Exhibit 10.1
PURCHASE AND SALE AGREEMENT dated effective September 25, 2007
BETWEEN:
APAR INC., an Alberta corporation, having its head office
at 000, 000 - Xxxxxx Xxxxxx XX., Xxxxxxx, Xxxxxxx X0X 0X0
(hereinafter referred to as "Apar")
OF THE FIRST PART
AND:
EMISSION DIFFERENTIALS LTD., an Alberta corporation,
having its head office at 000, 000 - Xxxxxx Xxxxxx XX.,
Xxxxxxx, Xxxxxxx X0X 0X0
(hereinafter "EDFFF")
OF THE SECOND PART
W H E R E A S:
A. Apar has been developing a number of assets which are briefly
described in Part I of Schedule "A" hereto, and wishes to sell
them to EDFFF (excluding the assets described in Part II of Schedule
"A" - the "Retained Assets") - all of Apar's assets, except the
assets described in Part II of Schedule "A",
being hereinafter referred to as the "Apar Assets".
B. EDFFF is desirous of purchasing the Apar Assets on the
terms hereinafter set forth.
C. EDFFF is registered pursuant to the United States
Securities Exchange Act of 1934 ("34 Act"), as a foreign
private issuer, through the filing of a Form F-1.
D. It is the intention of the Parties that, as a result of
the sale of the Apar Assets from Apar to EDFFF, and the
retention of the Retained Assets by Apar, that the shareholders
of EDFFF should have an ongoing shareholder
interest in Apar and the shareholders of Apar should
receive shares in EDFFF.
NOW THEREFORE, in consideration of the premises and the covenants
and agreements
hereinafter contained, the Parties agree as follows:
1. Apar agrees to sell, transfer and assign the Apar Assets to
EDFFF.
2. Apar also agrees to, simultaneously with the closing hereof,
issue and allot to EDFFF 2,500,000 voting common shares in the
capital of Apar. EDFFF also agrees to, simultaneously with the
closing hereof, issue and allot to Apar 2,500,000 voting
common shares in the capital of EDFFF to secure the rights to
enter into a Joint Venture for ongoing business and first
right to share new developments.
3. In full consideration of the sale of the Apar Assets pursuant to
Clause 1 and the
issuance of shares pursuant to Clause 2, EDFFF will issue and allot to Apar:
(a) 23,390,808 voting common shares in the capital of EDFFF; and
(b) EDFFF agrees to accept the outstanding shareholder loans, outstanding .
base salary which was set at $60,000.00 per year, which has
accumulated over the last four years for a total of approximately
$240,000.00 that was agreed to by Apar"s
Board of Directors to be owing to Xx. Xxxxxx X. Xxxxxxxx and also the
outstanding loans of $300,000.00 to Xx. Xxxxxx X. Xxxxxxxx which has been
recorded since 2003 and $53,735.23 as at March 19, 2007 to 906109 Alberta Ltd.
that were registered by APAR, on its books, to be converted at the current
purchase price at a later date to be determined; and
(c) EDFFF agrees to accept the outstanding Apar warrants entitling the
purchase of up to 7,246,521 shares of EDFFF, exercisable at $0.60, $0.75
and or $0.85 per share based on the purchase price that was agreed to
by Apar under the subscription documents "price" signed by each
shareholder in developing the
products being sold to EDFFF on or before March 19, 2007. EDFFF has the right
to force conversion of the warrants at its discretion with at least 20 days
written notice to the warrant holders. They will have the option to
convert at the original agreed price as issued and approved by Apar or it
is agreed that the holder will forfeit the warrants entirely. It is
understood and agreed to that EDFFF may also
attach a 4 month hold period from the issued date or offer the
financial entities that provide major financing to the corporation the
ability to make an offer to the warrant holder at a premium from the
original exercise price as stated above.
The said EDFFF shares, outstanding loans and warrants being hereinafter
called the "Purchase Consideration".
4. It is agreed that the Purchase Consideration shall be for the
Parties' purposes deemed to have a value of $2,400,000.00 based on
development costs to date. This entire
value is being attributed to the EDFFF shares, shareholder loans and
the fact that the warrants are being issued for no specific attributable
value.
5. To ensure that Apar will, notwithstanding the sale of the Apar
Assets to EDFFF, have
the right and licence to use some or all of the Apar Assets, Apar
and EDFFF will separately negotiate and settle an agreement pursuant to
which EDFFF will grant to Apar a licence enabling use of the Apar
Assets which Apar may wish to use, and for
which Apar shall pay to EDFFF a fair, reasonable and appropriate licence
fee.
6. EDFFF agrees that Apar will have the right at it's sole
discretion, without the obligation of acting reasonably, to reverse
this transaction if EDFFF is not
able to complete the planned roll-back (100 to 1) of its shares, as stated
from its special meeting held on January 22, 2007 and directors resolution
signed on February 16, 2007.
7. To ensure that Apar's existing shareholders get direct shareholder
interests in EDFFF, Apar agrees that it will transfer to each shareholder a
certificate forthwith after the
receipt of the Purchase Consideration and to take such steps as are
necessary to
distribute to the Apar shareholders the EDFFF 23,390,808 voting common shares
based on a one for one.
8. Apar agrees that, as EDFFF is registered under
the 34 Act, it will execute such
supplemental documents or provide supplemental information as EDFFF may require
from time to time to make such further filings, or public disclosures as may be
required under U.S. securities laws and EDFFF agrees that it will bear all
costs to comply.
9. As it is the objective of Apar that, inter alia, its shareholders
may be entitled to trade
the shares of EDFFF that it receives pursuant to this Agreement in Canada
and in compliance with the Canadian securities laws, included in the
purchase and sale
agreement, it is agreed that the parties are using the section 85 (the deferral
provisions) of the Income Tax Act of Canada, and EDFFF may initiate, forthwith
after the closing of this Agreement, such steps as its legal advisors may
advise are appropriate to become, or to be deemed, a "reporting
issuer" in at least two Provinces of Canada.
10. Apar covenants and warrants in favour of EDFFF that it is the legal
and beneficial owner of the Apar Assets and that it is unrestricted in
its right to sell such assets to EDFFF free and clear of all liens,
charges and encumbrances, save only compliance
with the provisions of Clause 11 below.
11. Apar will, forthwith after the execution hereof, schedule an
extraordinary general meeting of its shareholders to secure the
appropriate approval for the sale of the Apar
Assets to EDFFF and the date that such a resolution is passed will
hereinafter be called the "Approval Date".
12. Apar, EDFFF and their executive officers shall, in anticipation
of the Approval Date, satisfy all requirements as may be necessary
and appropriate to enable this Agreement
to close in a timely fashion. The Parties shall also, immediately following the
Approval Date, complete all such things as may be necessary to affect
the closing of this Agreement.
13. The "Effective Date" of the transaction is March 19, 2007.
14. All references to monies herein are in Canadian dollars.
15. This Agreement will be interpreted according to the laws of
the Province of Alberta
and the laws of Canada.
16. This Agreement shall ensure to the benefit of and be binding
upon the Parties hereto
and their respective administrators and permitted assigns, and their related or
associated companies or persons.
17. The Parties hereto agree to perform such further acts and to
execute such further
documents as may be necessary to carry out the true intent and meaning of this
Agreement.
IN WITNESS WHEREOF the Parties hereto have hereunto caused
this Agreement to be executed by their duly authorized officers as
of the day and year first above written.
APAR INC.
Per: /S/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx,
President
EMISSION DIFFERENTIALS LTD.
Per: _______________________
Xxxxxx Xxxxx,
President
SCHEDULE 'A' TO AGREEMENT DATED MARCH 19, 2007
BETWEEN
APAR INC. AND EMISSIONS DIFFERENTIALS INC.
PART I
All of the assets of Apar, exclusive of those described in
Part II below, shall include, but are
not limited to:
(a) All of the computer programmes which it has developed, or is
in the course of
developing, which are focused on, among other things, the oil and gas
industry, the
operation of management systems for banks and the operation of management
systems for Aboriginal bands, some or all of which have been described
in brochures
and pamphlets that have been previously issued by Apar - and which have been
generally referred to by Apar as constituting its "Energy Resource Manager".
(b) (i) All "Technical Information" which has been developed
by Apar with respect
to the properties and assets described in sub-clause (a) above - it
being acknowledged that "Technical Information" includes but is not
limited to any and all copyrights,
patents, patent applications, trademarks, designs, design patents,
industrial designs, design applications, know-how, trade secrets,
documents, drawings, prototypes, computer hardware, computer-stored
information and copies thereof, brochures,
customer information, distributor information, source of supply
information, product and component knowledge, other written and
recorded material including plans,
diagrams and instruction manuals and any other information and
know-how relating
to such property and assets and any Modifications thereto.
(ii) All "Modifications" shall mean any improvements,
changes, modifications, designs and/or additions arising from
or made in connection with the property and assets described above
subsequent to the execution of this Agreement.
(iii) "Know-how" is as defined in Article 1(7)(1) of
European Economic Community Regulation 556/89 which
defines "know-how" as:
1(7)(1) - a body of technical information that is secret, .
substantial and identified in an appropriate form;
1(7)(2) - "secret" means that the know-how package as a
body or in the precise configuration and assembly of
its components is not generally known
or easily accessible, so that part of its value consists in the
lead-time the licensee gains when it is communicated to him;
it is not limited to the narrow
sense that each individual component of the know-how should be
totally unknown or unobtainable outside the licensor's business;
1(7)(3) - "substantial" means that the know-how includes
information which is of importance for the whole or a
significant part of (i) a manufacturing
process, or (ii) a product or service, or (iii) for the
development thereof and excludes information which is trivial.
Such know-how must thus be useful - i.e. can reasonably be
expected at the date of conclusion of the agreement to
be capable of improving the competitive position of the
licensee, for example by helping him to enter a new market
or giving him an advantage in
competition with other manufacturers or providers of
services who do not have access to the licensed secret know-how
or other comparable secret know-how;
1(7)(4) - "identified" means that the know-how is
described or recorded in such a manner as to make it possible
to verify that it fulfils the criteria of
secrecy and substantiality and to ensure that the licensee
is not unduly restricted in his exploitation of his own
technology. To be identified the
know-how can either be set out in the licence agreement or
in a separate document or recorded in any other appropriate
form at the latest when the
know-how is transferred or shortly thereafter, provided that
the separate document or other record can be made available
if the need arises.
(iv) Any patents, patent applications, trademarks,
trademark applications, copyrights or copyright applications which
Apar has to date, or would be entitled to
have, or apply for with respect to any of the Apar Assets.
(c) All other property not specifically stated in
Part II of this Schedule A.
PART II
All of the plans which Apar has developed to establish
a bank in Canada and to acquire or establish relationships with
banks in the United States, to have United States banks approved
to do business in Canada and all of the know-how and technical
information which Apar and its directors, officers and employees
have assembled and accumulated with respect to
banking industry or the operation of banks.
