THIS SHARE PURCHASE AGREEMENT dated for reference the 14th day of September, 2007. AMONG:
THIS
SHARE PURCHASE AGREEMENT dated for reference the 14th day of September,
2007.
AMONG:
GRAVHAVEN
LIMITED, a Cayman Islands corporation and a
shareholder of 2146281 ONTARIO INC., an Ontario
corporation having an address of c/o St. Georges Trust Company Limited, 00
Xxxx
Xxxxxx, X.X. Xxx XX 0000, Hamilton, HMNX Bermuda
(the
“Vendor”)
AND:
2146281
ONTARIO INC., an Ontario corporation having a
registered office at Suite 701 – 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0
(the
“Company”)
AND:
CONSCIOUS
INTENTION INC., a Nevada corporation having an
address of 0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx, XXX
00000
(the
“Purchaser”)
AND:
Xxxxxx
Xxxxxxxx, an individual
WHEREAS:
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A.
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The
Vendor is the registered and beneficial owner of 100 shares of common
stock of the Company which represent all of the issued and outstanding
shares in the capital of the Company (the “Shares”);
and
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B.
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The
Vendor has agreed to sell and the Purchaser has agreed to purchase
the
Shares on the terms and conditions hereinafter set
forth;
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NOW
THEREFORE THIS AGREEMENT WITNESSES that it is hereby agreed by and
between the parties as follows:
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1.
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INTERPRETATION
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1.1
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In
this Agreement, except as otherwise expressly
provided:
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(a)
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“Agreement”
means this Share Purchase Agreement, including the preamble and the
Schedules hereto, as it may from time to time be supplemented or
amended
and in effect;
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2 -
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(b)
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all
references in this Agreement to a designated “Section” or
other subdivision or to a Schedule is to the designated Section or
other
subdivision of, or Schedule to, this
Agreement;
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(c)
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the
words “herein”, “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Section or other
subdivision or Schedule;
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(d)
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the
headings are for convenience only and do not form a part of this
Agreement
and are not intended to interpret, define, or limit the scope, extent
or
intent of this Agreement or any provision
hereof;
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(e)
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the
singular of any term includes the plural, and vice versa; the use
of any
term is equally applicable to any gender and, where applicable, a
body
corporate; the word “or” is not exclusive; the word “including” means
including without limitation or prejudice to the generality of any
description, definition, term or phrase preceding that word, and
the word
“include” and its derivatives will be construed accordingly; the
expression “to the knowledge of” or any similar expression as applied to a
corporation or individual, refers
to:
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(i)
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in
the case of an individual, the knowledge as at the relevant date
that such
individual had or would have had had he exercised due diligence in
making
enquiries in relation to the matter in question from all sources
of
information likely to provide him with knowledge of same;
and
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(ii)
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in
the case of a corporate person, the knowledge (as aforementioned)
of a
director or officer thereof as at the relevant
date;
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(f)
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any
accounting term not otherwise defined has the meanings assigned to
it in
accordance with generally accepted accounting principles applicable
in
Canada;
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(g)
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except
as otherwise provided, any dollar amount referred to in this Agreement
means the lawful currency of the United States;
and
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(h)
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any
other term defined within the text of this Agreement has the meaning
so
ascribed.
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1.2
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The
following are the Schedules to this Agreement, form part of this
Agreement
and are incorporated herein by
reference:
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(a)
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Schedule A
– Financial Statements of the
Company;
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(b)
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Schedule B
– Assets of the Company;
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(c)
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Schedule C
– Material Contracts of the Company,
and
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(d)
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Schedule D
– Definition of “NMR”.
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2.
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PURCHASE
AND SALE
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2.1
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On
the basis of the warranties and representations of the Vendor set
forth in
this Agreement and subject to the terms and conditions of this Agreement,
on the Closing Date (hereinafter defined), the Purchaser agrees to
purchase from the Vendor and the Vendor agrees to sell to the Purchaser
the Shares.
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3 -
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3.
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PURCHASE
PRICE
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3.1
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The
purchase price of the Shares (the “Purchase Price”) shall be payable by
the Purchaser by granting the Vendor a 7% NMR, as defined in
Schedule D on the properties and claims described in the Material
Contracts listed in Schedule C and by the issuance of 1,250,000
shares of common stock of the Purchaser, after giving effect to the
52 for
1 forward stock split (“Forward Split”) referred to in this Agreement, to
be issued pursuant to the Material Contracts (the “Purchase Price
Shares”).
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4.
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CLOSING
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4.1
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The
closing date is scheduled to be September 28, 2007 (the “Closing
Date”) or such other date as the parties hereto may agree in
writing.
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5.
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WARRANTIES
AND REPRESENTATIONS OF THE VENDOR AND THE
COMPANY
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5.1
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Each
of the Vendor and the Company, jointly and severally therewith, warrant
and represent to the Purchaser with the intent that the Purchaser
will
rely thereon in entering into this Agreement and in concluding the
purchase and sale contemplated herein,
that:
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(a)
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the
Vendor is the sole registered and beneficial owner of the Shares
and no
person has any interest, legal or beneficial, direct or indirect,
in any
shares of, or the assets or business of, the
Company;
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(b)
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the
Shares are validly issued and outstanding as fully paid and non-assessable
in the capital of the Company and are free and clear of all liens,
any
actual, pending or threatened hold periods, trading restrictions,
lien
charges, claims, options, set-offs, encumbrances, voting agreements,
voting trusts, escrow restrictions or other limitations or restrictions
of
any nature whatsoever, except as expressly provided for or disclosed
herein;
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(c)
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the
Vendor does not have any interest, legal or beneficial, direct or
indirect, in any shares of, or the assets or business of, the Company
other than the Vendor’s ownership of the
Shares;
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(d)
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the
Vendor has the power and capacity and good and sufficient right and
authority to enter into this Agreement on the terms and conditions
herein
set forth and will on the Closing Date have the right to transfer
the
legal and beneficial title and ownership of the Shares to the
Purchaser;
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(e)
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no
person, firm, corporation or entity of any kind has or will have
on or
after the Closing Date any agreement, right or option, consensual
or
arising by law, present or future, contingent, pre-emptive or absolute,
or
capable of becoming an agreement, right or option to require the
Vendor to
sell or otherwise transfer any of the Vendor's interest in the
Shares;
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(f)
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the
Vendor is an “Accredited Investor”, as the term is
defined in Rule 501 of Regulation D under the Securities Act of
1933 (the “1933
Act”);
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4 -
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(g)
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the
Company is a corporation duly incorporated, validly existing and
in good
standing under the laws of the Province of Ontario, and has the power,
authority and capacity to enter into this Agreement and to carry
out its
terms;
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(h)
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the
authorized capital of the Company consists of
10,000 common shares, with par value of $1.00 per
share, of which 100 common shares have been validly issued, are
outstanding and are fully paid and
non-assessable;
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(i)
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the
Shares represent 100% of the issued and outstanding share capital
of the
Company;
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(j)
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the
execution and delivery of this Agreement and the completion of the
transactions contemplated hereby has been duly and validly authorized
by
all necessary corporate action on the part of the Company, and this
Agreement constitutes a legal, valid and binding obligation of the
Company
enforceable in accordance with its terms except as limited by laws
of
general application affecting the rights of
creditors;
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(k)
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no
consent, approval, order or authorization of, or registration, declaration
or filing with, any governmental authority is required by or with
respect
to the Company in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby;
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(l)
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the
Vendor does not have any specific information relating to the Company
which is not generally known or which has not been disclosed to the
Purchaser and which if known could reasonably be expected to have
a
material adverse effect on the value of the Shares or on the Company
as a
whole;
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(m)
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neither
the Company, nor the Vendor have made any untrue statement to the
Purchaser nor has any of them failed to state a material fact that
is
required to be stated or that is necessary to prevent a statement
that is
made from being materially false or misleading in the circumstances
in
which it was made;
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(n)
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to
the best of the Vendor’s knowledge, all of the assets of the Company are
in good working order and contain no latent
defects;
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(o)
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neither
the Company, nor the Vendor are aware of any infringement by the
Company
of any registered patent, trademark or
copyright;
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(p)
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no
person, firm, corporation or entity of any kind has or will have
on or
after the Closing Date any agreement, right or option, consensual
or
arising by law, present or future, contingent, pre-emptive or absolute,
or
capable of becoming an agreement, right or
option:
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(i)
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to
require the Company to issue any further or other shares in its capital
or
any other security or interest convertible or exchangeable into shares
in
its capital or to convert or exchange any securities into or for
shares in
the capital of the Company;
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(ii)
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for
the issue or allotment of any of the authorized but unissued shares
in the
capital of the Company;
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5 -
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(iii)
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to
require the Company to purchase, redeem or otherwise acquire any
of the
issued and outstanding shares in the capital of the Company;
or
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(iv)
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to
purchase or otherwise acquire any shares in the capital of the
Company;
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(q)
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the
Company, and no other party, owns all intellectual property assets
and
other property necessary for the operation of the business of the
Company
as it is currently conducted;
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(r)
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the
Company is registered to carry on business in all jurisdictions in
which
it currently carries on business;
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(s)
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the
making of this Agreement and the completion of the transactions
contemplated hereby and the performance of and compliance with the
terms
hereof does not and will not:
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(i)
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conflict
with or result in a breach of or violate any of the terms, conditions,
or
provisions of the constating documents of the
Company,
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(ii)
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conflict
with or result in a breach of or violate any of the terms, conditions
or
provisions of any law, judgment, order, injunction, decree, regulation
or
ruling of any court or governmental authority, domestic or foreign,
to
which the Company or the Vendor are subject or constitute or result
in a
default under any agreement, contract or commitment to which the
Company
or the Vendor is a party,
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(iii)
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subject
to obtaining any necessary consents of applicable regulatory authorities,
give to any person any remedy, cause of action, right of termination,
cancellation or acceleration in or with respect to any agreement,
contract, or commitment to which the Company is a
party,
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(iv)
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give
to any government or governmental authority, including any governmental
department, commission, bureau, board, or administrative agency any
right
of termination, cancellation, or suspension of, or constitute a breach
of
or result in a default under any permit, license, control, or authority
issued to any of the entities and which is necessary or desirable
in
connection with the conduct and operation of the business of the
Company
as currently conducted, or
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(v)
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subject
to obtaining any necessary consents of applicable regulatory authorities,
constitute a default by the Company or an event which, with the giving
of
notice or lapse of time or both, might constitute an event of default
or
non-observance under any agreement, contract, indenture or other
instrument relating to any indebtedness of the Company which would
give
any person the right to accelerate the maturity for the payment of
any
amount payable under that agreement, contract, indenture, or other
instrument;
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(t)
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the
audited financial statements of the Company for the period from inception
to August 31, 2007 attached as which will be attached hereto as Schedule
A
no later than the Closing (collectively, the “Financial
Statements”) were prepared in accordance with United States
generally accepted accounting principles applied on a basis consistent
with prior reporting periods, are true and correct in every material
respect and present fairly and accurately the financial condition
and
position of the Company as at the date thereof and the results of
the
operations of the Company;
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(u)
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the
Company has good and marketable title to all of the assets as listed
in
Schedule B attached hereto, and such assets are free and clear of any
financial encumbrances, except as disclosed in the Financial
Statements;
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(v)
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other
than approvals and filings required under applicable securities laws,
no
authorization, approval, order, license, permit or consent of any
governmental authority, regulatory body or court, and no registration,
declaration or filing by the Company with any such governmental authority,
regulatory body or court is required in order for the Company to
complete
the contemplated purchase and sale, to duly perform and observe the
terms
and provisions of this Agreement, and to render this Agreement legal,
valid, binding and enforceable in accordance with its
terms;
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(w)
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there
is no basis for and there are no actions, suits, judgments, investigations
or proceedings outstanding or pending, or to the knowledge of the
Vendor,
threatened against or affecting the Company at law or in equity or
before
or by any court or federal, state, municipal or other governmental
authority, department, commission, board, tribunal, bureau or
agency;
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(x)
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the
Company has not guaranteed, or agreed to guarantee, any indebtedness
or
other obligation of any person except as described in the Financial
Statements;
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(y)
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the
corporate records of the Company, as required to be maintained under
its
statute of incorporation and constating documents, are accurate,
complete
and up-to-date in all material respects and all material transactions
of
the Company have been properly recorded in its books or filed with
its
records;
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(z)
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the
Company holds all permits, licenses, consents and authorizations
issued by
any governmental authority which are necessary in connection with
the
operation of its businesses and the ownership of its properties and
assets;
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(aa)
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the
Company has filed all necessary tax returns and in all jurisdictions
required to be filed, all returns affecting workers compensation
with the
appropriate agency, incorporation capital tax returns, if required,
and
any other material reports and information required to be filed by
the
Company with any governmental
authority;
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(bb)
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the
Company has paid all income, sales and capital taxes payable as and
when
due; the Company has withheld and remitted to tax collection authorities
such taxes as are required by law to be withheld and remitted as
and when
due; the Company has paid all instalments of corporate taxes due
and
payable, and there is not presently outstanding nor does the Company
expect to receive any notice of reassessment from any applicable
tax
collecting authority;
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(cc)
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the
Company has not declared or paid any dividends of any kind or declared
or
made any other distributions of any kind whatsoever including, by
way of
redemption, repurchase or reduction of its authorized
capital;
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(dd)
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other
than as disclosed in Schedule C attached hereto, the Company has
outstanding any material contractual obligations whatsoever relating
to or
affecting the conduct of its businesses or any of its property or
assets
or for the purchase, sale or leasing of any property other than those
contracts entered into by the Company in the course of its normal
and
ordinary day to day business;
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(ee)
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other
than as disclosed in Schedule C attached hereto, there are no management
contracts or consulting contracts to which the Company is a party
or by
which it is bound, and save and except as disclosed in the Financial
Statements, no amount is payable or has been agreed to be paid by
the
Company to any person as remuneration, pension, bonus, share of profits
or
other similar benefit and no director, officer or member, or former
director, officer or member, of the Company, nor any associate or
affiliate of any such person, has any claim of any nature against,
or
indebted to, the Company;
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(ff)
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there
has been no material adverse change in financial condition and position
of
the Company and no damage, loss, destruction or other change in
circumstances materially affecting the business, property or assets
of the
Company or its right or capacity to carry on business since the date
of
the Financial Statements; and
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(gg)
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the
Company has not waived or surrendered any right of substantial value
and
has not made any gift of money or of any property or
assets.
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5.2
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The
Vendor acknowledges that the Vendor has, either directly or indirectly,
had access to and was entrusted with information (whether oral, written
or
by inspection) relating to the Company or its respective affiliates
(the
“Confidential Information”). For the purposes
of this Agreement, “Confidential Information” includes,
without limitation, any and all intellectual property (including
any trade
secrets, patents, copyrights, trademarks, industrial designs, inventions,
innovations, techniques, processes, formulas, drawings, designs,
products,
systems, creations, improvements, documentation, data and specifications),
technical reports, customer lists, supplier lists, distributor lists,
distribution channels and methods, retailer lists, reseller lists,
employee information, financial information, sales or marketing plans,
competitive analysis reports and any other thing or information
whatsoever, whether copyrightable or uncopyrightable or patentable
or
unpatentable. The Vendor acknowledges that the Confidential
Information constitutes a proprietary right, which the Company and
the
Purchaser is entitled to protect. Accordingly, the Vendor
covenants and agrees until such time as the Confidential Information
becomes publicly known and made generally available through no action
or
inaction of the Vendor, the Vendor will keep in strict confidence
the
Confidential Information and shall not, without prior written consent
of
the Company and the Purchaser in each instance, disclose, use or
otherwise
disseminate the Confidential Information, directly or indirectly,
to any
third party. The general prohibition contained in this Section
5.2 against the unauthorized disclosure, use or dissemination of
the
Confidential Information shall not apply in respect of any Confidential
Information that:
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(a)
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is
available to the public generally in the form
disclosed;
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(b)
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becomes
part of the public domain through no fault of the Vendor;
or
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(c)
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is
compelled by applicable law to be disclosed, provided that the Vendor
give
the Company and the Purchaser prompt written notice of such requirement
prior to such disclosure and provides assistance in obtaining an
order
protecting the Confidential Information from public
disclosure.
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6.
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WARRANTIES
AND REPRESENTATIONS OF THE
PURCHASER
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6.1
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The
Purchaser warrants and represents to the Vendor and the Company with
the
intent that the Vendor and the Company will rely thereon in entering
into
this Agreement and in concluding the purchase and sale contemplated
herein, that:
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(a)
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the
Purchaser is a corporation duly incorporated, validly existing and
in good
standing under the laws of the State of Nevada, and has the power,
authority and capacity to enter into this Agreement and to carry
out its
terms;
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(b)
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the
execution and delivery of this Agreement and the completion of the
transactions contemplated hereby has been duly and validly authorized
by
all necessary corporate action on the part of the Purchaser, and
this
Agreement constitutes a legal, valid and binding obligation of the
Purchaser enforceable in accordance with its terms except as limited
by
laws of general application affecting the rights of
creditors;
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(c)
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no
consent, approval, order or authorization of, or registration, declaration
or filing with, any governmental authority is required by or with
respect
to the Purchaser in connection with the execution and delivery of
this
Agreement by the Purchaser or the consummation by the Purchaser of
the
transactions contemplated hereby;
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(d)
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the
making of this Agreement and the completion of the transactions
contemplated hereby and the performance of and compliance with the
terms
hereof does not and will not:
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(i)
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conflict
with or result in a breach of or violate any of the terms, conditions,
or
provisions of the constating documents of the
Purchaser,
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(ii)
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conflict
with or result in a breach of or violate any of the terms, conditions
or
provisions of any law, judgment, order, injunction, decree, regulation
or
ruling of any court or governmental authority, domestic or foreign,
to
which the Purchaser is subject or constitute or result in a default
under
any agreement, contract or commitment to which the Purchaser is a
party,
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(iii)
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subject
to obtaining any necessary consents of applicable regulatory authorities,
give to any person any remedy, cause of action, right of termination,
cancellation or acceleration in or with respect to any agreement,
contract, or commitment to the Purchaser is a
party,
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(iv)
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give
to any government or governmental authority, including any governmental
department, commission, bureau, board, or administrative agency any
right
of termination, cancellation, or suspension of, or constitute a breach
of
or result in a default under any permit, license, control, or authority
issued to any of the entities and which is necessary or desirable
in
connection with the conduct and operation of the business of the
Purchaser
as currently conducted, or
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(v)
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subject
to obtaining any necessary consents of applicable regulatory authorities,
constitute a default by the Purchaser or an event which, with the
giving
of notice or lapse of time or both, might constitute an event of
default
or non-observance under any agreement, contract, indenture or other
instrument relating to any indebtedness of the Purchaser which would
give
any person the right to accelerate the maturity for the payment of
any
amount payable under that agreement, contract, indenture, or other
instrument; and
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(e)
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the
corporate records of the Purchaser, as required to be maintained
by it
under its statute of incorporation and constating documents, are
accurate,
complete and up-to-date in all material respects and all material
transactions the Purchaser have been promptly and properly recorded
in its
books or filed with its records.
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7.
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ACKNOWLEDGEMENTS
OF THE VENDOR
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7.1
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The
Vendor acknowledges and agrees that the Vendor has been advised to
consult
the Vendor’s own legal, tax and other advisors with respect to the merits
and risks of the sale of the Shares, and it is solely responsible
(and the
Purchaser is not in any way responsible) for compliance with any
applicable laws of the jurisdiction in which the Vendor is resident
in
connection with the sale of the Shares
hereunder.
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8.
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ACKNOWLEDGEMENTS
OF THE PURCHASER
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8.1
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The
Purchaser acknowledges and agrees
that:
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(a)
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none
of the Shares have been registered under the 1933 Act, or under any
state
securities or “blue sky” laws of any state of the United States, and,
unless so registered, may not be offered or sold except pursuant
to an
effective registration statement under the 1933 Act or pursuant to
an
available exemption from, or in a transaction not subject to, the
registration requirements of the 1933 Act and in accordance with
applicable state securities laws;
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(b)
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the
Company has not undertaken, and will have no obligation, to register
any
of the Shares under the 1933 Act;
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(c)
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the
Purchaser has been advised to consult the Purchaser’s own legal, tax and
other advisors with respect to the merits and risks of an investment
in
the Shares and with respect to applicable resale restrictions, and
it is
solely responsible (and the Vendor is not in any way responsible)
for
compliance with applicable resale restrictions;
and
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(d)
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neither
the United States Securities and Exchange Commission nor any other
securities commission or similar regulatory authority has reviewed
or
passed on the merits of the Shares.
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9.
|
COVENANTS
|
|
9.1
|
Between
the execution date and the Closing Date, the
Vendor:
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(a)
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will
cause the Company to afford to the Purchaser and its authorized
representatives access during normal business hours to all properties,
books, contracts, commitments, records of the Company and furnish
such
copies (certified if requested) thereof and other information as
the
Purchaser may reasonably request, and to permit the Purchaser and
its
authorized representatives to make such audit of the books of account
of
the Company as the Purchaser may reasonably see
fit;
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(b)
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will
diligently take all reasonable steps to obtain, prior to the Closing
Date,
all consents and approvals required to complete the transactions
contemplated herein in accordance with the terms and conditions hereof
and
give such assurances as may be required in the reasonable opinion
of the
Purchaser’s counsel for more perfectly consummating the transaction
contemplated hereby and referenced
herein;
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(c)
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will
cause the Company to conduct its business and affairs diligently
and only
in the ordinary course, and preserve and maintain the assets and
goodwill
of the Company;
|
|
|
(d)
|
will
not sell or otherwise in any way alienate or dispose of or encumber
any of
the Company’s assets;
|
|
|
(e)
|
will
cause the Company to maintain insurance coverage of the scope and
in the
amounts presently held; and
|
|
|
(f)
|
will
not permit the Company to make or agree to make any payment to any
director, officer, employee or agent of the Company except in the
ordinary
course of business and at the regular rates of salary and commission
for
such person or as reasonable reimbursement for expenses incurred
by such
person in connection with the
Company.
|
|
9.2
|
Between
the execution date and the Closing Date, the
Purchaser:
|
|
|
(a)
|
shall
cause to be reserved for issuance that number of shares of common
stock in
its capital as is equal in number to the Purchase Price
Shares.
|
|
|
(b)
|
shall
issue the Purchase Price Shares;
|
|
|
(c)
|
shall
effect a 52 for 1 forward split in its shares (“Forward
Split”);
|
|
9.3
|
Between
the execution date and the Closing Date, Xxxxxx Xxxxxxxx shall have
cancelled and returned to treasury 9,106,000 of common shares of
the
Purchaser held by him on a pre-Forward Split
basis.
|
|
10.
|
CONDITIONS
PRECEDENT
|
|
10.1
|
The
obligation of the Purchaser to carry out the terms of this Agreement
and
to complete the purchase of Shares referred to in this Agreement
is
subject to the following
conditions:
|
|
|
(a)
|
this
Agreement and the sale of the Shares has been approved by the board
of
directors of the Company on or before the Closing
Date;
|
|
|
(b)
|
that
on the Closing Date, the acknowledgements, warranties and representations
of the Vendor and the Company as set forth in this Agreement will
be true
in every particular as if such acknowledgements, warranties and
representations had been made by the Vendor and the Company on the
Closing
Date;
|
|
|
(c)
|
that
on the Closing Date, the Purchaser will have received evidence
satisfactory to the Purchaser, in its sole discretion, that the purchase
of the Shares complies with Nevada
law;
|
|
|
(d)
|
the
Purchaser and its solicitors having had a reasonable opportunity
to
perform the searches and other due diligence reasonable or customary
in a
transaction of a similar nature to that contemplated herein and that
both
the solicitors and the Purchaser are satisfied with the results of
such
due diligence;
|
-
11 -
|
|
(e)
|
that
on the Closing Date, no suit, action, or proceeding will be pending
or
threatened before any governmental or regulatory authority wherein
an
unfavorable judgment, order, decree, stipulation, injunction or charge
would:
|
|
|
(i)
|
prevent
the consummation of any of the transactions contemplated by this
Agreement, or
|
|
|
(ii)
|
cause
the transactions to be rescinded following
consummation;
|
|
|
(f)
|
that
on the Closing Date, there are no claims, charges, arbitrations,
grievances, actions, suits, investigations or proceedings by or before
any
court, arbiter, administrative agency or other governmental authority
pending, threatened (other than potential liquidation or bankruptcy
petitions) against the Company or which involves any of the business,
or
the properties or assets of the Company that, if adversely resolved
or
determined, would have a material adverse effect on the business,
operations, assets, properties, prospects, or conditions of the Company
taken as a whole;
|
|
|
(g)
|
that
on the Closing Date, the Purchaser will have received evidence
satisfactory to the Purchaser, in its sole discretion,
that:
|
|
|
(i)
|
the
Company is in compliance with, is not in default or violation in
any
material respect under, and has not been charged with or received
any
notice at any time of any material violation by it of, any statute,
law,
ordinance, regulation, rule, decree or other applicable regulation
to the
business or operations of the
Company;
|
|
|
(ii)
|
the
Company has duly filed all reports and returns required to be filed
by it
with governmental authorities and has obtained all governmental permits
and other governmental consents required to conduct its business;
and
|
|
|
(iii)
|
the
Company owns all intellectual property assets and other property
necessary
for the operation of the business of the Company as it is currently
conducted;
|
|
|
(h)
|
the
Purchaser and its accountant having had a reasonable opportunity
to review
the Financial Statements (including corporate tax returns, general
ledger
listings, adjusting entries and opening trial balances) of the Company,
prepared in accordance with generally accepted accounting principles
and
that both the Purchaser and its accountant are satisfied with the
content
of such Financial Statements.
|
|
10.2
|
This
is a valid and binding Agreement, whether or not the foregoing conditions
are satisfied; however, the obligation of the Purchaser to complete
the
purchase and sale is subject to waiver or satisfaction of these conditions
precedent. The conditions set forth in Section 10.1 of
this Agreement are for the exclusive benefit of the Purchaser and
may be
waived by the Purchaser in writing in whole or in part on or before
the
Closing Date, but save as so waived, the completion of the purchase
of the
Shares by the Purchaser will not prejudice or affect in any way the
rights
of the Purchaser in respect of the acknowledgements, warranties and
representations of the Vendor and the Company as set forth in this
Agreement, and the said acknowledgements, warranties and representations
will survive the Closing Date and the payment of the Purchase
Price.
|
-
12 -
|
10.3
|
The
obligations of the Vendor and the Company to carry out the terms
of this
Agreement and to complete the sale of Shares referred to in this
Agreement
is subject to the following
conditions:
|
|
|
(a)
|
this
Agreement and the purchase of the Shares has been approved by the
board of
directors of the Purchaser on or before the Closing Date;
and
|
|
|
(b)
|
that
on the Closing Date, the acknowledgements, warranties and representations
of the Purchaser as set in this Agreement will be true in every particular
as if such acknowledgements, warranties and representations had been
made
by the Purchaser on the Closing
Date.
|
|
10.4
|
This
is a valid and binding Agreement, whether or not the foregoing conditions
are satisfied; however, the obligations of the Vendor and the Company
to
complete the purchase and sale are subject to waiver or satisfaction
of
these conditions precedent. The conditions set forth in Section
10.3 of this Agreement are for the exclusive benefit of the Vendor
and the
Company and may be waived by the Vendor and the Company in writing
in
whole or in part on or before the Closing Date, but save as so waived,
the
completion of the sale of the Shares by the Vendor will not prejudice
or
affect in any way the rights of the Vendor and the Company in respect
of
the acknowledgements, warranties and representations of the Purchaser
as
set forth in this Agreement, and the said acknowledgements, warranties
and
representations will survive the Closing Date and the payment of
the
Purchase Price.
|
|
11.
|
CLOSING
DELIVERIES
|
|
11.1
|
At
the closing, the Vendor and the Company will execute and deliver
or cause
to be executed and delivered all documents, instruments, resolutions
and
share certificates as are necessary to effectively transfer and assign
the
Shares to the Purchaser, free and clear of all liens, including the
following:
|
|
|
(a)
|
a
directors resolution and/or shareholders resolution of the Company,
as
applicable, authorizing the transfer of the Shares to the
Purchaser;
|
|
|
(b)
|
executed
copies of this Agreement;
|
|
|
(c)
|
share
certificates representing the Shares, duly endorsed by the Vendor
for
transfer to the Purchaser;
|
|
|
(d)
|
release,
in form and substance satisfactory to the Purchaser, acting reasonably,
executed by the Vendor in favor of the Company releasing the Company
from
any and all manner of actions, causes of actions, suits, proceedings,
debts, dues, profits, expenses, contracts, damages, claims, demands,
and
liabilities whatsoever, in law or in equity, which the Vendor ever
had,
now has, or may have against the Company for or by reason of any
matter,
cause or thing whatsoever done or omitted to be done by the Vendor
up to
the Closing Date;
|
|
|
(e)
|
a
closing warranty and certificate from the Vendor and the Company
confirming that the conditions to be satisfied by the Vendor and
the
Company, unless waived, set out in Section 10.1 have been satisfied
at the
Closing Date and that all representations and warranties of the Vendor
and
the Company contained in this Agreement are true at and as of the
Closing
Date;
|
|
|
(f)
|
a
copy of the Company's share register evidencing registration in the
Company's share register of the Purchaser as the owner of the
Shares;
|
-
13 -
|
|
(g)
|
a
legal opinion from counsel for the Company and/or the Vendor addressed
to
the Purchaser and its solicitors in a form reasonably satisfactory
to such
solicitors to the effect that:
|
|
|
(i)
|
the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation;
|
|
|
(ii)
|
the
authorized and issued share capital of the Company is as represented
and
warranted in this Agreement;
|
|
|
(iii)
|
such
counsel is not aware of any litigation, proceedings or investigations
pending or threatened against the Company not disclosed in this Agreement;
and
|
|
|
(iv)
|
all
necessary approvals from the Company have been obtained and are in
full
force and effect with respect to the transfer of the Shares to the
Purchaser as contemplated by herein;
and
|
|
|
(h)
|
all
other documents and instruments as the Purchaser’s solicitors may
reasonably require.
|
|
11.2
|
The
Purchaser will deliver the following on or before the Closing
Date:
|
|
|
(a)
|
executed
copies of this Agreement;
|
|
|
(b)
|
a
closing warranty and certificate from the Purchaser confirming that
the
conditions to be satisfied by the Purchaser, unless waived, set out
in
Section 10.3 have been satisfied at the Closing Date and that all
representations and warranties of the Purchaser contained in this
Agreement are true at and as of the Closing
Date;
|
|
|
(c)
|
a
legal opinion from counsel for the Purchaser addressed to the Company
and
its solicitors in a form reasonably satisfactory to such solicitors
to the
effect that:
|
|
|
(i)
|
the
Purchaser has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation;
|
|
|
(ii)
|
all
necessary approvals from the Purchaser have been obtained and are
in full
force and effect with respect to the issuance of the Purchase Price
Shares
to the Vendor as contemplated by herein;
and
|
|
|
(d)
|
all
other documents and instruments as the Vendor and the Company’s solicitors
may reasonably require.
|
|
12.
|
INDEMNITY
|
|
12.1
|
The
Vendor will indemnify and hold harmless the Purchaser from and
against:
|
|
|
(a)
|
any
and all losses, damages, costs or deficiencies directly or indirectly
resulting from any misrepresentation or breach of warranty on the
part of
the Vendor or the Company under this Agreement;
and
|
|
|
(b)
|
any
and all actions, suits, proceedings, demands, assessments, judgments,
costs and legal and other expenses incidental to the
foregoing,
|
and
the
Purchaser is hereby authorized, at its option, to settle such claims and make
any payment in relation thereto as the Purchaser sees fit.
-
14 -
|
13.
|
GENERAL
PROVISIONS
|
|
13.1
|
Time
is of the essence of this
Agreement.
|
|
13.2
|
The
parties will execute and deliver all such further documents and
instruments and do all acts and things as may be necessary or convenient
to carry out the full intent and meaning of and to effect the transactions
contemplated by this Agreement.
|
|
13.3
|
This
Agreement is the whole agreement between the parties hereto in respect
of
the purchase and sale contemplated hereby and there are no warranties,
representations, terms, conditions, or collateral agreements expressed
or
implied, statutory or otherwise, other than expressly set forth in
this
Agreement.
|
|
13.4
|
This
Agreement will enure to the benefit of and be binding upon the parties
hereto, and their respective heirs, administrators, executors, successors
and assigns.
|
|
13.5
|
Except
as herein otherwise provided, no subsequent alteration, amendment,
change,
or addition to this Agreement will be binding upon the parties hereto
unless reduced to writing and signed by the party or parties affected
thereby.
|
|
13.6
|
This
Agreement may be executed in several counterparts, each of which
will be
deemed to be an original and all of which will together constitute
one and
the same instrument.
|
|
13.7
|
Delivery
of an executed copy of this Agreement by electronic facsimile transmission
or other means of electronic communication capable of producing a
printed
copy will be deemed to be execution and delivery of this Agreement
as of
the date set forth on page one of this
Agreement.
|
|
13.8
|
There
are no representations, warranties, collateral agreements, or conditions
except as herein specified.
|
|
13.9
|
Any
notice required or permitted to be given to any of the parties to
this
Agreement will be in writing and may be given by prepaid registered
post,
electronic facsimile transmission or other means of electronic
communication capable of producing a printed copy to the Vendor at
her
address as it appears on the books of the Company and any such notice
will
be deemed to have been given and received by the party to whom it
was
addressed if mailed, on the third day following the mailing thereof,
if by
facsimile or other electronic communication, on successful transmission,
or, if delivered, on delivery; but if at the time of mailing or between
the time of mailing and the third business day thereafter there is
a
strike, lockout, or other labour disturbance affecting postal service,
then the notice will not be effectively given until actually
delivered.
|
|
13.10
|
This
Agreement will be governed by and construed in accordance with the
laws of
the State of Nevada.
|
|
13.11
|
If
any covenant or other provision of this Agreement is invalid, illegal,
or
incapable of being enforced by reason of any rule of law or public
policy,
then such covenant or other provision will be severed from and will
not
affect any other covenant or other provision of this Agreement, and
this
Agreement will be construed as if such invalid, illegal, or unenforceable
covenant or provision had never been contained in this
Agreement. All other covenants and provisions of this Agreement
will, nevertheless, remain in full force and effect and no covenant
or
provision will be deemed dependent upon any other covenant or provision
unless so expressed herein.
|
-
15 -
IN
WITNESS WHEREOF this Agreement has been executed as of the day and year first
above written.
|
|
GRAVHAVEN
LIMITED
|
|
Per:
|
_________________________________
|
Authorized
Signatory
2146281
ONTARIO INC.
|
Per:
|
/s/
P. Xxxxxx
Xxxxxxx
|
Authorized
Signatory
|
Per:
|
/s/
Xxxxxx
Xxxxxxxx
|
Authorized
Signatory
XXXXXX
XXXXXXXX
|
Per:
|
/s/
Xxxxxx
Xxxxxxxx
|
Xxxxxx
Xxxxxxxx
SCHEDULE A
Financial
Statements of Vendor to be supplied prior to the Closing
SCHEDULE B
Assets
of
2146281 Ontario Inc.
Interests
in the “Claims” as described and defined in the Material Contracts listed in
Schedule C.
SCHEDULE C
Material
Contracts of 2146281 Ontario Inc.
|
1.
|
Elliot
Lake South Project Agreement, dated August 27, 2007, between 2060014
Ontario Ltd. and 2146281 Ontario
Inc.
|
|
2.
|
Longlac
Project Agreement, dated August 27, 2007, between 2060014 Ontario
Ltd. and
2146281 Ontario Inc.
|
|
3.
|
Monmouth
Agreement, dated August 31, 2007, between Xxxx Xxxxx and 2146281
Ontario
Inc.
|
SCHEDULE D
Definition
of “NMR”
Net
Mineral Royalty
|
1.
|
Definitions
|
Where
used herein:
|
|
(a)
|
“Agreement”
means the agreement to which this schedule is
attached.
|
|
|
(b)
|
“Claims”
means those mineral claims set forth in the Material Contracts listed
in
Schedule C of the Agreement.
|
|
|
(c)
|
“Fiscal
Period” means a three month period ending on the last day of
March, June, September and December of each calendar
year;
|
|
|
(d)
|
“Net
Mineral Royalty” or “NMR” means the Revenue
received by the Purchaser from the sale of Product from mining operations
on the Claims.
|
|
|
(e)
|
“Ore”
means any material containing a mineral or minerals of commercial
economic
value mined from the Claims;
|
|
|
(f)
|
“Product”
means Ore mined from the Claims and any concentrates or other materials
or
products derived therefrom; provided that if any such Ore, concentrates
or
other materials or products are further treated as part of the mining
operation in respect of the Claims, such Ore, concentrates or other
materials or products shall not be considered to be
“Product” until after they have been so
treated.
|
|
|
(g)
|
“Revenue”
means gross revenues during each Fiscal Period received by the Royalty
Payer from the sale of Product by the Royalty Payer to the smelter,
refiner or other purchaser, plus any bonuses and subsidies less all
penalties, umpire assaying, assaying, transportation costs from mine
site,
sampling charges, and insurance costs, whether deducted by such purchaser
or otherwise paid or incurred by Royalty Payer. Where revenue otherwise
to
be included under this subsection is received by Royalty Payer in
a
transaction with a party with whom it is not dealing at arm’s length, the
revenue to be included shall be based on the fair market value under
the
circumstances and at the time of the
transaction.
|
|
|
(h)
|
“Royalty
Interest” means the NMR payable to Royalty Holder pursuant to the
Agreement;
|
|
|
(i)
|
“Royalty
Holder” means “Vendor”, as defined in the
Agreement, his heirs, executors and
assigns;
|
-
2 -
|
|
(j)
|
“Royalty
Payer” means the “Purchaser”, as defined in the
Agreement, its successors and
assigns.
|
Capitalized
terms which are not specifically defined in this Schedule shall have the meaning
given to them in the Agreement.
|
2.
|
Net
Mineral Royalty
|
For
each
Fiscal Period, Royalty Payer shall pay Royalty Holder the Royalty Interest
specified by the Agreement, calculated and paid in accordance with this
Schedule.
|
3.
|
Calculation
of Net Mineral Royalty
|
The
NMR
shall be computed at the end of each Fiscal Quarter. On or before the
last day of the first month following each Fiscal Quarter, a statement shall
be
furnished setting forth in reasonable detail the computation of the NMR for
the
previous Fiscal Quarter and the Royalty Interest due to the Royalty Holder,
if
any. Payment for the Royalty Interest due, if any, shall be enclosed
with such statement.
|
4.
|
Audit
|
The
Royalty Holder, upon written notice to the Royalty Payer shall have the right
to
have an independent firm of chartered accountants audit the records that relate
to the calculation of the Royalty Interest within twenty-four (24) months after
receipt of each payment described in this Schedule.
The
Royalty Holder shall be deemed to have waived any right it may have had to
object to a payment made for any calendar year unless it provides notice in
writing of such an objection within twenty-four (24) months after receipt of
each payment. If the parties are unable to resolve any such dispute
within sixty (60) days after receipt of such notice, the dispute shall be
resolved by arbitration.
|
5.
|
Commingling
of Ore
|
Before
any Products from the Claims are commingled with ores and minerals from other
properties, the Products from the Claims shall be measured and sampled in
accordance with sound mining and metallurgical practices for moisture, metal,
commercial minerals and other appropriate content. Representative samples of
the
Products shall be retained by the Royalty Payer and assays (including penalty
substances) and other appropriate analyses of these samples shall be made before
commingling to determine metal, commercial minerals and other appropriate
content. Detailed records shall be kept by Royalty Payer showing
measures, moisture, assays of metal, commercial and other appropriate content
and penalty substances, and gross metal content of the Products. From
this information, Royalty Payer shall determine the amount payable to Royalty
Holder from Products from the Claims commingled with ores and minerals from
other properties.
