AGREEMENT
CONCERNING THE EXCHANGE OF SECURITIES
BY AND AMONG
NATCO INTENATIONAL INC.
AND
LASSEN ENERGY, INC. AND
THE SECURITY HOLDERS OF LASSEN ENERGY, INC.
1
INDEX
Page
ARTICLE I - EXCHANGE OF SECURITIES..............................................
Exchange of Securities..........................................................
1.1 Issuance of Securities.................................................
1.2 Exemption from Registration............................................
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF LASSEN...........................
Representations and Warranties of Lassen and Lassen Security Holders............
2.1 Organization...........................................................
2.2 Capital................................................................
2.3 Authorized Capital....................................................2
2.4 Paid Up Capital.......................................................2
2.5 No Furhter Rights.....................................................2
2.6 Indebtedness..........................................................2
2.7 Material Transactions.................................................3
2.8 Corporate Records.....................................................3
2.9 Subsidiaries..........................................................3
2.10 Directors and Officers................................................3
2.11 Financial Statements..................................................3
2.12 Absense of Changes....................................................3
2.13 Absense of Undisclosed Liabilties......................................
2.14 Taz Returns...........................................................4
2.15 Investigation of Financial Condition..................................4
2.16 Intellectual Propoerty Rights.........................................4
2.17 Compliance with Laws..................................................4
2.18 Litigation............................................................4
2.19 Authority.............................................................4
2.20 Ability to Carry Out Obligations......................................5
2.21 Full Disclosure.......................................................5
2.22 Assets................................................................5
2.23 Material Contracts....................................................5
2.24 Indemnification.......................................................5
2.25 Criminal or Civil Assets..............................................5
2.26 Restricted Securities.................................................6
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF NATCO...........................
Representations and Warranties of NATCO.........................................
3.1 Organization...........................................................
3.2 Capital................................................................
3.3 Subsidiaries...........................................................
3.4 Directors and Officers.................................................
3.5 Financial Statements...................................................
3.6 Absence of Changes.....................................................
3.7 Absence of Undisclosed Liabilities.....................................
3.8 Tax Returns............................................................
3.9 Investigation of Financial Condition...................................
3.10 Intellectual Property Rights..........................................8
3.11 Compliance with Laws...................................................
3.12 Litigation.............................................................
3.13 Authority..............................................................
3.14 Ability to Carry Out Obligations.......................................
3.15 Full Disclosure........................................................
3.16 Assets.................................................................
3.17 Material Contracts.....................................................
3.18 Indemnification........................................................
3.19 Criminal or Civil Acts.................................................
ARTICLE IV - COVENANTS PRIOR TO THE CLOSING DATE................................
Covenants Prior to the Closing Date.............................................
4.1 Investigative Rights...................................................
4.2 Conduct of Business....................................................
4.3 Confidential Information...............................................
4.4 Notice of Non-Compliance...............................................
ARTICLE V - CONDITIONS PRECEDENT TO NATCO' PERFORMANCE..........................
Conditions Precedent to NATCO's Performance.....................................
5.1 Conditions.............................................................
5.2 Accuracy of Representations............................................
5.3 Performance............................................................
5.4 Absence of Litigation..................................................
5.5 Officer's Certificate..................................................
5.6 Corporate Action.......................................................
5.7 Acceptance of Financial Statements.....................................
ARTICLE VI - CONDITIONS PRECEDENT TO LASSEN'S PERFORMANCE.......................
Conditions Precedent to Lassen's Performance....................................
6.1 Conditions...........................................................11
6.2 Accuracy of Representations............................................
6.3 Performance............................................................
6.4 Absence of Litigation..................................................
6.5 Officer's Certificate..................................................
6.6 Payment of Liabilities.................................................
6.7 Directors of NATCO.....................................................
6.8 Officers of NATCO......................................................
ARTICLE VII - CLOSING...........................................................
Closing
7.1 Closing................................................................
7.2 Documents In Escrow..................................................12
7.3 Escrow Agent..........................................................2
7.4 Amendments...........................................................12
7.5 Indemnity............................................................12
ARTICLE VIII - COVENANTS SUBSEQUENT TO THE CLOSING DATE.........................
Conditions Subsequent to the Closing Date.......................................
8.1 Conditions Subsequent................................................12
8.2 Release of Escrow......................................................
8.3 Registration and Listing...............................................
8.4 Corporate Action.....................................................14
8.5 Stock Consolidation..................................................14
ARTICLE IX - MISCELLANEOUS......................................................
Miscellaneous...................................................................
9.1 Captions and Headings..................................................
9.2 No Oral Change.........................................................
9.3 Non-Waiver.............................................................
9.4 Time of Essence........................................................
9.5 Entire Agreement.......................................................
9.6 Choice of Law..........................................................
9.7 Counterparts...........................................................
9.8 Notices................................................................
9.9 Binding Effect.........................................................
9.10 Mutual Cooperation.....................................................
9.11 Finders................................................................
9.12 Announcements..........................................................
9.13 Expenses...............................................................
9.14 Survival of Representations and Warranties.............................
9.15 Exhibits...............................................................
9.16 Termination, Amendment and Waiver......................................
Attn: Xxx-Xxxxxxxx Xxxx, Chief Executive Officer................................
EXHIBITS
1.1 List of Lassen Security Holders to Receive NATCO Stock
1.2 Subscription Agreement
2.11 Lassen Financial Statements
2.13 Lassen Liability Schedule
2.22* Lassen Assets
2.23 Lassen Material Contracts
2.25 Form of Closing Opinion
3.5 NATCO Financial Statements
3.8 NATCO Tax Returns
3.12 NATCO Litigation
3.16* NATCO Assets
3.17 NATCO Material Contracts
*if necessary
i
AGREEMENT
THIS AGREEMENT ("AGREEMENT") is made this 18[th] day of April, 2008, by
and between NATCO International Inc., a Delaware corporation ("NATCO"), Lassen
Energy, Inc., a California corporation ("LASSEN") and the security holders of
Lassen (the "LASSEN SECURITY HOLDERS") who are listed on Exhibit 1.1 hereto.
WHEREAS, NATCO desires to acquire all of the issued and outstanding common
stock of Lassen ("LASSEN STOCK") from the Lassen Security Holders in exchange
for common stock of NATCO;
WHEREAS, all of the Lassen Security Holders agree to exchange one hundred
percent (100%) of the Lassen Stock they hold in Lassen for three hundred twenty
three million seven hundred and fifty thousand (323,750,000) shares of NATCO
common stock (the "NATCO SHARES"); and
WHEREAS, the parties have agreed to complete this transaction in escrow
pending the completion of review and approval of Lassen's technology by NATCO
and the completion of financing by Lassen (collectively the "CONDITIONS
SUBSEQUENT").
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the parties hereto agree as follows:
ARTICLE I
EXCHANGE OF SECURITIES
1.1 ISSUANCE OF SECURITIES. Subject to the terms and conditions of this
Agreement, NATCO agrees to issue and exchange the NATCO Shares for one hundred
percent (100%) of the issued and outstanding Lassen Stock held by the Lassen
Security Holders (the "SHARE EXCHANGE"). Prior to the Share Exchange, NATCO
shall have outstanding a total of twenty six million seven hundred forty
thousand six hundred and fourteen shares (26,747,614) of common stock issued and
outstanding on the Closing Date (as hereinafter defined) immediately prior to
the issuance, pursuant to the terms and control of the Escrow Agent (detailed in
Section 8, below), upon Closing (defined in Section 7.1) of three hundred and
twenty three million seven hundred fifty thousand (323,750,000) shares of NATCO
common stock to the Lassen Security Holders. The NATCO Shares will be issued
directly to the Lassen Security Holders on the Closing Date, pursuant to the
schedule set forth in Exhibit 1.1 and will be held in escrow in accordance with
Article 7 pending completion of the Conditions Subsequent.
1.2 EXEMPTION FROM REGISTRATION. The parties hereto intend that the
NATCO Shares to be issued to the Lassen Security Holders shall be exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), pursuant to Section 4(2) and/or Regulation D of the
Securities Act and rules and regulations promulgated thereunder. In furtherance
thereof, each of the Lassen Security Holders will execute and deliver to NATCO
subscription agreements for the NATCO Shares, a copy of which is attached as
Exhibit 1.2, on the Closing Date of this Agreement (the "CLOSING DATE").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF LASSEN AND LASSEN SECURITY HOLDERS
Lassen and Lassen Security Holders jointly and severally hereby represent
and warrant to NATCO that:
2.1 ORGANIZATION. Lassen is a corporation duly organized, validly
existing and in good standing under the laws of California, has all necessary
corporate powers to own its properties and to carry on its business as now owned
and operated by it, and is duly qualified to do business and is in good standing
in each of the states where its business requires qualification.
2.2 CAPITAL. The Lassen Security Holders will deliver 100% of its issued
and outstanding stock, subscriptions, options, rights, warrants, debentures,
instruments, convertible securities convertible preferred stock, or other
agreements or commitments obligating Lassen to issue any additional Lassen Stock
of any class. There shall be no outstanding preferred stock of Lassen at the
time of the Closing.
2.3 AUTHORIZED CAPITAL. The authorized capital of Lassen consists of
1,000,000,000 common shares, par value $.001 per share, of which 32,375,000
common shares are issued and outstanding and there are no individuals or
companies who or which beneficially own, directly or indirectly, any of the
issued and outstanding shares of Lassen other than the Lassen Security Holders.
2.4 PAID UP CAPITAL. The Lassen Stock are validly issued and
outstanding as fully paid and non-assessable shares and the Lassen Security
Holders are the beneficial owners of and have the right and authority to dispose
of and give good and marketable title to the Lassen Stock free and clear of all
liens, charges, encumbrances and restrictions on transfer of any nature
whatsoever save those existing pursuant to applicable securities legislation.
2.5 NO FURTHER RIGHTS. There are no options, warrants, rights or
agreements outstanding with respect to the issued or unissued shares and there
are no securities convertible or exchangeable into shares of Lassen except as
have been, or may be in the event of a capital financing undertaken subsequent
to the execution of this Agreement, in writing disclosed to and approved by
NATCO prior to the Closing Date.
2.6 INDEBTEDNESS. Lassen is not indebted to the Lassen Security Holders
and the Lassen Security Holders are not indebted to Lassen, except as has been
in writing disclosed to and approved by NATCO prior to the Closing Date.
2.7 MATERIAL TRANSACTIONS. All material transactions of Lassen have
been promptly or properly recorded or filed in or with its respective books and
records.
2.8 CORPORATE RECORDS. To the best of their knowledge, the minute book
of Lassen contains true, correct and complete copies of its articles, by-laws
and other documents, the minutes of every meeting of its Board of Directors and
every committee thereof, the minutes of shareholder meetings and every written
resolution of its directors and shareholders. To the best of their knowledge,
the share certificate book, register of shareholders, register of transfers and
register of directors and officers of Lassen are complete and accurate.
2.9 SUBSIDIARIES. Lassen currently does not own any subsidiaries.
2.10 DIRECTORS AND EXECUTIVE OFFICERS. The names and titles of the
directors and executive officers of Lassen are as follows:
(a)
NAME POSITION
Xxxxx Xxxx Director , Chief Executive Officer
(b) Immediately upon the Final Closing, NATCO shall appoint
Lassen's designated Board of Directors and management team.
2.11 FINANCIAL STATEMENTS. Lassen and Lassen Security Holders represent
that Lassen shall have the ability to provide and shall produce, at NATCO's
expense, within forty-five (45) days of Closing, financial statements consisting
of a balance sheet and a related statements of income and cash flow for (I) the
prior two (2) fiscal years (or for the period since inception of Lassen, if less
than two years), (II) for the quarters subsequent to the most recent fiscal year
and (III) for the period subsequent to the most recent quarter if material
changes have occurred (the "LASSEN FINANCIAL STATEMENTS"), which fairly and
accurately represent the financial condition of Lassen as of the respective
dates and for the periods involved, and such statements shall be prepared in
accordance with generally accepted accounting principles (GAAP). The Lassen
Financial Statements shall state not greater than fifty thousand Dollars
($50,000.00) of debt-related liabilities, excluding any cash sums lent for
capital financing purposes subsequent to the execution of this Agreement and
prior to the Closing Date.
2.12 ABSENCE OF CHANGES. Since December 31, 2007, there has not been any
material change in the financial condition or operations of Lassen, except as
contemplated by this Agreement. As used throughout this Agreement, "material"
means: Any change or effect (or development that, insofar as can be reasonably
foreseen, is likely to result in any change or effect) that causes substantial
increase or diminution in the business, properties, assets, condition (financial
or otherwise) or results of operations of a party. Taken as a whole, material
change shall not include changes in national or international economic
conditions or industry conditions generally; changes or possible changes in
statutes and regulations applicable to a party; or the loss of employees,
customers or suppliers by a party as a direct or indirect consequence of any
announcement relating to this transaction.
2.13 ABSENCE OF UNDISCLOSED LIABILITIES. As of the Closing Date, there
are no advances, debts, duties, endorsements, guarantees, liabilities,
obligations, responsibilities and undertakings of Lassen assumed, created,
incurred or made, whether voluntary or involuntary, however arising, whether due
or not due, absolute, contingent, liquidated or unliquidated, determined or
undetermined, direct or indirect, express or implied, and whether Lassen may be
liable individually or jointly with others, that is not reflected in the Lassen
Liability Schedule, attached as Exhibit 2.13.
2.14 TAX RETURNS. Lassen has made and filed any and all tax returns and
other filings as and when required by the relevant taxation authority, all of
which are accurate and complete in every material respect, and has made and
remitted all required employee deductions, tax remittances and other payments
required by law as and when required and is not currently required to make any
further assessment, reassessment, demand for payment or filing nor, to the
knowledge of the Lassen Security Holders and Lassen, after due inquiry, is any
such action or proceeding pending or threatened.
2.15 INVESTIGATION OF FINANCIAL CONDITION. Without in any manner reducing
or otherwise mitigating the representations contained herein, NATCO, its legal
counsel and accountants shall have the opportunity to meet with Lassen's
accountants and attorneys to discuss the financial condition of Lassen during
reasonable business hours and in a manner that does not interfere with the
normal operation of Lassen's business. Lassen shall make available to NATCO all
books and records of Lassen.
2.16 INTELLECTUAL PROPERTY RIGHTS. Lassen owns or has the right to use
all trademarks, service marks, trade names, copyrights and patents material to
its business.
2.17 COMPLIANCE WITH LAWS. To the best of the Lassen Security Holders'
and Lassen's knowledge, Lassen has complied with, and is not in violation of,
applicable federal, state or local statutes, laws and regulations, including
federal and state securities laws, except where such non-compliance would not
have a material adverse impact upon its business or properties.
2.18 LITIGATION. Lassen is not a defendant in any suit, action,
arbitration or legal, administrative or other proceeding, or governmental
investigation which is pending or, to the best knowledge of the Lassen Security
Holders and Lassen, threatened against or affecting Lassen or its business,
assets or financial condition. Lassen is not in default with respect to any
order, writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality applicable to it. Lassen is not engaged
in any material litigation to recover monies due to it.
2.19 AUTHORITY. The Board of Directors of Lassen has authorized the
execution of this Agreement and the consummation of the transactions
contemplated herein, and Lassen has full power and authority to execute, deliver
and perform this Agreement, and this Agreement is a legal, valid and binding
obligation of Lassen and is enforceable in accordance with its terms and
conditions. A majority of Lassen Security Holders have agreed to and have
approved the terms of this Agreement and the exchange of securities contemplated
hereby.
2.20 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of this
Agreement by Lassen and the performance by Lassen of its obligations hereunder
in the time and manner contemplated will not cause, constitute or conflict with
or result in (a) any breach or violation of any of the provisions of or
constitute a default under any license, indenture, mortgage, instrument, article
of incorporation, bylaw, or other agreement or instrument to which Lassen is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of Lassen, or (c) an event that
would result in the creation or imposition of any lien, charge or encumbrance on
any asset of Lassen.
2.21 FULL DISCLOSURE. None of the representations and warranties made by
the Lassen Security Holders or Lassen herein or in any exhibit, certificate or
memorandum furnished or to be furnished by the Lassen Security Holders or
Lassen, or on their behalf, contains or will contain any untrue statement of
material fact or omit any material fact the omission of which would be
misleading.
2.22 ASSETS. Lassen's assets are fully included in Exhibit 2.22, to be
made available at or prior to Closing and such assets are not subject to any
claims or encumbrances except as indicated in Exhibit 2.22.
2.23 MATERIAL CONTRACTS. A list of Lassen's material contracts are
attached hereto as Exhibit 2.23, and such contracts shall be made available for
inspection within five (5) days prior to Closing.
2.24 INDEMNIFICATION. The Lassen Security Holders and Lassen agree to
indemnify, defend and hold NATCO harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties and reasonable
attorney fees asserted by third parties against NATCO which arise out of, or
result from (i) any breach by Lassen or the Lassen Security Holders in
performing any of its covenants or agreements under this Agreement or in any
schedule, certificate, exhibit or other instrument furnished or to be furnished
by Lassen under this Agreement, (ii) a failure of any representation or warranty
in this Article II or (iii) any untrue statement made by Lassen or the Lassen
Security Holders in this Agreement.
2.25 CRIMINAL OR CIVIL ACTS. For the period of five years prior to the
execution of this Agreement, no executive officer, director or principal
stockholder of Lassen has been convicted of a felony crime, filed for personal
bankruptcy, been the subject of a Commission or NASD judgment or decree, or is
currently the subject to any investigation in connection with a felony crime or
Commission or NASD proceeding.
2.26 RESTRICTED SECURITIES. Lassen and the Lassen Security Holders
acknowledge that all of the NATCO Shares issued by NATCO are restricted
securities and none of such securities may be sold or publicly traded except in
accordance with the provisions of the Securities Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NATCO
NATCO represents and warrants to Lassen that:
3.1 ORGANIZATION. NATCO is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, has all necessary
corporate powers to carry on its business, and is duly qualified to do business
and is in good standing in each of the states where its business requires
qualification.
3.2 CAPITAL. The authorized capital stock of NATCO consists of: i) fifty
million (50,000,000) shares of $0.001 par value common stock, of which
approximately twenty six million seven hundred forty seven thousand six hundred
fourteen (26,747,614) shares are currently outstanding; and ii) five million
(5,000,000) shares of $0.001 par value preferred stock, of which zero (0) shares
are currently are outstanding. Prior to the Share Exchange, NATCO shall
increase its authorized capital to consist of: i) five hundred million
(500,000,000) shares of $0.001 par value common stock and ii) five million
(5,000,000) shares of $0.001 par value preferred stock. Three hundred twenty
three million seven hundred and fifty thousand (323,750,000) additional shares
of NATCO common stock will be issued to the Lassen Security Holders pursuant to
this Agreement at Closing. All of the outstanding common stock is duly and
validly issued, fully paid and non-assessable. There are no outstanding
subscriptions, rights, debentures, warrants, instruments, convertible securities
or other agreements or commitments obligating NATCO to issue any additional
shares of its capital stock of any class.
3.3 SUBSIDIARIES. NATCO does not have any subsidiaries or own any
interest in any other enterprise.
3.4 DIRECTORS AND OFFICERS. The name and titles of the director and
executive officers of NATCO are as follows:
(a)
NAME POSITION
Xxx-Xxxxxxxx Xxxx Director, President, Chief Executive Officer and Chief Financial Officer
Xxxxx Xxxxxxxx-Xxxxxx Director, Secretary
(b) Pursuant to this Agreement, NATCO shall appoint two (2) Lassen
designees to the board of directors, the first upon Closing, and the second
within 90 days of Final Closing (but in no event earlier than 45 days following
Closing, pursuant to Rule 14(f) of the 1934 Exchange Act;
(c) Concurrent to this Agreement, Xxxxx Xxxx and NATCO will
execute an employment agreement naming Xxxxx Xxxx the Chief Executive Officer of
NATCO effective the date of Final Closing.
3.5 FINANCIAL STATEMENTS. Exhibit 3.5 hereto consists of the audited
financial statements of NATCO for the fiscal quarter ended March 31, 2007 and
management prepared financial statements for the three subsequent fiscal
quarters (collectively, the "NATCO FINANCIAL STATEMENTS") The NATCO Financial
Statements have been prepared in accordance with generally accepted accounting
principles and practices consistently followed by NATCO throughout the period
indicated, and fairly present the financial position of NATCO as of the date of
the balance sheet included in the NATCO Financial Statements and the results of
operations for the period indicated.
3.6 ABSENCE OF CHANGES. Since December 31, 2007, there has not been any
material change in the financial condition or operations of NATCO, except as
publicly filed with the Securities and Exchange Commission ("COMMISSION") or
contemplated by this Agreement. As used throughout this Agreement, "material"
means: Any change or effect (or development that, insofar as can be reasonably
foreseen, is likely to result in any change or effect) that causes substantial
increase or diminution in the business, properties, assets, condition (financial
or otherwise) or results of operations of a party. Taken as a whole, material
change shall not include changes in national or international economic
conditions or industry conditions generally; changes or possible changes in
statutes and regulations applicable to a party; or the loss of employees,
customers or suppliers by a party as a direct or indirect consequence of any
announcement relating to this transaction.
3.7 ABSENCE OF UNDISCLOSED LIABILITIES. As of the Closing Date, NATCO
shall not have any material debt, liability or obligation of any nature, whether
accrued, absolute, contingent or otherwise, and whether due or to become due,
that is not reflected in the NATCO Financial Statements. All liabilities of
NATCO will be assigned to a company to be nominated by NATCO by the Closing
Date.
3.8 TAX RETURNS. NATCO has filed all federal, state and local tax
returns required by law and have paid all taxes, assessments and penalties due
and payable. The provisions for taxes, if any, reflected in Exhibit 3.8 are
adequate for the periods indicated. There are no present disputes as to taxes
of any nature payable by NATCO.
3.9 INVESTIGATION OF FINANCIAL CONDITION. Without in any manner reducing
or otherwise mitigating the representations contained herein, Lassen, its legal
counsel and accountants shall have the opportunity to meet with NATCO's
accountants and attorneys to discuss the financial condition of NATCO during
reasonable business hours and in a manner that does not interfere with the
normal operation of NATCO's business. NATCO shall make available to Lassen all
books and records of NATCO.
3.10 INTELLECTUAL PROPERTY RIGHTS. NATCO has no trademarks, service
marks, trade names, copyrights or patents material to its business.
3.11 COMPLIANCE WITH LAWS. To the best of NATCO's knowledge, NATCO has
complied with, and is not in violation of, applicable federal, state or local
statutes, laws and regulations, including federal and state securities laws,
except where such non-compliance would not have a material adverse impact upon
its business or properties.
3.12 LITIGATION. NATCO is not a defendant in any suit, action,
arbitration or legal, administrative or other proceeding, or governmental
investigation which is pending or, to the best knowledge of NATCO, threatened
against or affecting NATCO or its business, assets or financial condition except
as indicated in Exhibit 3.12. NATCO is not in default with respect to any
order, writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality applicable to it. NATCO is not engaged in
any material litigation to recover monies due to it except as indicated in
Exhibit 3.12.
3.13 AUTHORITY. The Board of Directors of NATCO has authorized the
execution of this Agreement and the consummation of the transactions
contemplated herein, and NATCO has full power and authority to execute, deliver
and perform this Agreement, and this Agreement is a legal, valid and binding
obligation of NATCO and is enforceable in accordance with its terms and
conditions.
3.14 ABILITY TO CARRY OUT OBLIGATIONS. The execution and delivery of this
Agreement by NATCO and the performance by NATCO of its obligations hereunder in
the time and manner contemplated will not cause, constitute or conflict with or
result in (a) any breach or violation of any of the provisions of or constitute
a default under any license, indenture, mortgage, instrument, article of
incorporation, bylaw, or other agreement or instrument to which NATCO is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of NATCO, or (c) an event that
would result in the creation or imposition of any lien, charge or encumbrance on
any asset of NATCO.
3.15 FULL DISCLOSURE. None of the representations and warranties made by
NATCO herein or in any exhibit, certificate or memorandum furnished or to be
furnished by NATCO, or on its behalf, contains or will contain any untrue
statement of material fact or omit any material fact the omission of which would
be misleading.
3.16 ASSETS. NATCO assets are fully included in Exhibit 3.5 and are not
subject to any claims or encumbrances except as indicated in Exhibit 3.5. All
assets of NATCO will be assigned to a company to be nominated by NATCO by the
Closing Date.
3.17 MATERIAL CONTRACTS. A list of NATCO's material contracts are
attached hereto as Exhibit 3.17, and such contracts shall be made available for
inspection within five (5) days prior to Closing.
3.18 INDEMNIFICATION. NATCO agrees to indemnify, defend and hold Lassen
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries and deficiencies,
including interest, penalties and reasonable attorney fees asserted by third
parties against Lassen which arise out of, or result from (i) any breach by
NATCO in performing any of its covenants or agreements under this Agreement or
in any schedule, certificate, exhibit or other instrument furnished or to be
furnished by NATCO under this Agreement, (ii) a failure of any representation or
warranty in this Article III or (iii) any untrue statement made by NATCO in this
Agreement.
3.19 CRIMINAL OR CIVIL ACTS. For the period of five (5) years prior to
the execution of this Agreement, no current executive officer, director or
principal stockholder of NATCO has been convicted of a felony crime, filed for
personal bankruptcy, been the subject of a Commission or NASD judgment or
decree, or is currently the subject to any investigation in connection with a
felony crime or Commission or NASD proceeding.
ARTICLE IV
COVENANTS PRIOR TO THE CLOSING DATE
4.1 INVESTIGATIVE RIGHTS. Prior to the Closing Date, each party shall
provide to the other party, and such other party's counsel, accountants,
auditors and other authorized representatives, full access during normal
business hours and upon reasonable advance written notice to all of each party's
properties, books, contracts, commitments and records for the purpose of
examining the same. Each party shall furnish the other party with all
information concerning each party's affairs as the other party may reasonably
request. If during the investigative period one party learns that a
representation of the other party was not accurate, no such claim may be
asserted by the party so learning that a representation of the other party was
not accurate.
4.2 CONDUCT OF BUSINESS. Prior to the Closing Date, each party shall
conduct its business in the normal course and shall not sell, pledge or assign
any assets without the prior written approval of the other party, except in the
normal course of business. Neither party shall amend its Articles of
Incorporation or Bylaws (except as may be described in this Agreement), declare
dividends, redeem or sell stock or other securities. Neither party shall enter
into negotiations with any third party or complete any transaction with a third
party involving the sale of any of its assets or the exchange of any of its
common stock.
4.3 CONFIDENTIAL INFORMATION. Each party will treat all non-public,
confidential and trade secret information received from the other party as
confidential, and such party shall not disclose or use such information in a
manner contrary to the purposes of this Agreement. Moreover, all such
information shall be returned to the other party in the event this Agreement is
terminated.
4.4 NOTICE OF NON-COMPLIANCE. Each party shall give prompt notice to
the other party of any representation or warranty made by it in this Agreement
becoming untrue or inaccurate in any respect or the failure by it to comply with
or satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO NATCO'S PERFORMANCE
5.1 CONDITIONS. NATCO's obligations hereunder shall be subject to the
satisfaction at or before the Closing Date of all the conditions set forth in
this Article V. NATCO may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by NATCO of any other condition of or any of NATCO's
other rights or remedies, at law or in equity, if Lassen or the Lassen Security
Holders shall be in default of any of its representations, warranties or
covenants under this Agreement.
5.2 ACCURACY OF REPRESENTATIONS. Except as otherwise permitted by this
Agreement, all representations and warranties by the Lassen Security Holders and
Lassen in this Agreement or in any written statement that shall be delivered to
NATCO by the Lassen Security Holders and Lassen under this Agreement shall be
true and accurate on and as of the Closing Date as though made at that time.
5.3 PERFORMANCE. Lassen shall have performed, satisfied and complied
with all covenants, agreements and conditions required by this Agreement to be
performed or complied with by it on or before the Closing Date.
5.4 ABSENCE OF LITIGATION. No action, suit or proceeding, including
injunctive actions, before any court or any governmental body or authority,
pertaining to the transaction contemplated by this Agreement or to its
consummation, shall have been instituted or threatened against Lassen on or
before the Closing Date.
5.5 CLOSING CERTIFICATE. Lassen Security Holders and Lassen shall have
delivered to NATCO separate certificates dated the Closing Date signed by the
Lassen Security Holders and Chief Executive Officer of Lassen respectively
certifying that each of the conditions specified in this Article has been
fulfilled and that all of the representations set forth in Article II are true
and correct as of the Closing Date.
5.6 CORPORATE ACTION. Lassen shall have obtained the approval of the
Lassen Security Holders for the transaction contemplated by this Agreement.
5.7 ACCEPTANCE OF FINANCIAL STATEMENTS. NATCO shall have reviewed and in
its sole discretion accepted, prior to the Closing Date, the Lassen Financial
Statements as set forth in Exhibit 2.11.
ARTICLE VI
CONDITIONS PRECEDENT TO LASSEN'S PERFORMANCE
6.1 CONDITIONS. Lassen's obligations hereunder shall be subject to the
satisfaction at or before the Closing Date of all the conditions set forth in
this Article VI. Lassen may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by Lassen of any other condition of or any of Lassen's
rights or remedies, at law or in equity, if NATCO shall be in default of any of
its representations, warranties or covenants under this Agreement.
6.2 ACCURACY OF REPRESENTATIONS. Except as otherwise permitted by this
Agreement, all representations and warranties by NATCO in this Agreement or in
any written statement that shall be delivered to Lassen by NATCO under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
6.3 PERFORMANCE. NATCO shall have performed, satisfied and complied with
all covenants, agreements and conditions required by this Agreement to be
performed or complied with by it on or before the Closing Date.
6.4 ABSENCE OF LITIGATION. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against NATCO on or before the Closing Date except as
indicated in Exhibit 3.12.
6.5 OFFICER'S CERTIFICATE. NATCO shall have delivered to Lassen a
certificate dated the Closing Date signed by the Chief Executive Officer of
NATCO certifying that each of the conditions specified in this Article has been
fulfilled and that all of the representations set forth in Article III are true
and correct as of the Closing Date.
6.6 PAYMENT OF LIABILITIES. On or before the Closing Date, NATCO shall
have paid any outstanding obligations and liabilities of NATCO through the
Closing Date, including obligations created subsequent to the execution of this
Agreement.
6.7 DIRECTORS OF NATCO. On the Closing Date, one of the members of the
Board of Directors of NATCO shall resign and the Board of Directors of NATCO
shall simultaneously appoint one (1) designee of Lassen to NATCO Board of
Directors.
6.8 OFFICERS OF NATCO. Concurrent to this Agreement, the Board of
Directors of NATCO shall execute an employment agreement naming Xxxxx Xxxx to
the position of Chief Executive Officer of NATCO effective the date of Final
Closing.
6.9 CORPORATE ACTION. NATCO shall increase its authorized capital to
consist of: i) five hundred million (500,000,000) shares of $0.001 par value
common stock and ii) five million (5,000,000) shares of $0.001 par value
preferred stock immediately prior to the issuances of the NATCO Shares to the
Lassen Security Holders.
ARTICLE VII
CLOSING
7.1 CLOSING. The closing of this Agreement shall be held at the offices
of Leschert and Company Law Corporation (the "ESCROW AGENT"), or at any mutually
agreeable place within thirty (30) days of the mutual execution of this
Agreement, unless extended by mutual agreement ("CLOSING"). At Closing:
(a) Lassen shall deliver to the Escrow Agent (i) copies of Exhibit 1.2
executed by all of the Lassen Security Holders, (ii) share
certificates representing the Lassen Stock duly endorsed by the
Lassen Security Holders for transfer to NATCO, (iii) the closing
certificates described in Section 5.5, (iv) signed minutes of its
directors approving this Agreement, the transfer of the Lassen Stock
to NATCO and the registration and issue of new share certificates in
the name of NATCO on Lassen's Share Register, (v) legal opinion in
the form attached as Exhibit 2.25 and (vi) such other documents and
instruments as NATCO's counsel may reasonably require (collectively
referred to as the "LASSEN CLOSING DOCUMENTS").
(b) NATCO shall deliver to the Escrow Agent (i) certificates
representing three hundred twenty three million seven hundred and
fifty thousand (323,750,000) NATCO Shares issued in the names of the
Lassen Security Holders, pursuant to Exhibit 1.1, (ii) the officer's
certificate described in Section 6.5, and (iii) signed minutes of
its directors approving this Agreement (collectively referred to as
the "NATCO CLOSING DOCUMENTS").
7.2 DOCUMENTS IN ESCROW. The Escrow Agent shall hold the Lassen Closing
Documents and the NATCO Closing Documents in escrow and undelivered until the
conditions subsequent as described in section 8.1 hereunder have been completed
to NATCO's satisfaction.
7.3 ESCROW AGENT. The parties acknowledge that the Escrow Agent is a
solicitor who acts for NATCO and that he may continue to at as such during the
term of this Agreement. The Escrow Agent will be deemed not to be in conflict
by virtue of his holding the Closing Documents or performing his duties
hereunder.
7.4 AMENDMENTS. The Escrow Agent will have no duties except those that
are expressly set out herein and will not be bound by any notice of a claim or
demand with respect thereto or any waiver, modification, amendment, termination
or rescission of this Agreement unless received in writing and signed by NATCO,
Lassen and Lassen Security Holders.
7.5 INDEMNITY. NATCO, Lassen and Lassen Security Holders shall jointly
and severally indemnify and save the Escrow Agent harmless from and against any
and all liability, loss, cost, damages, claims, demands, suits, actions,
expenses and disbursements of whatever kind and nature which may be incurred by,
imposed upon, asserted against or demanded from the Escrow Agent in connection
with the performance of his duties hereunder other than those arising from the
gross negligence or fraud of the Escrow Agent.
ARTICLE VIII
CONDITIONS SUBSEQUENT TO THE CLOSING DATE
8.1 CONDITIONS SUBSEQUENT. Following the Closing Date, the following
conditions subsequent shall be completed to the satisfaction of NATCO:
(a) Upon and subsequent to the date that is 90 days following the
Closing Date, NATCO shall have the right to retain an expert to be mutually
agreed upon between NATCO and Lassen (the "EXPERT") to conduct tests on the
prototype(s) of the Lassen energy panels in order to produce a prototype panel
to validate the technology claims by Lassen (the "PROTOTYPE"). Lassen will
fully cooperate with the Expert and provide all support as needed for the
tests. The Prototype's specifications to be verified are as follows:
Rated Power (Xxxxx) 3000
Series Fusing (Amps) 15
Current at Max. Power (Amps) 14
Voltage at Max. Power (DC Volts) 220
Short Circuit Current (Amps) 14.8
Length (Inches)
62.5
Width
32.5
Depth of Frame (Inches) 3.5
(b) Lassen shall within 90 days following the Closing Date provide
NATCO, and subject to "good faith" acceptance by NATCO, a licensing agreement
which shall include the exclusive license to: i) assemble the "Legacy", a non-
patentable portion of the Lassen energy panels protected by trade secrets, into
the Lassen energy panels; and ii) develop and construct solar/hydrogen/fuel cell
power plants and all other uses to produce solar energy in excess of one (1)
megawatt ("MW") using the Lassen energy panels.
8.2 RELEASE OF ESCROW. Within 130 days from the Closing Date, NATCO
shall provide a written confirmation to the Escrow Agent stating that either:
(a) all of the conditions as specified in section 8.1 have been
performed and completed to the satisfaction of NATCO and the Escrow Agent shall
proceed to deliver the Lassen Closing Documents to NATCO and the NATCO Closing
Documents to Lassen respectively (the "FINAL CLOSING"); or
(b) the conditions as specified in section 8.1 have not been met
and this Agreement shall be terminated. The Escrow Agent shall return the
Lassen Closing Documents to Lassen and NATCO Closing Documents to NATCO for
cancellation.
8.3 REGISTRATION AND LISTING. Following the Final Closing, NATCO shall:
(a) Continue NATCO's common stock quotation on the Electronic
Over-the-Counter Bulletin Board system;
(b) Comply with the Form 8-K requirements of the Securities
Exchange Act of 1934 (the "EXCHANGE ACT"), including the
timely preparation and filing of audited financial statements
as required by Form 8-K;
(c) Promptly retain a qualified investor and public relations
firm; and
(d) Clear any Exchange Act Rule 144 sales of NATCO common stock
offered by any NATCO common stockholder including affiliates
or former affiliates of NATCO within forty-eight (48) hours of
the filing of the Notice of Sale pursuant to Rule 144.
8.4 CORPORATE ACTION. NATCO shall file the required documents and take
the required actions to change its name to "P2 Solar, Inc." or to such other
name as deemed acceptable to the directors and management of Lassen, within
thirty (30) days following the Final Closing.
8.5 STOCK CONSOLIDATION. Within 12 months from the Final Closing, NATCO
may complete no more than one reverse stock split with respect to its common
stock then issued and outstanding on a basis no higher than 10:1.
ARTICLE IX
MISCELLANEOUS
9.1 CAPTIONS AND HEADINGS. The article and Section headings throughout
this Agreement are for convenience and reference only and shall not define,
limit or add to the meaning of any provision of this Agreement.
9.2 NO ORAL CHANGE. This Agreement and any provision hereof may not be
waived, changed, modified or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any such waiver, change,
modification or discharge is sought.
9.3 NON-WAIVER. The failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants
or conditions. No waiver by any party of one breach by another party shall be
construed as a waiver with respect to any other subsequent breach.
9.4 TIME OF ESSENCE. Time is of the essence of this Agreement and of
each and every provision hereof.
9.5 ENTIRE AGREEMENT. This Agreement contains the entire Agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings.
9.6 CHOICE OF LAW. This Agreement and its application shall be governed
by the laws of the state of Washington.
9.7 COUNTERPARTS. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.8 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
NATCO: NATCO International Inc.
#000
00000- 00 Xxxxxx
Xxxxxx, XX X0X 0X0
Xxxxxx
Attn: Xxx-Xxxxxxxx
Xxxx, Chief Executive Officer
With a copy to: Xxxxx X. Leschert
Leschert & Company Law Corporation
000 Xxxxxxxxx Xxxxxx
2760 - 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Lassen: Lassen Energy, Inc.
Suite 108A #327
000 Xxxxxxxx Xxxxxxx Xx.
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxx, Chief Executive Officer
With a copy to: The Xxxx Law Group, PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxx
9.9 BINDING EFFECT. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of each
of the parties to this Agreement.
9.10 MUTUAL COOPERATION. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
9.11 FINDERS. There are no finders in connection with this transaction.
9.12 ANNOUNCEMENTS. The parties will consult and cooperate with each
other as to the timing and content of any public announcements regarding this
Agreement.
9.13 EXPENSES. Each party will bear their own expenses, including legal
fees incurred in connection with this Agreement. The Lassen Security Holders
shall not be responsible for any costs incurred in connection with the
transaction contemplated by this Agreement.
9.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements of the parties set forth in this Agreement
or in any instrument, certificate, opinion or other writing providing for in it,
shall survive the Final Closing Date.
9.15 EXHIBITS. As of the execution hereof, the parties have provided each
other with the exhibits described herein. Any material changes to the exhibits
shall be immediately disclosed to the other party.
9.16 TERMINATION, AMENDMENT AND WAIVER.
(a) TERMINATION. This Agreement may be terminated at any time prior to
the Final Closing Date, whether before or after approval of matters presented in
connection with the share exchange by and between the stockholders of NATCO and
the stockholders of Lassen:
(1) By mutual written consent of Lassen and NATCO;
(2) By either Lassen or NATCO;
(i) If any court of competent jurisdiction or any
governmental, administrative or regulatory authority,
agency or body shall have issued an order, decree or
ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the transactions
contemplated by this Agreement; or
(ii) If the transaction shall not have been consummated on
or before thirty (30) days following mutual execution
of this Agreement, unless the failure to consummate the
transaction is the result of a material breach of this
Agreement by the party seeking to terminate this
Agreement.
(3) By Lassen, if NATCO breaches any of its representations or
warranties hereof or fails to perform in any material respect any of its
covenants, agreements or obligations under this Agreement; and
(4) By NATCO, if Lassen breaches any of its representations or
warranties hereof or fails to perform in any material respect any of its
covenants, agreements or obligations under this Agreement.
(b) TERMINATION AFTER CLOSING DATE. This Agreement may be terminated by
NATCO after the Closing Date, if the Conditions Subsequent are not completed to
NATCO's satisfaction.
(c) EFFECT OF TERMINATION. In the event of termination of this
Agreement by either NATCO or Lassen, as provided herein, this Agreement shall
forthwith become void and have no effect, without any liability or obligation on
the part of Lassen or NATCO, and such termination shall not relieve any party
hereto for any intentional breach prior to such termination by a party hereto of
any of its representations or warranties or any of its covenants or agreements
set forth in this Agreement.
(d) EXTENSION; WAIVER. At any time prior to the Final Closing Date, the
parties may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligation of the other acts of the other parties, (b)
waive any inaccuracies in the representations and warranties contained herein or
in any document delivered pursuant hereto or waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
(d) PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. A
termination of this Agreement, an amendment of this Agreement or an extension or
waiver shall, in order to be effective, require in the case of Lassen or NATCO,
action by its respective Board of Directors or the duly authorized designee of
such Board of Directors.
1
In witness whereof, the parties have executed this Agreement concerning
the exchange of securities on the date indicated above.
NATCO INTERNATIONAL INC.
/s/ Xxx-Xxxxxxxx X. Xxxx
_____________________________
By: Xxx Xxxx
Its: Chairman and Chief Executive
Officer
LASSEN ENERGY, INC. AND ITS SECURITY HOLDERS
/s/ Xxxxx Xxxx
By: Xxxxx Xxxx
Its: Chairman and Chief Executive
Officer
Name and Signature of Shareholder Number and Type of Shares held
DBK Corporation
/s/ Xxxxx Xxxx
14,700,000 common shares
By: Xxxxx Xxxx
Its: Chairman and Chief Executive
Officer
Resource Capital Development, Inc.
/s/ Xxxxxx X. Xxxxx
6,300,000 common shares
By: Xxxxxx X. Xxxxx
Its: President
Capital Group Communications, Inc.
/s/ Xxxxx Xxxxx
5,250,000 common shares
By: Xxxxx Xxxxx
Its: President
Xxxxx Xxxxxxxxxx
/s/ Xxxxx Xxxxxxxxxx
1,750,000 common shares
By: Xxxxx Xxxxxxxxxx
Xxxxxx XxXxxxxx
/s/ Xxxxxx XxXxxxxx
1,750,000 common shares
By: Xxxxxx XxXxxxxx
Xxxxxx Xxxxxx, LLC
/s/ Xxxxx Xxxxxxx 1,750,000 common shares
By: Xxxxx Xxxxxxx
Its: Manager
The Xxxx Law Group, PLLC
/s/ Xxxxx X. Xxxx
By: Xxxxx X. Xxxx 875,000 common shares
Its: President
32,375,000 common shares
TOTAL:
2
EXHIBIT 1.1
LIST OF LASSEN SECURITY HOLDERS TO RECEIVE NATCO COMMON STOCK
(To be provided prior to Closing)
1
EXHIBIT 1.2
SUBSCRIPTION AGREEMENT
(To be provided prior to Closing)
1
EXHIBIT 2.11
LASSEN FINANCIAL STATEMENTS
(To be provided prior to Closing)
1
EXHIBIT 2.13
LASSEN LIABILITY SCHEDULE
(To be provided prior to execution of Agreement)
Creditor Amount Owed
1. State of California $750
2. DBK $13,300
3. RCD $24,000
Total $38,050
1
EXHIBIT 2.22
LASSEN ASSETS
(To be provided prior to execution of Agreement)
Asset
1. Patent Application, Reference Number 20070204899, filed with the United
States Patent and Trademark Office ("USPTO") on March 2, 2006 (the "Patents").
Pursuant to the Assignment of Patents executed on February 28, 2008, Xxxxx
Xxxxxxxxx Xxxx ("Xxxx") assigned all of Xxxx'x right, title and interest in and
to the Patents, and any and all continuations, divisions, reissuances, renewals
and extensions thereof to Lassen Energy, Inc. ("Lassen") in consideration for
fourteen million seven hundred thousand (14,700,000) shares of Lassen's common
stock.
2. Exclusive Intellectual Property, Licensing, Manufacturing and Purchase
Agreement by and between DBK Corporation, Xxxxx Xxxx, Resource Capital
Development, Inc., and Lassen Energy, Inc.
DBK Corporation ("DBK") and Xxxx will xxxxx Xxxxxx an exclusive license to
assemble and utilize the portion of the solar panel known as the "Legacy". The
solar panel consists of 2 primary parts: i) Part A, which is represented by
Patent Application, Reference Number 20070204899, filed with the USPTO on March
2, 2006; and ii) Part B, which is protected by trade secrets, and which a
general description is provided on Schedule 1 to the Licensing Agreement. DBK
will manufacture the Legacy and will provide Legacy units to Lassen to be
assembled with Part A to make up the complete solar panel. Xxxx has agreed to
transfer all the trade secrets, know-how and other information concerning the
Legacy to a mutually agreeable escrow agent which shall be released to Lassen in
the event that Xxxx and/or DBK cannot provide units of the Legacy to Lassen.
Additionally, Lassen will have the exclusive right to develop and construct all
sources who produce in excess of one (1) Megawatt ("MW") of solar electric power
using the solar panels produced by Lassen (otherwise known as "Power Plants").
DBK currently has agreements in place with its dealers whereby dealers can
purchase solar panels for use equal to or less than one (1) MW. After the
licensing agreement, Lassen will be the sole manufacturer of the solar panels
which the dealers will receive. The exclusive licenses shall expire on January
31, 2009 if Lassen does not close at least $10,000,000 of financing on or prior
to January 31, 2009.
3. Binding Letter of Intent for the purchase of certain real property in
Lassen County, California, signed March 18, 2008 (to be amended).
This is a binding letter of intent ("LOI") between Lassen and Xxxxxx X.
Xxxx ("Xxxx") for the purchase and sale of real property in Lassen County,
California identified by Assessor's Parcel No. 000-000-00, 9 & 42, additional
locators RS No. 2-5-03 in Section 14 & 15, T28N, R16E, MDM (BK 38 Pg. 21) (the
"Property"). Lassen and Kang will execute an amendment to the LOI extending
the date for completing the purchase and sale of the Property. The definitive
purchase and sale agreement is expected soon thereafter.
EXHIBIT 2.23
LASSEN MATERIAL CONTRACTS
(To be provided prior to Closing)
EXHIBIT 2.25
FORM OF OPINION FROM LASSEN'S AND LASSEN SECURITY HOLDERS' COUNSEL
(To be typed on the letterhead of the Lassen Security Holders'and Lassen's
solicitors)
NATCO International Inc.
#000
00000- 00 Xxxxxx
Xxxxxx, XX X0X 0X0
Xxxxxx
ATTN: XXX-XXXXXXXX XXXX, CHIEF EXECUTIVE OFFICER
Leschert & Company Law Corporation
0000-000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xx. Xxxxx D. Leschert
Dear Sirs:
RE: NATCO INTERNATIONAL INC. ACQUISITION OF ALL THE ISSUED AND OUTSTANDING
SHARES IN LASSEN ENERGY, INC. ("LASSEN")
We have acted as counsel to all the security holders of Lassen (collectively the
"Lassen Security Holders") and Lassen, in connection with the sale of all of the
issued and outstanding shares in the capital of Lassen (the "Lassen Stock") to
Natco International Inc. ("NATCO") in consideration of 32,375,000 fully paid and
non-assessable common shares of NATCO (the "NATCO Shares"), all pursuant to the
terms of a share purchase agreement dated for reference April __, 2008 (the
"Agreement") among the Lassen Security Holders, NATCO and Lassen.
As counsel for the Lassen Security Holders and Lassen, we have participated in
the preparation of or have reviewed and have attended to the execution of:
1. the Agreement;
2. resolutions of the Board of Directors of Lassen authorizing
the execution, delivery and performance of the Agreement;
3. resolutions of the Board of Directors of Lassen authorizing
the transfer of Lassen Stock to NATCO;
4. duly endorsed share certificates for transfer of Lassen Stock
from Lassen Security Holders to NATCO (the "Stock Transfers"); and
5. closing certificates from the Lassen Security Holders and
Lassen as anticipated in the Agreement (the "Closing Certificate").
In addition to the foregoing, we have examined such statutes, public and
corporate records, documents and certificates, and have considered such
questions of law as we have deemed relevant and necessary as a basis for the
opinions expressed herein. In all such examinations we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to authentic original documents of all documents
submitted to us as certified and photostatic copies or facsimiles thereof and
the originals of such certified or photostatic copies or facsimiles.
Whenever an opinion in this letter is qualified by the phrase "to the best of
our knowledge" with respect to the existence or absence of facts, it is intended
to indicate that during the course of our representation of the Lassen Security
Holders and Lassen, no information has come to our attention which would give us
actual knowledge of the existence or absence of such facts. However, we have
not undertaken any independent investigation to determine the existence or
absence of such facts and any limited enquiry undertaken by us during the
preparation of this opinion letter should not be regarded as such an
investigation. No inference as to our having constructive knowledge of the
existence or absence of such facts should be drawn merely from the fact of our
representation of the Lassen Security Holders and Lassen.
The opinions herein are based on the laws of the State of Washington and the
laws of the United States applicable therein in effect as of the date hereof.
In connection with this opinion, we have assumed or relied on the following:
(a) in connection with the opinion expressed in paragraph 1 below, we
have relied upon Certificates of Good Standing from the California
Registrar of Companies for Lassen dated _________, 2008;
(b) in connection with the opinion expressed in paragraph 3 below, we
have assumed that the Agreement and the Closing Certificate have been duly
executed and delivered by the Lassen Security Holders and Lassen and that
the Agreement and Closing Certificate constitute legal, valid and binding
obligations of the Lassen Security Holders and Lassen and are enforceable
against them in accordance with their terms subject to qualifications on
enforceability referred to below; and
(c) in connection with the opinion expressed in paragraph 8 below, we
have relied upon the Closing Certificate from the Lassen Security Holders
and Lassen dated _________, 2008.
Based and relying upon the foregoing, we are of the opinion that as at the date
hereof:
1. Lassen has been duly incorporated, organized and is a validly
existing company under the laws of the State of California and is in good
standing according to the records of the Registrar of Companies with
respect to the filing of annual returns.
2. Lassen has the corporate power and authority to conduct the business
which, to the best of our knowledge, it is presently carrying on.
3. Lassen has full corporate power and authority to enter into the
Agreement and to perform all of its obligations thereunder. Lassen has
taken all actions required to enable it to execute and deliver the
Agreement and to perform all of its obligations thereunder.
4. The authorized capital of Lassen consists of 1,000,000,000 common
shares, par value $0.001 per share, of which 32,375,000 common shares are
issued and outstanding and there are no individuals or companies who or
which beneficially own, directly or indirectly, any of the issued and
outstanding shares of Lassen other than the Lassen Security Holders.
5. There are no outstanding options, warrants, subscriptions,
conversion rights or other similar rights to purchase, acquire or require
the issuance of common shares of Lassen.
6. All necessary corporate action required of Lassen to permit the due
and valid sale and transfer of legal and beneficial ownership of the
Lassen Stock has been duly and validly effected.
7. All closing conditions that any of the Lassen Security Holders and
Lassen are entitled to rely on or waive as described in the Agreement have
been duly satisfied.
8. Upon delivery of the Stock Transfers to Lassen and the issuance of a
new share certificate registered in the name of NATCO, NATCO will become
the legal and beneficial owner of the Lassen Stock.
9. The execution, delivery and performance of the Agreement have been
duly authorized by all requisite corporate action and the Agreement has
been duly executed and delivered by Lassen. There is no provision in the
Memorandum of Incorporation, Articles or any unanimous shareholders'
agreement (collectively "Constating Documents") in effect as of the date
hereof in Lassen requiring further consent or action for the execution and
delivery of the Agreement by it. The execution and delivery of the
Agreement and the performance by Lassen of its obligations thereunder will
not violate any provision of their respective Constating Documents.
10. To our knowledge, the execution and delivery of the Agreement and
the performance by the Lassen Security Holders or Lassen of their
obligations thereunder will not violate any provision of any agreement to
which any of the Lassen Security Holders or Lassen is a party, or any of
the Lassen Security Holders' or Lassen's property is subject.
11. To our knowledge, the execution and delivery of the Agreement, and
performance by Lassen Security Holders or Lassen thereunder will not
violate any order or decree of any court, governmental authority, bureau,
or agency binding on the Lassen Security Holders or Lassen.
12. The execution and delivery of all document related to the transfer
of Lassen Stock under the Agreement by the Lassen Security Holders will
not violate any provisions of existing statutory law, rule or regulation
applicable to the Lassen Security Holders or Lassen.
13. To our knowledge, there are no actions, suits, or proceedings at
law, in equity or before any governmental authority, pending against or
affecting the Lassen Security Holders or Lassen, which would affect the
validity of the Agreement.
The undersigned acknowledges that this opinion has been requested by NATCO, that
there is privity between NATCO, its successor and assigns and the undersigned
and that NATCO is relying on the conclusions set forth in this opinion in
closing the transaction as anticipated in the Agreement and might be harmed if
they are incorrect.
Our opinions herein are subject to the following qualifications:
(a) the enforceability of the Agreement may be limited by bankruptcy,
insolvency and other laws generally affecting the enforcement rights of
creditors generally and to the discretion of the courts in granting
equitable remedies, including the remedies of specific performance and
injunction and no opinion is expressed with respect to the
enforceability of the Lassen Security Holders' and Lassen's obligations
under the Agreement; and
(b) no opinion is given as to the availability of specific performance
or other equitable remedies in any particular instance.
This opinion is provided solely for your use in connection with the above
referred transaction and may not be used or relied upon by any other person in
connection with this or any other matters or transaction without prior written
consent.
Yours very truly,
LASSEN SECURITY HOLDERS' & LASSEN'S COUNSEL
Per:
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EXHIBIT 3.5
NATCO FINANCIAL STATEMENTS
(To be provided prior to Closing)
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EXHIBIT 3.8
NATCO TAX RETURNS
(To be provided prior to Closing)
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EXHIBIT 3.12
NATCO LITIGATION
NATCO has commenced legal proceedings in British Columbia Supreme Court against
Photo Violation Technologies Corp. ("PVT") and its president, Xxxx Xxxxxxxxx
(a.k.a., Xxxx Xxxxxxx) ("Xxxxxxxxx"), claiming punitive, exemplary and
consequential damages and other remedies arising from breach of contract and
wrongful conduct on the part of Xxxxxxxxx ("PVT LAWSUIT"). NATCO claims PVT has
breached the agreement among NATCO, PVT and Xxxxxxxxx, entered into on or about
March 16, 2007 (the "PVT AGREEMENT"), which provides for completion of a
previously announced reverse merger between NATCO and PVT (the "REVERSE
MERGER"). NATCO also claims in Court documents that Xxxxxxxxx has engaged in a
number of wrongful acts, including inducing breach of contract, attempting to
divert prospective investors from NATCO to PVT, failing to provide financial
statements and other necessary documents and wrongfully instructing PVT's
counsel to purportedly terminate the Reverse Merger. NATCO is seeking to
recover approximately $1.5 million which was advanced to PVT in contemplation of
the Reverse Merger, plus obtain additional damage and other relief against PVT
and Xxxxxxxxx arising from their conduct.
PVT has also commenced legal proceedings in British Columbia Supreme Court
against NATCO and its President, Xxx-Xxxxxxxx X. Xxxx, and two other individuals
PVT alleged were "de facto" directors of NATCO, claiming damages and other
remedies arising from breach of confidence, misrepresentation, misuse of
confidential information and libel over the dealings involving the PVT Agreement
(the "PVT COUNTERCLAIM"). PVT is seeking an unspecified amount of damages plus
other relief against the defendants.
Prior to the Final Closing, NATCO will assign its rights and obligations to the
PVT Lawsuit and the PVT Counterclaim to a third party, who in turn will execute
a full indemnification in favor of NATCO from all actions arising from the
Reverse Merger, the PVT Counterclaim and PVT Lawsuit.
EXHIBIT 3.16
NATCO ASSETS
(To be provided prior to Closing, if necessary)
EXHIBIT 3.17
NATCO MATERIAL CONTRACTS
None
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