SHARE PURCHASE AGREEMENT
EXHIBIT
10.01
THIS
AGREEMENT dated for reference September 2, 2008 is between:
XXXXX XXXX, c/o Suite #310,
605 – 0 Xxxxxx XX, Xxxxxxx, Xxxxxxx,
Xxxxxx
X0X 0X0
(“Kent”)
AND
XXXX XXXX XXX, x/x Xxxxx #000,
000 – 0 Xxxxxx XX, Xxxxxxx, Xxxxxxx,
Xxxxxx
X0X 0X0
(“Xxx”)
(Kent
and Xxx are collectively referred to herein as the “Sellers”)
AND
PRIMARY CORP., a corporation
incorporated under the laws of Ontario
(the
“Buyer”)
BACKGROUND
X. Xxxx is
the beneficial owner of 375,000 common shares (the “Kent Shares”) in the capital
of GeoGlobal Resources Inc., a Delaware corporation (the “Company”).
X. Xxx is
the beneficial owner of 375,000 common shares (the “Xxx Shares”) in the capital of
the Company.
C. The
Sellers have agreed to sell and the Buyer has agreed to buy all of the Kent
Shares and all of the Xxx Shares (collectively, the “Sellers’ Shares”) on the terms
and conditions contained in this Agreement.
AGREEMENT
For good
and valuable consideration, the receipt and sufficiency of which each party
acknowledges, the parties agree as follows:
PART 1
INTERPRETATION
1.1 Defined
Terms.
In
this Agreement the following terms shall have the following
meanings:
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(a)
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“Business Day” means any
day which is not a Saturday, Sunday or a statutory holiday in British
Columbia or the United States of
America;
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(b)
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“Buyer’s Losses” has the
meaning given in paragraph 7.2;
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(c)
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“Closing” shall mean
either the First Tranche Closing or the Second Tranche Closing, as the
case may be;
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(d)
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“Closing Date” shall mean
either the First Tranche Closing Date or the Second Tranche Closing Date,
as the case may be;
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(e)
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“Company” means GeoGlobal
Resources Inc., a Delaware
corporation;
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(f)
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“Encumbrance” means any
lien, claim, charge, pledge, hypothecation, security interest, mortgage,
title retention agreement, declaration of trust, right of set-off, option
or other encumbrance of any kind;
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(g)
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“Exchange” shall mean the
American Stock Exchange, or such successor market or stock exchange on
which the Company’s shares are listed or traded if no longer listed on the
American Stock Exchange;
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(h)
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“Fair Market Value”
means (i) in respect of all sales of First Tranche Shares and
Second Tranche Shares through the facilities of the Exchange, the actual
gross sale price received by the Buyer therefor, provided
the shares are sold in a reasonably prudent and business-like manner and
(ii) otherwise as to any First Tranche Shares or Second Tranche Shares not
sold on the Exchange , the closing price of the Company’s common stock on
the Exchange as of the close of trading on the Exchange on the Business
Day immediately preceding the Buyer’s sale of such shares or, as to any
shares unsold on such date, the date that is seven (7) months after the
First Tranche Closing Date or the Second Tranche Closing Date, as
applicable.
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(i)
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“First Tranche Closing”
has the meaning given in paragraph 8.1;
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(j)
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“First Tranche Closing
Date” means September 2, 2008, or such other date as the parties
hereto agree in writing;
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(k)
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“First Tranche Shares”
has the meaning given in paragraph
2.2;
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(l)
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“Governmental Authority”
means any Canadian (whether federal, territorial, provincial, municipal or
local), international or foreign government, governmental authority,
quasi-governmental authority, court, self-regulatory organization,
commission, tribunal or organization or any agent, subdivision, department
or branch of any of the foregoing;
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(m)
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“Kent Shares” has the
meaning given in Recital A;
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(n)
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“Material Adverse Change”
means any transaction, event, condition, change, circumstance or effect
that results in or may reasonably be expected to result in a material
adverse change to:
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(i)
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the
business or the financial condition, assets or prospects of the Company;
or
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(ii)
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the
value of the Sellers’ Shares;
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(o)
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“Person” means an
individual, legal personal representative, corporation, body corporate,
firm, partnership, trust, trustee, syndicate, joint venture, limited
liability company, association, unincorporated organization, union,
Governmental Authority or other entity or
organization;
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(p)
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“Purchase Price” has the
meaning given in paragraph 2.2;
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(q)
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“Required Consents” has
the meaning given in paragraph 5.1;
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(r)
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“Xxx Shares” has the
meaning given in Recital B;
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(s)
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“Second Tranche Closing”
has the meaning given in paragraph 8.3;
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(t)
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“Second Tranche Closing
Date” means the earlier of (i) eight (8) days following the filing
by Xxx of Form 45-102FI with all applicable Canadian Securities
Commissions, and (ii) September 30, 2008, or such other date as the
parties hereto agree in writing;
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(u)
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“Second Tranche Shares”
has the meaning given in paragraph
2.3;
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(v)
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“Sellers’ Shares” means
collectively, the Kent Shares and the Xxx
Shares;
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1.2 Interpretation.
In
this Agreement, except as otherwise expressly provided:
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(a)
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the
headings to the parts, sections, paragraphs, and schedules of this
Agreement are inserted for convenience only and shall not affect the
interpretation of this Agreement;
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(b)
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any
reference to a part, section, paragraph or schedule is to the relevant
part, section, paragraph or schedule of this
Agreement;
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(c)
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words
of one gender include all genders, and words in the singular include the
plural and vice versa; and
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(d)
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any
reference to a statute includes and is a reference to such statute, and to
the regulations made pursuant to it, as amended and in force from time to
time, and to any statute or regulations that may be passed which have the
effect of supplementing or superseding such statute or
regulations.
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PART 2
SALE
AND PURCHASE
2.1 Agreement
to Sell and Purchase.
The
Sellers agree to sell free and clear of all Encumbrances, and the Buyer agrees
to purchase, the Sellers’ Shares on the terms and conditions contained in this
Agreement.
2.2 First
Tranche Closing.
On
the First Tranche Closing Date, Kent will sell and the Buyer will purchase
270,000 Kent Shares (the “First
Tranche Shares”) for and at a purchase price of US$3.00 per share (for an
aggregate purchase price of US$810,000 (the “First Tranche Purchase
Price”)), payable on the First Tranche Closing Date by wire transfer of
immediately available funds. Kent hereby irrevocably authorizes and
directs the Buyer to pay US$660,000 of the First Tranche Purchase Price to the
Company by wire transfer in accordance with where transfer instructions provided
by the Company, and to pay the remaining balance of $150,000 of the First
Tranche Purchase Price to Kent, as he may direct.
2.3 Second
Tranche Closing.
2.4 On the Second Tranche
Closing Date:
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(a)
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Kent
will sell and the Buyer will purchase 105,000 Kent Shares;
and
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(b)
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Xxx
will sell and the Buyer will purchase all of the Xxx
Shares;
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(collectively,
the “Second Tranche
Shares”) for and at a purchase price of US$3.00 per share (for an
aggregate purchase price of US$1,440,000 (the “Second Tranche Purchase
Price”), payable on the Second Tranche Closing Date by wire transfer of
immediately available funds to the bank account designated by Kent in the amount
of $645,000 and designated by Xxx in the amount of $795,000.
PART 3
SELLERS’
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties.
In
order to induce the Buyer to enter into and consummate this Agreement, the
Sellers jointly and severally represent and warrant to the Buyer that the
following statements set out in this Part 3 are true, accurate and not
misleading.
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(a)
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Authorized and Issued
Capital. The authorized share capital of the Company is
100,000,000 shares of common stock, with a par value of $0.001 each of
which 72,205,755 shares of common stock are issued and outstanding as of
August 29, 2008, and 1,000,000 shares of preferred stock, with a par value
of $0.01 each of which none are issued or
outstanding..
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(b)
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Insolvency or
Amalgamation. No proceedings have been taken or
authorized by any Person with respect to the bankruptcy, insolvency,
liquidation, dissolution or winding-up of the Company or with respect to
any amalgamation, merger, consolidation, arrangement or reorganization
relating to the Company.
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(c)
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Securities
Legislation. The Company is a “reporting issuer” in the
Provinces of British Columbia, Alberta, Ontario and Quebec, and the sale
of the Shares by the Sellers to the Buyer complies with all applicable
securities legislation.
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(d)
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Title to
Shares. Each Seller is the legal and beneficial owner of
the Sellers’ Shares referred to in the Recitals above, free of all
Encumbrances. The Shares have been validly issued, are fully
paid and non-assessable shares in the capital of the
Company.
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(e)
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Competing Rights to
Shares. Except as provided in this Agreement, there are
no agreements or arrangements in force which provide for the present or
future issue, allotment, transfer, redemption, repayment or conversion of
any of the Sellers’ Shares including, without limitation, any option or
right of pre-emption or conversion.
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(f)
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Capacity of
Sellers. Each Seller has the right and authority to
enter into this Agreement on the terms and conditions set out in it and to
transfer the legal and beneficial title and ownership of the Sellers’
Shares to the Buyer. This Agreement constitutes a valid and
binding obligation of each of the
Sellers.
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(g)
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Litigation. Except
as publicly disclosed in the Company’s periodic reports on file with the
US Securities and Exchange Commission, there is no action, suit,
investigation, claim or proceeding in progress or pending or, to the
knowledge of the Sellers, threatened against or relating to the Sellers or
the Company or affecting their assets or the business or which could
affect the Sellers rights to enter into and perform their obligations
under this Agreement. So far as the Sellers are aware, there
are no facts, matters or circumstances which could give rise to any such
action, suit, investigation, claim or proceeding. There is no
judgement, decree, injunction, rule or order of any court or Governmental
Authority outstanding against the Sellers or the Company or any of their
respective assets.
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(h)
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Non-Contravention. The
performance of this Agreement will
not:
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(i)
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conflict
with, or result in the breach of, or constitute a default under, any
agreement, arrangement or instrument to which either of the Sellers or the
Company is party to, or any Encumbrance, lease, contract, order, judgment,
regulation or other restriction or obligation of any kind by which either
of the Sellers or the Company or any of their respective assets are bound;
or
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(ii)
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contravene
or conflict with any laws or regulations binding upon or applicable to the
Sellers, the Company or the Shares.
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(i)
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Governmental
Authorization. Except as expressly referred to in this
Agreement, the execution, delivery and performance of this Agreement by
the Sellers requires no action by, consent or approval of, or filing with,
any Governmental Authority.
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(j)
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Resale
Restrictions. On each Closing Date, the Sellers' Shares
purchased by the Buyer shall be subject to restrictions on resale as being
“restricted securities”, and purchased from an “affiliate” of the Company,
as the terms “restricted securities” and “affiliate” are defined under
Rule 144 adopted under the US Securities Act of 1933, as amended, and
shall not be subject to any other hold period, resale or other transfer
restrictions whatsoever.
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(k)
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Advisory
Fees. There is no investment banker, broker, finder or
other intermediary or advisor that has been retained by or is authorized
to act on behalf of the Company or any Seller who might be entitled to any
fee, commission or reimbursement from the
Buyer.
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(l)
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Canadian
Residence. Neither of the Sellers are a “non-resident”
of Canada within the meaning of section 116 of the
Act.
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(m)
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Full
Disclosure. The information furnished to the Buyer by or
on behalf of the Sellers relating to the Sellers’ Shares, the Sellers and
the Company, which includes, among other disclosures, all periodic reports
filed by the Company with the US Securities and Exchange Commission on
XXXXX, was when given, and continues to be, true, accurate and complete in
all material respects and not misleading and, does not omit to state any
material fact which, if disclosed, might reasonably be expected to affect
the decision of the Buyer to purchase the
Shares.
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3.2 Representations
at Closing.
The
representations and warranties of the Sellers in this Agreement shall continue
to be true, accurate and not misleading up to and including the relevant Closing
Date as if each such representation and warranty were repeated at such Closing
Date with reference to the facts and circumstances then existing.
3.3 Knowledge
and Awareness.
If
any provision in this Part 3 is
qualified by the expression “to the best of the knowledge of the Sellers” or “so
far as the Sellers are aware” or any similar phrases, the knowledge and
awareness of the Sellers shall be deemed to include such knowledge as would be
gained through due and careful enquiries into the subject matter of that
provision, and for these purposes, the knowledge, information or awareness of
either one of the Sellers shall be attributable to the other
Seller.
3.4 Reliance.
The
Sellers acknowledge that the Buyer has entered into this Agreement relying on
the representations and warranties of the Sellers under this Agreement and the
rights and remedies of the Buyer with respect to any breach of such
representations and warranties shall not be affected by:
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(a)
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any
investigation or independent searches that have been or may be undertaken
by or on behalf of the Buyer; or
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(b)
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any
information which is now known, or may become known, to the Buyer or its
officers, directors or professional
advisers.
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PART 4
BUYER’S
REPRESENTATIONS AND WARRANTIES
4.1 Representations
and Warranties.
In
order to induce the Sellers to enter into and consummate this Agreement, the
Buyer represents and warrants to the Sellers that the following statements set
out in this Part 4 are true,
accurate and not misleading.
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(a)
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Organization and Good
Standing. The Buyer is a company duly incorporated,
validly existing and in good standing under the laws of Province of
Ontario.
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(b)
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Capacity. The
Buyer has the right and authority to enter into this Agreement on the
terms and conditions set out in it and this Agreement constitutes a valid
and binding obligation of the
Buyer.
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4.2 Representations
at Closing.
The
representations and warranties of the Buyer in this Agreement shall continue to
be true, accurate and not misleading up to and including the relevant Closing
Date as if each such representation and warranty were repeated at such Closing
Date with reference to the facts and circumstances then existing.
PART 5
COVENANTS
OF THE SELLERS
5.1 Consents.
The
Sellers shall obtain, or shall provide the Buyer with all co-operation or
support reasonably required by the Buyer to allow the Buyer to obtain, if
applicable, at or before each Closing Date, from all appropriate Governmental
Authorities and other Persons any permits, consents, assignments, approvals,
certificates, filings, registrations and authorizations required to permit the
completion of the transactions contemplated by this Agreement (“Required Consents”),
including but not limited to the filing by Xxx of Form 45-102F1 with all
required Canadian securities regulatory authorities not less than seven (7) days
prior to the Second Tranche Closing Date.
5.2 Notification.
The
Sellers shall immediately notify the Buyer in writing of any action or
circumstance which may arise between the date of this Agreement and the Closing
Date which results, or may result, in:
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(a)
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a
Material Adverse Change;
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(b)
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a
breach of any representation or warranty of the Sellers contained in this
Agreement, if such representation or warranty were repeated at any time
before Closing by reference to the facts and circumstances then existing;
or
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(c)
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any
of the information provided in the schedules to this agreement becoming
untrue, incorrect or misleading in any material
respect.
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5.3 Return
on Investment.
(a) In
order to induce the Buyer to enter into this Agreement and to acquire the
Sellers’ Shares, the Sellers have agreed to ensure that the Buyer achieves a
minimum return on its investment in the Sellers’ Shares in accordance with the
terms of this paragraph 5.3.
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(a)
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With
respect to the First Tranche Shares, if, during the period commencing six
(6) months and one (1) day after the First Tranche Closing Date through
the date which is seven (7) months after the First Tranche Closing Date
(the "First Tranche
Election Period"), the Buyer elects to sell the First Tranche
Shares, through the facilities of the Exchange or otherwise, by delivering
written notice of same to the Sellers, and the sum of (a) the greater of
(i) the gross proceeds received by Buyer from the sale of such shares
during such period and (ii) the Fair Market Value of the shares sold
during such period, and (b) the Fair Market Value of any such shares
unsold on the date seven (7) months after the First Tranche Closing Date
is less than US$953,370 (the “First Tranche Amount”)
(representing a return of the First Tranche Purchase Price and a profit of
US$143,370) (such lesser amount being herein defined as the “First Tranche
Deficiency”), the Sellers will indemnify and save harmless the
Buyer from such First Tranche Deficiency and will pay to the Buyer an
amount equal to the First Tranche Deficiency. Notwithstanding
the foregoing, if the Buyer is prevented from selling any of the First
Tranche Shares by reason of the failure of the Company to be in compliance
with Rule 144(c)(1), the First Tranche Election Period shall be extended
to a date one month following the date on which the Company completes all
such filings and the Buyer is then able to proceed with the sale of the
First Tranche Shares (the "Extended First Tranche Election
Period"), and the amount of the First Tranche Deficiency shall be
increased by an amount equal to US$266.30 per day for each day following
the date which is six (6) months after the First Tranche Closing Date,
until the end of the Extended First Tranche Election Period. If
the Buyer elects not to sell the First Tranche Shares at that time, the
Sellers will be relieved of their indemnity
hereunder.
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(b)
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With
respect to the Second Tranche Shares, if during the period commencing six
(6) months and one (1) day after the Second Tranche Closing Date through
the date which is seven (7) months after the Second Tranche Closing Date
(the "Second Tranche Election
Period"), the Buyer elects to sell the Second Tranche Shares,
through the facilities of the Exchange or otherwise, by delivering written
notice of same to the Sellers, and the sum of (a) the greater of (i) the
gross proceeds received by Buyer from the sale of such shares during such
period and (ii) the Fair Market Value of the shares sold during such
period, and (b) the Fair Market Value of any such shares unsold on the
date seven (7) months after the Second Tranche Closing Date is less than
US$1,694,880 (the “Second
Tranche Amount”) (representing a return of the Second Tranche
Purchase Price and a profit of US$254,880) (such lesser amount being
herein defined as the Second Tranche
Deficiency”), the Sellers will indemnify and save harmless the
Buyer from such Second Tranche Deficiency and will pay to the Buyer an
amount equal to the Second Tranche Deficiency. Notwithstanding
the foregoing, if the Buyer is prevented from selling any of the Second
Tranche Shares by reason of the failure of the Company to be in compliance
with Rule 144(c)(1), the Second Tranche Election Period shall be extended
to a date one month following the date on which the Company completes all
such filings and the Buyer is then able to proceed with the sale of the
Second Tranche Shares (the "Extended Second Tranche
Election Period"), and the amount of the Second Tranche Deficiency
shall be increased by an amount equal to US$473.43 per day for each day
following the date which is six (6) months after the Second Tranche
Closing Date, until the end of the Extended Second Tranche Election
Period. If the Buyer elects not to sell the Second Tranche
Shares at that time, the Sellers will be relieved of their indemnity
hereunder.
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5.4 Security.
5.5 As security for the
Sellers’ obligations under this Agreement, the Sellers shall, (a) concurrently
with the execution and delivery of this Agreement, execute and deliver to the
Buyer a securities pledge agreement, pursuant to which the Sellers will pledge
and deposit with the Buyer not less than 105,000 common shares in the capital of
the Company concurrently with the First Tranche Closing, which shares shall be
released from the securities pledge agreement for sale at the Second Tranche
Closing, and (b) will pledge and deposit with the Buyer not less than 600,000
common shares in the capital of the Company concurrently with the Second Tranche
Closing.
PART 6
CONDITIONS
PRECEDENT
6.1 Buyer’s
Conditions Precedent.
The
obligations of the Buyer to complete the sale and purchase of the Sellers’
Shares under this Agreement shall be subject to the fulfilment of each of the
following conditions on or before each Closing Date.
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(a)
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Accuracy of Representations and
Warranties. The representations and warranties of the
Sellers set out in this Agreement shall be true , accurate and not
misleading as at the Closing Date with reference to the facts and
circumstances then existing.
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(b)
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Consents. All
Required Consents shall have been obtained from the appropriate
Governmental Authorities and other Persons on terms satisfactory to the
Buyer.
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(c)
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Performance of
Obligations. The Sellers shall have performed and
complied with all obligations, covenants and agreements to be performed
and complied with by each of them on or before Closing under
this Agreement.
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(d)
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Due
Diligence. The Buyer shall have completed to its
reasonable satisfaction a due diligence review of the assets, liabilities,
financial position and affairs of the
Company.
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(e)
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Material Adverse
Change. There shall have been no Material Adverse Change
between the date of this Agreement and the Closing
Date.
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(f)
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6.2 Waiver/Termination.
The
conditions contained in paragraph 6.1 are for the exclusive benefit of the
Buyer and may be waived by it in whole or in part at any time. If any
of the conditions in paragraph 6.1
are not fulfilled or waived on or before the relevant Closing Date, the Buyer
shall be relieved of all obligations under this Agreement.
PART 7
SURVIVAL
AND INDEMNITY
7.1 Survival
of Representations, Warranties, Covenants and
Agreements.
Except
as to claims asserted under Section 5.3 of this Agreement, the representations,
warranties, covenants and agreements of the Sellers in this Agreement shall
survive Closing and the payment of the purchase price and shall continue in full
force and effect for a period of seven (7) months and one (1)
day from the First Tranche Closing Date.
7.2 Indemnification
of Buyer.
The
Sellers jointly and severally covenant and agree to indemnify and hold harmless
the Buyer and its Affiliates or Associates from and against any losses, costs,
damages, liabilities and fees (including, without limitation, reasonable legal
fees on a solicitor and own client basis) suffered or incurred as a result of,
or arising out of:
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(a)
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any
of the representations or warranties of the Sellers in this Agreement
being untrue, inaccurate or misleading when made;
or
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(b)
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a
breach of any covenant, term or agreement made in this Agreement by any
Seller;
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(which
losses, costs, damages, liabilities and fees are collectively referred to as
“Buyer’s
Losses”). Notwithstanding the foregoing, any indemnity
hereunder shall be reduced by the amount of any recovery by Buyer pursuant to
Section 5.3 hereof
PART 8
CLOSINGS
8.1 First
Tranche Closing.
The
sale and purchase of the First Tranche Shares shall be closed (the “First Tranche Closing”) at the
offices of Xxxxx LLP, Suite 2800, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0 at 10:00 a.m. (Vancouver Time) on September 2, 2008
or on such other date or at such other place as may be mutually agreed upon in
writing by the parties (the “First Tranche Closing Date”).
8.2 Delivery
by Sellers on the First Tranche Closing Date.
On
the First Tranche Closing Date the Sellers shall deliver, or cause to be
delivered, the following documents to the Buyer:
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(a)
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a
share certificate representing the First Tranche
Shares;
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(b)
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a
medallion signature guaranteed stock power of attorney authorizing the
transfer of the First Tranche
Shares;
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(c)
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a
securities pledge agreement (the "Securities Pledge
Agreement"), pursuant to which the Sellers pledge and deposit in
favour of the Buyer not less than 105,000 common shares in the capital of
the Company, as security for the obligations of the Sellers thereunder,
together with all share certificates, medallion signature guaranteed stock
powers of attorney and other transfer documents as the Buyer or its
counsel may require;
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(d)
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an
opinion of the solicitors for the Sellers dated the First Tranche Closing
Date in form set satisfactory to the Buyer and its
counsel;
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(e)
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executed
copies of all consents or approvals referred to in paragraph 6.1(b);
and
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(f)
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all
such other documents, instruments, records, conveyances, assignments,
assurances, consents and certificates which, in the opinion of the Buyer
acting reasonably, are necessary to effect and evidence the transfer of
the Shares to the Buyer free and clear of all
Encumbrances.
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8.3 Second
Tranche Closing.
The
sale and purchase of the Second Tranche Shares shall be closed (the “Second Tranche Closing”) at
the offices of Xxxxx LLP, Suite 2800, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0 at 10:00 a.m. (Vancouver Time) on the Second Tranche
Closing Date or on such other date or at such other place as may be mutually
agreed upon in writing by the parties (the “Second Tranche Closing
Date”).
8.4 Delivery
by Sellers on the Second Tranche Closing Date.
On
the Second Tranche Closing Date the Sellers shall deliver, or cause to be
delivered, the following documents to the Buyer:
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(a)
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a
share certificate representing the Second Tranche
Shares;
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(b)
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a
medallion signature guaranteed stock power of attorney authorizing the
transfer of the Second Tranche
Shares;
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(c)
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share
certificates representing 600,000 common shares in the capital of the
Company, together with medallion signature guaranteed stock powers of
attorney and other transfer documents as the Buyer or its counsel may
require, to be held by the Buyer pursuant to the Securities Pledge
Agreement;
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(d)
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a
certificate executed by the Sellers certifying that the representations
and warranties of the Sellers set out in this Agreement are true, accurate
and not misleading as at the Closing Date with reference to the facts and
circumstances then existing;
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(e)
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an
opinion of the solicitors for the Sellers dated the Second Tranche Closing
Date in form set satisfactory to the Buyer and its
counsel;
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(f)
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executed
copies of all consents or approvals referred to in paragraph 6.1(b);
and
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(g)
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all
such other documents, instruments, records, conveyances, assignments,
assurances, consents and certificates which, in the opinion of the Buyer
acting reasonably, are necessary to effect and evidence the transfer of
the Shares to the Buyer free and clear of all
Encumbrances.
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PART 9
GENERAL
9.1 Notices.
Any
notice or communication required or permitted to be given under this Agreement
shall be in writing and shall be considered to have been sufficiently given if
delivered by hand, transmitted by facsimile transmission or mailed by prepaid
registered post in Canada to the address or facsimile transmission number of
each party set out below:
if to the
Buyer:
Primary
Corp.
Suite
2110 - 000 Xxxx Xx. Xxxx
X.X. Xxx
00
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxx
Xxxxxxx
Fax
No: (000)
000-0000
if to the
Sellers:
c/o Suite
#310, 605 – 1 Street SW,
Calgary,
Alberta, Canada T2P 3S9
Attention: Xxxxxxx
Xxxxxx, Esq.
Fax
No: (000)
000-0000
or to
such other address or facsimile transmission number as any party may, from time
to time, designate in the manner set out above. Any such notice or
communication shall be considered to have been received:
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(a)
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if
delivered by hand during business hours on a Business Day, upon receipt by
a responsible representative of the receiver, and if not delivered during
business hours, upon the commencement of business hours on the next
Business Day;
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(b)
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if
sent by facsimile transmission during business hours on a Business Day,
upon the sender receiving confirmation of the transmission, and if not
transmitted during business hours, upon the commencement of business hours
on the next Business Day following confirmation of the transmission;
and
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(c)
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if
mailed by prepaid registered post in Canada, upon the fifth Business Day
following posting; except that, in the case of a disruption or an
impending or threatened disruption in postal services every notice or
communication shall be delivered by hand or sent by facsimile
transmission.
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9.2 Time
of Essence.
Time
shall be of the essence of this Agreement.
9.3 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
British Columbia and applicable Canadian law and shall be treated in all
respects as a British Columbia contract.
9.4 Submission
to Jurisdiction.
Each
of the parties shall:
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(a)
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submit
to the jurisdiction of the courts of British Columbia;
and
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(b)
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if
any appointed agent is required, notify the others in writing of the name
and address of its appointed agent.
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9.5 Entire
Agreement.
This
Agreement and the documents and instruments to be executed and delivered under
it constitute the entire agreement between the parties and supersedes any
previous agreement or arrangement, oral or written, between the
parties. This Agreement and the documents and instruments to be
executed and delivered under it, contain all the covenants, representations, and
warranties of the respective parties. There are no oral
representations or warranties between the parties of any kind. This
Agreement may not be amended or modified in any respect except by written
instrument signed by each of the parties.
9.6 Severability.
If
any provision of this Agreement is or becomes illegal, invalid or unenforceable
under the laws of any jurisdiction, that shall not affect or
impair:
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(a)
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the
legality, validity or enforceability in that jurisdiction of any other
provision of this Agreement; or
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(b)
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the
legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this
Agreement.
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9.7 Currency.
All
transactions referred to in this Agreement shall be made in lawful currency of
United States in immediately available funds. Any reference to cash
in this Agreement includes a reference to cash, certified cheque, bankers draft,
wire or electronic transfer.
9.8 Enurement.
This
Agreement shall enure to the benefit of and shall be binding upon the parties
and their respective heirs, executors, administrators, successors and
assigns.
9.9 Further
Assurances.
At
any time after Closing, each of the Sellers shall at their own expense execute
and deliver all such documents and instruments and do all such acts as the Buyer
may reasonably require in order to give full effect to the intent and meaning of
this Agreement and the transactions contemplated by it.
9.10 Costs
and Expenses.
Except
as specifically provided otherwise in this Agreement, each party shall be
responsible for its own legal fees and other costs and expenses incurred in
connection with the purchase and sale of the Shares, all negotiations between
the parties and the consummation of the transactions contemplated by this
Agreement.
9.11 Assignment.
The
Sellers acknowledge and agree that the Buyer may assign its rights and
obligations under this Agreement to a nominee of the Buyer subject to compliance
with applicable securities laws.
9.12 Joint
and Several.
9.13 All representations,
warranties, acknowledgements, covenants and agreements of the Sellers in this
Agreement shall be the joint and several representations, warranties,
acknowledgements, covenants and agreements of the Seller and shall be read and
construed accordingly.
9.14 Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
on separate counterparts (which may be facsimile copies) but shall not take
effect until each party has executed at least one counterpart. Each
counterpart shall constitute an original but all the counterparts together shall
constitute a single agreement.
TO
EVIDENCE THEIR AGREEMENT each of the parties has executed this Agreement as of
the date first above written.
PRIMARY
CORP.
By:
/s/ Xxxxxx Xxxxxxx,
President &
CEO
Authorized
Signatory
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SIGNED,
SEALED AND DELIVERED in the presence of:
/s/ Xxxx
Xxxxxxx
(Signature)
Xxxx
Xxxxxxx
(Print
Name)
Calgary,
Alberta
(Address)
Chartered
Accountant
(Occupation)
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)
)
)
)
)
)
)
)
)
)
)
)
)
)
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/s/ Xxxxx
Xxxx
XXXXX
XXXX
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SIGNED,
SEALED AND DELIVERED in the presence of:
/s/ Xxxxxxx
Xxxxxx
(Signature)
Xxxxxxx
Xxxxxx
(Print
Name)
Calgary,
Alberta
(Address)
Lawyer
(Occupation)
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)
)
)
)
)
)
)
)
)
)
)
)
)
)
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/s/ Xxxx Xxxx
Xxx
XXXX
XXXX XXX
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