EXHIBIT 2
TECHNOLOGY ACQUISITION AGREEMENT
THIS TECHNOLOGY ACQUISITION AGREEMENT, made and entered into as of this
11th day of January, 2001, by and between Aluminum-Power Inc., a corporation
duly organized under the laws of the Province of Ontario, Canada, and having its
principal place of business at 00 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0,
Xxxxxx (hereinafter referred to as the "Seller" or "Licensor") and Trimol Group
Inc., a corporation duly organized under the laws of the State of Delaware and
subject to the reporting requirements imposed pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and having its
principal place of business at 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter referred to as the "Purchaser" or, the
"Licensee").
W I T N E S S E T H :
WHEREAS, Seller desires to sell and/or license certain of its technology
pursuant to the terms and conditions hereof; and,
WHEREAS, Purchaser desires to purchase such technology in accordance with
the terms and provisions hereof.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties hereto agree as follows:
1. PURCHASE AND SALE
1.1 Transfer of Seller's Technology
Subject to the terms and conditions of this Agreement, Purchaser, in
reliance upon Seller's warranties and representations herein made, shall
purchase and/or acquire from Seller, and Seller shall transfer and convey to the
Purchaser, certain patent applications listed on Schedule "B" and certain
licenses listed on Schedule "A", including all current know-how and proprietary
information specifically relating thereto and all Improvements (as hereinafter
defined) thereto.
"Improvements" shall mean mechanical improvements and modifications only
and, without limiting the foregoing, shall not include any metallurgical,
chemical or compositional improvements or modifications.
All technology of Seller to be transferred to the Purchaser pursuant
hereto, being the proprietary rights listed on Schedule "B" and the contract
rights listed on Schedule "A", are sometimes collectively referred to as the
"Seller's Technology".
The Purchaser acknowledges receiving copies of the patent applications
referred to in Schedules "A" and "B".
1.2 Excluded Technology
It is understood by the parties that the Seller's Technology being sold and
transferred hereunder specifically excludes certain technology which is more
specifically defined and described in the Schedule of Excluded Technology,
Schedule C, attached hereto and made a part hereof (hereinafter collectively
referred to as the "Excluded Technology").
1.3 Encumbrances
The sale and transfer of Seller's Technology shall, at the time of Closing,
be free and clear of all obligations, security interests, liens, infringements,
claims and encumbrances whatsoever, except to the extent expressly included in
the Schedule of Encumbrances, Schedule D, attached hereto and made a part
hereof.
1.4 Purchase Price
In consideration for the sale of the Seller's Technology to Purchaser,
Purchaser shall pay Seller as follows:
(a) Eighty-eight million (88,000,000) shares of Purchaser's common
stock, $0.01 par value, which shall be duly authorized, validly
issued, fully paid and non-assessable (hereinafter referred to as
the "Purchaser Stock");
(b) Shares representing one hundred percent (100%) of the membership
interests of Jolly limited liability company (hereinafter
referred to as "Jolly"), a Wyoming Limited Liability Company,
which shall be duly authorized, validly issued, fully paid and
non-assessable (hereinafter referred to as the "Jolly Stock");
(c) All of the issued and outstanding corporate shares of Xxxx
Xxxxxxx Limited (hereinafter referred to as "Garnier"), a company
limited by shares incorporated under the laws of Ireland, which
shall be duly authorized, validly issued, fully paid and
non-assessable (hereinafter referred to as the "Garnier Stock");
and,
(d) An amount of corporate shares of Sturge Limited (hereinafter
referred to as "Sturge"), a company limited by shares
incorporated under the laws of Ireland, equal to fifty percent
(50%) of the total amount of issued and outstanding corporate
shares of Sturge which shall be duly authorized, validly issued,
fully paid and non-assessable (hereinafter referred to as the
"Sturge Stock").
1.5 Reduction of Purchase Price Following the Closing.
Subsequent to the Closing and in the event of the denial or rejection of a
material claim in the Patent Application by the United States Patent and
Trademark Office, or the issuance by a court of competent jurisdiction of any
judgment, order or decree finding invalid or unenforceable any patent claim or
claims which provide material protection for the items specifically listed in
Schedules A and B, attached hereto and made a part hereof, as being practiced at
the time or as expected by Purchaser to be practiced in the future, or in the
event of a bona fide dispute between Seller and Purchaser as to the invalidity
of any patent not judicially determined to be invalid, or in the event that the
protection of the Patent Rights is insufficient to prevent competitors from
making and selling devices substantially identical to those listed in Schedules
A and B, the parties agree to meet forthwith and negotiate in good faith to
resolve:
(a) Whether and to what extent such invalidity or unenforceability
adversely affects material protection for the items listed in
Schedule A and B taking into consideration the protection
afforded by other Patent Rights; and, if so,
(b) A reduction in and cancellation of the amount of shares of
Purchaser's stock, as agreed to by Purchaser and Seller.
1.6 Closing
The "Closing" means the settlement of the obligations of Seller and
Purchaser to each other under this Agreement, including the payment of the
purchase price to Seller as provided in Paragraph 1.4 above and the satisfactory
fulfillment of the condition precedents provided for in Paragraph 7 hereof. The
Closing shall be held at the offices of Xxxxxxx & Xxxxxxx, P.C., 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 on or about February 16, 2001 (the
"Closing Date").
1.7 Access and Information
Seller shall give to Purchaser, Purchaser's accountants, technical
personnel, counsel and other representatives access, during normal business
hours, from the date hereof to Closing, books, records, contracts and
commitments of Seller (including Contract Rights) and shall furnish the
Purchaser, during such period, with information concerning Seller's Technology
as the Purchaser may reasonably request. Such information shall be subject to
the provisions of Paragraph 8.15.
1.8 Conduct of Business
Seller warrants and represents, and covenants and agrees with Purchaser
that, pending completion of the Closing, unless otherwise agreed upon in writing
by the Purchaser:
(a) Seller shall not sell, license, contract, commit or otherwise
encumber Seller's Technology, other than in the ordinary course
of business;
(b) Seller shall not amend, modify or terminate any agreement to
which it is a party and which in any way relates to Seller's
Technology, other than in the ordinary course of business; and,
(c) Seller and its officers and employees shall use their best
efforts to preserve the business organization, Contract Rights,
Patent Rights and Proprietary Rights in good order; and to
preserve for the Purchaser the goodwill of those having any
business relationship with Seller which relates to Seller's
Technology or any portion thereof.
2. COVENANTS, WARRANTIES AND REPRESENTATIONS OF SELLER
Seller warrants and represents to Purchaser as follows:
2.1 Corporate Organization
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the Province of Ontario and has full power and
authority to carry on its current business and to own, use and sell its assets
and properties, including Seller's Technology.
2.2 Corporate Authority
The execution and delivery of this Agreement to Purchaser and the carrying
out of the provisions hereof have been duly authorized by the Board of Directors
of Seller and authorized by Seller's shareholders, and at Closing, Seller shall
furnish Purchaser duly certified copies of the authorizing resolutions of
Seller's Board of Directors and its shareholders.
2.3 Noninfringement
Seller represents and warrants that the Proprietary Rights, in whole or in
part, do not infringe any patents, copyrights, trade secrets, trademarks or
other proprietary rights of any third parties and, Seller represents and
warrants that no consents, approvals, authorizations, rights or licenses are
required from third parties to exercise any rights with respect to Seller's
Technology or any portion thereof.
2.4 Proprietary Rights
The Proprietary Rights are in full force and effect and there are no liens,
claims, encumbrances, proceedings or causes of actions which in any way affect
the validity or enforceability of such Proprietary Rights.
2.5 Contracts, Licenses, Permits and Approvals
(a) Seller has no presently existing contracts or commitments
extending beyond the execution date hereof which in any way
relate to Seller's Technology.
(b) Seller agrees to promptly update Purchaser of any changes in
status, prior to Closing, of the Paragraph 2.5 representations.
2.6 Compliance
Neither the execution and delivery of this Agreement, nor any instrument or
agreement to be delivered by Seller to the Purchaser at the Closing pursuant to
this Agreement, nor the compliance with the terms and provisions thereof by
Seller, will result in the breach of any applicable statute or regulation, or
any administrative or court order or decree, nor will such compliance conflict
with, or result in the breach of any of the terms, conditions or provisions of
the Articles of Incorporation and By-laws (or similar governing documents) of
Seller, as amended, or any agreement or other instrument to which Seller is a
party, or by which Seller is or may be bound, or constitute an event of default
or default thereunder, or with the lapse of time or the giving of notice or both
constitute an event of default thereunder.
2.7 Litigation
There is no suit or action, or legal, administrative, arbitration or other
proceeding or governmental investigation affecting Seller's Technology pending,
or to the best knowledge and belief of Seller, threatened against Seller which
materially or adversely affects Seller's technology or the business of Seller
relating to Seller's Technology. Seller further warrants and represents that
there is no outstanding judgment, decree or order against Seller which affects
Seller or Seller's Technology in any way.
2.8 Effect of Agreement
The terms and conditions of this Agreement and all other instruments and
agreements to be delivered by Seller to Purchaser pursuant to the terms and
conditions of this Agreement are valid, binding and enforceable against Seller
in accordance with their terms, subject only to applicable bankruptcy,
moratorium and other laws generally affecting the rights and remedies of
creditors.
2.9 Good Title
Notwithstanding the terms of Paragraph 8.11 herein, the representations
contained herein shall remain in effect from the Closing Date through the period
of time in which the items listed on Schedules A or B are afforded proprietary
(patent) protection by the United States Patent and Trademark Office, plus six
(6) years:
(a) Seller has and shall transfer to Purchaser at Closing good and
marketable title to Seller's Technology, free and clear of any and all claims,
rights, security interests, encumbrances or liens. Seller is the owner of all
rights to Seller's technology, including all common law, statutory and other
rights therein, free and clear of any rights or claims or licenses of others,
and has not entered into any agreements or contracts authorizing others to use
the Seller's technology and Seller has not requested any person or entity to
cease or modify any activity or product or to take out a license for such
activity or product by reason of past, present or prospective infringement of
any Patent Rights.
(b) There is no pending or threatened litigation related in any way to the
validity, use or enforceability of any of the Patent Rights, and all of the
right, title and interest in and to the items listed in Schedules A and B
acquired by Purchaser under this Agreement are free and clear of all claims,
liens, encumbrances or other claims of creditors of Seller.
(c) At Closing, Seller will have conveyed to Purchaser good and clear title
to the items listed in Schedule A and B, and Seller represents and warrants that
the items listed in Schedules A and B are free and clear of all claims, liens
and encumbrances.
(d) Seller has not and will not enter into any agreement or other
obligation which in any way limits or would limit the rights of Purchaser to the
items listed in Schedules A and B.
(e) All orders of which Seller is aware as of the date hereof regarding
possible sale, lease, or license of the items listed in Schedules A and B have
been disclosed to Purchaser in writing.
(f) There are no complaints, data or other communications evidencing a
material defect or problem in the items specifically listed in Schedules A and B
with respect to the design, manufacturability, operation, yields, production
efficiencies, reliability, customer acceptance, governmental acceptance or
approval has been provided to Purchaser.
2.10 Prosecution of Patent Applications.
Seller covenants and agrees, at its own cost, to provide reasonable
assistance to Purchaser in the prosecution of all pending United States Patent
Applications (and foreign counter-parts thereof) and foreign patent applications
and also any applications with respect to inventions relating to the items
listed in Schedules A and B and invented prior to the date hereof. Seller shall
not have the obligation to appeal any final determination of the Patent Examiner
except to the extent set forth below. Seller agrees to provide Purchaser with a
copy of every office action, amendment and other communication to or from Seller
with respect to such applications and Seller further agrees to provide Purchaser
with reasonable prior notice in writing of all material decisions and elections
of Seller with respect to such applications.
Seller agrees to provide reasonable assistance to Purchaser to prosecute,
through appeal, to the Patent Office Board of Appeals and the Court of Customs
and Patents Appeals (or alternatively, the United States District Court, as may
be appropriate under the circumstances), all continuing applications finally
rejected by the Patent Examiner, including rejected claims reasonably believed
by the Patent Examiner, including rejected claims reasonably believed by
Purchaser to be allowable and which would provide material protection for the
items listed in Schedules A and B as being practiced at the time or as expected
by Purchaser to be practiced in the future.
2.11 Representations and Warranties
No representation or warranty by Seller in this Agreement or any document
provided hereunder contains or will contain any untrue statement or omissions,
or will omit to state any material fact necessary to make the statements
contained herein or therein not misleading. All representations and warranties
made by Seller in this Agreement and any document provided hereunder shall be
true and correct as of the date of Closing with the same force and effect as if
they had been made on and as of such date.
2.12 Due Performance
Seller has in all material respects performed all obligations required to
be performed by it under, and is not in default in any material respect under,
or in violation in any material respect of, its Articles of Incorporation and
By-laws (or similar governing documents), as amended, or any agreement, lease,
mortgage, note, bond, indenture, license or other document or undertaking, oral
or written, to which it is a party or by which it is bound, or by which it or
any of its properties, assets or technology may be materially affected. Seller
is not in violation or default in any material respect of any order, regulation,
injunction or decree of any court, administrative agency or governmental body.
The execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby will not result in any of the violations or
defaults referred to in this paragraph.
2.13 Restricted Stock
Seller acknowledges and understands that none of the Purchaser Stock issued
or transferred to Seller hereunder shall, at the time of Closing, be registered
under federal securities laws but, rather, shall be issued pursuant to an
exemption therefrom and be considered "restricted stock" within the meaning of
Rule 144 promulgated under the Securities Act of 1933, as amended (the "Act").
Seller further acknowledges and understands that:
(a) The certificates representing the Purchaser Stock shall bear a
legend worded substantially as follows:
The securities represented by this certificate have not been
registered under the Act and are "restricted securities" within
the meaning of Rule 144 under the Act. The securities may not be
offered for sale, sold or otherwise transferred except pursuant
to an effective registration statement under the Act, or pursuant
to an exemption from registration under the Act, the availability
of which is to be established to the satisfaction of the Company.
(b) The transfer agent of Purchaser shall annotate its records to
reflect the restrictions on transfer embodied in the legend set
forth above.
(c) There shall be no requirement that Purchaser register the
Purchaser Stock under the Act.
2.14 Seller's Acknowledgment of Purchaser's Disclaimer
Seller hereby acknowledges that the Purchaser has disclaimed any and all
representations and warranties, either express or implied, concerning the
financial conditions of the assets represented by the capital shares of the
Jolly Stock, Garnier Stock and Sturge Stock.
3. COVENANTS, WARRANTIES AND REPRESENTATIONS OF PURCHASER
Purchaser warrants and represents to Seller as follows:
3.1 Corporate Organization
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is subject to the reporting
requirements imposed pursuant to Section 12(g) of the Exchange Act, and has full
power and authority to carry on its current business and to purchase, own, use
and sell its assets and properties.
3.2 Corporate Authority
The execution and delivery of this Agreement to Seller and the carrying out
of the provisions hereof have been duly authorized by the Board of Directors of
Purchaser and authorized by a majority of the Purchaser's shareholders, and at
Closing, Purchaser shall furnish Seller duly certified copies of the authorizing
resolutions of Purchaser's Board of Directors and Consents of its shareholders.
3.3 Capitalization
The authorized capital stock of the Purchaser immediately prior to Closing
will consist of 130,000,000 shares, of which 12,039,000 shares of its $.01 par
value common stock are issued and outstanding as of the date hereof. After
giving effect to the issuance of its shares, as provided herein, the Purchaser
shall have 100,039,000 shares of its $.01 par value common stock issued and
outstanding. Additionally, all securities issued by Purchaser as of the date of
this Agreement have been issued in compliance with all applicable state and
federal laws.
3.4 Binding Nature
This Agreement shall be, when duly executed and delivered, a legal and
binding obligation of Purchaser, enforceable in accordance with its terms.
3.5 Warranties and Representations
No representation or warranty by Purchaser in this Agreement contains or
will contain any untrue statement or omission, or will omit to state a material
fact necessary to make the statements contained herein not misleading. All
representations and warranties made by Purchaser in this Agreement shall be true
and correct as of the date of Closing with the same force and effect as if they
had been made on and as of such date.
3.6 Compliance with Securities Laws
Neither Purchaser nor any officer, director, affiliate, or controlling
person of Purchaser has committed any violation, or been in any way in
contravention, of any law, rule or regulation governing transactions in
securities, in connection with the transactions herein.
8
3.7 Inspection and Value
Purchaser has formed its own opinion as to the value of Seller's Technology
being purchased hereunder. Seller's warranties include only such express written
warranties as are contained in this Agreement. Any other express warranty, oral
or written, not contained in this Agreement are of no force and effect. Seller
hereby disclaims all implied warranties, including without limitation, implied
warranties of merchantability and implied warranties of fitness for special or
ordinary uses or purposes. Purchaser has inspected Seller's Technology to the
full extent of Purchaser's desire, and Seller has given Purchaser ample
opportunity to conduct such inspections. Seller's Technology, except as
expressly warranted or represented herein, are purchased "As Is" and "With All
Faults."
3.8 Litigation
There are no pending, or to the best knowledge and belief of the Purchaser,
threatened actions or proceedings before any court or administrative agency or
other authority which might or will materially or adversely affect Purchaser's
ability or right to perform all of Purchaser's obligations hereunder.
3.9 Conduct of the Business
Purchaser covenants that pending the Closing:
(a) Except as otherwise described herein, or as may be necessary to
effect the transactions contemplated by this Agreement, no change
will be made in Purchaser's Certificate of Incorporation or
bylaws and no change will be made in Purchaser's issued shares of
stock, as set forth in Paragraph 3.3 above, other than such
changes as may be first approved in writing by Seller or pursuant
to exercise of outstanding options or warrants.
(b) No dividends shall be declared and no stock options shall be
granted.
(c) Purchaser shall not sell any of its assets without the express
written consent of the Seller.
(d) Purchaser will use reasonable efforts to ensure that the business
of Sturge, Jolly, Garnier, and their respective subsidiaries,
will be conducted only in the ordinary course, in a manner
consistent with past practice, and that there will not be any
damage, destruction or loss (whether or not covered by insurance)
with respect to Sturge, Jolly, Garnier, and their respective
subsidiaries.
3.10 SEC Filings
As of the date of this Agreement, Purchaser has accurately and timely filed
with the Securities and Exchange Commission ("SEC") all registration statements,
financial statements, applications, reports, schedules, forms, proxy statements
and all other instruments, documents and written information (collectively, the
"SEC Filings") required to be filed by Purchaser under the Act, and the Exchange
Act. At the date hereof, none of the SEC Filings contains or, on the Closing
Date, will contain any untrue statement of a material fact or omits or, on the
Closing Date, will omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances in which they were
made or shall have been made, not misleading.
3.11 Ownership of Sturge, Jolly and Garnier Stock
Purchaser is the owner of the Sturge Stock, Jolly Stock and Garnier Stock,
free and clear of all liens, mortgages, pledges, encumbrances, or charges,
whether disclosed or undisclosed.
3.12 Issuance of Purchaser Stock; Transfer of Sturge, Jolly and Garnier
Stock
(a) The issuance of the Purchaser Stock shall be made free and clear
of all liens, mortgages, pledges, encumbrances, or charges,
whether disclosed or undisclosed, except as the Seller shall have
otherwise agreed in writing.
(b) The Sturge Stock, Jolly Stock and Garnier Stock shall be
transferred and conveyed to Seller free and clear of all liens,
mortgages, pledges, encumbrances, or charges, whether disclosed
or undisclosed, except as Purchaser and Seller shall have
otherwise agreed in writing.
4. LIABILITIES
4.1 No Assumption of Liabilities
(a) Seller acknowledges that Purchaser is acquiring Seller's
Technology hereunder without any assumption of Seller's
liabilities, except to the extent expressly set forth in Schedule
of Contract Rights, Schedule A hereto.
(b) Seller will indemnify and hold Purchaser harmless from and
against any and all claims for products, service, and
professional liability against Seller arising out of sales of
products or services or grants of licenses rendered by Seller
prior to Closing.
5. CONDITIONS PRECEDENT
5.1 Conditions Precedent to Seller's Obligations
The obligations of Seller to complete the Closing hereunder are, at
Seller's option, subject to fulfillment by Purchaser, or otherwise, of each of
the following conditions:
(a) Purchaser's representations, warranties and covenants contained
in this Agreement shall be true at the time of Closing as though
such representations, warranties and covenants were made at such
time.
(b) Purchaser shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or
complied with prior to or at the Closing.
(c) Purchaser covenants that it has complied in all material respects
with all applicable laws, orders and regulations of federal,
state, municipal and/or other governments and/or any
instrumentality thereof, domestic or foreign, applicable to its
assets, to the business conducted by it and to the transactions
contemplated by this Agreement.
(d) All press releases, shareholder communications, SEC Filings and
other publicity generated by Purchaser regarding the transactions
contemplated by this Agreement, or indirectly related to this
Agreement, shall have been reviewed by the Seller before their
release to the public or any governmental agency.
(e) Purchaser shall have obtained authorization by its Board of
Directors and authorization by a majority of it's shareholders
for the execution and delivery of this Agreement.
5.2 Conditions Precedent to Purchaser's Obligations
The obligations of Purchaser to complete the Closing hereunder are, at
Purchaser's option, subject to fulfillment by Seller, or otherwise, of each of
the following conditions:
(a) All representations and warranties of Seller contained in this
Agreement shall be true at the Closing with the same effect as if
said representations and warranties had been made on and as of
Closing, except and to the extent otherwise specifically provided
by the terms and conditions of this Agreement.
(b) Seller shall have performed and complied with all agreements,
terms and conditions required by this Agreement to be performed
and complied with by Seller on or before the Closing.
(c) Seller shall have delivered to Purchaser such other instruments
and documents as Purchaser shall reasonably request for the
purpose of further perfecting the title of Purchaser in Seller's
Technology.
(d) Seller shall have delivered to Purchaser an Investment Letter
substantially similar to the Form of Investment Letter attached
hereto as Exhibit A.
(e) Seller shall have obtained authorization by its Board of
Directors and authorization by a majority of it's shareholders
for the execution and delivery of this Agreement.
5.4 Waivers and Consents
Promptly following the execution of this Agreement, Seller shall use its
best efforts to obtain such written waivers and consents as may be required, or
reasonably requested by Purchaser, in connection with the sale and assignment of
Seller's Technology by Seller to Purchaser in accordance with the terms of this
Agreement.
6. CONDITIONS SUBSEQUENT
6.1 Seller's Condition Subsequent
As soon as practicable, but in no event later than fifty (50) days from the
Closing Date, Seller shall provide Purchaser with audited financial statements
of the Seller for each fiscal year from the date of Seller's inception up to,
and including, the fiscal year ended 2000, and a signed opinion from Seller's
independent auditors certifying such financial statements (the "Seller's Audited
Financial Statement").
Compliance of providing Seller's Audited Financial Statements on a timely
basis shall constitute a condition subsequent to the obligations of Purchaser
under this Agreement and in the event of the failure of such condition
subsequent, then, the transactions contemplated in this Agreement may be
rescinded, and all assets and shares of Common Stock advanced by Purchaser to
Seller, and all assets conveyed to Purchaser from Seller, shall be returned
within 30 days after such rescission.
This condition subsequent to the transactions contemplated in this
Agreement, the covenants to be performed prior to the Closing, and all
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement, shall survive the Closing and continue until
Purchaser receives the Seller's Audited Financial Statements.
7. CLOSING OBLIGATIONS
7.1 Seller's obligations at Closing
At the Closing, Seller shall execute and deliver to Purchaser:
(a) A xxxx of sale, assignments, and such other instruments, and
documents of conveyance and transfer to Purchaser of Seller's
Technology.
(b) Appropriate original instruments of consent or waiver executed by
third parties with respect to all Contract Rights being
transferred to Purchaser hereunder in order more fully to effect
transfer of Seller's Technology hereunder, including, without
limitation, consents by all appropriate governmental agencies, if
any.
(c) Possession of the originals of all Seller's Technology and all
copies thereof; it being understood and agreed that none of
Seller's Technology, or any portion thereof, shall remain in the
possession or control of Seller after the Closing.
(d) True and complete copies of resolutions duly adopted by Seller's
Board of Directors and a majority of the shareholders entitled to
vote herein confirming this Agreement, authorizing the carrying
out of all transactions contemplated herein and the execution and
delivery by Seller of all instruments then or thereafter required
to do so; said resolutions to be duly certified by the Secretary
of Seller.
(e) Such other instruments and documents as may be elsewhere herein
required.
(f) A certificate signed by the President and an authorized officer
of Seller, dated as of the Closing Date, certifying that all of
Seller's representations and warranties set forth in this
Agreement continue to be true on the Closing Date as if
originally made on such date, except and to the extent otherwise
expressly provided or permitted in this Agreement.
(g) An Investment Letter, executed by Seller, substantially similar
to the Form of Investment Letter attached hereto as Exhibit A.
(h) A form of licensing agreement (the "Licensing Agreement") between
Seller and Purchaser for the exclusive global license described
herein.
(i) Seller shall provide Purchaser with a letter representing to
Purchaser that the respective Ontario Bulk Sales Law does not
apply to this transaction.
7.2 Seller's Further Assurance
From time to time, at Purchaser's request and expense, whether at or after
the Closing and without further consideration, Seller shall:
(a) Execute and deliver to Purchaser such instruments as may
reasonably be required to carry out the intent and purpose of
this Agreement.
(b) Deliver to Purchaser such other data, papers and information as
may reasonably be requested by the Purchaser to assist the
Purchaser in the use of Seller's Technology.
7.3 Purchaser's Obligations at Closing
At Closing, Purchaser shall execute and deliver to Seller:
(a) The payments provided for herein in a form of stock certificates,
stock power and such other instruments and documents as may be
necessary and required herein.
(b) True and complete copies of resolutions duly adopted by
Purchaser's Board of Directors and the majority of shareholders
entitled to vote hereon confirming this Agreement, authorizing
the carrying out of all transactions contemplated herein and the
execution and delivery by Purchaser of all instruments then or
thereafter required to do so; said resolutions to be duly
certified by an authorized officer of Purchaser.
(c) A certificate signed by the President and an authorized officer
of the Purchaser, dated the date of Closing, certifying that all
of representations and warranties set forth in this Agreement
continue to be true on the Closing Date as if originally made on
such date, except and to the extent otherwise expressly provided
or permitted in this Agreement.
(d) Appropriate instruments assuming obligations of Seller in the
Contract Rights, Patent Rights and Proprietary Rights.
(e) Purchaser shall provide Seller with a letter representing to
Seller that the bulk transfer provisions of the Uniform
Commercial Code, then in effect in Delaware, does not apply to
this transaction.
7.4 Purchaser's Further Assurance
From time to time, at Seller's request and expense, whether at or after the
Closing and without further consideration, Purchaser shall:
(a) Execute and deliver to Seller such instruments as may reasonably
be required to carry out the intent and purpose of this
Agreement.
8. MISCELLANEOUS
8.1 Brokerage
Each party hereto represents and warrants to the other that no broker or
finder is entitled to any commission, or similar fee, in connection with the
making and carrying out of this Agreement.
8.2 Sales Taxes
(a) Any sales taxes which may be payable in connection with the
transfer of any of Seller's Technology shall be borne solely by
Purchaser. Notwithstanding the terms of Paragraph 8.11 herein,
this provision shall remain in effect for five (5) years
following the closing.
(b) If any sales tax becomes payable at or subsequent to the Closing
in connection with the transfer of any of the shares hereunder,
Purchaser shall pay the same. Notwithstanding the terms of
Paragraph 8.11 herein, this provision shall remain in effect for
five (5) years following the closing.
8.3 Indemnification
(a) Seller covenants and agrees to defend, indemnify, and hold
Purchaser harmless against any loss, damage, claim of third
parties, actions, suits, demands, judgments, or expense
(including legal and other fees, costs and charges) incurred or
sustained by Purchaser as a result of or attributable, in whole
or in part, to any misrepresentation or breach of any
representation, warranty, covenant, or agreement herein
(including, without limitation, provisions on applicable bulk
transfer laws) given or made by Seller.
(b) Purchaser covenants and agrees to defend, indemnify, and hold
Seller harmless against any loss, damage, claim of third parties,
actions, suits, demands, judgments, or expenses (including legal
and other fees, costs and charges) incurred or sustained by
Seller as a result of or attributable, in while or in part, to
any misrepresentation or breach of any representation, warranty,
covenant, or agreement herein (including, without limitation,
provisions with respect to applicable bulk transfer sales laws
and Purchaser's representations of compliance with securities
laws, rules and regulations) given or made by Purchaser.
8.4 Effectiveness
This Agreement supersedes any and all agreements, if any, previously made
between the parties relating to the subject matter hereof; and there are no
understandings or agreements other than those included herein.
8.5 Notices and Communications
Any notice, payment, request, instruction, or other document to be
delivered hereunder shall be deemed sufficiently given if in writing and
delivered personally, mailed by certified mail, postage prepaid, or by any
nationally-recognized overnight mail or courier services, if to Purchaser
addressed to Purchaser at the address first set forth above, with one copy to:
Xxxxxxx & Xxxxxxx, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
and if addressed to Seller, addressed to Seller at the address first set forth
above, with one copy to:
Xxxxx X. Xxxxxxx, LL.M., Q.C.
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx, X0X 0X0
Xxxxxx
Attention: Xxxxx X. Xxxxxxx
unless in each case Purchaser or Seller shall have notified the other in writing
of a different address.
8.6 Non-waiver
No delay or failure on the part of either party in exercising any right
hereunder, and no partial or single exercise thereof, will constitute a waiver
of such right or of any other right hereunder.
8.7 Headings
Headings in this Agreement are for convenience only and are not to be used
for interpreting or construing any provision hereof
8.8 Governing Law
This Agreement shall be construed in accordance with and governed by the
laws of the State of Delaware without giving effect to conflict of law
principals.
8.9 Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
8.10 Binding Nature
The provisions of this Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
permitted assigns.
8.11 Survival of Representations and Warranties
Except as otherwise expressly provided in this Agreement or the Schedules
annexed hereto, the representations and warranties of Purchaser and Seller
contained in Article 2 and 3 herein, shall survive the Closing for two years.
Each party against whom liability is asserted under the provisions of this
Agreement shall be given the opportunity to participate, directly or through its
authorized representative, at its cost and expense, in the conduct of any
negotiations relating to the settlements of any liability or any other
proceeding instituted by any third party against either Seller or Purchaser, as
the case may be, giving rise to the alleged breach.
8.12 Expenses
Except as otherwise expressly provided herein, each party shall pay all of
its own expenses incidental to the negotiation and preparation of the
documentation and financial statements relating to this Agreement and for
entering into and carrying out the terms and conditions of this Agreement and
consummating the transactions, irrespective of whether the transactions
contemplated shall be consummated.
8.13 Payment of Taxes
All fees, costs, charges, and expenses payable to any federal, state, or
municipal authority, including without limitation all filing fees, documentary
stamps and transfer, sales and other taxes required to be paid, or imposed in
connection with the transfer of any of Seller's Technology or of any of the
shares hereunder, pursuant to the terms of this Agreement shall be paid by the
Purchaser and said representation shall remain in effect for five (5) years
following the Closing.
8.14 Amendment; Successors and Assigns
This Agreement may be amended only by an instrument signed by the
authorized representatives of the parties hereto. Neither party may assign any
of its rights, obligations, or liabilities arising hereunder without the prior
written consent of the other, except as otherwise provided herein, and any such
assignment or attempted assignment shall be null and void.
8.15 Confidentiality
Prior to the Closing of the transactions contemplated hereunder, the
parties hereto shall keep confidential the existence of this Agreement, the
transactions described herein and all information obtained from the other
concerning Seller's Technology or the business plans of the Purchaser; provided,
however, the covenants contained in this Paragraph 8.15 shall not apply in
respect to any information which:
(a) was already known to either of the parties at the time of receipt
thereof from the other,
(b) was readily available to the general public at the time of
receipt thereof from the other,
(c) subsequently becomes known to the general public through no fault
or omission on the part of the party receiving such information,
(d) is subsequently disclosed by a third party which has the bona
fide right to make such disclosure, or
(e) is required to be disclosed by applicable law, including but not
limited to federal securities laws, regulation or court order.
8.16 Third Party Beneficiaries
Except for their proper successors and assigns of the parties hereto, the
parties hereto intend that no third party shall have any rights or claims by
reason of this Agreement.
8.17 Facsimile Signatures
In order to expedite the execution of this Agreement, the parties hereto
agree that either party may send its signature by facsimile transmission to the
other party hereto and that, upon transmission, such signing party intends to be
bound by the terms and conditions of this Agreement. Both the Seller and the
Purchaser further acknowledge and agree that any signature obtained by facsimile
transmission shall be relied upon by the other party hereto and waive any and
all defenses to the enforcement of this Agreement based upon the form of the
signature.
8.18 Counterparts
This Agreement may be signed in two counterparts, provided that each party
receives a copy fully signed by the other party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed in
their respective corporate names by their respective Presidents duly authorized
by resolution of their respective Boards of Directors, on the day and year first
above written.
SELLER:
ALUMINUM-POWER INC.
ATTEST:
By: /s/ Xxxxxxx Xxxxxxx
---------------------------- /s/ Xxxxx X. Xxxxxxx
Name: Xxxxxxx Xxxxxxx --------------------------------
Title: President Xxxxx X. Xxxxxxx, Secretary
PURCHASER:
TRIMOL GROUP INC.
ATTEST:
By: /s/ Xxxx Xxxxxx
---------------------------- /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx --------------------------------
Title: President Xxxx Xxxxxx, Assistant Secretary
