Contract
Exhibit
4.2
THE
SECURITIES TO WHICH THIS AMENDED CONVERTIBLE DEBENTURE PURCHASE AND SALE
AGREEMENT RELATES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE, AND WILL BE ISSUED IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT
TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.
THIS
AMENDED CONVERTIBLE DEBENTURE
PURCHASE and SALE AGREEMENT (the "Amended Agreement") dated July 12,
2007.
AMONG:
NP
CAPITAL
CORP., a company
incorporated under the laws of the State of Delaware, with an office at 00000
Xxxxxxxx Xxxxx Xxxx, Xxxxx #000, Xxxxx Xxxxx Xxxxx XX 00000;
(the
"Seller")
AND:
0784655
B.C. LTD, a private
company incorporated under the laws of the Province of British Columbia, with
an
office at Suite 000 - 0000 Xxxx Xxxxxxxx, Xxxxxxxxx, X.X. X0X 0X0;
(the
"Buyer")
AND:
ENVORTUS
INC., a company
incorporated under the laws of the State of Delaware, with an office at One
Panorama Center, 0000 Xxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx,
00000.
("ENVORTUS")
WHEREAS:
A. In
an
Convertible Debenture Purchase and Sale Agreement dated March 14, 2007 (the
"Original Agreement"), the Seller agreed to sell and the Buyer agreed to
purchase a Convertible Debenture of $152,500 in the capital of Envortus, on
the
terms and conditions set forth in the Original Agreement;
B. Two
out
of three payments, totalling $55,000 have already been paid by the Buyer to
the
Seller, pursuant to the terms of the Agreement; and,
C.
The parties to the Original Agreement wish to amend many of the terms and
conditions of the
1
NOW
THEREFORE, in
consideration of the mutual covenants and agreements herein contained and other
good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties), the parties covenant and agree each with
the others as follows:
1. Restatement
This
Amended Agreement hereby amends and restates the Original Agreement in its
entirety.
2. Warranties
and Representations
2.1
The
Seller warrants and represents to the Buyer, with the intent that the Buyer
will
rely thereon in entering into this Amended Agreement and in concluding the
purchase and sale contemplated herein, that:
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(a)
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the
Seller is the beneficial owner of the Convertible
Debenture;
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(b)
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the
Convertible Debenture is free and clear of all liens, charges and
encumbrances;
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(c)
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the
Seller has the power and capacity and good and sufficient right and
authority to enter into this Amended Agreement on the terms and conditions
herein set forth; and,
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(d)
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None
of the information included in this Amended Agreement or any other
documents or information furnished or to be furnished by the Seller
contains any untrue statement of a material fact or is misleading
in any
material respect or omits to state any material fact. Copies of all
documents referred to in herein have been delivered or made available
to
the Buyer and constitute true and complete copies
thereof.
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2.2
The
Buyer warrants and represents to the Seller and Envortus, with the intent that
the Seller and Envortus will rely thereon in entering into this Amended
Agreement and in concluding the purchase and sale contemplated herein,
that:
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(a)
|
the
Buyer has the power and capacity and good and sufficient right and
authority to enter into this Amended Agreement on the terms and conditions
herein set forth; and,
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(b)
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The
Buyer, either alone or together with its representatives, has such
knowledge, sophistication and
experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in
the
Convertible Debenture, and has so evaluated the merits and risks
of such
investment. The Buyer is able to bear the economic risk of an investment
in the Convertible Debenture and, at the present time, is able to
afford a
complete loss of such investment.
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2.3
Envortus warrants and represents to the Seller and the Buyer, with the intent
that the Seller and the Buyer will rely thereon in entering into
this Amended Agreement and in concluding the purchase and sale
contemplated herein, that:
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|
(a)
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Envortus
has the power and capacity and good and sufficient right and authority
to
enter into
this Amended Agreement on the terms and conditions herein set forth.
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3. Independent
Legal Advice
3.1
Envortus and the Buyer understand and agree that Xxxxx Xxxxxx LLP has acted solely for the
Seller in the negotiation and execution of this Amended Agreement and Xxxxx
Xxxxxx LLP has advised
Envortus and the Buyer to obtain the advice of their independent legal
counsel.
2
4. Purchase
and Sale
4.1
On the basis of the warranties and representations of the Seller and the Buyer,
as set forth in Section 1 of this Amended Agreement, and subject to the terms
and conditions of this Amended Agreement, the Buyer agrees to purchase from
the
Seller and the Seller agrees to sell to the Buyer, the Convertible Debenture
for
the purchase price of $152,500 (the "Purchase Price") to be paid to the Seller
in three separate payments (each a "Payment") on the dates provided in the
table
below (each a "Payment Date"):
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Payment
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Payment
Date
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$25,000
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Closing
Date (hereinafter defined)
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$30,000
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30
days after the Closing Date
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$97,500
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120
days after the Closing Date
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4.2
The Seller and the Buyer agree that delivery of a Promissory Note by the Buyer
to the Seller in the amount of $97,500, on or before 125 days after the Closing
Date, will constitute the making of the third and final Payment under this
Amended Agreement.
4.3
The Seller and the Buyer agree that should any of the Payments not be made
on or
before the respective Payment Date, this Amended Agreement will terminate and
the unpurchased portion of the Convertible Debenture shall remain in the
possession and ownership of the Seller, and the amount of the Convertible
Debenture that has already been paid for by the Buyer will remain as purchased
by the Buyer. The determination of how much of the Convertible Debenture has
been Purchased by the Buyer at a particular time will be calculated based on
the
percentage of the Purchase Price that has been paid to the Seller, for example,
if $76,250 has been paid by the Buyer then 50% (fifty percent) of the
Convertible Debenture will have been purchased by the Buyer at that
time.
4.4
The Buyer acknowledges and agrees that the Convertible Debenture is being issued
pursuant to an exemption from the prospectus and registration requirements
of
the Securities Act. As required by applicable securities law, the Buyer agrees
to abide by all applicable resale restrictions and hold periods imposed by
all
applicable securities legislation. All certificates representing the Convertible
Debenture and any shares in the common stock of Envortus that the Convertible
Debenture is converted into (each a "Share") will be endorsed with a.
restrictive legend in substantially the following form pursuant to the
Securities Act in order to reflect the fact that the Convertible Debenture
may
not be sold by the Buyer except pursuant to an effective registration statement
under The 1933 Act or pursuant to an available exemption from, or in a
transaction not subject to, the registration requirements of The 1933 Act and
in
accordance with applicable state securities laws:
THE
SECURITIES REPRESEN'T'ED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH
THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE,
AND WILL BE ISSUED IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND, ACCORDINGLY, MAY
NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH
APPLICABLE STATE SECURITIES LAWS.
4.5
The
Buyer acknowledges and agrees that upon each payment of the Purchase Price,
its rights
and obligations pursuant to the portion
of the Convertible Debenture that has been paid for will be
the
same
as though it had been the original creditor in the place of the Seller in
the
Convertible Debenture.
3
4.6
Envortus acknowledges and agrees that once the Buyer has paid $25,000 of the
Purchase Price to the Seller, the Buyer shall be entitled to nominate one person
to a position on the Board of Directors of Envortus. The Seller acknowledges
that once $25,000 of the Purchase Price has been made, one of either Xxxxx
Xxxx
or Xxxxxxx Xxxxx will resign from the Envortus board of directors to allow
for
the Buyers nominee to join the Envortus board of directors.
4.7
The
Seller acknowledges that within five business days of the delivery of the
Promissory Note, Xxxxx Farm will resign from the Envortus board of directors,
Xxxxxxx Xxxxx having resigned at an earlier date.
5. Closing
Date
5.1
The Closing Date is the date of the closing of this Amended Agreement, as agreed
to by
the
parties.
6. Closing
Deliveries
6.1
On
the Closing Date of this Amended Agreement, the Seller shall deliver or cause
to
be delivered to the Buyer or its counsel any document reasonably requested
by
the Buyer or Buyer's Counsel.
6.2
On the Closing Date of this Amended Agreement, the Buyer shall deliver or cause
to be
delivered
to the Seller the following:
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(i)
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the
amount of the first Payment, which is $25,000, in United States dollars
in
the form of a bank wire, draft or certified
cheque;
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(ii)
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a
completed and executed Accredited Investor Certificate and Questionnaire,
which is attached to this Amended Agreement in Schedule 1;
and,
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(iii)
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any
other document reasonably requested by, the Seller, Envortus or
their respective
Counsel.
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6.3
On the Closing Date of this Amended Agreement, Envortus shall deliver or cause
to bedelivered to the Buyer the following:
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(i)
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A
detailed statement of the amounts of money paid in to Envortus from
the
Seller and represented by the Convertible Debenture, whether any
amounts
under the Convertible Debenture have been converted into other securities
of Envortus, the manner in which the remaining amounts under the
Convertible Debenture shall be converted and an acknowledgement that,
pursuant to the payment schedule set out in this Amended Agreement,
the
Buyer is now the Creditor under the Convertible Debenture;
and,
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(ii)
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any
other document reasonably requested by the Buyer or its respective
Counsel.
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7. Successors
and
Assigns
7.1
This Amended Agreement shall be
binding upon and inure to the benefit of the parties and
their
successors and permitted assigns. The Buyer may assign its rights under this
Amended Agreement.
4
8.
General Provisions
8.1
Time is of the essence of this Amended Agreement.
8.2
The
parties will execute and deliver all such further documents and instruments
and
do all acts and things as may
be
necessary or convenient to carry out the full intent and meaning of and to
effect the transactions contemplated by this Amended Agreement.
8.3
This Amended Agreement is the whole agreement between the parties hereto in
respect of the purchase and sale contemplated hereby and there are no
warranties, representations, terms, conditions, or collateral agreements
expressed or implied, statutory or otherwise, other than expressly set forth
in
this Amended Agreement.
8.4
All dollar amounts referred to in this Amended Agreement are in lawful money
of
the
United
States of America.
8.5
This Amended Agreement may be executed in several counterparts, each of which
will be
deemed
to
be an original and all of which will together constitute one and the same
instrument.
8.6
Delivery of an executed copy of this Amended Agreement by electronic facsimile
transmission or other means of electronic communication capable of producing
a
printed copy will be deemed to be execution and delivery of this Amended
Agreement as of the date set forth on page one of this Amended
Agreement.
8.7
Any notice required or permitted to be given to any of the parties to this
Amended Agreement will be in writing and may be given by prepaid registered
post, electronic facsimile transmission or other means of electronic
communication capable of producing a printed copy to the address of such party
first stated above or such other address as any party may specify by notice
in
writing to the other parties and any such notice will be deemed to have been
given and received by the party to whom it was addressed if mailed, on the
fifth
day following the mailing thereof, if by facsimile or other electronic
communication, on successful transmission, or, if delivered, on delivery; but
if
at the time of mailing or between the time of mailing and the fifth business
day
thereafter there is a strike, lockout, or other labour disturbance affecting
postal service, then the notice will not be effectively given until actually
delivered.
5
8.8
This
Amended Agreement will be governed by and construed in accordance with the
law
of the State of Delaware and the parties hereby attom to the jurisdiction of
the
Courts of competent jurisdiction of the State of Delaware in any proceeding
hereunder.
IN
WITNESS WHEREOF the parties
hereto have executed this Amended Agreement as of the date first written
above.
______________
Authorized
Signatory
0784655
B.C. LTD
______________
Authorized
Signatory
ENVORTUS
INC.
________________
Authorized
Signatory
6
8.8
This
Amended Agreement will be governed by and construed in accordance with the
law
of the State of Delaware and the parties hereby attom to the jurisdiction of
the
Courts of competent jurisdiction of the State of Delaware in any proceeding
hereunder.
IN
WITNESS WHEREOF the parties
hereto have executed this Amended Agreement as of the date first written
above.
______________
Authorized
Signatory
0784655
B.C. LTD
________________
Authorized
Signatory
ENVORTUS
INC.
________________
Authorized
Signatory
7
8.8
This
Amended Agreement
will be governed by and construed in accordance with the law of the State of
Delaware and the parties hereby attorn to the jurisdiction of the Courts of
competent jurisdiction of the State of Delaware in any proceeding
hereunder.
IN
WITNESS WHEREOF the parties
hereto have executed this Amended Agreement as of the date first written
above.
________________
Authorized
Signatory
0784655
B.C. LTD
________________
Authorized
Signatory
ENVORTUS
INC.
________________
Authorized Signatory
8
SCHEDULE
1
Accredited
Investor Certificate and Questionnaire
In
connection with the issuance of common stock ("Envortus Common Stock")
of
Envortus Inc., a Delaware corporation ("Envortus'), to the
undersigned, pursuant to the Convertible Debenture Purchase and Sale Agreement
dated March 2007 (the
"Agreement"), among NP CAPITAL CORP. (the—,"Seller"), Envortus ("Envortus"),
and the undersigned, the undersigned hereby agrees, represents and
warrants that:
1. The
Sellers and Envortus are entitled to rely on the acknowledgements, agreements,
representations and warranties and the statements and answers of the undersigned
contained in the Agreement and this questionnaire, and the undersigned will
hold
harmless the Sellers and Envortus from any loss or damage either one may suffer
as a result of any such acknowledgements, agreements, representations and/or
warranties made by the undersigned not being true and correct;
2. the
undersigned has been advised to consult his own respective legal, tax and other
advisors with respect to the merits and risks of an investment in the Envortus
Common Stock and, with respect to applicable resale restrictions, is solely
responsible (and the Sellers and Envortus are not in any way responsible) for
compliance with applicable resale restrictions;
3. none
of
the Envortus Common Stock is listed on any stock exchange or automated dealer
quotation system and no representation has been made to the undersigned that
any
of the Envortus Common Stock will become listed on any stock exchange or
automated dealer quotation system,;
4. neither
the SEC nor any other securities commission or similar regulatory authority
has
reviewed or
passed
on the merits of the Envortus Common Stock;
5. the
address of the undersigned included herein is the sole address of the
undersigned as of the date
of
this certificate.
6. No
person
has made to the undersigned any written or oral representations: (i) that any
person will resell or repurchase any of the Envortus Common Stock; (ii) that
any
person will refund the purchase price of any of the Envortus Common Stock;
(iii)
as to the future price or value of any of the Envortus Common Stock; or (iv)
that any of the Envortus Common Stock will be listed and posted for trading
on
any stock exchange or automated dealer quotation system or that application
has
been made to list and post any of the Envortus Common Stock on any stock
exchange or automated dealer quotation system.
7. The
undersigned acknowledges and agrees that the shareholder may be required by
the
Seller or Envortus to provide such additional documentation as may be reasonably
required by the Seller or Envortus and any of their legal counsel in determining
the undersigned's eligibility to acquire the Convertible Debenture under the
applicable legislation.
8. The
following questionnaire ("Questionnaire") is for use by the undersigned, who
is
a U.S. person (as that term is defined Regulation S of the United States
Securities Act of 1933 (the "1933 Act")) and is acquiring securities of Envortus
Inc. (the "Company"). The purpose of this Questionnaire is to assure the Sellers
and Envortus that the undersigned will meet the standards imposed by the 1933
Act and the appropriate exemptions of applicable state securities laws. The
Sellers and Envortus will rely on the information contained in this
Questionnaire for the purposes of such determination. The Envortus Common Stock
will not be registered under the 1933 Act in reliance upon the exemption from
registration afforded by Section 3(b), Section 4(2) and/or Regulation D of
the
1933 Act. This Questionnaire is not an offer of the Envortus Common Stock or
any
other securities of Envortus in any state other than those specifically
authorized by Envortus.
9
All
information contained in this Questionnaire will be treated as confidential.
However, by signing and returning this Questionnaire, the undersigned agrees
that, if necessary, this Questionnaire may be presented to such parties as
the
Seller or Envortus deems appropriate to establish the availability, under the
1933 Act or applicable state securities law, of exemption from registration
in
connection with the sale of the securities hereunder.
The
undersigned covenants, represents and warrants to Envortus that he satisfies
one
or more of the categories of "Accredited Investors", as defined by Regulation
13
promulgated under the 1933 Act, as indicated below: (Please initial in the
space
provide those categories, if any, of an "Accredited Investor" which the Selling
Shareholder satisfies)
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Category
1
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An.
organization described in Section 501(c)(3) of the United States
Internal Revenue Code, a corporation, a Massachusetts or similar
business
trust or partnership, not formed for the specific purpose of acquiring
the
Securities, with total assets in excess of US $5,000,000;
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Category
2
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A
natural person whose individual net worth, or joint net worth with
that
person's spouse, on the date of purchase exceeds US
$1,000,000;
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Category
3
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A
natural person who had an individual income in excess of US $200,000
in
each of the two most recent years or joint income with that person's
spouse in excess of US $300,000 in each of those years and has
a
reasonable expectation of reaching the same income level in the
current
year;
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Category
4
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"bank" as defined under Section (3)(a)(2) of the 1933 Act or savings and loan association or other institution as defined in Section 3(aX5)(A) of the 1933 Act acting in its individual or fiduciary capacity; a broker dealer registered pursuant to Section 15 of the Securities Exchange Act of 0000 (Xxxxxx Xxxxxx); an insurance company as defined in Section 2(13) of the 1933 Act; an investment company registered under the Investment Company Act of 1940 (United States) or a business development company as defined in Section 2(a)(48) of such Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 0000 (Xxxxxx Xxxxxx); a plan with total assets in excess of $5,000,000 established and maintained by a state, a political subdivision thereof, or an agency or instrumentality of a state or a political subdivision thereof, for the benefit of its employees; an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 (United States) whose investment decisions are made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000, or, if a self-directed plan, whose investment decisions are made solely by persons that are accredited investors; |
10
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Category
5
|
A
private business development company as defined in Section
202(a)(22) of the Investment
Advisers Act of 0000 (Xxxxxx Xxxxxx);
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Category
6
|
A director or executive officer of Envortus; |
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Category
7
|
A
trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the Securities, whose purchase is
directed
by a sophisticated person as described in Rule 506(bX2)(ii) under
the 1933
Act;
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Category
8
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An
entity in which all of the equity owners satisfy the requirements
of one or more of the foregoing categories;
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Note
that
prospective undersigned claiming to satisfy one of the above categories of
Accredited Investor may be required to supply the Seller or Envortus with a
balance sheet, the prior years' federal income tax returns or
other
appropriate documentation to verify and substantiate the undersigned's status
as
an Accredited Investor.
If
the
undersigned is an entity which initialled Category 8 in reliance upon the
Accredited Investor categories above, state the name, address, total personal
income from all sources for the previous calendar year, and the net worth
(exclusive of home, home furnishings and personal automobiles) for each equity
owner of the said entity:
The
undersigned hereby certifies that the information contained in this Accredited
Investor Certificate and Questionnaire is complete and accurate and the
undersigned will notify the Sellers and Envortus promptly of any change in
any
such information. If this Accredited Investor Certificate and Questionnaire
is
being completed on behalf of a corporation, partnership, trust or estate, the
person executing on behalf of the undersigned represents that it has the
authority to execute and deliver this Accredited Investor Certificate and
Questionnaire on behalf of such entity.
IN
WITNESS WHEREOF, the undersigned has executed this Accredited Investor
Certificate and Questionnaire as of March2007.
If
a
Corporation, Partnership or Other
Entity: If
an Individual:
___________________ __________________
Print
or
Type Name of
Entity Signature
___________________
___________________
Signature
of Authorized
Signatory
Print or Type Name
___________________
___________________
Type of
entitiy Social
Security/ Tax I.D. Number
11
SCHEDULE
2
Convertible
Debenture
12
