Date and notwithstanding the
Closing of the purchase and sale herein provided for, will continue in lull
force and effect for a period of one year from the Closing Date. In the event
that any of the said representations and warranties are found by a court of
competent jurisdiction to be incorrect and such incorrectness results in any
loss or damage sustained directly or indirectly by the Purchaser then the Vendor
will pay the amount of such loss or damage to the Purchaser within 30 days of
receiving notice of judgment therefore provided that the Purchaser will not be
entitled to make any claim unless the loss or damage suffered will exceed the
amount of $1,000.
3. PURCHASER'S REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties -
In order to induce the Vendor to enter into andconsummate this Agreement,
the Purchaser represents and warrants to the Vendor that:
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(a)
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(b)
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on
the Closing Date the authorized capital of the Purchaser will consist of
an unlimited number of common shares without par value of which not more
than 16,820,636 common shares will be issued and outstanding on the
Closing Date as fully paid and non-assessable (including shares issuable
on or prior to the Closing Date upon the exercise of all outstanding
warrants and options of the
Purchaser;
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(c)
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the
common shares of the Purchase are quoted on the NASDAQ OTC Bulletin Board
in the United States and, on the Closing Date, the Purchaser will not be
in material default of any of the terms and conditions of its listing
agreement with the Exchange or of any of the policies or rules of the
Exchange;
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(d)
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the
Purchaser will allot and issue the Purchase Shares, free of all liens,
claims, charges and encumbrances whatsoever, other than hold periods or
other restrictions imposed under applicable securities legislation or by
securities regulatory authorities;
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(e)
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the
Purchase Shares will be issued to the Vendor on the Closing Date and will
be quoted for trading on the NASDAQ OTC Bulletin
Board:
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(f)
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the
Purchaser has due and sufficient right and authority to enter into this
Agreement on the terms and conditions herein set forth and all necessary
corporate action had been taken by or on the part of the Purchaser to
authorize the execution, delivery and performance of this Agreement and
all other documents contemplated
hereby;
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(g)
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no
person, firm or corporation has any right, agreement or option or a right
capable of becoming a right, agreement or option or any right capable of
becoming an agreement for the purchase, subscription or issuance of any of
the unissued shares in the capital of the
Purchaser;
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(h)
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audited
Financial Statements of the Purchaser as at December 31, 2006 (the
"Purchaser's Financial Statements"), which are attached hereto as Schedule
"D", are true and correct in every material respect and present fairly the
financial position of the Purchaser as at the date of the Purchaser's
Financial Statements and the results of its operations for the periods
then ended in accordance with generally accepted accounting principles
applied on a basis consistent with that of the previous
year;
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(i)
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since
the date of the Purchaser's Financial
Statements;
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(i)
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there
has not been any material adverse change in the financial position or
condition of the Purchaser or any damage, loss or other change in
circumstances materially affecting the business or property of the
Purchaser or its right or capacity to carry on
business,
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| (ii) | the Purchaser has not waived or surrendered any right of material value, |
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(iii)
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the
Purchaser has not discharged or satisfied or paid any lien or encumbrance
or obligation or liability other than current liabilities in the ordinary
course of business, and
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| (iv) | the business of the Purchaser has been carried on in the ordinary course; |
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(j)
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there
are no liabilities, contingent or otherwise, of the Purchaser not
disclosed or reflected in the Purchaser's Financial Statements except
those incurred in the ordinary course of the business of the Purchaser,
since the date of the Purchaser's Financial Statements which in the
aggregate do not exceed Cd$ 20,000. and the Purchaser has not guaranteed,
or agreed to guarantee any debt, liability or other obligation of any
person, firm or corporation;
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(k)
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no
dividends or other distribution on any shares in the capital of the
Purchaser have been made, declared or authorized since its incorporation
nor will any be declared, paid or authorized after the date hereof and up
to the Closing and no distribution of assets in any form or manner has
been made since the incorporation of the Purchaser nor will any be made
after the date hereof and up to the
Closing;
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(l)
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no
payments of any kind have been made or authorized by or on behalf of the
Purchaser or to or on behalf of officers, directors, shareholders or
employees of the Purchaser or under any management agreements with the
Purchaser, other than in the ordinary course of
business;
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(m)
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the
Purchaser does not have any contracts, agreements, undertakings or
arrangement, whether oral, written, or implied with employees, lessees,
licensees, managers, accountants, suppliers, agents, distributors,
officers, lawyers, or others which cannot be terminated without penalty on
not more than one month's notice;
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(n)
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there
is no basis for and
there are no actions, suits, judgments, investigations or proceedings
outstanding or pending or threatened against or affecting the Purchaser at
law or in equity or before or by any federal, provincial, state, municipal
or other governmental department, commission, board. bureau or
agency;
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(o)
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there
are no pensions, profit sharing, group insurance or similar plans or other
deferred compensation plans affecting the
Purchaser;
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(p)
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the
Purchaser has good and marketable title to all its properties and assets
and such properties and assets are not subject to any mortgage, pledge,
deed of trust, lien, conditional sale agreement, encumbrance or
charge;
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(q)
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the
Purchaser does not have any subsidiaries, or any interest in or title to
any properties or assets other than those disclosed in the Purchaser's
Financial Statements and there are no liabilities of the Purchaser of any
kind whatsoever, contingent or otherwise, existing on the date hereof in
respect of any interests in properties or assets which have been sold,
transferred or otherwise disposed of by the
Purchaser:
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(r)
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no
officers, directors 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;
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(s)
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all
tax returns and reports of the Purchaser required by law to he filed prior
to the date hereof have been or will be filed prior to the Time of Closing
and are or will be substantially true, complete and correct and all taxes
and government charges have been paid or
accrued;
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(t)
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neither
this Agreement nor the performance of the transactions contemplated in
this Agreement will conflict with or result in a violation of the
incorporating documents of the Purchaser, any resolutions of its directors
or shareholders or of any agreement to which the Purchaser is a party or
any law, rule or regulation, judgment or order to which the Purchaser is
subject and will not give any person any right to terminate or cancel any
agreement or any right enjoyed by the Purchaser or result in the creation
or imposition of any lien, encumbrance or restriction of any nature
whatsoever in favour of a third party upon or against the Shares or the
assets of the Purchaser;
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(u)
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the
Purchaser has not retained, employed or introduced any broker, finder or
other person who would be entitled to a brokerage commission or finder's
fee arising out of the transactions contemplated
herein;
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(v)
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there
are no liabilities of the Purchaser of any kind whatsoever, contingent or
otherwise, existing on the 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:
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| (i) | liabilities disclosed or referred to in this Agreement, and |
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(ii)
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liabilities
incurred in the ordinary course of business, none of which is materially
adverse to the business, operations, affairs or financial condition of the
Purchaser;
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all
material transactions of the Purchaser have been or will at the Closing Date be
properly recorded in the books and records of the Purchaser and the minute book
of the Purchaser will, as of the Closing Date, contain records of all material
contracts and meetings and proceedings of shareholders and directors
thereof;
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(w)
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the
Purchaser is not a reporting issuer in any Canadian jurisdiction. The
Purchaser is a reporting company registered with the U.S. Securities and
Exchange Commission under Section 12 of the 1934 Securities Exchange Act
and, as of the Closing Date, will not be in default of any of the
requirements of applicable securities
legislation;
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(x)
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the
Directors and Officers of the Purchaser
are:
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Xxxx
XxXxxxxxx, Chairman, Secretary-Treasurer
Xxxxx X.
Xxxxx, President
Xxxxxx X.
Xxxx, Director
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(y)
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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 order of, or action, investigation or proceeding by or before,
any securities regulatory authority, court, administrative agency or other
tribunal.
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3.2 Survival - The representations and
warranties of the Purchaser contained in this Agreement or any certificates or
documents delivered pursuant to the provisions hereof or in connection with the
transactions contemplated hereby will be true at and as of the Time of Closing
as though such representations and warranties were made at and as of such time.
Notwithstanding
any investigations or enquiries made by the Vendor prior to Closing or the
waiver of any condition by the Vendor, the representations and warranties of the
Purchaser will survive the Closing Date and notwithstanding the closing of the
purchase and sale herein provided for, will continue in full force and effect
for a period of one year from the Closing Date. In the event that any of the
said representations and warranties are found by a court of competent
jurisdiction to be incorrect and such incorrectness results in any loss or
damage sustained directly or indirectly by the Vendor then the Purchaser will
pay the amount of such loss or damage to the Vendor within 30 days of receiving
notice of judgment therefore provided that the Vendor will not be entitled to
make any claim unless the loss or damage suffered will exceed the amount of
$1,000.
4. CONDITIONS
PRECEDENT
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4.1
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General - The obligations of
the Vendor and the Purchaser under this Agreement are subject
to:
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(a)
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directors
of the Purchaser passing resolutions prior to the Closing Date necessary
to approve:
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(i) the
execution of this Agreement and the issuance of the Purchase
Shares;
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(b)
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the
Purchaser not having a material working capital deficiency or any material
short or long term debt; and
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(c)
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the
existing directors, officers and employees (if any) of the Purchaser
resigning seriatim at a directors meeting and in writing with such written
resignations to be in a form acceptable to Ungava and specifically to
include a general release of the Purchaser and, prior to such director's
serial resignations, the directors shall have elected replacement
directors to the board of directors of the Purchaser as nominated by
Ungava.
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4.2 Vendor’s
Conditions - All
obligations of the Vendor under this Agreement are furthersubject to the
fulfillment, at or before the Time of Closing, of each of the
followingconditions:
| (a) | the representations and warranties of the Purchaser being true and correct as of theClosing Date and the Purchaser shall provide the Vendor with such written assurancesand releases from third parties as the Vendor may require; |
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(b)
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all
of the covenants and agreements of the Purchaser to be observed and
performed on or before the Closing Date pursuant to the terms hereof will
have been duly observed and performed;
and
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(c)
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all
governmental, administrative and other approvals or consent, including the
approval of the securities regulatory authorities having jurisdiction,
required in connection with the transactions provided for in this
Agreement having been obtained.
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4.3 Waiver by
Vendor - The
conditions set forth in section 4.2 of this Agreement are for theexclusive
benefit of the Vendor and the Vendor may waive the conditions in whole or inpart
by delivering to the Purchaser at or before the Time of Closing a written waiver
to that effect stated to be made pursuant to this section and executed by the
Vendor.
4.4 Purchaser's Conditions - All obligations of the
Purchaser under this Agreement arefurther subject to the fulfillment, at or
before the Time of Closing, of each of thefollowing conditions:
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(a)
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the
representations and warranties of the Vendor being true and correct as of
the ClosingDate and the Vendor shall provide the Purchaser with such
assurances and releases fromthird parties as the Purchaser may
require;
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(b)
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all
of the covenants and agreements of the Vendor to be observed and performed
on orbefore the Closing Date pursuant to the terms hereof will have been
duly observed andperformed;
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| (c) | all governmental, administrative and other approvals or consent, including the approval ofthe securities regulatory authorities having jurisdiction, required in connection with thetransactions provided for in this Agreement have been obtained; |
| (d) | the Vendor shall grant the Purchaser Five Million (5,000,000) common share purchase warrants each good to purchase a Vendor common share at the price of $0.75 until August 31, 2012. |
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4.5
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Waiver
by Purchaser -
The conditions set forth in section 4.4 of this Agreement are for
the exclusive benefit of the Purchaser and the Purchaser may waive the
conditions in whole or in part by delivering to the Vendor, at or before
the Time of Closing, a written waiver to that effect stated to made
pursuant to this section and executed by the
Purchaser.
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4.6 Termination
of Agreement -
This Agreement will terminate in the event that:
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(a)
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the
conditions specified in section 4.1 hereof are not satisfied on or before
the Closing Date;
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(b)
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any
of the representations or warranties contained in Parts 2 and 3 of the
Agreement are found to be materially untrue and such defect is not remedied within
30 days of notification of such defect to the satisfaction of the party
who has notified the other of the material defect;
or
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(c)
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the
Purchaser and the Vendor mutually agree to terminate this Agreement; and
in such event, this Agreement will be terminated and be ofno force and
effect other
than the obligations under Part 8 which shall survive such
termination.
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5.
COVENANTS OF THE
PURCHASER AND THE VENDOR
5.1 Purchaser's Covenants - The Purchaser covenants
with the Vendor that:
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(a)
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it
will use all reasonable efforts to forthwith obtain all consents,
approvals, releases, assurances, or waivers that may be necessary or
desirable in connection with the transactions contemplated
hereby;
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(b)
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up
to and including the Closing or the termination of this Agreement,
thePurchaser will not, without the written consent of the
Vendor:
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(i)
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declare
or pay any dividend, or make any distribution of its properties or assets
ofits shareholders, or purchase or retire any of' its
shares;
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(ii)
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allot
or issue, or enter into any agreement for the allotment or issuance of, or
grant anyother rights to acquire, shares in its capital stock or
securities, convertible intoexchangeable for, or which otherwise carry the
right to acquire, directly or indirectly, any shares in its
capital;
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(iii)
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sell
all or any material part of its assets, or agree to do or perform any act
or enter into any transaction or negotiation which could reasonably he
expected to interfere with or be contemplated by this Agreement, or which
would render inaccurate any of the representations and warranties set
forth in section 3 of this Agreement;
or
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(iv)
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merge,
amalgamate or consolidate into or with any entity. or enter into any other
corporate reorganization; provided however that the provisions hereof
shall not preclude either of the parties hereto, pending the Closing or
the termination of this Agreement, whichever shall first occur, from
carrying on their respective business in the normal course
thereof;
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(c)
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it
will disclose and provide to designated representatives of the Vendor
copies of all of its material contracts, as soon as practicable;
and
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5.2 Vendor’s
Covenants - The
Vendor covenants with the Purchaser that up to andincluding the Closing or the
termination of this Agreement:
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(a)
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it
will use all reasonable efforts to obtain and to cause Ungava to obtain
all consents, approvals, releases, assurances, or waivers that may be
necessary or desirable in connection with the transactions contemplated
hereby; and
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(b)
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the
Vendor will not, without the written consent of the Purchaser, cause
Ungava to:
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(i)
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declare
or pay any dividend, or make any distribution of Ungava's properties of
assets to its shareholders, or purchase or retire any of its
shares;
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(ii)
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allot
or issue or enter into any agreement for the allotment or issuance of, or
grant any other rights to acquire, shares in the capital stock of Ungava
or securities, convertible into exchangeable for, or which otherwise carry
the right to acquire, directly or indirectly, any shares in its capital,
other than as the Purchaser and the Vendor agree in
writing;
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(iii)
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sell
all or any part of the assets of Ungava or agree to do or perform any act
or enter into any transaction or negotiation which could reasonably he
expected to interfere with or be contemplated by this Agreement, or which
would render inaccurate any of the representations and warranties set
forth in section 3 of this Agreement;
or
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(iv)
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merge,
amalgamate or consolidate into or with any entity, or enter into any other
corporate reorganization; provided however that the provisions hereof
shall not preclude either of the parties hereto or Ungava, pending the
Closing or the termination of this Agreement, whichever shall first occur,
from carrying on their respective business in the normal course
thereof;
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(c)
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the
Vendors will cause Ungava to disclose and provide copies of all of its
material contracts to representatives of the Purchaser as soon as
practicable; and
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(d)
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the
Vendor will not, without the prior written consent of an authorized
representative of the Purchaser, use the Purchaser’s name in any press
release or other public disclosure statement, unless otherwise required to
do so by law or a regulatory authority having
jurisdiction.
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6. CLOSING
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6.1
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Place
and Time -
The sale and purchase of the Shares and the issuance of the
Purchase Shares and the other transactions contemplated by this Agreement
will take place as soon as possible at a closing (the "Closing") at the
office of the Purchaser, Suite 2907, 0000 Xxxxxxxxx Xxxx. Xxxx, Xxxxxxx,
Xxxxxxx, to he held on a date (the "Closing Date" or "Date
of Closing") not later than 10 days from the date of this agreement.
Closing shall not occur held until the Purchaser’s SEC Form 8K disclosure
documents are complete and ready for filing with the
SEC.
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6.2
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Documents
Delivered by Vendor - On the Closing Date
the Vendor will deliver or cause to be delivered to the
Purchaser:
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(a)
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certified
copies of resolutions of the directors of the Vendor and Ungava consenting
to the transfer of the Shares from the Vendor to the
Purchaser;
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(b)
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certificates
representing the Shares registered in the names of the Vendor, duly
endorsed for transfer to the Purchaser or irrevocable stock powers
transferring the Shares to the
Purchaser;
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(c)
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certificates
representing the Shares registered in the name of the
Purchaser;
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(d)
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the
Vendor’s common share purchase warrant certificate in favour of the
Purchaser;
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(e)
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certificate
on behalf of the Vendor, from a responsible Officer of the Vendor,
certifying, as of the Date of Closing, that the representations and
warranties of the Vendor set forth in this Agreement are true and correct
as of the date of this Agreement and will he true and correct as of the
Date of Closing as if made by the Vendor on the Closing
Date;
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(f)
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an
opinion of counsel to the Vendor and Ungava dated as of the Closing Date,
addressed to the Purchaser and its counsel, in form and substance
satisfactory to the Purchaser, acting reasonable, and including the
following:
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(i)
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the
due incorporation, existence and standing of Ungava and its qualification
to carry on business;
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| (ii) | the authorized and issued capital of Ungava; |
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(iii)
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that
the Shares have been duly authorized and issued and are fully paid and
non-assessable:
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(iv)
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all
necessary steps and proceedings have been taken in connection with the
execution, delivery and performance of this Agreement and the transactions
contemplated herein; and
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(v)
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that
the Shares have been issued in compliance with applicable securities laws
in Canada, the United States and that the distribution of the Purchase
Shares hereunder does not amount to a distribution, directly or
indirectly, under applicable U.S. securities laws, or to the extent it
may, such distributions has been carried out in compliance with such laws;
and
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(g)
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consents
to act or other documents as may he required in connection with the
appointment of any nominee of Ungava to the board of directors of the
Purchaser.
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6.2.1
|
Documents
Delivered by Purchaser - On the Closing Date,
the Purchaser will deliver or cause to be delivered to the
Vendor:
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(a)
|
a
certified copy of the resolution of the directors of the Purchaser
approving this Agreement and the transactions contemplated by this
Agreement:
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(b)
|
a
certified copy of the resolutions of the directors of the Purchaser
approving the issuance of the Purchase Shares to the
Vendor;
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| (c) | copies of the Certificates representing the Purchase Shares in the names of the Vendor: |
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(d)
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a
certificate of the president of the Purchaser certifying, as of the Date
of Closing, that the representations and warranties of the Purchaser set
forth in this Agreement are true and correct as of the date of this
Agreement and will be true and correct as of the date of Closing as if
made by the Purchaser on the Closing
Date:
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(e)
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written
resignations and general releases of the existing directors and officers
of thePurchaser;
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(f)
|
a
certified copy of the minutes of a directors meeting at which nominees of
the Vendor are appointed, to the board of directors of the
Purchaser;
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(g)
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an
opinion of counsel to the Purchaser, dated as of the Closing Date, and
addressed to the Vendor and their counsel, in form and substance
satisfactory to the Vendor acting reasonably, including the
following:
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(h)
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the
due incorporation, valid existence and standing of the Purchaser and its
qualification to carry on business;
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| (ii) the authorized and issued capital of the Purchaser; |
|
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(iii) all
necessary steps and proceedings have been taken in connection with the
execution, delivery and performance of this Agreement and the transactions
contemplated herein; and
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|
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(iv) the
due issuance of the Purchase Shares as fully paid and non-assessable and
having been issued in accordance with applicable securities
laws.
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6.3 Legends
on Certificates -
if the Vendor is a resident or citizen of the United States of
America at the time of the Closing, the certificates) representing the Shares
will be endorsed with the following or a similar legend: "The shares represented
by this Certificate have not been registered under the Securities Act of 1933,
as amended, of the United States of America (the "Act") or the securities laws
of any state ("State") of the United States of America and may not he sold,
transferred, pledged, hypothecated or distributed, directly or indirectly, to a
U.S. person (as defined in Regulation S adopted by the U.S. Securities and
Exchange Commission under the Act) or within the United States unless such
shares are (i) registered under the Act and any applicable State securities act
(a "State Act"), or (ii) exempt from registration under the Act and any
applicable State Act and the Company has received an opinion of counsel to such
effect reasonably satisfactory to or (iii) sold in accordance with Regulation S
and the Company has received an opinion of counsel to such effect reasonably
satisfactory to it.”
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Legend. The Buyer agrees to the
imprinting of the following legend on any certificatesrepresenting the Shares:
“THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
THESE SECURITIES ARE “RESTRICTED SECURITIES” WITHIN THE MEANING OF
RULE 144(3) OF THE SECURITIES ACT AND MAY NOT BE RESOLD PUBLICLY UNDER
RULE 144 UNTIL CERTAIN HOLDING PERIOD REQUIREMENTS ARE
MET.”
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7.
DUE
DILIGINCE INVESTIGATIONS
7.1 Investigations - Each party may in a
reasonable manner carry out such investigations and due diligence as to the
other party, at all times, subject to the confidentiality provisions of Parts 8
and 9 hereof, as each party may deem necessary.
7.2 Access to
Records - The
parties agree that
each shall have full and complete access to the other's books, records,
financial statements, and other documents, articles of incorporation, by-laws,
minutes of board of directors and its committees, investment agreements,
material contracts, and as well such other documents and materials as the
Vendors, Ungava or the Purchaser or their legal counsel, may deem reasonable and
necessary to conduct an adequate due diligence investigation of each company,
its operations and financial condition prior to the Closing.
8. NON-DISCLOSURE
8.1 Covenants
- Subject to the
provisions of section 8.3 hereof, the parties, for themselves,
their officers. directors, shareholders, consultants, employees and agents agree
that they each will not disseminate or disclose, or knowingly allow, permit or
cause others to disseminate or disclose to third parties who are not subject to
express or implied covenants of confidentiality, without the other's express
written consent either:
|
(a)
|
the
fact or existence of this Agreement or discussions and/or negotiations
between them involving, inter alia, possible business
transactions,
|
|
(b)
|
the
substance or content of those
discussions;
|
|
(c)
|
the
possible terms and conditions of any proposed
transaction,
|
|
(d)
|
any
statements or representations (whether verbal or written) made by either
in the course of or in connection with those discussions
or
|
|
(e)
|
any
written material generated by or on behalf of any party and such contacts,
other than such disclosure as may he required under applicable securities
legislation or regulations, pursuant to any order of a court or on a "need
to know" basis to each of the parties' respective professional
advisors.
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8.3 Treatment
of Documents -
Any documents or written material generated by either party in the course
of, or in connection with, the due diligence investigations conducted pursuant
to this Agreement shall be marked "Confidential" and shall be treated by each
party as a trade secret of the other party. Upon termination of this Agreement
prior to Closing, all copies of any and all documents obtained by a party from
the other, whether or not marked "Confidential", shall
be returned to the other party forthwith.
8.4 Public
Announcements -
Notwithstanding the provisions of this section, the parties agree to make
such public announcements of this Agreement promptly upon its execution in
accordance with the requirements of applicable securities legislation and
regulations.
9. PROPRIETARY
INFORMATION
9.2 Confidential
Information -
Each party acknowledges that any and all information which a party may
obtain from, or have disclosed to it, about the other party constitutes valuable
trade secrets and proprietary confidential information of the other party
("Confidential Information").
9.3 Non-Disclosure - The Vendor and the
Purchaser, for themselves, their officers, directors, shareholders, consultants,
employees and agents agree that they each will not disseminate, disclose or
knowingly allow, permit or cause others to disseminate or disclose the
Confidential Information of the other without the other's express written
consent.
10 GENERAL
10.1 Time - Time is of the essence
of this Agreement.
10.2 Entire Agreement - The terms
and provisions herein contained constitute the entire agreement between the
parties and supersede all previous oral or written communications.
10.3 Governing Law - This Agreement
will be governed by, construed and enforced in accordance with the laws of the
Province of Ontario and the parties hereto submit and attorn to the exclusive
jurisdiction of the courts of the Province of Ontario.
10.4 Enurement - This Agreement and
each of its terms and provisions will enure to the benefit of and be binding
upon the parties to this Agreement and their respective heirs, executors,
administrators, personal representatives, successors and assigns.
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10.5 Severability - If any
one or more of the provisions contained in this Agreement should be
invalid, illegal or unenforceable in any respect in any jurisdiction, the
validity, legality and enforceability of such provision or provisions will
not in any way be affected or impaired thereby in any other jurisdiction
and the validity, legality and enforceability of the remaining provisions
contained herein will not in any way he affected or impaired thereby,
unless in either case as a result of such determination this Agreement
would fail in its essential
purpose.
|
|
10.6 Assignment - This
Agreement is not transferable or assignable without the written consent of
the other parties.
|
10.7 Notices - All notices and
other communications given in connection with this Agreement shall be in writing
and shall, except in the event of mail strike,
during which time all notices must be personally delivered, be sufficiently
given if delivered in person or telefaxed or sent by registered mail, postage
prepaid, to the parties of the following addresses
The
Vendor:
X.X. Xxx
000
Port
Credit Postal Station
Xxxxxxxxxxx
XX X0X 0X0
Attn:
Xxxxx Xxxxxx
Fax: 000
000 0000
The
Purchaser:
Xxxxx
Americor Inc.
Xxxxx
0000,
0000
Xxxxxxxxx Xxxx. Xxxx
Xxxxxxx, Xxxxxxx X0X
0X0
Attn:
Xxxx XxXxxxxxx
E-mail:
xxxx.xxxxxxxxx@xxxxxxxxx.xx
Fax: 000
000 0000
Any such
notices or other communications sent by registered mail addressed as aforesaid
shall be deemed to be received by the addressee thereof on the third business
day after the mailing thereof Any such notices personally delivered or telefaxed
shall be deemed delivered on the day of delivery. Any party hereto may change
its address for service by notice in writing to the other parties
hereto.
10.8 Further Assurances - The
parties to this Agreement will with reasonable diligence do all such things and
provide all such reasonable assurances as may he required to consummate the
transactions contemplated by this Agreement, and each party to this Agreement
will execute and deliver such further documents or instruments required by the
other party as may be reasonably necessary or desirable for the purposes of
giving effect to or perfecting the transactions contemplated by this Agreement
and obtaining any required regulatory approvals, whether before or after the
Closing.
10.9 Public Announcements - The
parties hereto agree that all notices to third parties and all other press
releases concerning the transactions contemplated by this Agreement will be
jointly planned
and coordinated and no party hereto will act unilaterally in this regard without
the prior approval of the others, such approval not to be unreasonably
withheld.
10.10 Counterparts - This Agreement
may be executed in as many counterparts as may he necessary or be facsimile and
each such facsimile or counterpart so executed shall he deemed to be an original
and such counterparts together shall constitute one and the same instrument and
notwithstanding the date of execution shall be deemed to bear the date as set
out on the first page of this Agreement.
10.11 Costs and Expenses - Each
party shall be responsible for their respective costs and expenses incurred by
each of them in connection with the execution and delivery hereof and the
completion of the transactions contemplated herein
IN WITNESS WHEREOF the parties
hereto have hereunto duly executed this Agreement as of the day and year first
above written.
SIGNED,
SEALED and DELIVERED by
UNGAVA
MINERALS CORP.
per
____________________
A.S.O.
per
____________________
A.S.O
XXXXX
AMERICOR INC.
per /s/
Xxxx
XxXxxxxxx
Xxxx
XxXxxxxxx, Chairman
per /s/
Xxxxxx X. Xxxx
Xxxxxx
X. Xxxx, Director
