FIRST AMENDING AGREEMENT
FIRST AMENDING AGREEMENT
THIS AGREEMENT is dated the 28th day of May 2021.
BETWEEN:
a corporation existing under the laws of the State of Nevada, having a registered office at 000 X. Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxx, 00000
(the “Purchaser”)
-and-
XXXXXXXX AIRCRAFT ULC,
an unlimited liability company existing under the laws of the Province of British Columbia, having a registered office at Suite 2300, Bentall 0, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx XX X0X 0X0
(“Horizon”)
-and-
The shareholders of Horizon listed on page 5 hereof (which shareholders, are hereinafter collectively referred to as, the “Horizon Shareholders”, and individually as, a “Horizon Shareholder”)
WHEREAS the Purchaser, Horizon Aircraft Inc., being a predecessor corporation to Horizon, and the Horizon Shareholders are parties to a share exchange agreement made effective the 28th day of April, 2021 (the “Share Exchange Agreement”);
AND WHEREAS the parties wish to amend the Share Exchange Agreement in accordance with the terms set forth in herein.
NOW THEREFORE the parties agree as follows:
1.
Defined Terms.
In this Amending Agreement, unless something in the subject matter or context is inconsistent:
(a)
terms defined in the description of the parties or in the recitals have the respective meanings given to them in the description or recitals, as applicable; and
(b)
all other capitalized terms have the respective meanings given to them in the Share Exchange Agreement.
2.
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Amendment to the Share Exchange Agreement
The Share Exchange Agreement shall be amended to:
(a)
Section 1.01(25) and 1.01(26) of the Share Exchange Agreement are hereby deleted in their entirety.
(b)
Section 1.09 is hereby amended by deleting Schedule “D” - Lock-Up Agreement (Seaview Capital) and Schedule “G” – Escrow Agreement.
(c)
Section 3.02 is hereby deleted in its entirety and replaced with the following:
3.02
Post-Closing Payments
Subject to the terms and conditions of this Agreement, the Purchaser shall deliver to Horizon, in immediately available funds pursuant to the payment instructions set forth in Exhibit A attached to the First Amending Agreement among the parties hereto dated May 28, 2021, the aggregate amount of $1,125,000, of which (i) $375,000 shall be delivered to Horizon within five (5) Business Days following the Closing Date, and (ii) the remaining $750,000 (together with the $375,000 payment, the “Post-Closing Payments”) shall be delivered to Horizon within fifteen (15) Business Days following the Closing Date.
(d)
Section 3.03 is hereby amended to delete “Seaview Capital shall enter into a lock-up agreement in the form attached as Schedule “D””.
(e)
A new Section 5.06 is hereby inserted as follows:
5.06
E. Xxxxxxx Xxxxxxxx First Year Compensation
The Purchaser shall procure that 50% of the salary payable to E. Xxxxxxx Xxxxxxxx during the first year following Closing (being US$137,500 of the US$275,000 total salary) shall be funded by Purchaser funds and not from the Post-Closing Payments or the US$375,000 loaned to Horizon prior to the Closing.
(f)
Schedule “D” - Lock-Up Agreement (Seaview Capital) is hereby deleted in its entirety.
(g)
Schedule “E” - Lock-Up Agreement (Xxxxxxxx Family Ventures Inc.) is hereby deleted in its entirety and replaced with Exhibit B attached hereto.
(h)
Schedule “F” - Lock-Up Agreement (Remaining Horizon Shareholders) is hereby deleted in its entirety and replaced with Exhibit C attached hereto.
(i)
Schedule “G” – Escrow Agreement is hereby deleted in its entirety.
1.
Confirmation
From and following the date hereof, each reference in the Share Exchange Agreement to “this Agreement”, “herein”, “hereto” and “hereof” and each reference to the Share Exchange Agreement in any and all other agreements, documents and instruments delivered by any of the
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parties or any other person, pursuant to the Share Exchange Agreement shall mean and be a reference to the Share Exchange Agreement as amended by this Agreement. Except as otherwise expressly amended hereby, the Share Exchange Agreement shall remain in full force and effect in accordance with its terms and this Agreement and the Share Exchange Agreement shall be read as one and the same instrument.
2.
No Waiver
The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, constitute a waiver of condition or provision (whether or not similar) of the Share Exchange Agreement nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
3.
Governing Law
This Agreement is governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in Ontario.
4.
Counterparts
This Agreement may be executed by the parties in one or more counterparts, and may be executed and delivered by PDF, copy via email and all such counterparts shall be deemed to be an original but all of which together shall constitute one and the same instrument.
[Signature page follows]
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IN WITNESS WHEREOF this Amending Agreement has been executed and delivered by the parties hereto effective as of the date first written above.
By: | /s/Xxxxx Xxxx | |
Name: Xxxxx Xxxx | ||
Title: Chief Executive Officer | ||
XXXXXXXX AIRCRAFT ULC | ||
By: | /s/E. Xxxxxxx Xxxxxxxx | |
Name: E. Xxxxxxx Xxxxxxxx | ||
Title: Director | ||
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IN WITNESS WHEREOF this Amending Agreement has been executed and delivered by the parties hereto effective as of the date first written above.
/s/Xxxxxx Xxxxx Xxxxxxxx | /s/Xxxxx X’Xxxxx | ||||
Xxxxxx Xxxxx Xxxxxxxx | Xxxxx X’Xxxxx |
| |||
/s/Xxxxxxx Xxxx | /s/Xxxxxxx Xxx | ||||
Xxxxxxx Xxxx | Xxxxxxx Xxx |
| |||
/s/Xxxx Xxxxxxxx | /s/Xxxxx Xxxxxxxx | ||||
Xxxx Xxxxxxxx | Xxxxx Xxxxxxxx |
| |||
/s/Xxxxxxxxx Xxxxxx | |||||
Xxxxxxxxx Xxxxxx | |||||
XXXXXXXX FAMILY VENTURES INC. |
| ECOMM LINK LTD. |
| ||
by | /s/E. Xxxxxxx Xxxxxxxx | by | /s/Xxxxxx Xxxxxxxx | ||
Director, E. Xxxxxxx Xxxxxxxx | President, Xxxxxx Xxxxxxxx |
| |||
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EXHIBIT A
Horizon Payment Information
BANK:
TD CANADA TRUST
000 XXXX XXXXXX XXXX XXXXXXXXX, XXXXXXX
XXXXXX X0X 0X0
BENEFICIARY:
GOWLING WLG (CANADA) LLP TRUST ACCOUNT
00 XXXXX XX X, XXXXX 0000
XXXXXXXXX, XXXXXXX
XXXXXX X0X 0X0
In trust
BANK ID:
004
TRANSIT #:
27522
ACCOUNT # (CAD)
0000000
SWIFT CODE:
XXXXXXXXXXX
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EXHIBIT B
Lock-Up Agreement (Xxxxxxxx Family Ventures Inc.)
(See attached)
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EXHIBIT C
Lock-Up Agreement (Remaining Horizon Shareholders)
(See attached)
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