Exhibit 10.2
SHAREHOLDERS' AND
SECURITIESHOLDERS' AGREEMENT
AMONG THE FOLLOWING SHAREHOLDERS AND SECURITIESHOLDERS:
ENDOVASC LTD., INC.
AND:
MIV THERAPEUTICS, INC.
AND:
STENTGENIX, INC.
MIV THERAPEUTICS, INC.
Xxxx 0, 0000 Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
__________
SHAREHOLDERS' AND
SECURITIESHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AND SECURITIESHOLDERS' AGREEMENT is made and dated
for reference effective as of the _____ day of November, 2002 (the "EFFECTIVE
DATE").
AMONG:
ENDOVASC LTD., INC., a company incorporated under the laws of the State
of Nevada, U.S.A., and having a business office and an address for
notice and delivery located at 00000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxx, X.X.X., 00000
(hereinafter referred to as "ENDOVASC");
OF THE FIRST PART
AND:
MIV THERAPEUTICS, INC., a company incorporated under the laws of the
State of Nevada, U.S.A., and having a business office and an address
for notice and delivery located at Xxxx 0, 0000 Xxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0
(hereinafter referred to as "MIV");
OF THE SECOND PART
(Endovasc and MIV being hereinafter singularly also referred to as a
"CLASS A SHAREHOLDER" and collectively referred to as the "CLASS A
SHAREHOLDERS" as the context so requires);
AND:
STENTGENIX, INC., a company incorporated under the laws of the State of
Nevada, U.S.A., and having a business office and address for delivery
located at c/o Xxxx 0, 0000 Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx, X0X 0X0
(hereinafter referred to as the "CORPORATION");
OF THE THIRD PART
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AND:
EACH AND EVERY SHAREHOLDER OR SECURITYHOLDER OF THE CORPORATION NOT
LISTED ABOVE WHO HEREAFTER MAY BE A SHAREHOLDER OR SECURITYHOLDER OF
ANY CLASS OF SHARES OR SECURITIES (AS HEREINAFTER DEFINED) OF THE
CORPORATION AND WHO IS AND SHALL BE, BY THE TERMS HEREOF, REQUIRED TO
BECOME A PARTY HERETO AND WHO SHALL ENTER INTO THE TERMS HEREOF, AS
PRESENTLY CONSTITUTED OR AMENDED, WHETHER BY PURCHASE, OTHER TRANSFER
OR BY SUBSCRIPTION
(hereinafter collectively referred to as the "FUTURE SECURITYHOLDERS"
as the context so requires); and
OF THE FOURTH PART
(The Class A Shareholders, the Corporation and the Future
Securityholders being hereinafter singularly also referred to as a
"PARTY" and collectively referred to as the "PARTIES" as the context so
requires).
WHEREAS the Parties hereto wish to enter into this Agreement in order
to make arrangements regarding the organization and affairs of the Corporation
and the conduct and sale of their Class A Shares of the Corporation under
certain circumstances;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises, and in consideration of the mutual covenants and promises herein, THE
PARTIES HEREBY COVENANT AND AGREE EACH WITH THE OTHERS AS FOLLOWS:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement the following words and phrases have
the following meanings:
(a) "BOARD OF DIRECTORS" or "BOARD" means the board of directors
of the Corporation as the same may be constituted from time to
time;
(b) "CLASS A SHAREHOLDERS" means Endovasc and MIV, collectively,
and any other Future Securityholder who may be admitted to the
Corporation from time to time as a Class A Shareholder, and
"CLASS A SHAREHOLDER" means any one of such persons, but if
any of such persons ceases to be a Shareholder it shall also
cease to be a Class A Shareholder;
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(c) "CLASS B SHAREHOLDERS", "CLASS C SHAREHOLDERS" and "CLASS D
SHAREHOLDERS" mean, respectively, each and every Future
Securityholder who is admitted to the Corporation and this
Agreement and who becomes a holder of Class B Shares, Class C
Shares and/or Class D Shares, and "CLASS B SHAREHOLDER",
"CLASS C SHAREHOLDER" and "CLASS D SHAREHOLDER" means any one
of such persons, but if any of such person ceases to be a
Shareholder, it shall also cease to be Class B Shareholder, a
Class C Shareholder and/or a Class D Shareholder,
respectively;
(d) "CLASS A SHARES" means the Class A voting common shares in the
capital of the Corporation;
(e) "CLASS B SHARES" means the Class B non-voting common shares in
the capital of the Corporation as they may be from time to
time;
(f) "CLASS C SHARES" means the Class C shares in the capital of
the Corporation as they may be from time to time;
(g) "CLASS D SHARES" means the Class D shares in the capital of
the Corporation as they may be from time to time;
(h) "CORPORATION" means the Corporation and any directly or
indirectly controlled subsidiaries or affiliates of the
Corporation and, not to detract from the generality, Article V
and Article VI hereinbelow shall apply to each subsidiary and
affiliate in the same manner as the Corporation, MUTATIS
MUTANDIS;
(i) "ENCUMBRANCES" means charges, liens, security interests,
mortgages, claims and encumbrances of every nature and kind
whatsoever;
(j) "EVENT OF BANKRUPTCY" means, with respect to any person who is
a Shareholder, the occurrence of any one or more of the
following events:
(i) such person commits an act of bankruptcy or becomes
an insolvent person (as such terms are defined by the
BANKRUPTCY AND INSOLVENCY ACT (Canada));
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(ii) a petition in bankruptcy is filed against such person
and is not discharged or disputed BONA FIDE within 10
days of such filing;
(iii) a receiving order is made against such person or a
substantial portion of his assets and such order is
not lifted, vacated or stayed within three days of
the making thereof;
(iv) proceedings in the form of a notice of intention to
file a proposal under the BANKRUPTCY AND INSOLVENCY
ACT (Canada); or
(v) proceedings for a composition with or proposal to
such person's creditors are instituted under any
federal or provincial law;
(k) "GAAP" means generally accepted accounting principles as
promulgated from time to time by the Canadian Institute of
Chartered Accountants or, if it should cease to exist, the
entity which is the successor thereto;
(l) "NET PROFIT" or "PROFIT" means, in respect of a fiscal year of
the Corporation, the Corporation's after-tax net profit for
such fiscal year as calculated by the auditors of the
Corporation in accordance with GAAP applied on a consistent
basis;
(m) "NEW TECHNOLOGY" means, singularly and collectively, any and
all coatings for any applications, products and medical
devices utilizing Endovasc's ANGIOGENIX in addition to
any and all resorbable stent and catheter technologies,
applications and products consequent thereon and developed by
Endovasc or the Corporation at any time;
(n) "PERSON" includes a natural person, a firm, a corporation and
any other form of incorporated or unincorporated organization
or entity;
(o) "PLACE OF CLOSING" means the offices of the solicitors for the
Corporation, or such other place as may be agreed to by the
parties to the transaction;
(p) "SECURITIES" means any one, or a combination of, or all, as
the case may be, of the Class A Shares, the Class B Shares,
the Class C Shares, the Class D Shares, any other Shares, or
interests therein, created or issued by the Corporation or a
holder of such Shares, the Shareholder Notes, if any, or any
other indebtedness of the Corporation and any interests
therein, whether created by the Corporation or the holder
thereof, but does not include debt issued by normal commercial
lenders such as banks or trust companies;
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(q) "SECURITYHOLDERS" or "SECURITIESHOLDERS" means any one or more
of the beneficial or registered owners of an interest in
Securities;
(r) "SHAREHOLDER" means, at any time, a person who is the
registered or beneficial holder of one or more issued and
outstanding Shares of any class of Shares in the capital of
the Corporation;
(s) "SHAREHOLDER NOTES" means notes issued by the Corporation from
time to time or loans which may be subordinated to other
creditors of the Corporation for the purpose of meeting the
equity capital requirements of any body or organization having
regulatory authority over the Corporation;
(t) "SHARES" means shares or other equities of any class or kind
in the capital of the Corporation now existing or hereafter
created; and
(u) "UNANIMOUS VOTE OF THE SHAREHOLDERS" means (i) 100% of the
particular class referenced of those present at a duly called
and noticed meeting whereby the Chairman, with respect to any
such resolution requiring the Unanimous Vote of the
Shareholders, shall not be entitled to a second, extra or
casting vote in the case of a tie vote; or (ii) 100% plurality
for resolutions signed by all the Shareholders relevant to the
class or item for consideration.
1.2 COUNTERPARTS AND PARTIES TO THIS AGREEMENT. This Agreement includes all
variations, amendments or successors hereto. This Agreement may be executed in
counterparts, such that no fully executed single agreement may exist, and each
such part shall be enforceable in respect to all separate signatories thereon,
singly or in the collective and, further, shall be enforceable even in the event
that not all Parties have executed, or are deemed to have executed, this
Agreement, in counterpart form or otherwise, unless there is specific written
terms providing that a particular signatory is not bound unless all, or certain,
of the intended or proposed signatories have executed. A person may and shall
become a Party to this Agreement by the simple act of executing a subscription
agreement or transfer agreement or executing or receiving a Security document
which contains an acknowledgment of such Future Securityholder being bound by
this Agreement (MUTATIS MUTANDIS in regard to such Future Securityholders, as
the provisions of the Agreement specifically apply on the date of their
acquisition of Securities but excluding historical provisions specifically
relating to specific Parties on the historical date which are not reasonably
applicable to Future Securityholders, the burden of proof of which lies on the
Future Securityholder) and such person shall irrevocably be deemed to have read
this Agreement and shall be deemed to have received separate legal advice as to
the terms hereof. Regardless of loss of executed documents or of omission to
execute this Agreement, whether by subscription agreement or otherwise, a person
who has had issued a certificate or other document for Securities, whether or
not the same are held in trust or escrow on such person's behalf, and which
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certificate or document contains a notice of this Agreement, shall be
irrevocably deemed to have accepted the terms of this Agreement, as the same was
constituted on the date of issuance of the certificate or document, as a term
and condition of the issuance of the same and to be thereby bound by this
Agreement. In the event that, over time, this Agreement shall alter and amend,
or be specifically altered for one or several subscribers, and accordingly not
all Parties may have executed or acknowledged being bound to such alterations,
such shall not invalidate this Agreement, which shall be enforceable in all of
its iterations and variations in respect to each Party to the extent that such
Party has become bound, or is deemed to have become bound, MUTATIS MUTANDIS.
ARTICLE II
TERMINATION OF PRIOR AGREEMENTS
2.1 TERMINATION OF PRIOR AGREEMENTS. All prior shareholders' agreements between
some or all of the Parties hereto regarding the organization and affairs of the
Corporation, whether written or oral, prior to the Effective Date, are hereby
terminated, unless written exception has been effected between specified
Parties.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITYHOLDERS. Each
Securityholder hereby represents, warrants and covenants to the Parties to this
Agreement that:
(a) it is, or will be when authorized by the Board (and each
Shareholder warrants to take all such steps as may be required
to cause the same to be issued as hereafter stated), the
registered and beneficial owner of that number of the issued
and outstanding Class A Shares as is set out opposite its name
below which have been, or will be, issued for a subscription
price of $0.01 per Class A Share:
------------------------------ ----------------------------------
Name of initial Shareholder Number and Class of Shares
------------------------------ ----------------------------------
ENDOVASC 2,500,000 CLASS A SHARES
------------------------------ ----------------------------------
MIV 2,500,000 CLASS A SHARES
------------------------------ ----------------------------------
(b) in respect of Endovasc, the consideration paid by Endovasc to
the Corporation for the 2,500,000 Class A Shares set out
opposite its name above is the transfer from Endovasc to the
Corporation of all of Endovasc's rights, entitlement and
interests in and to the New Technology free and clear of any
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liens, charges, encumbrances, pledges, mortgages,
hypothecations and adverse claims of any and all nature
whatsoever and including, without limitation, options,
pre-emptive rights and other rights of acquisition in favour
of any person, whether conditional or absolute; all of which,
collectively, has a deemed value of U.S. $2,500,000
attributable thereto for research already performed;
(c) in respect of MIV, the consideration paid by MIV to the
Corporation for the 2,500,000 Class A Shares set out opposite
its name above is deemed to be U.S. $2,500,000 as at the date
hereof, which sum MIV shall be required to directly or
indirectly raise for and on behalf of the Corporation, by way
of private and/or public equity and/or debt funding, the final
form(s) of which shall be in the sole and absolute discretion
of MIV, in accordance with the provisions set out in Article
IV hereinbelow;
(d) the Securities set out opposite its name above are free and
clear of all Encumbrances (other than Encumbrances contained
in the constating documents of the Corporation and any other
encumbrances provided for or permitted by the terms of this
Agreement) and there are no dispositions, contingent or
uncontingent, of any kind in respect to such Securities;
(e) in respect of the Class A Shareholders only, it covenants,
PARI PASSU with the other Class A Shareholders, to contribute
such additional capital or Shareholder loans to the
Corporation as may be required from time to time for the
requirements of the Corporation as determined by the Board or
as may be required by any regulatory authority or
self-regulatory organization to which the Corporation may be
subject, in proportion to the number of Class A Shares held by
it. In the event that additional contributions are made by
Shareholders' loans the same shall bear interest at the rate
established by the Board, may have fixed terms of repayment,
if permitted by the conditions of the Corporation's business,
and shall be paid in priority to any outstanding Shareholder's
Notes before dividends or Profit distribution and before any
redemption of Shares. In the event that some, but not all, of
the Class A Shareholders can or will contribute to the
Corporation's additional needs then, subject to section 4.4,
unless waived by a simple majority of Class A Shareholders,
such contributing Shareholders may be granted such equity
and/or debt terms as they may require, and the Board accepts,
with consequent dilution of non-contributing Shareholders;
(f) each Party shall vote, or refrain from voting, and otherwise
exercise its Securities, in compliance with the terms and
spirit of this Agreement in good faith and, not so as to
derogate from the generality, shall not so exercise its
Securities to create or alter the Memorandum or Articles of
the Corporation in any manner which contradicts or contravenes
this Agreement, and if a Party breaches this Agreement the
Corporation may initiate judicial proceedings to compel
compliance and seek damages, for itself and other Parties, and
shall do so upon written request of not less than 30% of the
Class A Shareholders, without prejudice to the right of any
other aggrieved Party to seek remedy;
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(g) it will duly and faithfully comply with Board resolutions and
Shareholders' resolutions properly made in accordance with
this Agreement regarding the business of the Corporation, the
Securities and this Agreement; and
(h) it will duly, faithfully and promptly perform and comply with
the terms of this Agreement, both in its particulars and in
its spirit.
3.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CORPORATION. The
Corporation hereby represents, warrants and covenants to the other Parties to
this Agreement that:
(a) on the Effective Date of this Agreement the authorized capital
of the Corporation consists of 100,000,000 Class A Shares,
10,000,000 Class B non-voting Shares, 10,000,000 Class C
non-voting preferred Shares and 10,000,000 Class D non-voting
preferred Shares;
(b) the Securities listed in section 3.1 are, or will be upon
issuance by the Board of all subscribed capital, the only
issued and outstanding Securities of the Corporation until
such time as further issuances are permitted by the terms of
this Agreement, and the Corporation shall issue such aforesaid
Securities to each named Shareholder upon execution of this
Agreement and payment therefore, unless payment terms or
assistance have been approved by the Board whereupon the
Securities shall be issued, or optioned, upon such terms as
the Board may determine; and
(c) on and at the Effective Date, except as expressly provided for
in this Agreement, no person has any agreement or option or
right capable of becoming an agreement for the purchase,
subscription or issuance of any Securities.
ARTICLE IV
MAINTENANCE OF MIV'S SHARE POSITION AND/OR DILUTION THEREOF
4.1 MAINTENANCE OF MIV'S SHARE POSITION. In order for MIV to retain the
2,500,000 Class A Shares issued to it by the Corporation as set out in
subsection 3.1(a) above, MIV shall be required to raise, directly or indirectly
and for and on behalf of the Corporation, by way of private and/or public equity
and/or debt funding, the final form(s) of which shall be in the sole and
absolute discretion of MIV, an aggregate of U.S.$2,500,000 for research and
development by the Corporation over the period of three years from the Effective
Date as follows:
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(a) on or before that date which is 12 months from the Effective
Date of this Agreement (the "FIRST YEAR END") MIV shall be
required to raise, directly or indirectly and for and on
behalf of the Corporation, and by way of private and/or public
equity and/or debt funding, the final form(s) of which shall
be in the sole and absolute discretion of MIV, a minimum of
U.S.$300,000 for the Corporation (the "FIRST CONTRIBUTION");
which sum reflects the Corporation's anticipated budget for
the period commencing from the Effective Date of this
Agreement to and ending on the date which is the First Year
End (the "FIRST YEAR"); and which budget has been approved by
the Board of Directors;
(b) during the period from the first day after the First Year End
to that date which is 12 months from the First Year End (the
"SECOND YEAR END") MIV shall be required to raise, directly or
indirectly and for and on behalf of the Corporation, and by
way of private and/or public equity and/or debt funding, the
final form(s) of which shall be in the sole and absolute
discretion of MIV, a minimum of such sum as reflects the
Corporation's approved budget (the "SECOND CONTRIBUTION") for
the period commencing on the date which is the First Year End
to and ending on the date which is the Second Year End (the
"SECOND YEAR"); and the amount of which budget must first be
approved by the Board of Directors; and
(c) during the period from the first day after the Second Year End
to that date which is 12 months from the Second Year End (the
"THIRD YEAR END"), MIV shall be required to raise, directly or
indirectly and for and on behalf of the Corporation, and by
way of private and/or public equity and/or debt funding, the
final form(s) of which shall be in the sole and absolute
discretion of MIV, a minimum of such sum as reflects the
Corporation's approved budget (the "THIRD CONTRIBUTION") for
the period commencing on the date which is Second Year End to
and ending on the date which is the Third Year End (the "THIRD
YEAR"); and which budget must first be approved by the Board
of Directors.
In this regard it is hereby acknowledged and agreed by each of
the Parties hereto that, with prior written notice provided by MIV to Endovasc
not less than 30 calendar days prior to the First Year End, the Second Year End
and/or the Third Year End herein, as the case may be, MIV's requirement to
provide the First Contribution, the Second Contribution and/or the Third
Contribution, as the case may be, shall be extended to a maximum of up to 60
calendar days from any such year end provided that MIV's required contribution
for any such year end is increased by not less than 5% as a result thereof; any
such increase in contribution representing a penalty to MIV and,
correspondingly, not affecting the Parties' relevant Class A Share positions in
and the Corporation in any manner as a consequence of the payment thereof.
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4.2 APPROVAL OF BUDGETS. The Parties hereto represent and warrant that the
budget for the First Year has been approved by the Board of Directors. In
accordance with section 5.1 below and within 30 calendar days of the First Year
End and the Second Year End, respectively, the Board of Directors shall approve
a budget for the Second Year and Third Year, respectively, and the total sum of
each budget, being the Second Contribution and the Third Contribution, shall be
the amount required to be raised by MIV for the applicable ensuing year, up to a
total sum of U.S. $2,500,000 prior to the Third Year End.
4.3 FAILURE TO APPROVE A BUDGET. In the event the Board of Directors is
unwilling or unable to agree on and approve a budget within 30 calendar days of
the First Year End or the Second Year End, as the case may be, then within ten
calendar days of the 30th calendar day after the First Year End or Second Year
End, as the case may be, the independent director of the Corporation shall
prepare a budget which shall be deemed, for the purposes of this Article IV, to
be the approved budget for the ensuing year and MIV shall be required to raise a
minimum of the sum of such budget approved by the independent director for the
relevant year.
4.4 DILUTION FOR FAILURE TO MAKE A CONTRIBUTION. If MIV fails to raise the total
amount of the required First Contribution, Second Contribution or Third
Contribution, as the case may be, and within the time periods as set forth in
section 4.1 hereinabove, then MIV shall be required to return to the treasury of
the Corporation for cancellation within 90 calendar days of any of the First
Year End, Second Year End and Third Year End, as the case may be, that number of
Class A Shares then owned by MIV in and to the Corporation as is equal to:
(a) FOR THE FIRST YEAR: the total amount of the First Contribution
less the actual amount of funds raised by MIV during the First
Year divided by U.S. $1.00;
(b) FOR THE SECOND YEAR: the total amount of the Second
Contribution less the actual amount of funds raised by MIV
during the Second Year divided by U.S. $1.00; and
(c) FOR THE THIRD YEAR: the total amount of the Third Contribution
less the actual amount of funds raised by MIV during the Third
Year divided by U.S. $1.00.
4.5 ENDOVASC'S OPTION TO ACQUIRE ADDITIONAL CLASS A SHARES. If MIV fails to
raise the total amount of the required First Contribution, Second Contribution
or Third Contribution, as the case may be, and within the time periods as set
forth in section 4.1 hereinabove, and Endovasc raises the balance of funds
required to make up the First Contribution, Second Contribution or Third
Contribution, as the case may be, and within the time periods as set forth in
section 4.1 hereinabove, then Endovasc shall be entitled to receive, and the
Corporation shall be required to issue from treasury to Endovasc in
consideration therefore, and within 90 calendar days of any of the First Year
End, Second Year End and Third Year End, as the case may be, that number of
additional Class A Shares of the Corporation as is equal to:
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(a) FOR THE FIRST YEAR: the amount of funds raised by Endovasc in
the First Year (which, together with the amount of funds
raised by MIV in the First Year, shall be no greater than the
total amount of the First Contribution) divided by U.S. $1.00;
(b) FOR THE SECOND YEAR: the amount of funds raised by Endovasc in
the Second Year (which, together with the amount of funds
raised by MIV in the Second Year, shall be no greater than the
total amount of the Second Contribution) divided by U.S.
$1.00; and
(c) FOR THE THIRD YEAR: the amount of funds raised by Endovasc in
the Third Year (which, together with the amount of funds
raised by MIV in the Third Year, shall be no greater than the
total amount of the Third Contribution) divided by U.S. $1.00.
4.6 CONTRIBUTIONS MADE IN FULL. If MIV raises the full First Contribution,
Second Contribution or Third Contribution, or any of them, as the case may be,
then, for the year relating to the full Contribution so made, MIV shall not be
subject to dilution for the said year in which the full Contribution was raised.
ARTICLE V
PROVISIONS FOR CONTROL
5.1 OPERATION AND CONTROL. Each of the Parties hereto agrees and warrants that
they shall cause such meetings of the Corporation to be held, votes cast,
resolutions passed, bylaws enacted, documents executed and all things and acts
done to ensure the following continuing arrangements with respect to the
operation and control of the Corporation:
(a) the affairs of the Corporation shall be managed by the Board
of Directors which shall at all times consist of not less than
three directors;
(b) the Class A Shareholders shall vote their shares so that the
Board of Directors be comprised of one representative of
Endovasc, one representative of MIV and one independent
director who represents neither of Endovasc or MIV. If a
position on the Board of Directors is vacant for any reason
whatsoever, the Board of Directors shall appoint a new
director to fill the vacancy, which new director shall be a
representative of that Party that the vacating director was a
representative of or, in the event that the independent
director vacates such position, then the new director shall be
an independent director;
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(c) the officers of the Corporation shall be chosen by the Board
of Directors;
(d) a quorum for a meeting of the Board of Directors shall be
three directors, in person or by proxy, and the notice of
meeting and agenda shall, unless waived by each Board member,
be delivered no less than two business days prior to the
meeting. The meeting may be held in person or electronically.
Any director may appoint a proxy or power of attorney to act
in such person's stead for the duration and purposes
designated in the instrument of appointment. If a quorum is
not present at the meeting in question, such meeting shall
automatically be adjourned and reconvened on the date which is
the second business day following the date fixed for the
meeting so adjourned and no notice shall be required to be
given of same other than the announcement of the time and
place therefor and, notwithstanding any other provisions of
this Agreement, those directors present thereat shall
constitute the quorum for such reconvened meeting and all
decisions which may properly be made by the Board of Directors
at such meeting shall be decided by a majority of votes cast
at such meeting, provided that the only business which may be
transacted at such reconvened meeting shall be those items of
business specifically set out on the agenda for the adjourned
meeting;
(e) the Chairman of all meetings of the Board of Directors shall
be the independent director, if present, and the Chairman
shall be entitled to a second, extra or casting vote in the
case of a tie vote at any such meeting;
(f) a quorum for a meeting of the Shareholders of the Corporation
shall be not less than two Shareholders present in person or
represented by proxy and holding at least a simple majority of
the votes attaching to the then issued and outstanding Shares;
provided that if such a quorum is not present at the meeting
in question such meeting shall automatically be adjourned and
reconvened on the date which is the tenth business day
following the date fixed for the meeting so adjourned and the
only notice required to be given shall be the time and place
thereof and, notwithstanding any other provision of this
Agreement, the quorum for such reconvened meeting shall
consist of those Shareholders present thereat in person or
represented by proxy and holding at least 30% of the votes
attaching to the then issued and outstanding Shares; provided
that the only business which may be transacted at such
reconvened meeting shall be those items of business
specifically set out on the agenda for the originally called
meeting;
(g) except as otherwise provided in this Agreement, all contracts
and documents binding the Corporation shall, in the case of
contracts and documents required for the conduct of the
business of the Corporation in the ordinary course, require
the signature of any two persons who at such time are officers
or directors of the Corporation. In the case of material other
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agreements and documents which materially affect the nature of
the Corporation's business or create material financial
liability or burden, such shall require the signature(s) of
those persons, or class of persons, determined by the Board.
Neither the Board nor any signatory shall be liable for errors
in such judgment of materiality if the error is made in good
faith, could not reasonably be foreseen or was made with
appropriate legal, accounting or other relevant professional
advice; and
(h) except as may be otherwise provided in this Agreement or by
law, all decisions of the Board of Directors and of the
Shareholders of the Corporation at a meeting of the Board of
Directors or the Shareholders, as the case may be, shall be
decided by a simple majority of the votes cast.
5.2 SIMPLE MAJORITY OR UNANIMOUS VOTE OF THE CLASS A SHAREHOLDERS REQUIRED.
Unless otherwise expressly provided by the terms of this Agreement, without the
prior written consent, or approval by a duly called meeting, of a simple
majority of Class A Shareholders, otherwise by the Unanimous Vote of the
Shareholders where below noted or otherwise as required by law, of the votes
attaching to the then issued and outstanding Class A Shares, or where required
by law of each class of Shareholders, none of the following shall be effected:
(a) the issuance or sale by the Corporation of any Class A Shares
(or any other Shares having voting rights) or any rights,
warrants or other securities convertible into such Shares,
unless the existing Class A Shareholders shall first be given
the right of first refusal to purchase the referenced
interests in Shares on the terms approved by the Board and
such right of first refusal shall be available for acceptance
for a period of not less than 15 business days from delivery
of notice thereof;
(b) by Unanimous Vote of the Shareholders, the taking or
instituting of proceedings for the winding-up, reorganization
or dissolution of the Corporation;
(c) by Unanimous Vote of the Shareholders amending the Memorandum
or Articles of the Corporation;
(d) by Unanimous Vote of the Shareholders the enactment,
revocation or amendment of any bylaws of the Corporation;
(e) by Unanimous Vote of the Shareholders any merger, amalgamation
or similar transaction pertaining to the Corporation; or
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(f) by Unanimous Vote of the Shareholders the sale, lease,
exchange or other disposition of all or substantially all of
the assets of the Corporation.
5.3 BEST INTERESTS OF THE CORPORATION. The Parties hereto (other than the
Corporation) hereby agree that they shall at all times act in the best interests
of the Corporation, such that:
(a) the corporate existence of the Corporation and its rights,
powers, privileges, licenses, registrations and goodwill are
all maintained and the operations of the Corporation are
carried on in a proper and businesslike manner so as to
preserve and protect the Corporation's business, assets and
undertaking;
(b) the directors and officers of the Corporation act in the best
interests of the Corporation so as to develop and maintain, to
the best of their respective abilities, the business, assets
and undertaking of the Corporation as an ongoing and viable
business; and
(c) with respect to all matters requiring authorization by the
directors of the Corporation, such directors take all
reasonable action to reach a decision with respect to any such
matter in a responsible manner and as expeditiously as is
reasonably possible under the circumstances and otherwise in
accordance with the terms of this Agreement.
ARTICLE VI
OPERATIONS, MANAGEMENT AND FINANCING
6.1 PROPER BOOKS. Proper books of account shall be kept by the Corporation and
entries shall be made therein of all matters, terms, transactions and things as
are usually written and entered into books of account in accordance with GAAP
consistently applied. Each of the Class A Shareholders, and such other
Shareholders as the law requires and only to the extent required, shall have
access, on reasonable notice as determined by the Board from time to time and on
such terms of security as the Board may establish, to examine such books and to
take such copies as the law requires or the Board may permit on appropriate
security terms. This right to examine shall not extend to client accounts, or
other third parties to the Corporation, unless authorized by such persons. The
Corporation shall at all times furnish to Shareholders correct information,
accounts and statements of and concerning all transactions pertaining to the
Corporation.
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6.2 AUDITORS AND SOLICITORS. The auditors of the Corporation shall be such firm
of qualified independent chartered accountants as the Board of Directors shall
appoint from time to time. Such auditors shall, at the fiscal year end of the
Corporation and at such other times as they may be reasonably requested by the
Board of Directors or by any regulatory authority or self regulatory authority
to which the Corporation is subject, perform an audit of the books and accounts
of the Corporation in accordance with GAAP, applied on a consistent basis and,
for such purposes, they shall have access to all books of account, records and
all vouchers, cheques, papers and documents of or which may relate to the
Corporation. The solicitors of the Corporation shall be such solicitors as the
Board of Directors shall appoint from time to time.
6.3 BANK. The Corporation shall maintain bank accounts at such bank or trust
company as the Board of Directors shall from time to time determine, and such
bank accounts shall be kept in the name of the Corporation or in such other name
as the Board of Directors shall determine.
6.4 CHEQUES AND SIGNATORIES. All cheques, bills, notes and drafts drawn on the
Corporation's bank accounts shall require the signatures of not less than two
officers or directors of the Corporation or such other contracted individuals as
the Board of Directors may determine.
6.5 MONIES RECEIVED. All monies received from time to time for the account of
the Corporation shall be paid immediately into those bank accounts for the time
being in operation, in the same drafts, cheques, bank transfers, bills or cash
in which they are received and all disbursements on account of the Corporation
shall be made by cheque drawn on such bank or trust company.
6.6 BORROWING. From time to time, and subject to the provisions of this
Agreement, the Board of Directors is empowered to borrow money for the
operations of the business of the Corporation.
6.7 PAYMENTS TO SHAREHOLDERS. Other than as specifically provided for in this
Agreement, any payments or other distributions made by the Corporation to the
Shareholders shall require the prior approval of the Board of Directors.
ARTICLE VII
RESTRICTIONS ON TRANSFER
7.1 RESTRICTION ON TRANSFER. Each of the Parties hereto warrants, covenants and
agrees that it shall not sell assign, transfer, pledge, mortgage, charge, create
a security interest in, hypothecate, enter into any agreement or option to or
otherwise dispose of, encumber or deal with any interest in the Securities
beneficially owned or controlled by it except in accordance with the terms of
this Agreement or except with the prior written consent of the Board of
Directors.
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7.2 ABILITY TO TRANSFER. Notwithstanding section 7.1, the Parties hereto (other
than the Corporation) each covenant and agree that, so long as a transferring
Securityholder continues to control the acquirer of the Security, the Board of
Directors shall not unreasonably withhold its consent to any transfer of
Securities to be effected in connection with the implementation of any BONA FIDE
corporate reorganization or tax or estate planning arrangement; provided that no
such transfer shall, however, be valid or effective until the acquirer of the
Securities in question shall have become bound to the terms of this Agreement
and assuming and agreeing to be bound by all the obligations of the transferring
Securityholder under this Agreement, together with the transferring
Securityholder if it is retaining Securities.
ARTICLE VIII
SALE OF SECURITIES
8.1 ABILITY TO SELL SECURITIES AND THE MECHANISM THEREFOR. Any Securityholder,
or holder of an interest therein (such holder in this Article referred to as the
"PROPOSING TRANSFEROR"), who wishes, or is required by other provisions of this
Agreement, to dispose of all or any part of an interest in Securities, other
than pursuant to the exception provided by Article VII, shall be obliged to
effect such disposition in accordance with the procedures and terms hereof. A
voluntary disposition (a non-voluntary disposition is elsewhere herein described
and employing the below procedures) shall be governed in accordance with the
following provisions:
(a) the Proposing Transferor shall give written notice to the
Corporation (the "TRANSFER NOTICE") specifying the interest in
Securities that the Proposing Transferor desires to dispose of
(such interest in Securities is referred to as the "OFFERED
SECURITIES"), the price, in lawful money of Canada (the
"PURCHASE PRICE"), and the terms of payment upon which the
Proposing Transferor is prepared to transfer the Offered
Securities. The Transfer Notice shall appoint the Corporation
as the agent of the Proposing Transferor for the sale of the
Offered Securities at the Purchase Price and upon the terms of
payment specified in the Transfer Notice. The Transfer Notice
shall also state whether the Proposing Transferor has had
negotiations for or an offer to purchase the Offered
Securities or proposes to sell the Offered Securities, or any
of them, to any particular person or persons who are not
members of the Corporation and if so, the names and addresses
of those persons shall be specified in the Transfer Notice.
The Transfer Notice shall constitute an offer by the Proposing
Transferor to sell the Offered Securities and shall not be
revocable upon delivery to the Corporation. If the Transfer
Notice pertains to Offered Securities of more than one class
or type then the Purchase Price and terms of payment for each
class of Offered Securities shall be stated separately in the
Transfer Notice;
(b) the Corporation shall forthwith upon receipt of the Transfer
Notice transmit a copy of the Transfer Notice to each Class A
Shareholder (other than the Proposing Transferor if it is a
Class A Shareholder), and request that each Class A
Shareholder state in writing within 30 calendar days from the
date of the Transfer Notice whether such Class A Shareholder
is willing to purchase any of the Offered Securities. The
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offer thereby made to the Class A Shareholders shall be
pro-rata in accordance with their Class A Share holdings and
the allocation shall be specified by the Corporation. The
recipients may accept the full allocation or may specify a
lesser amount or a particular part of the Offered Securities;
(c) upon the expiration of the 30 day notice period provided for
in sub-subsection 8.1(b) above, if the Corporation has not
received from the Class A Shareholders entitled to receive the
Transfer Notice sufficient acceptances, but has received some
acceptances to purchase part of the Offered Securities, the
Corporation shall thereupon give a 10 calendar day notice
offering the remaining Offered Securities among the Class A
Shareholders so accepting and, if there is excess demand by
the recipients, the interests shall be allocated pro rata in
proportion to the number of Class A Shares held by each of
them;
(d) if the Class A Shareholders have not taken up all, or any, of
the Offered Securities, the Corporation may elect, within 20
calendar days of the expiry of the period for the last
election by Shareholders under subsections 8.1(c) hereinabove
(as applicable), to purchase any unsubscribed portion, subject
to its capital not being impaired and approval of the Board;
(e) if the Corporation did not receive sufficient, or any,
acceptances from Class A Shareholders to purchase all the
Offered Securities and if the Corporation has not determined
to subscribe for all of the unsubscribed portion of the
Offered Securities, the Corporation shall offer the unaccepted
Offered Securities interests to all other non-Class A Share
classes of Shares, pro-rata between Shareholders, regardless
of class, and the procedure of subsections 8.1 (a), (b) and
(c) hereinabove shall apply, MUTATIS MUTANDIS;
(f) if not all of the Offered Securities are subscribed, the
Proposing Transferor shall not be obliged to sell less than
all the Offered Securities and may then proceed to offer and
sell the Offered Securities to such persons as are lawfully
eligible to purchase the same, but only on terms not better
than that of the Transfer Notice and for a period of 120
calendar days. Should the terms be made more favourable or the
time period expire the within right of first refusal shall
again apply. The Proposing Transferor may elect to accept the
acceptances of such portion of the Offered Securities as has
been accepted by Shareholders and may additionally proceed to
attempt to dispose of the remainder on the aforesaid
restriction and term;
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(g) the Proposing Transferor and the accepting Shareholders shall
be bound by the terms of the Transfer Notice severally as to
the portion accepted and shall not be relieved of the
obligation to close by failure of any one or several of the
accepting Shareholders to close unless the Transfer Notice has
so stipulated or the accepting Shareholder has so stipulated
in its acceptance, which stipulation the Proposed Transferor
may reject within five business days of delivery by the
Corporation of copies of the acceptances. Should such
stipulation be rejected, the said Shareholder may, within two
business days of notice by the Corporation, elect to remove
the stipulation, otherwise the interest shall be made
available to the other eligible Shareholders who shall have
five business days to accept a pro-rata portion. If a
Shareholder fails to close on the portion of its acquisition,
closing shall be deferred five business days and the other
Shareholders of the closing may acquire the said interest,
firstly pro-rata among Class A Shareholders and, secondly,
pro-rata among other Shareholders;
(h) after an apportionment has been made pursuant to the
procedures above described and upon payment of the Purchase
Price for the Offered Securities apportioned, the Proposing
Transferor shall be bound to transfer those Offered Securities
in accordance with that apportionment. If the Proposing
Transferor fails to do so the Corporation shall, and is hereby
irrevocably constituted the agent and power of attorney of the
Proposing Transferor for such purpose, cause the name of the
acquiring Shareholders to be entered in the register of the
Corporation as the holders of those Offered Securities and
shall cancel the Offered Securities issued to the Proposing
Transferor whether they have been produced to the Corporation
or not. Payment to the Corporation, as agent for the Proposing
Transferor, of the Purchase Price shall be sufficient payment
by the acquiring Shareholders and entry of the transfer in the
register of the Corporation shall be conclusive evidence of
the validity of the transfer. Upon completion of the transfer
the Corporation shall pay the Purchase Price to the Proposing
Transferor or its legal representative or, if it cannot do so
due to fault or omission of the Proposing Transferor, it shall
hold the funds in an interest bearing account for a period of
two years awaiting claim, failing which, after such period,
the Corporation may elect, on 10 business days' notice to the
Proposing Transferor at the last address on the Corporation's
register, to gift the same to the Corporation as contributed
capital and the Proposing Transferor shall have no claim
thereto thereafter;
(i) the closing (the "CLOSING") of the transactions contemplated
by this section 8.1 shall take place at the offices of the
Corporation's solicitors at 10:00 a.m. (Vancouver time) on
that date (unless otherwise agreed by the participating
parties) which is the latest of:
(i) 60 calendar days after the period referred to in
subsection 8.1(e) hereinabove; or
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(ii) 15 calendar days following the receipt of all
necessary governmental or regulatory approvals, if
any, required to be obtained in connection with the
transaction; or
(iii) 30 calendar days following the events and expiration
of time periods provided by subsection 8.1(j)
hereinbelow, unless the parties to the transaction
agree to a shorter or longer period; and
(j) the provisions as to transfers of Securities contained in
subsections 8.1(a) to (h) hereinabove are subordinate to the
following:
(i) if before the proposed transfer of Securities is made
the other Shareholders waive their right to receive
the Transfer Notice; or
(ii) to any transfer of Securities, or any part thereof,
pursuant to the provisions of Article VII;
(iii) to any transfer of Securities, or any part or time
period thereof, pursuant to the specific provisions
of other parts of this Article VIII;
(iv) in the event that the Board has concerns about the
Proposing Transferor's transferee, who is not a Class
A Shareholder, then upon notice by the Board, which
shall be given within five business days of
identification of the proposed transferee, the Board
shall have a period of 90 calendar days from such
notice of identification to find another transferee
or transferees, including the Corporation as a
transferee if the Board so determines, to acquire the
Offered Securities on equal or better terms, and the
Proposing Transferor shall be obliged to accept such
Board selected transferee or transferees; or
(v) in the event that a Proposing Transferor receives an
offer for the Offered Securities which is equal to or
more than a 2.5 multiple of the book value of the
Shares (and any premium to Shareholder Notes or
loans, if any, shall be transferred to the equity
calculation), or if 50% or more of the Class A
Shareholders find the proposed transferee
unacceptable, then, for a period of 30 calendar days
after notice by the Proposing Transferor to the
Corporation of the identity of the transferee and the
Purchase Price, the other Class A Shareholders shall
have the right to require that their Securities be
purchased as a condition of the Proposing
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Transferor's sale and, if the proposed transferee is
willing to proceed on such condition, the transaction
shall thereupon be deemed a takeover and offered to
all Class A Share holders in the same manner and with
the same procedures as the takeover provisions of the
then prevailing and applicable securities
legislation, MUTATIS MUTANDIS.
8.2 INABILITY TO SELL SECURITIES. Notwithstanding any other provision of this
Agreement:
(a) a Party shall not be entitled to sell, transfer or otherwise
dispose of any part of its Securities, without the prior
written consent (or resolution of a meeting) of the Board if
such Party is at that time in default of this Agreement (as
contemplated in section 8.4 hereinbelow), unless prior to or
concurrently with that sale, transfer or other disposition
such Party ceases to be a Defaulting Party (as hereinafter
defined), or in the case of sections 8.3 or 8.4 hereinbelow
where the default is monetary, application of the proceeds of
disposition would reasonably cure the default;
(b) except as permitted by section 7.2 hereinabove, for a period
of three years after the Effective Date Class A Shareholders
shall not sell any interest in their Securities to any party,
except other Class A Shareholders and then by the provisions
of section 8.1 hereinabove but only to Class A Shareholders,
unless permitted by the Board to solicit other transferees
pursuant to section 8.1; and
(c) no transfer shall be effective or recognized unless such
transfer is lawful and unless and until the transferee has
executed this Agreement and become bound by its provisions.
8.3 SALE UPON DEATH. Upon the death of a Shareholder who is a natural person
(the "DECEASED"), such person shall be deemed to have made and issued a Transfer
Notice on the date of death for the sale of all of the Deceased's Securities
pursuant to section 8.1 hereinabove, and such Deceased's estate and executors,
receivers or administrators thereof shall be bound to effect and complete such
notice, which shall be conducted in accordance with such section 8.1 as affected
and superseded by the provisions of this section. The Deceased's estate shall
notify the Corporation of the death as soon as possible and request that a
valuation pursuant to Article IX proceed. The Purchase Price of the Deceased's
Securities for the purpose of the Transfer Notice will, in the case of
Shareholder Notes or loans, be the principal amount of such Shareholder Notes or
loans, if any, and outstanding interest if any, and in the case of Shares will
be determined in accordance with Article IX and will be irrevocably deemed
offered at such Purchase Price, and the Corporation shall be the agent of the
Deceased and the estate in the same manner as provided in section 8.1. The time
periods of section 8.1 shall be suspended and not commence running until the
Article IX book value assessment has been delivered to the Deceased's estate
representatives and the Corporation. In the event that the Deceased's estate or
the Corporation disputes the valuation then the time period of section 8.1 shall
continue to be suspended until the dispute is resolved. In the event that all or
some of the Offered Securities are not taken up by Shareholders, then such may
be offered to any other bidder, subject to subsection 8.1(j) hereinabove, and
the Corporation may so require and may seek buyers, however, if the offered
price acceptable to the estate is less than book value then the provisions of
section 8.1 will again apply.
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8.4 SALE BY A PARTY IN DEFAULT. If a Securityholder (herein the "DEFAULTING
PARTY"):
(a) suffers an Event of Bankruptcy or commences winding-up or
dissolution and such winding-up or dissolution would result in
a disposition of Securities not otherwise permitted by this
Agreement;
(b) is terminated from a position of office or employment with the
Corporation wherein such person's right or option to purchase
Securities arose from or was a right granted by virtue of such
contract or position;
(c) suffers an event contemplated by subsection 3.1(e) hereinabove
and the Defaulting Party has failed or refused to initiate the
provisions of section 8.1 hereinabove within 15 calendar days
of a ruling, or such lesser time frame required by such
ruling; or
(d) receives a 30 calendar days' notice from the Corporation to
the effect that it has breached a material provision or
warranty of this Agreement, or has constructively done so by
breaching another contract with the Corporation which
reasonably results in a material breach of the good faith
provisions or of the warranties of this Agreement, and such
breach has not been rectified or waived by a Special Majority
of the Board or by ordinary resolution of Class A Shareholders
within such time period and the Defaulting Party has not
disputed the existence of the same within such time period or,
having disputed fault, thereafter the Defaulting Party admits
fault or is adjudged at fault;
then the provisions of section 8.3 hereinabove shall apply in the same manner as
if the Defaulting Party is a Deceased and the Corporation shall have the same
powers to effect the offer and dispose of the Defaulting Party's Securities as
contemplated by sections 8.1 and 8.3, MUTATIS MUTANDIS. For the purpose of this
section the Transfer Notice shall be deemed to have occurred for subsection (a)
above on the date the event is deemed by Agreement definition or law to arise,
for subsection (b) above on the date of termination by the Corporation, for
subsection (c) above on the date of the ruling and for subsection (d) above on
the later of the date on which the 30 day notice expires or the Defaulting Party
acknowledges or is adjudged at fault. The running of time of the section 8.1
process will not commence until the Defaulting Party requires in writing that
the Corporation commence the process or the Corporation, not having been prodded
by the Defaulting Party but on its own volition, delivers the first notice to
the Class A Shareholders.
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8.5 CLOSING. At the Closing provided for in subsection 8.1(i) hereinabove and
the other referenced preceding sections providing for Security transfer, each of
the Proposing Transferor, the Corporation and/or the transferee, as applicable,
shall:
(a) provide evidence satisfactory to the Corporation that the
transferee is lawfully permitted to purchase the Securities
and is acceptable to the regulators to which the Corporation
is subject, that the transferee is, and will on Closing, be
bound by this Agreement and that all obligations of the
Proposing Transferor to the Corporation will be satisfied on
Closing or, if acceptable to a Special Majority of the Board
(or may be accepted by the Board as a pragmatic matter if
transfer proceeds are fully being employed to pay the
Corporation for the Proposing Transferor's debts and yet such
may still not be sufficient; without prejudice to the
Corporation's right to seek recovery of any deficiency),
assumed by the transferee;
(b) if the Offered Securities constitute all of the voting Shares
owned by the Proposing Transferor, it shall deliver to the
Corporation signed resignations of the Proposing Transferor,
or its nominee, if any, as directors, officers and employees
of the Corporation, as the case may be, unless waived by the
Board; and
(c) if the Offered Securities constitute all of the Securities
owned by the Proposing Transferor, deliver to the Corporation
a release by such Proposing Transferor, and its nominees, if
any, of all claims against the Corporation in the Proposing
Transferor's capacity as a director, officer, Shareholder,
employee or creditor of the Corporation.
ARTICLE IX
VALUATION OF SHARES
9.1 VALUATION BASED ON BOOK VALUE. In the event that the provisions of sections
8.3 or 8.4 hereinabove become applicable, the Corporation shall cause its
accountants to determine the book value of all of the Shares then issued and
outstanding as an average of the book values of the following three dates:
(a) the last day of the month preceding the date of the Transfer
Notice;
(b) the last day of the month of the Transfer Notice; and
(c) the last day of the month following the Transfer Notice.
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The determination of the book value of the Shares on each of
such dates shall be based upon GAAP applied on a consistent basis and the
determination in accordance therewith will be final and binding on all Parties.
The book value of Shares on each of such date shall be determined by dividing
the book value as determined by the Corporation's accountants of all of the then
issued and outstanding Shares. Shareholder Notes or loans, if any, of the
Offered Securities of the Transfer Notice shall be determined as the face amount
of outstanding principle and interest, if any. The purchase price of the Shares
of the Offered Securities of the Transfer Notice shall be equal to the simple
average, aggregated in accordance with GAAP, of such aforesaid three book values
at such three dates.
ARTICLE X
PROFIT PARTICIPATION AND LOAN REPAYMENT
10.1 SHAREHOLDER NOTES AND LOANS PAID FIRST. Any and all Shareholder Notes and
loans or other advances or debits by Shareholders or other persons shall be paid
first before any distribution of Profits, unless such Shareholder Notes or loans
specifically provide that Profit may be distributed prior to repayment in full
of the same or if such provide specific terms of repayment. Not to restrict the
foregoing, although the Shareholder Notes provide that the same shall not be
repaid except at the discretion of the Board, it is intended, unless waived by
the holders thereof, that such Shareholder Notes shall be repaid before any
distribution of Profit.
10.2 ABILITY TO DISTRIBUTE PROFITS. The Corporation shall not distribute Profits
unless it has sufficient capital, retained earnings and cash, or cash
equivalent, to satisfy its solvency requirements, to satisfy regulators to which
it is accountable and to provide sufficient operating financial conditions as
the Board considers prudent. Profits available for distribution shall be
distributed no less than annually, however, the Corporation shall employ
reasonable efforts to effect quarterly Profit distributions with such
reservations and provisions as the Board considers advisable to reserve for
adjustments for the distribution formula provided by section 10.3 hereinbelow.
10.3 PROFIT ALLOCATIONS. Profits calculated for each fiscal year shall be
distributed to Shareholders PARI PASSU in accordance with the number of Shares
issued of record at the end of the calculation period (quarterly or annually, as
determined by the Board), however, if the Class A Shares reduce in number below
70% then the Class A Profits (as hereinafter defined) participation shall be
allocated at the greater of either the PARI PASSU amount or the below Class A
Profits for each sequential U.S. $2,500,000 of Profits. The Class A Shares
Profit, which is considered a `FLOOR' to its Profit participation subject to the
below variance, is described as follows:
(a) as to the first Profits up to U.S. $2,500,000, 70% (this
amount and the declining amounts of subsections (b) to (d)
immediately below are referred to as the "CLASS A PROFITS")
shall be distributed to Class A Shareholders and the remainder
to other classes of Shareholders PARI PASSU with the number of
issued Shares therein or otherwise as provided in the Articles
of the Corporation;
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(b) as to the second U.S. $2,500,000 of Profits, 60 % to Class A
Shareholders and the remainder to the rest as aforesaid;
(c) as to the third U.S. $2,500,000 of Profits, 50% to Class A
Shareholders and the remainder to the rest of the
Shareholders; and
(d) as to any further annual Profits, 40% to Class A Shareholders
and the remainder to the rest of the Shareholders;
however, notwithstanding the foregoing, the Board, with a Special Majority of
the Board resolution, may, if it considers such to be in the best interests of
the Corporation, reduce the Class A Profits, as to any part of subsections (a)
to (d) above, to an amount which is the result of multiplying the particular
Class A Profit by 0.75 and re-allocating the residual (which, for certainty is
the result of the Class A Profit multiplied by 0.25) to any other class of
Shares or to contractual obligations of Profit sharing.
10.4 DISCRETION TO REALLOCATE PROFIT. Together with or for such time prior to
invoking the Corporation's rights under sections 8.3 or 8.4 hereinabove, the
Board shall have full discretion to withhold or reallocate declared Profits
distributions to any Party if such Party is a Deceased or Defaulting Party or
otherwise owes, or may reasonably owe, the Corporation or any Shareholder money
or security whether pursuant to this Agreement or under any other contract or
for any other liability. After 10 calendar days' notice to a Party that the
Corporation shall apply any distribution, or part thereof, to amounts owing by
such Party to the Corporation or a Shareholder, and the Party does not object in
writing within such 10 days, then such distribution may be so applied and the
Corporation shall have no liability therefor except for any amounts, and only to
the extent of such amount, paid to itself for which it applied the distribution
in error. If a Party disputes default or an amount owing then the declared
distribution amount, or the amount in dispute, of the Party shall be placed in
trust in an interest bearing account and shall be distributed thereafter in
accordance with any settlement, judgment or arbitration thereof.
ARTICLE XI
CONFIDENTIALITY
11.1 CONFIDENTIALITY. Each of the Parties hereto (other than the Corporation)
hereby acknowledges that all records, material and information (collectively in
this Article XI the "INFORMATION") pertaining to the Corporation and any copies
thereof obtained by it are confidential and shall remain the exclusive property
of the Corporation, and each of the Parties agree that it shall not, at any
time, divulge the contents of such Information to any person other than the
Corporation's qualified employees nor use the contents of such Information for
any purpose whatsoever. Under no circumstances shall any of the Parties hereto
(other than the Corporation) remove any books, records or documents pertaining
to Information of the Corporation, or copies thereof, from the Corporation's
premises except for the purposes of the Corporation's business.
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10.2 BREACH AND DAMAGES. The Parties hereto acknowledge that compliance with
section 10.1 hereinabove is crucial to the business of the Corporation and that
in the event of breach of such section the damage may be irreparable. For the
purposes of the foregoing section the Parties hereto recognize and hereby agree
that a breach by any of the Parties would result in irreparable harm that would
not be adequately compensated for by monetary award. Accordingly, the Parties
hereto agree that, in the event of any such breach, the Corporation, or any
Shareholder acting for the Corporation if it fails to act within five calendar
days of notice to do so, is entitled as a matter of right to apply to a Court of
competent jurisdiction for relief by way of restraining order, injunction,
decree or otherwise as may be appropriate to ensure compliance with the
provisions hereof. Any breaching Party will also be liable to each of the other
Parties for direct losses and other damages including, without limiting the
generality of the foregoing, for loss of opportunity and for an accounting for
all amounts received and earned by the breaching Party flowing from, directly or
indirectly, any such breach.
ARTICLE XII
SECURITIES ESCROW PROVISIONS
12.1 SECURITIES TO BE HELD IN ESCROW. Unless waived by the Board, certificates
or other documents (collectively, the "SECURITIES CERTIFICATES") representing
the Securities of each Securityholder shall be held in escrow in accordance with
the provisions of this Article XII by such trust agent or solicitor (each an
"AGENT") as the Board may determine from time to time. The Board may replace the
Agent at any time at their discretion. The Parties agree that the Securities
Certificates shall be held in escrow for the term of this Agreement, or while a
Party is a Securityholder, and that the Securities Certificates are so held as
security and pledge for the due performance by each Securityholder of this
Agreement. The fees of the Agent for acting as escrow agent shall be borne by
the Corporation.
12.2 TRANSFER DOCUMENTS. Each Securityholder shall endorse in blank for transfer
and shall deliver to the Agent the Securities Certificates with the instructions
and upon the terms and conditions herein. The Securityholders hereby agree to
appoint the Agent as escrow agent for the purpose of holding and delivering the
Securities Certificates in accordance with this Agreement. Each Securityholder
agrees to enter into such agreement as the Agent may reasonably require, as is
customary in the industry or customary with such Agent. The reasonableness of
the Agent's agreement shall not be determined by each Securityholder but by the
Board, whose determination shall be final.
12.3 TRANSFERS OR CANCELLATIONS. In the event of a transfer or cancellation,
whether voluntary or involuntary in accordance with Article VII or any other
part of this Agreement, of all or part of the Securities of a Securityholder,
the Agent shall, upon the instructions of the Corporation or a person authorized
by the Corporation, make available for cancellation the Securities Certificates
representing the Securities being transferred. Unless waived by the Board as
aforesaid, any replacement Securities Certificates shall also be placed in
escrow in accordance with this Article XI. Each Securityholder and the
Corporation shall execute all consents, resolutions, transfer forms, contracts
and other documents as the Agent considers necessary or desirable in the case of
any transfer or cancellation or reissue of Securities Certificates pursuant to
the terms hereof.
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12.4 INDEMNIFICATION OF THE AGENT. The Securityholders hereby remise, release,
hold harmless and forever discharge the Agent from any liability by reason of
its acting in good faith as escrow agent under the terms of this Agreement. The
Agent shall at all times be entitled to rely on the instructions of the
Corporation and the Agent shall take all steps and actions required of it to
carry out its duties hereunder; provided that the Agent's duties may be modified
by a Special Majority of the Board, a Special Majority of the Securityholders or
by an order of a Court of competent jurisdiction. The Parties agree that the
Agent shall not be required to act unless the necessary parties have entered
into such indemnity agreements and posted such security as the Agent may
reasonably require.
ARTICLE XIII
INSURANCE
13.1 INSURANCE. The Corporation shall maintain such liability and other
insurance as the Board considers prudent to insure the risks of the
Corporation's business or as is required by the regulatory authorities to which
it is subject.
ARTICLE XIV
TERMINATION OF AGREEMENT
14.1 EVENTS OF TERMINATION. This Agreement shall cease and terminate on the
occurrence of any of the following events, namely:
(a) on the completion of the bankruptcy or receivership of the
Corporation or the completion by the Corporation of its
winding-up or dissolution pursuant to this Agreement and in
accordance with prevailing law;
(b) the execution of an agreement of termination in writing by all
the Parties;
(c) the Corporation only having one Shareholder; or
(d) the first business day of November, 2052.
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14.2 STATUS OF AGREEMENT ON TERMINATION. Regardless of any termination of this
Agreement generally, its provisions shall continue to have effect for the
purpose of governing the rights between the Parties as to any wind-up,
dissolution, distribution or settlement of any matters between the Parties or in
respect to the orderly disposition of the affairs of the Corporation.
ARTICLE XV
ARBITRATION
15.1 MATTERS FOR ARBITRATION. The Parties agree that all questions or matters in
dispute with respect to this Agreement, the Securities or the Corporation shall
be submitted to binding arbitration pursuant to the terms hereof.
Notwithstanding the foregoing, a Party shall not be prevented from exercising
the provisions of section 11.2 to acquire injunctive relief prior to or
concurrently with exercising its rights under this Article XV.
15.2 NOTICE AND NEGOTIATION. It shall be a condition precedent to the right of
any Party to submit any matter to arbitration pursuant to the provisions hereof
that such Party intending to refer any matter to arbitration shall have given to
the other Party or Parties, with a copy to the Corporation, not less than 20
calendar days' prior written notice of its intention to do so, together with
reasonable particulars of the matter in dispute, and that such complaining Party
shall have invited the noticed Parties at least once to negotiate the dispute.
On the expiration of such 20 days the Party who gave such notice may proceed to
refer the dispute to arbitration as provided for in section 15.3 hereinbelow.
15.3 APPOINTMENTS AND PROCEDURE. After the 20 day period set forth in section
15.2 hereinabove a Party desiring arbitration shall appoint one arbitrator with
a statement of credentials and shall notify the noticed Parties of such
appointment, and the noticed Parties shall, within 30 calendar days after
receiving such notice, agree that such first arbitrator shall be the only
arbitrator or shall appoint a second arbitrator and give notice of the same. The
two arbitrators so named, before proceeding to act, shall, within 30 calendar
days of the appointment of the last appointed arbitrator, agree on the
appointment of a third arbitrator to act with them, and such three arbitrators
shall select a chairman from themselves. If the noticed Parties shall fail to
appoint and give notice of an arbitrator within 30 calendar days after receiving
notice of the appointment of the first arbitrator, then the first arbitrator
shall act as a single arbitrator, and if the two arbitrators appointed by the
Parties shall be unable to agree on the appointment of a third, then the third
arbitrator shall be appointed under the provisions (the "RULES") of the AMERICAN
ARBITRATION ASSOCIATION or, failing that, by a judge of the State of Nevada,
U.S.A., on the motion of any Party to the dispute. Except as specifically
otherwise provided in this section, the arbitration herein provided for shall be
conducted in accordance with such Rules. Where there is an insufficiency in this
Article XV or the Rules and regarding the matters in dispute, then the
arbitrators shall be the masters of procedure, evidence, rules of order and the
process of law and judgment. Where this Agreement, the constating documents of
the Corporation, other documents relevant to the Parties or the law does not
provide for or address any material matter in dispute, then the arbitrator(s)
shall have reference to the customary practice of the industry and, if the
Parties do not call expert testimony, the arbitrator(s) may, but is not obliged
to, call its own determined expert testimony at the cost of the Parties. The
arbitrators, or in the case where only one arbitrator is appointed, the single
arbitrator, shall fix a time and place in accordance with agreement of the
Parties or the Rules and shall establish the calendar and procedure for the
purpose of hearing the evidence and representations of the Parties. When the
Corporation is not a party to the arbitration the Parties and the arbitrator(s)
shall copy the Corporation with all correspondence and submissions to or from
the arbitrator(s) (omission to do so shall not invalidate the proceedings)
unless the arbitrator(s) rules that any communication is privileged, or any
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rulings or awards. The Corporation shall have the right to intervene in the
arbitration and have standing to make representations on such terms as to costs
as the arbitrator(s) may determine. Any arbitration shall be transcribed, unless
the Parties waive such, and the proceedings and hearings and decisions shall be
confidential and in closed hearings unless the Parties waive such, partly or
wholly or as may be necessary for any execution of an arbitration award. After
hearing any evidence and representations that the Parties may submit, the single
arbitrator, or the arbitrators, as the case may be, shall make an award and
reduce the same to writing, and deliver one copy thereof to each of the Parties.
The expense of the arbitration shall be paid as specified in the award but,
failing specification, each Party shall bear its own costs and the losing party
shall bear the cost of the arbitrator(s) and the arbitration facilities.
15.4 AWARD. The Parties agree that the award of a majority of the arbitrators,
or in the case of a single arbitrator, of such arbitrator, shall be final,
binding and enforceable upon each of them and shall not be appealable except for
manifest error of law.
ARTICLE XVI
GENERAL CONTRACT PROVISIONS
16.1 SECURITIES LEGEND. All Securities certificates or documents of the
Corporation shall have the following legend endorsed thereon:
"The Securities represented by this certificate (document) are subject
to a Shareholders' and Securitiesholders' Agreement made as of the o
day of November, 2002, in respect to the Securities of this document
issued by Stentgenix, Inc., and all parties are notified hereby that,
accordingly, these Securities are bound by restrictions on resale or
other disposition and to rights of first refusal and to certain other
provisions of such Agreement, and no person shall deal in or deal with
these Securities in any manner whatsoever without prior communication
and written permission (which will be withheld unless the Agreement and
applicable law is strictly complied with) from the Corporation, its
Securityholders and its Board of Directors.".
16.2 CONFLICT WITH THIS AGREEMENT. In the event of a conflict between the
provisions of this Agreement and any of the constating documents or bylaws of
the Corporation or resolutions of the Board or of the Shareholders of the
Corporation, the Parties hereto shall cause such meetings to be held and shall
exercise their vote and influence, within the provisions of law, so as to cause
such constating documents, bylaws and/or resolutions to be amended or repealed
to the extent necessary to resolve any such conflict in such manner so that the
provisions of this Agreement shall at all times prevail.
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16.3 CURRENCY. All dollar amounts expressed in this Agreement are expressed in
Canadian dollars and all payments contemplated by the provisions of this
Agreement shall be made in United States funds.
16.4 GENDER AND PLURALITY. In this Agreement the use of the singular includes
the plural and VICE VERSA; words importing gender include the masculine,
feminine and neuter genders; all verbs shall be construed as agreeing with the
required work and/or pronoun; and the words "THIS AGREEMENT", "HEREIN",
"HEREOF", "HEREBY", "HERETO", "HEREUNDER" and similar expressions refer to this
Agreement as a whole and not to any particular portion hereof, unless the
context otherwise clearly requires.
16.5 HEADINGS. The division of this Agreement into Articles, sections and
subsections and the insertion of headings are for convenience of reference only
and shall not affect the interpretation or construction of this Agreement.
16.6 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement and of
every part hereof, and no extension or variation of this Agreement shall operate
as a waiver of this provision.
16.7 ENTIRE AGREEMENT. This Agreement constitutes the entire, full and complete
agreement and understanding among the Parties hereto as of the date of execution
in respect of the subject matters hereof and supersedes all prior agreements,
arrangements and understandings, whether oral or written. There are no
representations, inducements, promises, statements or intention or agreements,
oral or written, among the Parties hereto not embodied herein which are of any
force or effect with reference to this Agreement or the subject matters hereof.
16.8 AMENDMENTS. This Agreement and its effect on all Parties hereto shall not
be amended, modified, superseded or canceled except by a document or other
instrument in writing signed by all of the Parties hereto, and any document or
other instrument which purports to amend, modify, supersede or cancel this
Agreement or any part hereof shall not be binding and shall be of no effect
unless and until it has been executed and delivered by all of the Parties
hereto. Notwithstanding the foregoing, this provision shall not affect the right
of some of the Parties from entering into agreements between themselves which
may modify or add or subtract provisions as between such Parties, however, all
such which may affect the Corporation shall be noticed to the Corporation.
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16.9 WAIVER. The failure of any Party hereto at any time or times to require
performance of any provision hereof by any other Party hereto shall in no manner
affect the right of such Party to require such performance at a later time. No
act or omission of any Party hereto, other than an express written waiver signed
by such Party, shall constitute a waiver by such Party of any breach of this
Agreement or of the provision of this Agreement so breached. No waiver by a
Party hereto of the breach of any provision hereof, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of such breach or as a waiver of the provision hereof so breached.
16.10 TIME PERIODS. When calculating the period of time within which or
following which any act is to be done or step taken pursuant to this Agreement,
the date which is the reference date in calculating such period shall be
excluded. If the last day of any period is a non-business day the period in
question shall end on the next business day.
16.11 ASSIGNMENT. No Party hereto may assign its interest in this Agreement
except in accordance with the provisions of this Agreement.
16.12 ENUREMENT. This Agreement shall be binding upon and enure to the benefit
of the Parties hereto and their respective successors and permitted assigns and,
in the case of Parties who are natural persons, also upon their respective
heirs, executors and administrators.
16.13 LEGISLATION. Any references herein to any law, bylaw, rule, regulation,
order or act of any government, governmental body or other regulatory body shall
be construed as a reference thereto as amended or re-enacted from time to time
or as a reference to any successor thereto.
16.14 PROPER LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, U.S.A., and this Agreement
shall in all respects be treated as a Nevada contract. The Parties hereto
irrevocably attorn to the exclusive jurisdiction of the arbitration panels
constituted under the provisions of this Agreement or the courts of the State of
Nevada, U.S.A., to resolve any dispute which may arise among them concerning
this Agreement and the subject matters hereof.
16.15 NOTICE. Any notice, payment or other communication required or permitted
to be given or served pursuant to this Agreement shall be in writing and shall
be delivered personally, sent by facsimile or forwarded by first class prepaid
mail to the Party concerned addressed at the last address appearing on the
Corporation's register as advised by the Party. A Party may change its address
for delivery at any time by written notice to the Corporation. Any notice,
payment or other communication shall be deemed to have been given, if delivered
by hand or sent by facsimile on the day delivered or so sent, and if mailed then
it shall be deemed delivered four business days following the date of posting;
provided that if there shall be at the time of mailing, or within four business
days thereof, a mail strike, slowdown or other labour dispute that might affect
delivery by the mails, then the notice, payment or other communication shall be
effective only when actually delivered or sent by facsimile.
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16.16 SEVERABILITY. Should any part of this Agreement be declared or held to be
invalid for any reason, the invalidity shall not affect the validity of the
remainder of this Agreement which shall continue in full force and effect and be
construed as if this Agreement had been executed without the invalid portion,
and it is hereby declared the intention of the Parties that this Agreement would
have been executed without reference to any portion that may, for any reason, be
hereafter declared or held invalid. Any provision of this Agreement which is
invalid, prohibited or unenforceable in any jurisdiction for any reason
whatsoever shall, as to such jurisdiction only, be ineffective and severable
from this Agreement to the extent of such invalidity, prohibition or
unenforceability, but such invalidity, prohibition or unenforceability shall not
invalidate the remaining provisions of this Agreement nor shall it affect the
validity or enforceability of such provision in any other jurisdiction. In
addition, the Parties hereto further acknowledge and agree that all restrictions
or obligations in this Agreement are necessary and fundamental to the protection
of the business of the Corporation and the investment of each of the Parties
hereto and are reasonable and valid, and all defenses to the strict enforcement
thereof by the Parties hereto are hereby waived by any defaulting or contrary
claiming Parties.
IN WITNESS WHEREOF the Parties hereto have duly executed this
Agreement on the date first above written.
The CORPORATE SEAL of )
ENDOVASC LTD., INC. )
was hereunto affixed in the presence of: )
) (C/S))
)
--------------------------------------------)
Authorized Signatory )
The CORPORATE SEAL of )
MIV THERAPEUTICS, INC. )
was hereunto affixed in the presence of: )
) (C/S)
)
--------------------------------------------)
Authorized Signatory )
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The CORPORATE SEAL of )
STENTGENIX, INC. )
was hereunto affixed in the presence of: )
) (C/S)
)
--------------------------------------------)
Authorized Signatory )
__________
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