REORGANIZATION AGREEMENT BY AND BETWEEN TRIMAX CORPORATION AND INDIVIDUALS SET FORTH IN EXHIBIT A (HEREINAFTER REFERRED TO AS THE ‘SUBSCRIBERS’) DATED AUGUST 17, 2005 AMENDED OCTOBER 26, 2005
EXHIBIT 2.2
BY AND BETWEEN
TRIMAX CORPORATION
AND
INDIVIDUALS SET FORTH IN EXHIBIT A
(HEREINAFTER REFERRED TO AS THE
‘SUBSCRIBERS’)
DATED
AUGUST 17, 2005
AMENDED
OCTOBER 26, 2005
THIS REORGANIZATION AGREEMENT (the “Agreement”) is made and entered into by and between TRIMAX CORPORATION, a Nevada corporation (the “Corporation”) and the individuals set forth in Exhibit A (hereinafter referred to as the “Subscribers”) (the Corporation and the Subscribers being collectively referred to as the “Parties”).
P R E A M B L E:
WHEREAS, the Subscribers own all of the authorized issued and outstanding Common Stock of PLC Network Solutions, Inc., a privately held corporation organized under the laws of Ontario (the “Subsidiary”); and
WHEREAS, the Subscribers desire to acquire 21,900,000 shares of the Corporation’s common stock, $.001 par value (the “Stock”) which, upon issuance, would constitute approximately 70% of the Corporation’s authorized, issued and outstanding common stock; and
WHEREAS, the Subscribers desire to acquire the Stock, in consideration for their conveyance of all of their common stock in the Subsidiary, which stock constitutes all of the Subsidiary’s authorized, issued and outstanding securities (the “Subsidiary Stock”), provided that such conveyance meets the tax free exchange requirements of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the “Code”).
NOW, THEREFORE, in consideration of the premises, as well as the mutual covenants hereinafter set forth, the Parties, intending to be legally bound, hereby agree as follows:
W I T N E S S E T H:
ARTICLE ONE
EXCHANGE PROVISIONS
1.1 Exchange
Subject to the hereinafter described conditions, the Corporation hereby agrees to exchange 21,900,000 shares of its common stock, $.001 par value, with the Subscribers for all of the capital stock of the Subsidiary. The 21,900,000 shares shall represent approximately 70% of the total issued and outstanding shares on the closing date.
1.2 Closing
The exchange of the Stock for the Subsidiary Stock shall take place as soon as reasonably practicable after the defined Conditions have been met, or at such later time or different place as the Parties may mutually select. At the Closing:
(a) The Subscribers shall tender to the Corporation certificates representing all of the Subsidiary's authorized, issued and outstanding common stock, duly executed and in proper form for transfer to the Corporation, together with such executed consents, powers of attorney, stock powers and
other items as shall be required to convey such stock to the Corporation, in compliance with all applicable laws; and
(b) The Corporation shall tender to the Subscribers 21,900,000 restricted shares of the Stock on a pro-rata basis and such other items as shall be required to convey the Stock to the Subscribers.
1.3 Exemption From Registration
(a) The Subscribers hereby represent, warrant, covenant and acknowledge that:
(1) The Stock is being issued without registration under the provisions of Section 5 of the Securities Act of 1933, as amended (the “Act”) pursuant to exemptions provided pursuant to Sections 3(b), 4(2) or 4(6) or Regulation S thereof;
(2) 21,900,000 shares of the Stock will bear legends restricting its transfer to United States residents, or its transfer, sale, conveyance or hypothecation within the jurisdictional boundaries of the United States, unless such Stock is either registered under the provisions of Section 5 of the Act and under applicable State securities laws, or an opinion of legal counsel, in form and substance satisfactory to legal counsel to the Corporation is provided certifying that such registration is not required as a result of applicable exemptions therefrom;
(3) The Corporation's transfer agent shall be instructed not to transfer any of the Stock unless the Corporation advises it that such transfer is in compliance with all applicable laws;
(4) The Subscribers are acquiring the 21,900,000 shares of Stock for investment purposes only and not with a view to further sale or distribution; and
(5) The Subscribers and its advisors have examined all of the Corporation's books and records and have fully and completely questioned the Corporation's officers and directors as to all matters involving the Corporation.
(b) The Corporation hereby represents, warrants, covenants and acknowledges that:
(1) The Subsidiary Stock is being transferred without registration under the provisions of Section 5 of the Act pursuant to exemptions provided pursuant to Sections 3(b), 4(2) or 4(6) thereof;
(2) All of the Subsidiary Stock will bear legends restricting its transfer to United States residents, or its transfer, sale, conveyance or hypothecation within the jurisdictional boundaries of the United States, unless such Subsidiary Stock is either registered under the provisions of Section 5 of the Act and under applicable State securities laws, or an opinion of legal counsel is provided certifying that such registration is not required as a result of applicable exemptions therefrom;
(3) The Corporation shall not transfer any of the Subsidiary Stock except in compliance with all applicable laws;
(4) The Corporation is acquiring the Subsidiary Stock for investment purposes only and not with a view to further sale or distribution.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES
2.1 The Corporation
The Corporation hereby represents and warrants to the Subscribers, as a material inducement to their entry into this Agreement, that:
(a) The Corporation is, as of the date of this Agreement, a validly existing Corporation, organized pursuant to the laws of the State of Nevada, with all legal and corporate authority and power to conduct its business and to own its properties and that it possesses all necessary permits and licenses required in connection with the conduct of its business;
(b) The conduct of the Corporation's business is in full compliance with all applicable Federal, state and local governmental statutes, rules, regulations, ordinances and decrees;
(c) Pursuant to its Amended and Restated Articles of Incorporation, the Corporation is authorized to issue 100,000,000 Shares of Common Stock, $.001 par value. The Corporation is also authorized to issue 20,000,000 shares of Preferred Stock, par value $.001 per share. There are currently no shares of Preferred issued and outstanding. There are no other authorized or outstanding securities of any class or of any kind or character or, except as reflected in this Agreement, there are no outstanding subscriptions, options, warrants or other agreements or commitments obligating the Corporation to issue or sell any additional shares of the Corporation's capital stock or any options or rights with respect thereto, or any securities convertible into any shares of Stock of any class;
(d) Upon issuance of the Stock, the Subscribers will become the owner of approximately 70 % of the Corporation's authorized, issued and outstanding Common Stock;
(e) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement will not result in a breach of any of the terms or provisions of, or constitute a default under the Articles of Incorporation or By-laws of the Corporation; any indenture, other agreement or instrument to which the Corporation is a party or by which it or its assets are bound; or any applicable regulation, judgment, order or decree of any governmental instrumentality or court, domestic or foreign, having jurisdiction over the Corporation, its securities or its properties;
(f) The Corporation is not a party to any written or oral agreement which grants an option or right of first refusal or other arrangement to acquire any of the Stock or to any agreement that affects the voting rights of any of the Stock, nor has the Corporation made any commitment of any kind relating to the issuance of shares of any of its Stock, whether by subscription, right of conversion, option or otherwise;
(g) The Corporation is not a party to any agreement or understanding for the sale or exchange of inventory or services for consideration other than cash or at a discount in excess of normal discount for quantity or cash payment;
(h) The Corporation has filed with the appropriate governmental agencies all tax returns and tax reports required to be filed; all Federal, state and local income, franchise, sales, use, occupation or
other taxes due have been fully paid or adequately reserved for; and the Corporation is not a party to any action or proceeding by any governmental authority for assessment or collection of taxes, nor has any claim for assessments been asserted against the Corporation;
(i) There are presently no contingent liabilities, factual circumstances, threatened or pending litigation, contractually assumed obligations or unasserted possible claims which are known to the Corporation, which might result in a material adverse change in the future financial condition or operations of the Corporation; and further, that the Corporation shall be free of all material debts as of the Closing date;
(j) The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not (except for the consents described in Article Four hereof) require the consent, authority or approval of any other person or entity except such as have been obtained;
(k) No transactions have been entered into either by or on behalf of the Corporation, other than in the ordinary course of business nor have any acts been performed (including within the definition of the term performed the failure to perform any required acts) which would adversely affect the good will of the Corporation;
(l) The entering into of this Agreement and the performance thereof has been duly and validly authorized by all required Corporate action and does not require any corporate consents other than such as have been unconditionally obtained;
(m) The Corporation's Financial Statements for the period ended September 30, 2004 are audited by independent certified public accountants and have been prepared in accordance with generally accepted accounting principles applied on a consistent basis. They, along with the March 31, 2005 reviewed financial statements filed with the SEC, fairly present the Corporation’s financial condition, results of operations, assets, liabilities or business;
(n) The Corporation does not have any subsidiaries other than those disclosed in the Corporation's Financial Statements; and
(o) The Minute Books of the Corporation contain true, correct and complete copies of the minutes of all meetings of its organizers, shareholders and Board of Directors from the date of its organization to the present.
The Corporation has complied with Nevada corporate law since this transaction represents the sale of less than all of the Corporation’s assets and therefore not subjecting the Corporation to Section 14 of the Exchange Act of 1934, as that pertains to shareholder approval.
2.2 The Subscribers
The Subscribers, and the Subsidiary, hereby represent and warrant to the Corporation, as a material inducement to the Corporation's entry into this Agreement, that, to the best of their knowledge after reasonable inquiry:
(a) The Subsidiary has entered into a material business agreement with Electrolinks, a copy of which is annexed hereto and made a part hereof as Exhibit (B), and as of the date of this Agreement
no events have occurred nor have any facts been discovered which materially alters the Subsidiary’s business relationship with Electrolinks;
(b) The Subsidiary is, as of the date of this Agreement, a validly existing corporation, organized pursuant to the laws of the Canada and has all corporate authority and power to conduct its business and to own its properties and possesses all necessary permits and licenses required in connection with the conduct of its business;
(c) The conduct of the Subsidiary's business is in full compliance with all applicable governmental statutes, rules, regulations, ordinances and decrees;
(d) The Subsidiary has the authority to authorize an unlimited number of shares of common stock and has currently authorized and issued 21,900,000 shares. There are no other outstanding securities of any class or of any kind or character of the Subsidiary and, except as reflected in this Agreement, there are no outstanding subscriptions, options, warrants or other agreements or commitments obligating the Subsidiary, to issue or sell any additional shares of the Subsidiary's Stock or any options or rights with respect thereto, or any securities convertible into any shares of Stock of any class;
(e) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this Agreement will not result in a breach of any of the terms or provisions of, or constitute a default under, the Articles of Incorporation or By-laws of the Subsidiary; any indenture, other agreement or instrument to which the Subsidiary is a party or by which it or its assets are bound; or any applicable regulation, judgment, order or decree of any governmental instrumentality or court, domestic or foreign, having jurisdiction over the Subsidiary, its securities or its properties;
(f) The Subsidiary is not a party to any written or oral agreement which grants an option or right of first refusal or other arrangement to acquire any of its securities or to any agreement that affects the voting rights of any of its securities, nor has the Corporation made any commitment of any kind relating to the issuance of shares of any of its securities, whether by subscription, right of conversion, option or otherwise;
(g) The Subsidiary is not a party to any agreement or understanding for the sale or exchange of inventory or services for consideration other than cash or at a discount in excess of normal discount for quantity or cash payment;
(h) The Subsidiary has filed with the appropriate governmental agencies, if applicable, all tax returns and tax reports required to be filed; all income, franchise, sales, use, occupation or other taxes due have been fully paid or adequately reserved for; and the Subsidiary is not a party to any action or proceeding by any governmental authority for assessment or collection of taxes, nor has any claim for assessments been asserted against the Subsidiary;
(i) There are presently no contingent liabilities, factual circumstances, threatened or pending litigation, contractually assumed obligations or unasserted possible claims which might result in a material adverse change in the future financial condition or operations of the Subsidiary;
(j) The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not require the consent, authority or approval of any other person or entity except such as have been obtained;
(k) No transactions have been entered into either by or on behalf of the Subsidiary, other than in the ordinary course of business nor have any acts been performed (including within the definition of the term performed the failure to perform any required acts) which would adversely affect the goodwill of the Subsidiary;
(l) The entering into of this Agreement and the performance thereof has been duly and validly authorized by all required corporate action and does not require any consents other than such as have been unconditionally obtained.
(m) All of the Subscribers are either non-residents of the U.S. or accredited investors.
ARTICLE THREE
SPECIAL CONDITIONS
3.1 Each Party
The obligations of each Party to this Agreement are subject to the condition precedent that the other Party’s representations and warranties contained in this Agreement shall be true, correct and complete on and as of the date of Closing with the same effect as though such representations and warranties were made on and as of such date.
ARTICLE FOUR
MISCELLANEOUS
4.1 Amendment
No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is evinced by a written instrument, subscribed by the Party against which such modification, waiver, amendment, discharge or change is sought.
4.2 Notice
All notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly given on the first business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
| TO THE CORPORATION: | TRIMAX Corporation |
| Xxxxxxx Tower, 000 Xxx Xxxxxx, #0000 | |
| Xxxxxxx, Xxxxxxx, Xxxxxx X0X0X0 | |
| TO THE SUBSCRIBERS: | PLC Network Solutions, Inc. |
| 000 Xxxxx Xx. Xxxx, Xxxxx #000 |
Xxxxxxx, Xxxxxxx, XXXXXX X0X 0X0
or such other address or to such other person as any Party shall designate to the other for such purpose in the manner hereinafter set forth.
4.3 Merger
This instrument, together with the instruments referred to herein, contains all of the understandings and agreements of the Parties with respect to the subject matter discussed herein. All prior agreements whether written or oral are merged herein and shall be of no force or effect.
4.4 Survival
The several representations, warranties and covenants of the Parties contained herein shall survive the execution hereof and shall be effective regardless of any investigation that may have been made or may be made by or on behalf of any Party.
4.5 Severability
If any provision or any portion of any provision of this Agreement, other than one of the conditions precedent, or the application of such provision or any portion thereof to any person or circumstance shall be held invalid or unenforceable, the remaining portions of such provision and the remaining provisions of this Agreement or the application of such provision or portion of such provision as is held invalid or unenforceable to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby.
4.6 Governing Law and Venue
This Agreement shall be construed in accordance with the laws of the State of Florida and any proceeding arising between the Parties in any matter pertaining or related to this Agreement shall, to the extent permitted by law, be held in the City of Fort Lauderdale, Florida.
4.7 Indemnification
Each Party hereby irrevocably agrees to indemnify and hold the other Parties harmless from any and all liabilities and damages (including legal or other expenses incidental thereto), contingent, current, or inchoate to which they or any one of them may become subject as a direct, indirect or incidental consequence of any action by the indemnifying Party or as a consequence of the failure of the indemnifying Party to act, whether pursuant to requirements of this Agreement or otherwise. In the event it becomes necessary to enforce this indemnity through an attorney, with or without litigation, the successful Party shall be entitled to recover from the indemnifying Party, all costs incurred including reasonable attorneys' fees throughout any negotiations, trials or appeals, whether or not any suit is instituted.
4.8 Litigation
In any action between the Parties to enforce any of the terms of this Agreement or any other matter arising from this Agreement, the prevailing Party shall be entitled to recover its costs and
expenses, including reasonable attorneys' fees up to and including all negotiations, trials and appeals, whether or not litigation is initiated.
4.9 Benefit of Agreement
The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties, their successors, assigns, personal representatives, estate, heirs and legatees.
4.10 Captions
The captions in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope of this Agreement or the intent of any provisions hereof.
4.11 Number and Gender
All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the Party or Parties, or their personal representatives, successors and assigns may require.
4.12 Further Assurances
The Parties agree to do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered and to perform all such acts and deliver all such deeds, assignments, transfers, conveyances, powers of attorney, assurances, stock certificates and other documents, as may, from time to time, be required herein to effect the intent and purpose of this Agreement.
4.13 Status
Nothing in this Agreement shall be construed or shall constitute a partnership, joint venture, employer-employee relationship, lessor-lessee relationship, or principal-agent relationship.
4.14 Counterparts
This Agreement may be executed in any number of counterparts. All executed counterparts shall constitute one Agreement notwithstanding that all signatories are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed effective as of the 26th day of October , 2005 .
| CORPORATION: | ||
| TRIMAX CORPORATION | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx, President | ||
| CORPORATION: | ||
| PLC NETWORK SOLUTIONS, INC. | ||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Xxxxxxxx Xxxxxxxxx, President | ||
| SUBSCRIBERS: | ||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxxx Xxxxxxxxx | ||
| By: | /s/ Xxxxx XxXxxxx | |
| Name: Xxxxx XxXxxxx | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| By: | /s/ Xxxxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxxxx X. Xxxxxxxxx | ||
| By: | /s/ Xxxxx XxXxxxx | |
| Name: Xxxxx XxXxxxx | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| By: | /s/ Xxxxxxxx Xxxxx | |
| Name: Xxxxxxxx Xxxxx | ||
| By: | /s/ Xxxxxxxxx Dhensa | |
| Name: Xxxxxxxxx Dhensa | ||
| By: | /s/ Xxxxx Stepkoff | |
| Name: Xxxxx Stepkoff | ||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxxx Xxxxxxxxx | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| By: | /s/ Xxxxxxxxxx Xxxxxxxxx | |
| Name: Xxxxxxxxxx Xxxxxxxxx | ||
| By: | /s/ Sukheep Xxxxx | |
| Name: Xxxxxxxx Xxxxx | ||
| By: | /s/ Xxxxxxxx X. Faclaris | |
| Name: Xxxxxxxx X. Faclaris |
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx | ||
| By: | /s/ Xxxx Xxxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxxx | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| By: | /s/ Maryna Dvorska | |
| Name: Maryna Dvorska | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: Xxxxxx Xxxxxxxx | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: Pazovan International Holdings Inc. | ||
| By: | /s/ Xxxx X. Raja | |
| Name: Riaz. A. Raja | ||
| By: | /s/ Xxxxxx Xxxx Khural | |
| Name: Xxxxxx Xxxx Khural |
| By: | /s/ Xxxxxxxxx Xxxxx | |
| Name: Xxxxxxxxx Xxxxx | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx. |
EXHIBIT A
PLC Network Solutions Inc. Shareholders List
| |
Name | Address | Purchased Shares |
Percentage Of Shares |
| 1 | Xxxxxxxx Xxxxxxxxx | 16 - 0000 Xxxxx Xxxxxxx Xxxxxxxxxxx, Xx X0X 0X0 |
2,000,000 | 9.13% |
| 2 | Xxxxx Xxxxxxx | 16 - 0000 Xxxxx Xxxxxxx, Xxxxxxxxxxx, Xx X0X 0X0 |
2,000,000 | 9.13% |
| 3 | Xxxx Xxxxx | 000 Xxxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxxx, X0x 0x0 |
2,000,000 | 9.13% |
| 4 | Xxxxx Xxxxx | 000 Xxxxxxx 0,
Xxxxxx Xxxxx, Xxxxxxx X0X 0X0 |
2,000,000 | 9.13% |
| 5 |
Xxxxxxxx X. Xxxxxxxxx |
00 Xxxx Xxxxxx Xxxxx, Xxx. 000 Xxxxxxx, Xx. X0x 0x0 |
1,000,000 | 4.57% |
| 6 |
Xxxxx Xxxxxxx |
0 Xxxxxxx Xxxxx Xxxxxx Xxxxx, Xx. |
500,000 | 2.28% |
| 7 | Xxxxxx Xxxxxxxxx | 0000 Xxxxxxxxx Xxxx Xxxx Xxxxxxxxxxx, Xx X0X 0X0 |
1,000,000 | 4.57% |
| 8 | Xxxxxxxx Xxxxx | 000 Xxxxxxx 0,
Xxxxxx Xxxxx, Xxxxxxx X0X 0X0 |
2,000,000 | 9.13% |
| 9 |
Xxxxxxxxx Dhensa |
00 Xxxxxxxx Xxxx Xxxxxxxx, Xxx. X0x-0x0 |
250,000 | 1.14% |
| 10 | Xxxxx Stepkoff | 000 Xxxxxxx
Xxxx Xxxxxxxxxxx, Xx X0X 0X0 |
200,000 | 0.91% |
| 00 | Xxxxxxxx Xxxxxxxxx | 00 Xxxxxxxxxx
Xx. Xxxxxxxx, Xxxxxxxxx, Xxxxxxx |
250,000 | 1.14% |
| 12 |
Xxxxx Xxxxx |
00 Xxxxxxxx Xxxxx Xxxxxxxxx, Xx. X0x 0x0 |
25,000 | 0.11% |
| 00 | Xxxxxxxxxx Xxxxxxxxx | 00 Xxxxxxxxxx
Xx. Xxxxxxxx, Xxxxxxxxx, Xxxxxxx |
250,000 | 1.14% |
| 14 |
Xxxxxxxx
Xxxxx |
000 Xxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx |
130,000 | 0.6% |
| 15 |
Xxxxxxxx X. Faclaris |
0 Xxxxxxx Xxxxxxxxxxx, Xx. |
25,000 | 0.11% |
| 16 | Xxxxxxx Xxxxx | 000
Xxxx 0xx. Xxxxxx Xxxxx Xxxxxxxxx X0X 0X0 |
50,000 | 0.23% |
| 17 |
Xxxx Xxxxxxxxxxx |
00 Xxxx Xxxxx, Xxxxx 000 Xxxxxxx, Xxx X0x-0x0 |
50,000 | 0.23% |
| 18 |
Xxxx Xxxxxxxx |
0000 Xxxxxxxx Xxxx Xxxxxxx, Xxx. M1n-1t6 |
1,500,000 | 6.85% |
| 19 |
Maryna Dvorska |
00000 Xxxxxx Xxxx 0 Xxxxxxxx, Xxx X0x-0x0 |
1,175,000 | 5.37% |
| 20 | Xxxxxx Xxxxxxxx | 0 -
Xxxxxx Xxxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxx. |
1,200,000 | 5.48% |
| 00 | Xxxxxxx Xxxxxxxxxxxxx Xxxxxxxx Inc. | 0000
Xxxxxxxxxx Xx., Xxxxxxxx, Xxxxxxx X0X 0X0 |
2,025,000 | 9.25% |
| 22 |
Riaz.
A. Raja |
00 Xxxxxxxxxxx
Xxxx Xx. Xxxxx 0000, Xxxxxxx. Xxxxxxx |
20,000 | 0.1% |
| 23 |
Xxxxxx Xxxx
Khural |
00 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx Xxxxxxx. X0x 0x0 |
500,000 |
2.28% |
| 24 |
Xxxxxxxxx Xxxxx
|
0 Xxxxx Xx.
Xxxxxxx, Xxx. X0x- 0x0 |
500,000 |
2.28% |
| 00 |
Xxxx X. Xxxxxxx
|
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx. X0x-0x0 |
250,000 |
1.14% |
| 26 |
Xxxxx Xxxxxxx
|
0 Xxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxxx |
1,000,000 |
4.57% |
| TOTAL | 21,900,000 | 100.00% |
EXHIBIT B
EXCLUSIVE SUPPLY AGREEMENT
THIS AGREEMENT made as of the 29th day of July, 2005
BETWEEN:
ELECTROLINKS CORPORATION
(a Canadian Corporation, hereinafter referred to as the “Electrolinks”)
- and –
PLC NETWORK SOLUTIONS INC.
(a Ontario Corporation (hereinafter referred to as “PLC”)
WHEREAS “Electrolinks” Corporation is a system and product provider for broadband power line communication access products (the “Products”);
AND WHEREAS “PLC” wishes to acquire the exclusive right to sell the Products in Canada and the non-exclusive right world wide;
AND WHEREAS “Electrolinks” maintains that it has secured exclusive Canadian Distribution rights, and non-exclusive Distribution rights for the remaining Global Domain for BPL (Broadband Over Power Line) devices from Ascom AG of Switzerland, and has therefore agreed to supply the Products in accordance with the terms and provisions of this agreement;
NOW THEREFORE in consideration of the payments to be made by “PLC” to “Electrolinks” as required by this agreement, the mutual covenants contained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged “Electrolinks” and “PLC” agree as follows:
DEFINITIONS AND MEANINGS
1. Definitions In this Agreement, any word or expression defined in quotation marks and having a capitalized first letter in any specific Section will have the meaning described in this Section, and the following words and expressions shall have the following meanings:
| 1.1 | “Agreement” shall mean this agreement and
all amendments thereto; |
| 1.2 | “Customer” or “Customers” means
third parties who have contracted with “PLC” for the purchase
of the Products; |
| 1.3 | "Dollars" shall mean Canadian Dollars; |
1.4 |
"Person" where the context
allows, includes any physical person, legal person, partnership or association,
or any groups or combinations of same; |
1.4a |
“Hydro” shall mean
all Hydro organizations, Hydro providers, Hydro suppliers, Hydro Organizations.
|
1.5 |
“Products” shall
mean all Low-Voltage in building hardware and Software sold by “Electrolinks”
for the purpose of providing broadband access over power lines, the installation
of all Hardware and Software and the training of the Customers in the
use thereof; |
1.6 |
“Software” shall
mean a software program being sequences of instructions to carry out a
process in, or convertible into, a form executable by a computer or similar
device or hardware in the form of applications, components and libraries,
and fixed in any tangible medium of expression; |
1.7 |
“Terms and Procedures"
means the distribution terms and procedures governing, among other matters
the form and manner of the shipping of the Products, supply of promotional
material and service and warranty policies; |
1.8 |
“Term” shall mean
a term of five years commencing on the 1st day of August, 2005; |
1.9 |
“Territory” shall
mean the Dominion Of Canada (Exclusively) and the Global Domain (Non-Exclusive)
|
2.0 |
Meanings |
In this Agreement, |
|
2.1 |
a word importing the masculine,
feminine or neuter gender only include members of the other genders; |
2.2 |
a word defined in or importing
the singular number has the same meaning when used as the plural number,
and vice versa; |
2.3 |
a reference to any Act, by-law,
rule or regulation or to a provision thereof shall be deemed to include
a reference to any Act, by-law, rule or regulation or provision enacted
in substitution therefore or amendment thereof; |
2.4.1 |
the headings to each section
are inserted for convenience of reference only and do not form part of
the Agreement. |
LICENSE FEES
“PLC” agrees to render an annual License fee to “Electrolinks”, of $100,000 for the term of this agreement. The annual fee may be paid at any moment in time throughout the duration of that particular year, and shall be deemed to be a default and breach of contract if otherwise
SUPPLY PROVISIONS
| 3.0 | Exclusive (except Hydro) Supply and
Payment |
|
| 3.1 | “Electrolinks” agrees that in
accordance with the terms of this Agreement and during the Term, to Sell
and Supply Products to PLC Network Solutions Inc., and not to sell or
supply to any other Person or Legal Entity within Canada, with the exception
of Hydro as defined in section 1.4a. |
|
| 3.2 | “PLC” acknowledges and agrees
that it is prohibited from purchasing BPL Products and reselling or distributing
the Products including the entering into any distribution, sub-license,
joint venture, partnership or assignment agreement or arrangement with
any Person. “PLC” is specifically prohibited from directly contacting
Ascom AG (“Electrolinks” Supplier) directly or entering into
any kind of business relationship with Ascom AG |
|
| 3.3 | “Electrolinks” shall not knowingly
directly sell or permit any of its associated companies to sell the Products
within the Territory to anyone other than the Customers (except Hydro)
provided however that “Electrolinks” shall not be liable in
any way for any unauthorized sale of the Products made by any person”
or its affiliates within the Territory. |
|
| 3.4 | Notwithstanding anything in this Agreement,
“Electrolinks” reserves the right at any time and from time
to time, to limit or discontinue the production of any of the Products
or to terminate or limit deliveries of any of the Products, and to alter
the design and configuration of any of the Products. These potential cancellations
or changes to the product line is not with the intent of arbitrarily canceling
any portion of this license agreement, but only to add, replace, and modify
the products supplied by “Electrolinks” to “PLC” for
the sole purpose of enhancing the product line to the benefit of the Customer
and both parties. |
|
| 4.0 | Obligations and Early Termination
|
|
| 4.1 | During the Term “Electrolinks”
shall: |
|
(a) |
Use its best efforts to maintain an adequate inventory
of the Products, and supply all Products ordered by “PLC” for
the Customers within a reasonable period of time; |
|
(b) |
Provide reasonable training and technical support
to “PLC”; provide “PLC” with current copies of all
technical bulletins and other notices produced by it that relate to any
of the Products; |
|
(d) |
Provide a reasonable quantity of the current copies
of all instructions book and other material relating to any of the Products;
|
|
(e) |
At the request of “PLC” and on such reasonable
terms and conditions as “Electrolinks” may determine with respect
to quantities to brand the Products with “PLC”’s name and
logo. |
|
| 4.2 | “PLC” covenants and agrees with
“Electrolinks” that as long as this Agreement remains in effect,
it shall comply with its obligations as set out in this Agreement. |
|
| 4.3 | Notwithstanding the Term set out in Article
1.8 “Electrolinks” may upon 30 days prior written notice to
“PLC” terminate this agreement if the Customers have not purchased
Products having a cumulative price during each year of the Term as follows:
|
|
| Year of Term Cumulative | Price of Products Sold |
| 1 | $500,000.00 |
| 2 | $1,000,000.00 |
| 3 | $2,000,000.00 |
| 4 | $3,000,000.00 |
| 5 | $5,000,000.00 |
| 5.0 | Warranty |
| 5.1 | “Electrolinks” shall provide a warranty
to the Customers that at the time of their supply, the Products shall
be free from any defects in manufacture, design, material or workmanship,
and where “Electrolinks” is advised of any defects that appear
in the Products within one year of the date on which they are supplied,
“Electrolinks” may, at its option either repair or replace them
without cost to “PLC”. |
| 6.0 | Terms and Procedures |
| 6.1 | From time to time “Electrolinks” may prescribe
Terms and Procedures governing the manner and terms on which the Products
are sold. |
| 6.2 | “PLC” shall comply with the Terms and Procedures
for the time being in effect. |
| 6.3 | “Electrolinks” and “PLC” Network
Solutions Inc. may mutually amend, delete, add to, or otherwise vary the
Terms and Procedures of this agreement. |
| 7.0 | Order Procedure |
| 7.1 | From time to time, “Electrolinks” may prescribe
an order form to be used by “PLC” in ordering the Products.
|
| 7.2 | Every order shall include a purchase order number
specified by “PLC”, and “Electrolinks” shall not be
obliged to accept any order until a purchase order number has been given.
|
| 7.3 | From time to time, “Electrolinks” may nominate
affiliates of “Electrolinks” from which particular Products
are to be ordered, and “PLC” shall direct orders for those products
to those affiliated corporations, but where an order is placed with an
affiliated corporation, “Electrolinks” shall cause that affiliated
corporation to comply with the obligations of “Electrolinks”
under this Agreement with respect to the Products concerned. |
| 7.4 | All orders shall be in writing and shall be signed
by a signing officer authorized by “Electrolinks” to place orders
under this Agreement. |
| 7.5 | “PLC” shall appoint signing officers authorized
to place orders under this Agreement and “PLC” shall notify
“Electrolinks” immediately of the persons so appointed and shall
provide “Electrolinks” with a sample of the signature of each
of those persons. |
| 7.6 | All orders shall be deemed to be subject
to and incorporate all terms and conditions of this Agreement and all
current standard conditions of sale of “Electrolinks” in effect
at the time when the order is placed, and upon the request of “PLC”
from time to time, “Electrolinks” shall provide “PLC”
with a current copy of the standard conditions of sale then in effect.
|
|
| 8.0 | Price |
|
| 8.1 | The price for all Products supplied shall
be: |
|
| (a) |
“Electrolinks” prevailing price for shipments
of the same types, models, quantity and quality of Products at the time
of shipment, and for the purpose of determining that price, “Electrolinks”
price list in effect at any particular time shall be prima facie
evidence of the prevailing price at that time (the “Equipment
Cost Paid By “Electrolinks” ”); |
|
| (b) |
An amount equal to multiplying the Equipment Cost
times 1.95 for installing the Equipment and training of the Customers.
This Cost may be restructured at any point in time if and when the manufacturing
cost of the products, are somehow reduced. |
|
| 8.2 | Subject to subsection 8.1 “Electrolinks”
reserves the right to change the price of any Product at any time, without
prior notice to “PLC”, but where the price of a Product is increased
after it is ordered but before it is shipped, “Electrolinks”
shall notify “PLC” of the price increase before shipping the
Product, and “PLC” may cancel that order at any time before
the Product is shipped. However, the pricing model and provisions (“Equipment
Cost Paid By “Electrolinks” ”) within this agreement shall
at all times remain in effect if any such price increases are implemented
by “Electrolinks” . |
|
| 8.3 | The purchase price for each order shall
be paid in advance by direct deposit in the account of “Electrolinks”
at its bank to be designated from time to time. |
|
| 9.0 | Delivery and Risk |
|
| 9.1.1 | All risks related to the goods and ownership
of the goods pass to the Customers at the time of delivery. |
|
| 10. | Force Majeure |
|
| 10.1 | “Electrolinks” shall not be
liable to the Customers or “PLC” nor to any other person for
any delay in the supply of a Product or inability to supply a Product
or perform any other obligation of “Electrolinks” under this
Agreement that is wholly or partly attributable to fire, flood, any act
of God, the Queen or Her enemies (whether foreign or domestic), war (whether
or not declared), riot or other civil disturbance, labour dispute, or
by any other causes similarly beyond the control of “Electrolinks”,
but where “Electrolinks” is not able to fill an order for any
of the foregoing reasons within 60 days of the date on which the order
is placed, “PLC” may cancel that order by written notice given
at any time prior to the shipment of the Product concerned. |
|
| 11. | Default and Remedies | |
| 11.1 |
The following constitute acts or events
of default: |
|
| (a) |
Whereas “PLC” defaults in the payment
of any amount owed by it to “Electrolinks”, or defaults in the
performance of any covenant under this Agreement; |
|
| (b) |
Whereas any formal or informal proceeding
for the dissolution of, liquidation of, or winding up of, the affairs
of “PLC” is instituted by or against “PLC”, or where
a resolution is passed or any other act undertaken for the winding up
of “PLC”; |
|
| (c) |
Whereas “PLC” ceases or threatens
to cease to carry on its business, or where “PLC” makes or agrees
to make a bulk sale of its assets; |
|
| (d) |
Whereas “PLC” sells, assigns, pledges
or otherwise disposes of or deals with the whole or any part of the Products
other than as permitted under this Agreement; |
|
| (e) |
Whereas “PLC” is adjudged bankrupt
or becomes insolvent, or a petition in bankruptcy is filed against “PLC”,
or where “PLC” makes an assignment for the general benefit of
creditors or where proceedings of any type are instituted in any jurisdiction
in respect of the alleged insolvency or bankruptcy of “PLC”;
|
|
| (f) |
Whereas any certificate, statement, representation,
warranty or audit report made in connection with this Agreement or any
other agreement between “PLC” and “Electrolinks” as
an inducement to “Electrolinks” to enter into Agreement was
false or misleading in any material respect at the time of its making,
or Communications forthwith of any such material fact. |
|
| “Electrolinks” acknowledges that it cannot
arbitrarily cancel this exclusive license agreement with “PLC”
Network Solutions Inc. for any reason or grounds other than any of the
provisions outlined in this agreement not being satisfied. |
||
| 11.2 |
Where there is a default by “PLC”
under this Agreement, “Electrolinks” may waive that default
by written notice to that effect, whether given before or after the default,
and where “Electrolinks” so waives the default, the position
of the parties and the status of the Products shall be as if the default
had not occurred. |
|
| 11.3 |
A waiver of a default shall not extend
to or be taken in any manner whatsoever to affect the rights of “Electrolinks”
with respect to any subsequent default, whether similar or not. |
|
| 11.4 |
Where an event or act of default occurs
and that default is not remedied or rectified after 30 days written notice
or waived, “Electrolinks” may discontinue any further supply
of Products to “PLC” and or terminate this agreement. |
|
| 11.5 |
“PLC” Default Protection Provision
– “Electrolinks” has the obligation to notify “PLC”
Network Solutions Inc. within 60 days, should the possibility exist that
it may not be able to meet its financial obligations with Ascom under
its licensing agreement, which could result in the cancellation or termination
of its license. This disclosure obligation would also exist if, “Electrolinks”
should be deemed to be insolvent, entering into bankruptcy proceeding,
or any legal disputes in regards to its license. Should any of these circumstances
arise, PLC Network Solutions has the right to enter into discussions with
“Electrolinks” to attempt to resolve any issues in this regard,
which would additionally include contacting Ascom directly. |
|
| 12.0 | General Administrative | |
| 12.1 | (a) | Any notice, instruction or document required or permitted
to be given or served by this Part or by law may be given personally or
by prepaid courier to the intended recipient at the address set out in
this Agreement, but either party may by notice given in accordance with
this subsection change its address for the purposes of this subsection.
The addresses of the parties shall be: |
To Electrolinks Corporation :
000 Xxxxx Xx. Xxxx, Xxxxx #000
Xxxxxxx, Xxxxxxx, XXXXXX X0X 0X0
Ph 000 000 0000
Fax 000 000 0000
To PLC Network Solutions Inc :
000 Xxxxx Xx. Xxxx, Xxxxx #000
Xxxxxxx, Xxxxxxx, XXXXXX X0X 0X0
(b) |
Any notice shall be deemed (in the absence of evidence
of prior receipt) to have been received by the intended recipient the
same day if personally served or on the fifth business day next following
where sent by courier. |
|
| 12.2 | This Agreement shall not be deemed to be
or construed as having been amended as a result of any oral communication
between the parties or as a result of any practice of the parties, but
all amendments to this Agreement shall be in writing and shall be signed
by both parties, provided that any such agreement may be executed in counterpart
form. |
|
| 12.3 | The rights of “PLC” under this
Part are personal to “PLC” and neither the benefits nor the
obligations of “PLC” under this Part may be assigned. |
|
| 12.4 | All rights of “Electrolinks”
under this Part shall inure to the benefit of its successors or assigns
and all obligations of “PLC” shall not be assignable. |
|
| 12.5 | This Agreement shall be governed by and
shall be construed in accordance with the laws of the Province of Ontario,
Canada, and the parties hereby consent to the non-exclusive jurisdiction
of the Ontario Court (General Division) with respect to any dispute arising
under this Agreement or with respect to any order placed under this Agreement.
|
|
| 12.6 | Neither party shall be liable to the other
party or any third party for any special, consequential, exemplary or
incidental damages (including lost or anticipated revenues or profits
relating to the same) arising from any claim relating to this agreement,
whether such claim is based on contract, tort (including negligence) or
otherwise, even if an authorized representative of such party is advised
of the possibility or likelihood of same. These limitations shall apply
notwithstanding the failure of the essential purpose of any limited remedy,
and the parties acknowledge that this paragraph represents a reasonable
allocation of risk. |
|
| 12.7 | Should any section, or portion thereof,
of this Agreement be held invalid by reason of any law, statute or regulation
existing now or in the future in any jurisdiction by any court of competent
|
|
authority or by a legally enforceable directive of
any governmental body, such section or portion thereof shall be validly
reformed so as to approximate the intent of the parties |
|
| 12.8 | The terms and provisions contained in the Agreement,
including the Exhibits hereto, constitute the entire Agreement between
the parties and shall supersede all previous communications, representations,
Agreements or understandings, either oral or written, between the parties
with respect to the subject matter hereof. No Agreement or understanding
varying or extending this Agreement shall be binding upon either party
hereto, unless set forth in writing which specifically refers to the Agreement
signed by duly authorized officers or representatives of the respective
parties, and the provisions hereof not specifically amended thereby shall
remain in full force and effect. |
| 12.9 | This Agreement may be executed in counterparts, each
of which shall be deemed an original, but which together shall constitute
one and the same instrument. |
IN WITNESS WHEREOF the parties have executed this Agreement on the date first set out above under the hands of their duly authorized signing officers.
| Electrolinks Corporation | ||
| Per: | /s/ Bir Xxxxx | |
| Xxx Xxxxx, Director | ||
| I am authorized to bind the Corporation | ||
| PLC Network Solutions Inc. | ||
| Per: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Xxxxxxxx Xxxxxxxxx, President | ||
| I am authorized to bind the Corporation | ||
