EXHIBIT 6.1
ACQUISITION AGREEMENT
AGREEMENT dated November 2,1998, by, between and among ALPHA BETA HOLDINGS,
LTD., a company incorporated under the laws of the state of Colorado
(hereinafter referred to as "Alpha"), MDU COMMUNICATIONS INC., a company
incorporated under the laws of Canada (hereinafter referred to as "MDU") and
those certain parties listed on Exhibit "A" attached hereto, each of whom is a
stockholder of MDU (individually referred to as a "Seller" and collectively
referred to as the "Sellers'),
WHEREAS, the Sellers own a total of 5,213,835 common shares with no par value of
MDU (the "MDU Shares") which constitute ONE HUNDRED (100%) percent of the issued
and outstanding common shares of MDU; and
WHEREAS, the Sellers desire to sell and Alpha desires to purchase ONE HUNDRED
(100%) percent of such MDU Shares;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereby agree as
follows:
1. PURCHASE AND SALE
Each Seller hereby agrees to sell, transfer, assign and convey to Alpha and
Alpha hereby agrees to purchase and acquire from the Sellers, ONE HUNDRED (100%)
percent of MDU Shares, solely in exchange for voting common stock of Alpha as
set forth in Section 2 hereof, in a transaction intended to qualify as a
reorganization pursuant to Section 368(a)(1)(B) of the INTERNAL REVENUE CODE OF
1986, as amended (the "Code").
2. PURCHASE PRICE
The aggregate purchase price to be paid by Alpha to the Sellers for the MDU
Shares shall be 5,213,835 shares of voting common shares with no par value of
Alpha (the "Alpha Shares"), based on an exchange ratio of one share of MDU
Shares for one share of Alpha Shares at a deemed value of US$0.01 per Alpha
Share.
3. CLOSING
(a) The Closing for the acquisition of the stock purchase contemplated
hereunder pursuant to this Agreement (the "Closing") shall be held at the
office of Maitland & Company on November 9, 1998 at Suite 700, 000 Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0, or at such other date
and time agreed to by the parties in writing on two days written notice.
(b) At the Closing, Alpha will notify its transfer agent to deliver to each
of the Sellers a certificate of the Alpha Shares evidencing his ownership
thereof, in accordance with the amounts specified in Exhibit "A" attached
hereto, free and clear of any liens or encumbrances of any kind, which
certificate shall contain the restrictive legend specified in Section 12
hereof, and each of the Sellers will deliver to Alpha a certificate
evidencing all of the MDU Shares owned by him, together with a stock
power, endorsed in blank.
4. WARRANTIES AND REPRESENTATIONS OF MDU AND SELLERS
In order to induce Alpha to enter into the Agreement and to complete the
transaction contemplated hereby, MDU and each of the Sellers warrants and
represents to Alpha as of the date hereof and as of the Closing that:
(a) ORGANIZATION AND STANDING. MDU is a corporation duly organized, validly
existing and in good standing under the Laws of Canada, is qualified to
do business as a foreign corporation in every province, state or
jurisdiction in which it operates, as set forth in Exhibit "B-1" attached
hereto, to the extent required by the laws of such states and
jurisdictions, and has full power and authority to carry on its business
as now conducted, and to own and operate its assets, properties and
business. Attached hereto as Exhibit "B-2" is a true and correct copies
of MDU's Certificate of Incorporation and Articles and all amendments
thereto. No changes thereto will be made in any of the documents
described in Exhibit "B-2" before Closing.
(b) CAPITALIZATION. As of the date hereof, MDU's entire authorized equity
capital consists of an unlimited number of common shares with no par
value, of which 5,213,835 common shares are issued and outstanding and an
unlimited number of first preference shares with no par value, of which
none are issued and authorized. As of the Closing, there will be no other
voting or equity securities authorized or issued, nor any authorized or
issued securities convertible into voting stock, and no outstanding
subscriptions, warrants, calls, options, rights, commitments or
agreements by which MDU or each Seller is bound, calling for the issuance
of any additional common shares or any other voting or equity security of
MDU. All of such MDU Shares have been duly authorized, are validly
issued and are fully paid and non-assessable, have no pre-emptive rights,
and were issued in conformity with any applicable Federal and Provincial
securities laws. The 5,213,835 issued and outstanding MDU Shares
constitute ONE HUNDRED (100%) percent of the equity capital of MDU, which
includes ONE HUNDRED (100%) percent of voting power, right to receive
dividends, when and if declared and paid, and the right to receive the
proceeds of liquidation attributable to common stock, if any.
(c) OWNERSHIP OF MDU SHARES. As of the date hereof, the Sellers are the sole
owners of the MDU Shares, free and clear of all liens, encumbrances, and
restrictions whatsoever, except that the MDU Shares have not been
registered under the SECURITIES ACT OF 1993, as amended (the "1933 Act"),
or any applicable state or provincial securities laws. By the transfer of
the MDU Shares pursuant to this Agreement, Alpha will thereby acquire
good and marketable title to all of the capital stock of MDU, free and
clear of all liens, encumbrances and restrictions of any nature
whatsoever, except by reason of the fact that the MDU Shares will not
have been registered under the 1933 Act, or any applicable state or
provincial securities laws.
(d) TAXES. MDU has filed all Federal, provincial and local income or other
tax returns and reports that it is required to file with all governmental
agencies, wherever situate, and has paid or accrued for payment all taxes
as shown on such returns, such that a failure to file, pay
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or accrue will not have a Material Adverse Effect on MDU. Such returns
have been prepared in accordance with the applicable material tax laws,
rules and regulations thereunder to which MDU is subject and MDU has
delivered a true and complete copy of all such tax returns to Alpha.
(e) NO PENDING ACTIONS. There are no material legal actions, lawsuits,
proceedings or investigations, either administrative or judicial, pending
or threatened, against or affecting MDU, or against MDU Officers or
Directors or the Sellers arising out of the operations of MDU that are
reasonably likely to have a Material Adverse Effect on MDU, except as
described in Exhibit "C" attached hereto. MDU is not knowingly in
violation of any law, material ordinance or regulation of any kind
whatever, including, but not limited to laws, rules and regulations
governing the sale of its services. Neither MDU nor any Seller is subject
to any order, writ, judgment, injunction, decree, determination or award
of any court, arbitrator or administrative, governmental or regulatory
authority or body.
(f) GOVERNMENTAL REGULATION. No approval of any trade or professional
association or agency of government other than as set forth on Exhibit
"D" attached hereto, is required for any of the transaction effected by
this Agreement.
(g) OWNERSHIP OF ASSETS. Except as set forth in Exhibit "E", Alpha has good,
marketable title, without any liens or encumbrances of any nature
whatever, to all of the following, if any: its assets, properties and
rights of every type and description, including, without limitation, all
cash on hand and in banks, certificates of deposit, stocks, bonds, and
other securities, good will, customer lists, its corporate name and all
variants thereof, trademarks and trade names, copyrights and interests
thereunder, licenses and registrations, pending licenses and permits and
applications therefor, inventions, processes, know-how, trade secrets,
real estate and interests therein and improvements thereto, machinery,
equipment, vehicles, notes and accounts receivable, fixtures, rights
under agreements and leases, franchises, all rights and claims under
insurance policies and other contracts of whatever nature, rights in
receivables, books and records and all other property and rights of every
kind and nature owned or held by MDU as of this date, and will continue
to hold such title on and after the completion of the transactions
contemplated by the Agreement; nor, except in the ordinary course of its
business, has MDU disposed of any such asset since the date of the most
recent balance sheet described in Section 4(o) of this Agreement.
(h) NO INTEREST IN SUPPLIERS, CUSTOMERS, LANDLORDS OR COMPETITORS. Neither
any Seller nor any member of his family have any interest of any nature
whatever in any supplier, customer, landlord or competitor of MDU.
(i) NO DEBT OWED BY MDU TO SELLERS. Except as set forth in Exhibit "F", MDU
does not owe any money, securities, or property to any Seller or any
member of his family or to any company controlled by such a person,
directly or indirectly.
(j) CORPORATE RECORDS. All of MDU's books and records, including, without
limitation, its books of account, corporate records, minute book, stock
certificate books and other records of MDU are up-to-date, complete and
reflect accurately and fairly the conduct of its business
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in all material respects since its date of incorporation. All material
reports, returns and statements currently required to be filed by MDU,
with respect to the business and operations of MDU, with any governmental
agency have been filed or valid extensions have been obtained in
accordance with normal procedures, and all governmental reporting
requirements have been complied with.
(k) NO MISLEADING STATEMENTS OR OMISSIONS. Neither this Agreement nor any
financial statement, exhibit, schedule or document attached hereto or
presented to MDU in connection herewith, contain any materially
misleading statement, or omit any fact or statement necessary to make the
other statements or facts therein set forth not materially misleading.
(l) Validity of the Agreement. All corporate and other proceedings required
to be taken by the Seller and by MDU in order to enter into and to carry
out this Agreement have been duly and properly taken. This Agreement has
been duly executed by each Seller and by MDU, and constitutes the valid
and binding obligation of each of them, except to the extent limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws relating to or effecting generally the enforcement of creditors
rights. The execution and delivery of the Agreement will not result, or
with the passage of time or notice, will not result, in the breach of any
of the terms or conditions of, or constitute a default under or violate
MDU's Certificate of Incorporation or Articles, or any material
agreement, lease, mortgage, bond, indenture, license or other material
document or undertaking, oral or written, to which MDU or the Sellers are
a party or are bound, nor will such execution and delivery violate any
order, writ, injunction, decree, law, rule or regulation of any court,
regulatory agency or other governmental body to which MDU or any Seller
is a party or is bound; and there are no restrictions which would prevent
MDU from conducting its business after the Closing as a wholly-owned
subsidiary of MDU.
(a) ENFORCEABILITY OF THE AGREEMENT. This Agreement and the Exhibits hereto
which are incorporated herein and made a part hereof, when duly executed
and delivered, will be the legal, valid and binding obligations of MDU
enforceable according to their terms, except to the extent limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws relating to or effecting generally the enforcement of creditors
rights, and that at the Closing, Alpha will have acquired title in and to
the MDU Shares free and clear of all claims, liens and encumbrances.
(n) ACCESS TO BOOKS AND RECORDS. Alpha will have full and free access to
MDU's books during the course of this transaction prior to Closing,
during regular business hours.
(o) COMPLIANCE WITH LAWS; ENVIRONMENTAL OR OTHER RELATED MATTERS. MDU
operations have been conducted in all material respects in accordance
with all applicable statutes, laws, rules and regulations. MDU is not
knowingly in violation of any Federal, Provincial, local or foreign law,
ordinance or regulation or any governmental order applicable to MDU, or
by which any of its properties is subject, bound or affected, other than
those violations the existence of which will not have any Material
Adverse Effect on MDU. There is no governmental order outstanding against
MDU (nor, to the best knowledge of MDU, threatened to be issued) that
will or would have a Material Adverse Effect on MDU. Except
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as disclosed herein, MDU currently holds (and at the Closing will hold)
all the environmental, health and safety and other permits, licenses,
authorizations, certificates and approvals of governmental authorities,
whether Federal, provincial, local or foreign (collectively, "Permits"),
necessary or proper for the current use, occupancy or operation of the
business, and all of the Permits are now and at the Closing will be in
full force and effect. Exhibit "G", annexed hereto and made a part
hereof, contains a list of all material Permits and all material
applications for Permits relating to MDU and its business. MDU has not
received and has no reason to believe it will receive any notice that any
governmental authority is considering revoking, cancelling, rescinding,
materially modifying or refusing to renew any of the Permits. Except as
otherwise disclosed herein, there is no existing practice, action or plan
of MDU and no existing condition of the assets of MDU that may give rise
to any civil or criminal liability under, or violate or prevent
compliance with, any environmental health or occupational safety or other
applicable statute, regulation, ordinance, decree or Permit other than
those practices, actions, plans and conditions the existence of which
will not have a Material Adverse Effect. Exhibit "H" identifies all
Permits that require consent, notification or other action to remain in
full force and effect following the consummation of the transaction
contemplated hereby.
5. WARRANTIES AND REPRESENTATIONS OF ALPHA
In order to induce the Sellers and MDU to enter into this Agreement and to
complete the transaction contemplated hereby, Alpha warrants and represents to
MDU and each Seller that:
(a) ORGANIZATION AND STANDING. Alpha is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado is
qualified to do business as a foreign corporation in every other state in
which it operates as set forth in Exhibit "I-1" attached hereto, to the
extent required by the laws of such states, and has full power and
authority to carry on its business as now conducted and to own and
operate its assets, properties and business. Attached hereto as Exhibit
"I-2" is a true and correct copy of Alpha Certificate of Incorporation,
By-Laws and all amendments thereof. No changes thereto will be made in
any of the documents described in Exhibit "I-2" at or before the Closing,
except as provided in subsection 5(b)(ii) hereof.
(b) CAPITALIZATION.
(i) As of the date hereof, Alpha's entire authorized equity capital
consists of 50,000,000 shares of common stock with no par value
(the "Alpha Shares") and 5,000,000 shares of non-voting preferred
stock with no par value (the "Alpha Preferred Shares"), of which
4,007,500 Alpha Shares and no Alpha Preferred Shares are
currently issued and outstanding. All of such Alpha's Common and
Preferred Shares issued and outstanding at the Closing have been
duly authorized, validly issued and are fully paid and
non-assessable, have no preemptive rights and were issued in
compliance with all Federal and state securities laws. The
relative rights and preferences of Alpha's equity securities are
set forth in Alpha's Certificate of Incorporation and Alpha's
By-Laws and any amendments thereto. There are no other voting or
equity securities convertible into voting stock, and no
outstanding subscriptions, warrants,
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calls, options, rights, commitments or agreements by which Alpha
is bound, calling for the issuance of any additional shares of
common stock or any other voting or equity security, including,
without limitation, those described in Section 5(b)(ii) hereof.
(ii) The By-Laws of Alpha provide that a simple majority of the shares
voting at a stockholders' meeting at which a quorum is present
may elect all of the directors of Alpha. Cumulative voting is not
provided for by the By-Laws or Certificate of Incorporation of
Alpha.
(c) OWNERSHIP OF SHARES. By Alpha's issuance of the Alpha Shares to the
Sellers pursuant to this Agreement, each Seller will at the Closing
thereby acquire good, absolute marketable title thereto, free and clear
of all liens, encumbrances and restrictions of any nature whatsoever,
except that such Alpha Shares will not have been registered under the
1933 Act and accordingly certain hold periods may be applicable in the
United States and for any Seller who is a resident of British Columbia
there exists a restriction on the resale of the Alpha Shares in British
Columbia for a period of 12 months from the date Alpha becomes a
"reporting issuer" in British Columbia within the meaning of the BRITISH
COLUMBIA SECURITIES ACT (the "B.C. Act"). As of the Closing Alpha will
not be a "reporting issuer" in British Columbia.
(d) SIGNIFICANT AGREEMENTS. Alpha is not and will not at Closing be bound by
any of the following, other than where already disclosed in any other
exhibit, unless specifically listed in Exhibit "J" hereto:
(i) employment, advisory or consulting contract and has no employees;
(ii) any plan providing for employee benefits of any nature;
(iii) any lease with respect to any property or equipment;
(iv) any contract or commitment for any future expenditure in excess
of $1,000;
(v) any contract or commitment pursuant to which it has assumed,
guaranteed, endorsed, or otherwise become liable for any
obligation of any other person, firm or organization;
(vi) any contract, agreement, understanding, commitment or
arrangement, other than in the normal course of business, not
fully disclosed or set forth in the Agreement or in Alpha's
Financial Statements; or
(vii) any agreement with any person relating to the dividend, purchase
or sale of securities, that has not been settled by the delivery
or payment of securities when due, and which remains unsettled
upon the date of the execution and delivery of this Agreement.
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(e) TAXES. Alpha has filed all federal, state and local income or other tax
returns and reports that it is required to file with all governmental
agencies, wherever situate, and has paid all taxes as shown on such
returns. All of such returns have been prepared in accordance with the
applicable tax laws and rules and regulations thereunder to which Alpha
is subject. To Alpha's knowledge, there is no audit or threat of any
audit of any tax return for any period, and Alpha knows of no basis for
the assertion of any additional taxes of any kind.
(f) ABSENCE OF LIABILITIES. At and as of the Closing Date, Alpha will have no
liabilities of any kind or nature, fixed or contingent, except for (i)
the costs, including legal and accounting fees and other expenses, in
connection with this transaction, for which Alpha agrees to be solely
responsible and to pay in full at or before the Closing, and (ii) the
transactions described in subsections 5(b)(ii) and 8(c) hereof.
(g) NO PENDING ACTIONS; SECURITIES ISSUANCE. There are no material legal
actions, lawsuits, proceedings or investigations, either administrative
or judicial, pending or threatened, against or affecting Alpha, or
against any of Alpha's officers or directors and arising out of their
operation of Alpha that are reasonably likely to have a Material Adverse
Effect on Alpha and Alpha has not violated any law, ordinance or
regulation of any kind whatever, including, but not limited to the 1933
Act, the 1934 Act, the rules and regulations of the SEC, or the
securities laws and regulations of any state or province. Alpha is not
subject to any order, writ, judgement, injunction, decree, determination
or aware of any court, arbitration or administrative, governmental or
regulatory authority or body. All of Alpha's common stock issued and
outstanding at the Closing will have been issued in compliance with all
Federal and state securities laws. Alpha is not an investment company as
defined in the securities laws. Alpha is not required to file reports
pursuant to either Section 13 or 15(d) of the 1934 Act.
(h) CORPORATE RECORDS. All of Alpha's books and records, including without
limitation, its books of account, corporate records, minute book, stock
certificate books and other records are up-to-date, complete and reflect
accurately and fairly the conduct of its business in all material
respects since its date of incorporation. All of said books and records
will be delivered to Alpha's new directors at the Closing.
(i) NO MISLEADING STATEMENTS OR OMISSIONS. Neither this Agreement nor any
financial statement, exhibit, schedule or document attached hereto or
presented to MDU or the Sellers in connection herewith contains any
materially misleading statement, or omits any fact or statement necessary
to make the other statements or facts herein set forth not materially
misleading.
(j) VALIDITY OF THE AGREEMENT. All corporate and other proceedings required
to be taken by Alpha in order to enter into and to carry out this
Agreement have been duly and properly taken. This Agreement has been
duly executed by Alpha and constitutes a valid, binding and enforceable
obligation of Alpha, except to the extent limited by applicable
bankruptcy reorganization, insolvency, moratorium or other laws relating
to or effecting generally the enforcement of creditors rights. The
execution and delivery of this Agreement will not result, or, with the
passage of time or notice, will not result, in the breach of any of the
terms
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or conditions of, or constitute a default under or violate Alpha's
Certificate of Incorporation or By-Laws, or any agreement, lease,
mortgage, bond, indenture, license or other document or undertaking, oral
or written, to which Alpha is a party or is bound or may be affected, nor
will such execution, delivery and carrying out violate any order, writ,
injunction, decree, law, rule or regulation of any court, regulatory
agency or other governmental body.
(k) ENFORCEABILITY OF THE AGREEMENT. When duly executed and delivered, this
Agreement and the Exhibits hereto which are incorporated herein and made
a part hereof are legal, valid, and enforceable obligations of Alpha
according to its terms, except to the extent limited by applicable
bankruptcy reorganization, insolvency, moratorium or other laws relating
to or effecting generally the enforcement of creditors rights, and that
at the time of such execution and delivery, the Sellers will have
acquired good marketable title in and to the Alpha Shares acquired
pursuant hereto, free and clear of all liens and encumbrances, other than
the restrictions applicable under the 1933 Act and the B.C. Act.
(l) ACCESS TO BOOKS AND RECORDS. MDU and the Sellers will have full and free
access during regular business hours and on reasonable prior notice to
Alpha's books and records during the course of this transaction prior to
and at the Closing.
(m) ALPHA'S FINANCIAL STATEMENTS. At or before the Closing, Alpha will
provide MDU and the Sellers with its audited financial statements as of
September 30, 1996, September 30, 1997 and September 30, 1998 (the "Alpha
Financial Statements"). The Alpha Financial Statements and the notes
thereto are true, complete and accurate and fairly present the
consolidated assets, liabilities and financial condition of Alpha as at
the dates thereof, in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. Alpha
does not have any liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise) which were not fully reflected in the
Alpha Financial Statements.
(n) ALPHA'S FINANCIAL CONDITION. At the Closing, and after consummation of
all of the transactions contemplated hereby, Alpha will have no material
assets or liabilities.
(o) DIRECTORS' AND STOCKHOLDER APPROVAL. Promptly upon the execution and
delivery of this Agreement, but in any event, on or before the Closing,
Alpha's Board of Directors, and its shareholders, if required, by meeting
or consent, will have approved this Agreement, and all matters set forth
herein as conditions precedent to the consummation by the Sellers of the
Closing hereunder.
(p) CONSENTS. Except as described in Section 8 hereof, no consent of any
person is necessary to the consummation of the transaction contemplated
hereby, including, without limitation, consents from parties to loans,
contracts, leases, other agreements, or any governmental agency.
(q) NO BROKERS. Except as set forth in paragraph 12, no broker, finder or
investment broker is entitled to any brokerage, finder's or other fee or
commission in connection with any of the transactions contemplated by
this Agreement.
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(r) COMPLIANCE WITH LAWS; ENVIRONMENTAL OR OTHER RELATED MATTERS. Alpha's
operations have been conducted in all material respects in accordance
with all applicable statutes, laws, rules and regulations. Alpha is not
in violation of any Federal, state, local or foreign law, ordinance or
regulation or any governmental order applicable to Alpha, or by which any
of its properties is subject, bound or affected, other than those
violations the existence of which will not have any Material Adverse
Effect on Alpha. There is no governmental order outstanding against Alpha
(nor, to the best knowledge of Alpha, threatened to be issued) that will
or would have a Material Adverse Effect on Alpha. Except as otherwise
disclosed herein, to the best of the knowledge of Alpha there is no
existing practice, action or plan of Alpha and no existing condition of
the assets of Alpha that may give rise to any material civil or criminal
liability under, or violate or prevent compliance with, any environmental
health or occupational safety or other applicable statute, regulation,
ordinance or decree other than those practices, actions, plans and
conditions the existence of which will not have a Material Adverse Effect
on Alpha.
6. SURVIVAL OF TERMS
All of the terms and condition of this Agreement, together with the warranties,
representations and covenants contained herein or in any instrument or document
delivered to or to be delivered pursuant to this Agreement, shall survive the
execution of this Agreement and the Closing, notwithstanding any investigation
heretofore or hereafter made by or on behalf of any party hereto; provided,
however, that (a) the agreements and covenants set forth in this Agreement shall
survive and continue until all obligations set forth therein shall have been
performed and satisfied; and (b) all representations and warranties shall
survive and continue for, and all claims with respect thereto shall be made
prior to the end of 12 months from the Closing.
7. THE ALPHA SHARES AND THE MDU SHARES
All of the Alpha Shares and the MDU Shares shall be validly issued, fully paid
and non-assessable shares of Alpha's and MDU's respective Common Stock, with
full voting rights, dividend rights, and right to receive the proceeds of
liquidation, if any, as set forth in the respective Certificates of
Incorporation.
8. CONDITIONS PRECEDENT TO CLOSING BY THE SELLERS
Each and every obligation of Alpha under this Agreement to be performed on or
before the Closing shall be subject to the satisfaction, on or before the
Closing, of each of the following conditions, unless waived in writing by the
Sellers:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and warranties
of Alpha contained in this Agreement and in all certificates and other
documents delivered and to be delivered by Alpha to the Sellers pursuant
hereto or in connection with the transactions contemplated hereby shall
be in all material respects true and accurate as of the date when made
and at and as of the Closing as though such representations and
warranties were made at and as of such date;
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(b) PERFORMANCE. Alpha shall have performed and complied with all agreements,
obligations and conditions required by this Agreement to be performed or
complied with by it on or prior to the Closing;
(c) BOARD OF DIRECTOR AND SHAREHOLDER APPROVAL. Alpha's Board of Directors
and, if required by law, its shareholders shall have approved the
transactions contemplated by this Agreement, including the
Reorganization, in the manner required by applicable state law and the
signing officers have executed and delivered this Agreement;
(d) NO GOVERNMENTAL PROCEEDING OR LITIGATION. No suit, action, investigation,
inquiry or other proceeding by any governmental body or other person or
legal or administrative proceeding shall have been instituted or
threatened which challenges the validity or legality of the transactions
contemplated hereby;
(e) PROCEEDINGS. All proceedings to be taken in connection with the
transactions contemplated by this Agreement by Alpha, and all documents
incident thereto, shall be reasonably satisfactory to the Sellers and
their counsel, and the Sellers shall have received a true, correct and
complete copy of all such documents as the Sellers or their counsel may
reasonably request in order to establish the consummation of such
transactions and the taking of all proceedings in connection therewith;
(f) LEGAL OPINION. Alpha shall have delivered to the Sellers an opinion of
counsel for Alpha, in form and substance reasonably satisfactory to each
of them and their counsel (a) stating that all of the shares of Alpha's
common stock issued prior to or as of the Closing, including the Alpha
Shares, were issued in compliance with the applicable provisions of all
Federal and state securities law and reflecting the basis for the
exemption from registration of the shares of Alpha's common stock issued
pursuant to Section 5(b)(ii) hereof, and (b) stating that counsel for
Alpha has no knowledge of any violation of any Federal and state
securities laws by Alpha and neither has any knowledge of the basis for
the assertion of any claim relating thereto;
(g) CERTIFICATES. Alpha shall have furnished the Sellers with such
certificates of its officers to evidence the compliance with the
conditions set forth in this Agreement as may be reasonably requested by
the Sellers.
9. CONDITIONS PRECEDENT TO CLOSING BY THE ALPHA
Each and every obligation of the Sellers and MDU under this Agreement to be
performed on or before the Closing shall be subject to the satisfaction, on or
before the Closing, of each of the following conditions, unless waived in
writing by Alpha:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and warranties
of Sellers and MDU contained in this Agreement and in all certificates
and other documents delivered and to be delivered by the Sellers and MDU
to Alpha pursuant hereto or in connection with the transactions
contemplated hereby shall be in all material respects true, complete and
accurate
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as of the date when made and at and as of the Closing as though such
representations and warranties were made at and as of such date;
(b) PERFORMANCE. The Sellers and MDU shall have performed and complied with
all agreements, obligations and conditions required by this Agreement to
be performed or complied with by them on or prior to the Closing;
(c) SHAREHOLDER APPROVAL. The Sellers shall have executed and delivered this
Agreement;
(d) NO GOVERNMENTAL PROCEEDING OR LITIGATION. No suit, action, investigation,
inquiry or other proceeding by any governmental body or other person or
legal or administrative proceeding shall have been instituted or
threatened which challenges the validity or legality of the transactions
contemplated hereby;
(e) PROCEEDINGS. All proceedings to be taken in connection with the
transactions contemplated by this Agreement by the Sellers and MDU, and
all documents incident thereto, shall be reasonably satisfactory to Alpha
and its counsel, and Alpha shall have received a true, correct and
complete copy of all such documents as Alpha or its counsel may
reasonably request in order to establish the consummation of such
transactions and the taking of all proceedings in connection therewith;
(f) CERTIFICATES. The Sellers shall have furnished Alpha with such
certificates to evidence the compliance with the conditions set forth in
this Section 9 as may be reasonably requested by Alpha;
(g) LEGAL OPINION. The Sellers and MDU shall have delivered to Alpha an
opinion of counsel for MDU, in form and substance reasonably satisfactory
to Alpha and its counsel stating that (a) MDU is duly organized and
validly existing under the laws of Canada and is in good standing with
the Office of the Director of Companies of Canada; (b) all necessary
steps and corporate proceedings have been taken to permit the MDU Shares
to be duly and validly transferred to and registered in the name of Alpha
or its nominees; (c) the number of authorized and issued shares in the
capital of MDU are as warranted by the Sellers and all issued shares are
duly authorized, validly issued and outstanding as fully paid and
nonassessable; and (d) that counsel for MDU has no knowledge of any
violation of any provincial securities laws by MDU and neither has any
knowledge of the basis for the assertion of any claim relating thereto;
and
(h) NO MATERIAL ADVERSE EFFECT. There shall have been no Material Adverse
Effect with respect to MDU and Alpha shall have received a certificate of
MDU and the Sellers to such an effect, signed by a duly authorized
officer of MDU and by the Sellers.
10. TERMINATION
This Agreement may be terminated at any time before or at Closing by:
(a) The mutual agreement of the parties;
11
(b) Any party if:
(i) any provision of this Agreement applicable to a party shall be
materially untrue or fail to be accomplished;
(ii) any legal proceeding shall have been instituted or shall be
imminently threatening to delay, restrain or prevent the
consummation of this Agreement or any material component thereof.
Upon the termination of this Agreement for any reason, in accordance with the
terms and conditions set forth in this Section, each said party shall bear all
of its own costs and expenses and no party shall be liable to the other.
11. POST CLOSING ITEMS
(a) Following the Closing, Alpha will change its name to "MDU Communications
International Inc.". The parties agree to take all steps as are necessary
or appropriate to effectuate such change of name.
(b) Within 10 days after the Closing, Alpha shall file with the Securities
and Exchange Commission and any state security regulatory authority such
forms as are required under applicable Federal and state securities laws
in connection with the transactions contemplated under this Agreement.
12. ENTIRE AGREEMENT; WAIVER OF BREACH
This Agreement constitutes the entire agreement between the parties and
supersedes any prior agreement or understanding among them in respect of the
subject matter hereof, and there are no other agreements, written or oral, nor
may the Agreement be modified except in writing and executed by all of the
parties hereto; and no waiver of any breach or condition of this Agreement shall
be deemed to have occurred unless such waiver is in writing, signed by the party
against whom enforcement is sought, and no waiver shall be claimed to be a
waiver of an subsequent breach or condition of a like or different nature.
13. NO THIRD PARTY BENEFICIARIES
The provisions of this Agreement are for the exclusive benefit of the parties
who are signatories hereto and their permitted successors and assigns, and no
third party shall be a beneficiary or, or have any rights by virtue of this
Agreement.
14. ASSIGNMENT; BINDING EFFECT
This Agreement, including both its obligations and benefits, shall inure to the
benefit of, and be binding on the respective permitted assigns, transferees,
successors and heirs of the parties. This Agreement may not be assigned or
transferred in whole or in part by any party without the prior written consent
of all other parties.
12
15. MATERIAL ADVERSE EFFECT
As used in this Agreement, "Material Adverse Effect" with respect to a party
means any change in, or effect on, the business conducted by such party that is,
or is reasonably likely to be, materially adverse to (i) the business result of
operations, prospects or condition (financial or otherwise) of such party and
its subsidiaries, taken as a whole, or (ii) the assets and properties used or
useful in the conduct of the business of such party and its Subsidiaries, taken
as a whole.
16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Colorado, determined without regard to its
conflicts of law principles. All parties hereto (i) agree that any legal suit,
action or proceeding arising out of or relating to this Agreement shall be
instituted only in a federal or state court in Colorado, (ii) waive any
objection which they may now or hereafter have to the laying of the venue of any
such suit, action or proceeding, and (iii) irrevocably submit to the exclusive
jurisdiction of such federal or state court in Colorado in any such suit, action
or proceeding, but such consent shall not constitute a general appearance or be
available to any other person who is not a party to this Agreement.
17. COUNTERPARTS
This Agreement may be executed in duplicate facsimile counterparts, each of
which shall be deemed an original and together shall constitute one and the same
binding Agreement, with one counterpart being delivered to each party hereto.
18. SEVERABILITY
If any provision of this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall not
in any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such invalid or unenforceable provision were not contained herein.
19. RESTRICTIVE LEGEND
Each certificate representing shares of Alpha Common Stock being issued to the
Sellers shall bear the following legend in addition to such other restrictive
legends as may be required by law or as mutually agreed by all parties hereto:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws, and no sale or transfer thereof may be effected without
an effective registration statement or an opinion of counsel for the
holder, satisfactory to the company, that such registration is not
required under the Act and any applicable state securities laws."
13
20. NUMBER AND GENDER
Wherever from the context it appears appropriate, each term stated in either the
singular or the plural shall include the singular and the plural, and pronouns
stated in either the masculine, the feminine or the neuter gender shall include
the masculine, feminine and neuter.
21. EXPENSES; TRANSFER TAXES, ETC.
Whether or not the transaction contemplated by this Agreement shall be
consummated, each party agrees that all fees and expenses incurred by each of
them in connection with this Agreement shall be borne by each of them
respectively, and no party shall be liable for the expenses of any other party
hereunder.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the
date and year above first written.
ALPHA BETA HOLDINGS LTD.,
by its Authorized Signatory:
/s/ Xxx Xxxxxx
----------------------------------
Signature
Print Name: XXX XXXXXX
----------------------
MDU COMMUNICATIONS LTD.,
by its Authorized Signatory:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Signature
Print Name: XXXXXXX X. XXXXXX
----------------------
SELLERS:
567780 B.C. LTD.,
by its Authorized Signatory:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Signature
Print Name: XXXXXXX X. XXXXXX
----------------------
14
571324 B.C. LTD.,
by its Authorized Signatory:
/s/ Xxxx Xxxxx
----------------------------------
Signature
Print Name: XXXX XXXXX
----------------------
504322 B.C. LTD.,
by its Authorized Signatory:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Signature
Print Name: XXXXXXX X. XXXXXX
----------------------
565423 B.C. LTD.,
by its Authorized Signatory:
/s/ Xxxx Xxxxxxxx
----------------------------------
Signature
Print Name: XXXX XXXXXXXX
----------------------
XXXXXXXX HOLDINGS LTD.,
by its Authorized Signatory:
/s/ Xxxx Xxxxxxxx
----------------------------------
Signature
Print Name: XXXX XXXXXXXX
----------------------
XXXXXXX ENTERPRISES LTD.,
by its Authorized Signatory:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Signature
Print Name: XXXXXXX X. XXXXXXX
----------------------
571321 B.C. LTD.,
by its Authorized Signatory:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Signatory:
Print Name: XXXXXXX X. XXXXXX
----------------------
15
EXECUTED ON BEHALF OF
GOLDEN CAPITAL SECURITIES LTD.,
by Attorney, in fact and in law, Xxxxxxx Xxxxxx:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Signature XXXXXXX X. XXXXXX
EXECUTED ON BEHALF OF
WISTARIA TRUST by Xxxxx Xxxxxxxx
International Services (BVI) Limited
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Signature
Print Name: XXXXXXX X. XXXXXX
----------------------
EXECUTED ON BEHALF OF
Xxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxx,
Xxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxx Zanna,
Xxxx Xxxxxxxxx I, Xxxxxx Xxxxxxx, Xxxx Xxxxx,
Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxxxx, by Attorney,
in fact and in law, Xxxxxxx Xxxxxx:
/s/ Xxxxxxx Xxxxxx
----------------------------------
Signature XXXXXXX XXXXXX
----------------------
16
EXHIBIT "A"
SHAREHOLDERS OF MDU
NUMBER OF NUMBER OF
NAME AND ADDRESS MDU SHARES ALPHA SHARES
---------------- ---------- ------------
567780 B.C. Ltd. 694,640 694,640
571321 B.C. Ltd. 694,640 694,640
504322 B.C. Ltd. 50,020 50,020
565423 B.C. Ltd. 694,640 694,640
Xxxxxxxx Holdings Ltd. 694,640 694,640
Xxxxxxx Enterprises Ltd. 694,640 694,640
571324 B.C. Ltd. 694,640 694,640
Xxxxx Xxxxxxxx International
Services (BVI) Limited,
ITF Wistaria Trust 694,640 694,640
Golden Capital Securities Ltd. 50,000 50,000
Xxxxx Xxxxxx 6,667 6,667
Xxxxx Xxxxxxx 13,333 13,333
Xxxxxx Xxxxxxxxxxx 16,667 16,667
Xxxxx Xxxxxxx 16,667 16,667
Xxxx Xxxxx 6,667 6,667
Xxx Xxxxxx 6,667 6,667
Xxxxxx Xxxxxxxx 6,667 6,667
Xxxxx Xxxxx Zanna 16,667 16,667
Xxxx Xxxxxxxxx I 16,667 16,667
Xxxxxx Xxxxxxxxx 60,000 60,000
Xxxx Xxxxxxxxx 70,000 70,000
Xxxxxx Xxxxxxxx 7,333 7,333
Xxxx Xxxxx 7,333 7,333
TOTAL: 5,213,835 5,213,835
ALL C/O THE FOLLOWING ADDRESS:
Xxxxxx Danderfer Banno & Xxxxxxxx
Barristers & Solicitors
0000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
X0X 0X0
Attention: Miles Xxxxxxxxxx
EXHIBIT "B-1"
CORPORATE REGISTRATIONS
British Columbia
EXHIBIT "B-2"
CERTIFICATE OF INCORPORATION AND ARTICLES OF MDU
SCHEDULE "B-2"
[LOGO]
CERTIFICATE
OF INCORPORATION
CANADA BUSINESS
CORPORATIONS ACT
MDU COMMUNICATIONS INC.
----------------------------------------------
NAME OF CORPORATION - DENOMINATION DE LA SOCIETE
I hereby certify that the above-named corporation, the articles of incorporation
of which are attached, was incorporated under the CANADA BUSINESS CORPORATIONS
ACT.
/s/ [ILLEGIBLE]
DIRECTOR - DIRECTEUR
CERTIFICAT
DE CONSTITUTION
LOI CANADIENNE SUR
LES SOCIETES PAR ACTIONS
342357-3
----------------------------------------------
CORPORATION NUMBER - NUMERO DE LA SOCIETE
Je certifie que la societe susmentionnee, dont les statuts constitutifs sont
joints, a ete constituee en societe en vertu de la LOI CANADIENNE SUR LES
SOCIETES PAR ACTIONS.
MARCH 26, 1998/LE 26 MARS 1998
DATE OF INCORPORATION - DATE DE CONSTITUTION
[LOGO]
Industry and Science Canada
Canada Business FORM 1
Corporations Act ARTICLES OF INCORPORATION
(SECTIONS 6)
--------------------------------------------------------------------------------
1 Name of Corporation
MDU COMMUNICATIONS INC.
--------------------------------------------------------------------------------
2 The place in Canada where the registered office is to be situated
Regional municipality of Vancouver in the Province of British
Columbia
--------------------------------------------------------------------------------
3 The classes and any maximum number of shares that the Corporation is
authorized to issue
The annexed SCHEDULE I is incorporated in this form
--------------------------------------------------------------------------------
4 Restrictions, if any, on share transfers
The annexed SCHEDULE II is incorporated in this form
--------------------------------------------------------------------------------
5 Number (or minimum and maximum number) of directors
Minimum of 1 and Maximum of 7
--------------------------------------------------------------------------------
6 Restrictions, if any, on business the corporation may carry on
None
--------------------------------------------------------------------------------
7 Other provisions, if any
The annexed SCHEDULE III is incorporated in this form
--------------------------------------------------------------------------------
8 INCORPORATORS
--------------------------------------------------------------------------------
NAME(S) ADDRESS (INCLUDE POSTAL CODE) SIGNATURE
--------------------------------------------------------------------------------
Miles Xxxxxxxxxx 0000 Xxxxxxx Xxxxx /x/ Xxxxx Xxxxxxxxxx
Xxxxxxxx, XX X0X 0X0
--------------------------------------------------------------------------------
FOR DEPARTMENTAL USE ONLY Filed
Corporation No.
342357-3 MAR 26 1998
--------------------------------------------------------------------------------
SCHEDULE I
3. The classes and any maximum number of shares that the Corporation is
authorized to issue:
(1) an unlimited number of common shares, the holders of which are entitled
to vote at all meetings of shareholders, to receive dividends and to receive the
remaining property of the corporation upon dissolution; and
(2) an unlimited number of First Preference Shares, issuable in series, to
which are attached, as a class, the following rights, restrictions, conditions
and limitations:
1. The First Preference Shares may at any time and from time to time be
issued in one or more series, to consist of such numbers of shares as may,
before issuance of such series, be fixed by the directors by Articles of
Amendments in accordance with the procedure set forth in the Canada Business
Corporations Act (the "Act") respecting the issuance of shares in series;
2. The directors of the Corporation may (subject to the limitations set
forth herein and in the Act) fix by Articles of Amendment in accordance with the
procedure set forth in the Act respecting the issuance of shares in series and,
prior to the issuance of any shares of a particular series of First Preference
Shares authorized to be issued, the designation, rights, privileges,
restrictions and conditions to attach to the First Preference Shares of that
particular series, including, without limiting the generality of the foregoing,
the rate of preferential dividends and whether or not the same shall be
cumulative, the dates of payment thereof, the rights, if any, to participate in
further dividends and other distributions made by the Corporation, the
redemption price and terms and conditions of redemption, including the rights,
if any, of the holders of the First Preference Shares of such series to require
the redemption thereof, the voting rights and conversion rights, if any, and any
redemption fund, purchase fund or other provisions to be attached to the First
Preference Shares of such series;
3. If any amount:
(a) of cumulative dividends, whether or not declared, or declared non-
cumulative dividends; or
(b) payable on return of capital in the event of the liquidation,
dissolution or winding-up of the Corporation or other distribution
of assets of the Corporation among its shareholders for the
purposes of winding-up its affairs;
in respect of shares of a series of First Preference Shares is not paid in full,
the shares of such series shall participate rateably with the shares of all
other series of the First Preference Shares in respect of:
(c) all accumulated dividends, whether or not declared, and all
declared noncumulative dividends; or
(d) all amounts payable on return of capital in the event of the
liquidation, dissolution or winding-up of the Corporation or other
distribution of assets
-1-
of the Corporation among its shareholders for the purposes of
winding-up its affairs;
as the case may be.
4. The First Preference Shares of any series may be given such preferences
over, or rights to participate with, any other shares of the Corporation ranking
junior to the First Preference Shares (including in respect of, but not in any
way limited to, payment of dividends, repayment of capital and distribution of
assets in the event of liquidation, dissolution or winding-up of the
Corporation, or other distribution of assets of the Corporation among its
shareholders for the purposes of winding-up its affairs, (whether voluntary or
involuntary), as may be fixed by the directors of the Corporation in the
preferences, rights, conditions, restrictions, limitations and prohibitions
attached to such series;
5. No preferences, rights, conditions, restrictions, limitations or
prohibitions attached to a series of First Preference Shares shall confer upon
the shares of that or another series of the First Preference Shares a priority
in respect of:
(a) dividends; or
(b) return of capital in the event of liquidation, dissolution or
winding-up of the Corporation or other distribution of assets of
the Corporation among its shareholders for the purposes on
winding-up its affairs;
over the shares of any other series of the First Preference Shares.
6. Subject to the provisions of the Act and the provisions attached to any
particular series of First Preference Shares, First Preference Shares of any
series, if so provided in the rights, privileges, restrictions and conditions
attached to such series, may be purchased for cancellation or made subject to
redemption at the option of the Corporation or the holder thereof at such time
and at such price and upon such other terms and conditions as may be specified
in the rights, privileges, restrictions and conditions attaching to the First
Preference Shares of such series;
7. No holder of First Preference Shares shall be entitled, as such, to any
preemptive right to subscribe for the purchase or to receive any part of any
issue of shares, or of bonds, debentures or other securities of the Corporation,
whether now or hereafter authorized or issued; provided, however, that,
notwithstanding the foregoing, if so specified in the rights, privileges,
restrictions and conditions attached to a particular series of First Preference
Shares authorized to be issued, the holders of such series of First Preference
Shares may be given a pre-emptive rights subscribe for the purchase of or to
receive all or a part of any issue of shares or of bonds, debentures or other
securities of the Corporation, whether now or hereafter authorized or issued,
upon such terms and conditions as may be specified in such rights, privileges,
restrictions and conditions.
8. The holders of the First Preference Shares shall not, as such, have any
right to vote separately as a class or series upon any proposal to amend the
articles of the Corporation to:
-2-
(a) increase any maximum number of authorized shares of any class of
shares of the Corporation having rights or privileges ranking in
priority to or equal with the First Preference Shares; or
(b) effect an exchange, reclassification or cancellation of all or part
of the First Preference Shares; or
(c) create a new class of shares ranking in priority to or equal with
the First Preference Shares;
provided that, notwithstanding the foregoing, if so specified in the provisions
attached to a particular series of First Preference Shares authorized to be
issued and subject to such limitations as may be specified therein, the
Corporation shall be required to obtain the approval by special resolution or in
such other manner as may be provided in such rights, privileges, restrictions or
conditions, of the holders of such series of First Preference Shares to any
proposal to amend the articles of the Corporation in any of the aforesaid
respects.
SCHEDULE II
4. Restrictions, if any, on share transfers
No shares of the capital of the Corporation shall be transferred without
either (a) the sanction of the directors of the Corporation expressed either by
a resolution or by an instrument or instruments in writing signed by a majority
of the directors or alternatively (b) the sanction of the shareholders of the
Corporation expressed either by a resolution or by an instrument or instruments
in writing signed by the holders of a majority of the outstanding shares in the
capital of the Corporation.
SCHEDULE III
7. Other provisions, if any
(a) The board of directors may from time to time, without authorization of
the shareholders:
(i) borrow money upon the credit of the Corporation;
(ii) issue, reissue, sell or pledge debt obligations of the
Corporation;
(iii) subject to the Canada Business Corporations Act, give a guarantee
on behalf of the Corporation to secure performance of an
obligation of any person; and
(iv) mortgage, hypothecate, pledge or otherwise create a security
interest in all or any property of the Corporation, owned or
subsequently acquired, to secure any obligation of the
Corporation.
Nothing in this subparagraph (a) limits or restricts the borrowing of
money by the Corporation on bills of exchange or promissory notes made, drawn,
accepted or endorsed by or on behalf of the Corporation.
-3-
The board of directors may from time to time by resolution delegate any
or all of the powers referred to above to a director, a committee of directors
or an officer.
For greater certainty, but without in any way limiting the powers
conferred on the board of directors hereunder, for the purpose of clause (iv) of
this subparagraph (a), "property" shall include and be deemed to include,
without limitation, both movable and immovable property.
The foregoing powers conferred on the directors shall be deemed to
include the powers conferred on a company by Division VII of the Special
Corporate Powers Act, being Chapter P-16 of the Revised Xxxxxxxx xx Xxxxxx,
0000, and every statutory provision that may be substituted therefor or for any
provision therein.
(b) The number of shareholders, exclusive of persons who are in the
employment of the Corporation and exclusive of persons who, having been formerly
in the employment of the Corporation, were, while in that employment, and have
continued after termination of that employment to be, shareholders of the
Corporation, is limited to not more than fifty, two or more persons who are the
joint registered owners of one or more shares being counted as one shareholder.
(c) Any invitation to the public to subscribe for securities of the
Corporation is prohibited.
-4-
EXHIBIT "C"
PENDING ACTIONS
NONE
EXHIBIT "D"
GOVERNMENTAL REGULATION
NONE
EXHIBIT "E"
OWNERSHIP OF ASSETS
NIL
EXHIBIT "F"
INDEBTEDNESS TO SELLERS
NIL
EXHIBIT "G"
PERMITS AND APPLICATIONS FOR PERMITS
NIL
EXHIBIT "H"
PERMITS THAT REQUIRE CONSENT TO THIS AGREEMENT
EXHIBIT "I-1"
CORPORATE REGISTRATIONS
Colorado
EXHIBIT "I-2"
CERTIFICATE OF INCORPORATION OF ALPHA
EXHIBIT "J"
MATERIAL CONTRACTS
NONE
