Exhibit 10.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "Agreement") is dated as of May 7 1999,
by and between WaterPur International, Inc., a Delaware corporation (the
"Company"), on the one hand, and Xxxx X.X. Xxxxx and Xxxxxxxxx Xxxxxxxxx (the
"Shareholders"), on the other hand.
RECITALS
A. As of the date hereof, the Shareholders own all of the issued and
outstanding shares of the capital stock (the "ProSafe Shares") of ProSafe Fire
Training Systems, Inc. ("ProSafe"), an Ontario corporation ("ProSafe");
B. The Company desires to acquire all of the ProSafe Shares and the
Shareholders desire to exchange all of the ProSafe Shares for shares of the
Convertible Preferred Stock of the Company on the terms and conditions set forth
herein;
C. Concurrently herewith, the Company is entering into an Asset Purchase
Agreement with Duck Marine Systems Inc. ("DMS") pursuant to which DMS will sell
to the Company all of its assets (the "DMS Transaction").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representations and warranties
hereinafter set forth, the parties agree as follows:
1. EXCHANGE OF THE SHARES AND CONSIDERATION
1.1 Securities Being Exchanged. Effective at the closing of this
Agreement (the "Closing"), and subject to the terms and conditions of this
Agreement, the Shareholders shall assign, transfer and deliver to the Company
all of the ProSafe Shares free and clear of all liens, claims, charges, security
interests or other encumbrances.
1.2 Consideration. Subject to the terms and conditions of this
Agreement, and in consideration of the assignment and delivery of the ProSafe
Shares to the Company, the Company shall, at the Closing, issue to the
Shareholders an aggregate of 218,833 shares (the "Company Shares") of the Series
B Convertible Preferred Stock of the Company ("the "Preferred Stock") which,
assuming conversion thereof immediately following the Closing, shall represent
40.49% of all issued and outstanding stock in the Company, computed on a fully
diluted basis assuming the prior issuance of all the shares of Common Stock
issuable upon conversion of the Company's Series A Preferred Stock and the
exercise of presently outstanding warrants and options of the Company and the
conversion of Preferred Stock issued to the shareholders of DMS in the DMS
Transaction. Attached hereto as Exhibit 1.2 is a copy of the Certificate of
Designation of Preferences and Rights for the Preferred Stock.
1.3 Closing. The Closing of the transactions contemplated by this
Agreement shall take place at 11:00 a.m. (Los Angeles time) at the offices of
Loeb & Loeb LLP, 0000 Xxxxxxxx Xxxx., Xxx Xxxxxxx, XX 00000, or at such other
time or place as may be mutually agreed upon, on or before May 7 1999 (or on
such other date as may be mutually agreed upon).
1.4 Method of Closing. The method of closing shall require the
parties to satisfy the conditions specified in Section 6.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders hereby represents and warrants to the Company as
follows:
2.1 Organization.
(a) ProSafe is a corporation duly organized, validly existing,
and in good standing under the laws of Ontario. ProSafe has the power and
authority to carry on its business as presently conducted; and ProSafe is
qualified to do business in all jurisdictions where the failure to be so
qualified would have a material adverse effect on its business.
(b) The copies of the charter documents of ProSafe heretofore
furnished to the Company are complete and correct copies thereof as amended and
in effect on the date hereof.
2.2 Capitalization.
(a) All of the issued and outstanding shares of ProSafe are
duly authorized, validly issued, fully paid and nonassessable. The ProSafe
Shares being transferred to the Company pursuant to Section 1.1 hereof
constitute all of the issued and outstanding capital stock of all classes of
ProSafe, are free from any liens, claims, charges, security interests or other
encumbrances, and the Shareholders are the sole beneficial and record owners
thereof, have good title thereto, and the unqualified right to transfer and
dispose of the ProSafe Shares.
(b) There are no outstanding options, warrants, or rights to
purchase or otherwise acquire any securities of ProSafe.
2.3 Subsidiaries and Investments. ProSafe does not own any capital
stock or has any interest in any corporation, partnership, or other form of
business organization.
2.4 Financial Statements. The unaudited balance sheet of ProSafe as
of June 30, 1998 and the unaudited income statement for the ten months ended
June 30, 1998 (the "ProSafe Financial Statements") (a) were prepared in
accordance with the books and records of ProSafe ; (b) were prepared in
accordance with generally accepted accounting principles consistently applied;
and (c) are accurate and fairly present their respective financial condition and
the results of operations as of the relevant dates thereof and for the entities
and periods covered thereby.
2.5 Absence of Material Changes. Since June 30, 1998, there has not
been
2
(a) any material adverse change in the condition (financial or
otherwise) of the properties, assets, liabilities or business of the ProSafe,
except changes in the ordinary course of business which, individually and in the
aggregate, have not been materially adverse.
(b) any undisclosed redemption, purchase or other acquisition
of any shares of the capital stock of ProSafe, or any issuance of any shares of
capital stock or membership, as the case may be, or the granting, issuance or
execution of any rights, warrants, options or commitments by ProSafe, as the
case may be, relating to its authorized or issued capital stock or membership
interests, as the case may be.
2.6 Litigation. There is no litigation, proceeding, or investigation
pending or threatened against ProSafe affecting any of their respective
properties or assets, that might result, either in any case or in the aggregate,
in any material adverse change in the business, operations, affairs or financial
condition of ProSafe or their respective properties or assets, or that might
call into question the validity of this Agreement, or any action taken or to be
taken pursuant hereto.
2.7 Title to Assets. ProSafe has good and marketable title to all of
the assets and properties now carried on its books including those reflected in
the most recent balance sheet contained in the ProSafe Financial Statements,
free and clear of all liens, claims, charges, security interests or other
encumbrances, except as described in the ProSafe Financial Statements or arising
thereafter in the ordinary course of business (none of which will be material).
2.8 Contracts and Undertakings. Except as set forth on Schedule 2.8
attached hereto, ProSafe does not have any contracts, agreements, leases,
licenses, arrangements, commitments and other undertakings (collectively the
"ProSafe Contracts") to which it is a party or to which it or its property is
subject. Except as set forth on such Schedule 2.8 attached hereto, neither
ProSafe is not in material default under any of the ProSafe Contracts and, to
the knowledge of the Shareholders, no other party to any ProSafe Contract to
which ProSafe is a party is in default thereunder nor, to the knowledge of the
Shareholders, does there exist any condition or event which, after notice or
lapse of time or both, would constitute a default by any party to any such
ProSafe Contract.
2.9 Transactions with Affiliates, Directors and Shareholders. Except
as set forth on Schedule 2.9 attached hereto, there are no contracts,
agreements, arrangements or other transactions between ProSafe and any officer,
director, member or stockholder of ProSafe, or any corporation or other entity
owned or controlled, directly or indirectly, by any such officer, director,
member of stockholder, a member of any such officer, director, member or
stockholder's family, or any affiliate of any such officer, director, member or
stockholder.
2.10 No Conflict. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not conflict with
or result in a breach of any term or provision of, or constitute a default
under, the charter documents of ProSafe or any agreement, contract or instrument
to which any of them is a party or by which any of them or any of their
respective assets are bound.
3
2.11 Authority. The Shareholders have full power and authority to
enter into this Agreement and to carry out the transactions contemplated herein.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, have been duly authorized and approved by the
Shareholders and no other proceeding on the part of the Shareholders are
necessary to authorize this Agreement and the transactions contemplated hereby.
2.12 Compliance with Law. ProSafe has in all material respects
complied with and it is now in all material respects in compliance with, all
federal, state and local laws applicable to it. The capital stock of ProSafe was
issued in compliance with all applicable securities laws.
2.13 Securities Laws. The Shareholders understands that the Company
Shares are not being registered under the Securities Act of 1933, as amended
(the "Securities Act"), on the ground that the offer and sale of the Company
Shares are exempt from the registration provisions of Section 5 of the
Securities Act pursuant to Section 4(2) thereof, as transactions by an issuer
not involving any public offering, and/or may be deemed not to involve an offer
or sale within the meaning of Section 5 of the Securities Act pursuant to
Regulation D promulgated thereunder, and that the Company Shares may not be
resold in any transaction subject to Section 5 of the Securities Act unless
registered or an exemption from registration is available for such sale, and
that the certificates representing the Company Shares will bear a legend to that
effect, substantially in the form set forth on Schedule 2.13 attached hereto.
The Shareholders are acquiring the Company Shares for investment purposes only
and not with a view to distribution or resale thereof.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Shareholders as follows:
3.1 Organization
(a) The Company is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware, has the corporate
power and authority to carry on its business as presently conducted, and is
qualified to do business in all jurisdictions where the failure to be so
qualified would have a material adverse effect on the business of the Company.
(b) The copies of the Certificate of Incorporation of the Company,
and the Bylaws of the Company heretofore furnished to the Shareholders are
complete and correct copies of the Certificate of Incorporation and the Bylaws
of the Company as amended and in effect on the date hereof.
3.2 Capitalization of the Company. The authorized capital stock of
the Company consists of 100,000,000 shares of Common Stock, par value $005 per
share, of which 25,352,866 shares are presently, and will be immediately prior
to the Closing, outstanding; and 10,000.000 shares of Preferred Stock, par value
$.00001 per share, of which 7,900,004 shares of Series A Preferred Stock are
outstanding. All outstanding shares are duly authorized, validly issued, fully
paid and non-assessable, and, at the Closing, the Company Shares will be duly
4
authorized, validly issued, fully paid and non-assessable. Except, as set forth
on Schedule 3.2 attached hereto, there are no other outstanding shares of
capital stock or other securities or other equity interests of the Company or
options, warrants. or rights of any kind to acquire such stock, other securities
or other equity interests. Except as set forth on Schedule 3.2 attached hereto,
there are no outstanding agreements which impose an obligation to file a
registration statement or register any of the capital stock of the Company.
3.3 Subsidiaries and Investments. Except as set forth on Schedule
3.3 attached hereto, the Company does not own any capital stock or have any
interest in any corporation, partnership or other form of business organization.
3.4 Financial Statements. The audited consolidated balance sheet of
the Company as of September 30, 1997 and the consolidated statements of
operations and cash flows for the year then ended and the unaudited consolidated
balance sheet as of June 30, 1998 and the unaudited consolidated statements of
operations and cash flow for the nine months then ended (the "Company Financial
Statements") (a) were prepared in accordance with the books and records of the
Company; (b) were prepared in accordance with generally accepted accounting
principles consistently applied; and (c) are accurate and fairly present the
Company's financial condition and the results of its operations as of the
relevant dates thereof and for the period covered thereby.
3.5 Absence of Material Changes. Except as set forth on Schedule 3.5
attached hereto, since June 30, 1998, there has not been:
(a) any material change in the condition (financial or
otherwise) of the properties, assets, liabilities or business of Company, except
changes in the ordinary course of business which, individually and in the
aggregate, have not been materially adverse.
(b) any redemption, purchase or other acquisition of any
shares of the capital stock of Company, or any issuance of any shares of capital
stock or the granting, issuance or execution of any rights, warrants, options or
commitments by the Company relating to its authorized or issued capital stock.
3.6 Litigation. Except as set forth on Schedule 3.6, there is no
litigation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against the Company affecting any of its properties or
assets that might result, either in any case or in the aggregate, in any
material adverse change in the business, operations, affairs or financial
condition of the Company or its properties or assets, or that might call into
question the validity of this Agreement, or any action taken or to be taken
pursuant hereto.
3.7 Title to Assets. The Company has good and marketable title to
all of its assets and properties now carried on its books including those
reflected in the balance sheet contained in the Company Financial Statements,
free and clear of all liens, claims, charges, security interests or other
encumbrances, except as described in the Company Financial Statements or arising
thereafter in the ordinary course of business (none of which will be material).
5
3.8 Contracts and Undertakings. Except as set forth on Schedule 3.8
attached hereto, the Company has no contracts, agreements, leases, licenses,
arrangements, commitments or other undertakings (collectively, the "Company
Contracts") to which the Company is a party or to which it or its property is
subject. Except as disclosed in Schedule 3.8 the Company is not in material
default, or alleged to be in material default, under any Company Contract and,
to the knowledge of the Company, no other party to any Company Contract to which
the Company is a party is in default thereunder nor, to the knowledge of the
Company, does there exist any condition or event which, after notice or lapse of
time or both, would constitute a default by any party to any such Company
Contract.
3.9 Transactions with Affiliates, Directors and Shareholders. Except
as set forth on Schedule 3.9 attached hereto, there are no contracts,
agreements, arrangements or other transactions between the Company and any
officer, director, or 5% stockholder, a member of any such officer, director or
5% stockholder's family, or any affiliate of any such officer, director or 5%
stockholder.
3.10 No Conflict. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not conflict with
or result in a breach of any term or provision of, or constitute a default
under, the Certificate of Incorporation or Bylaws of the Company, or any
agreement, contract or instrument to which the Company is a party or by which it
or any of its assets are bound.
3.11 Authority. The Company has full power and authority to enter
into this Agreement and to carry out the transactions contemplated herein. The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, and the issuance of the Company Shares in accordance with
the terms hereof, have been duly authorized and approved by the Board of
Directors of the Company and no other corporate proceedings on the part of
Company are necessary to authorize this Agreement, the transactions contemplated
hereby and the issuance of the Company Shares in accordance with the terms
hereof.
3.12 Compliance with Law. The Company has in all material respects
complied with and it is now in all material respects in compliance with, all
Federal, State and local laws applicable to the Company. All outstanding
securities have been, and, assuming the accuracy of the investment
representations provided by the issuees to the Company pursuant to the
provisions hereof, the Company Shares will be, issued in full compliance in all
material respects with all state and federal securities laws. The securities
filings of the Company contain no material misstatement or fail to state a
material fact necessary to make the statements made, in light of the
circumstances under which they were made, not misleading.
4. COVENANTS AND AGREEMENTS OF THE PARTIES EFFECTIVE PRIOR TO CLOSING
4.1 Corporate Examinations and Investigations. Prior to the Closing,
each party shall be entitled, through its employees and representatives, to make
such investigations and examinations of the books, records and financial
condition of the Company, and ProSafe as each party may request. In order that
each party may have the full opportunity to do so, the Company, and the
Shareholders shall furnish each party and its representatives during such
6
period with all such information concerning the affairs of the Company and
ProSafe, as the case may be, as each party or its representatives may reasonably
request and cause the Company and ProSafe, as the case may be, and their
respective officers, employees, consultants, agents, accountants and attorneys
to cooperate fully with each party's representatives in connection with such
review and examination and to make full disclosure of all information and
documents requested by each party and/or its representatives. Any such
investigations and examinations shall be conducted at reasonable times and under
reasonable circumstances, it being agreed that any examination or original
documents will be at each party's premises, with copies thereof to be provided
to each party and/or its representatives upon request.
4.2 Cooperation; Consents. Prior to the Closing, each party shall
cooperate with the other parties to the end that the parties shall (i) in a
timely manner make all necessary filings with, and conduct negotiations with,
all authorities and other persons the consent or approval of which, or the
license or permit from which is required for the consummation of the
transactions contemplated by this Agreement and (ii) provide to each other party
such information as the other party may reasonably request in order to enable it
to prepare such filings and to conduct such negotiations.
4.3 Conduct of Business. Subject to the provisions hereof, from the
date hereof through the Closing, the Company shall and the Shareholders shall
cause ProSafe to (i) conduct its business in the ordinary course and in such a
manner so that the representations and warranties contained herein shall
continue to be true and correct in all material respects as of the Closing as if
made at and as of the Closing and (ii) not enter into any material transactions
or incur any material liability not required or specifically contemplated
hereby, without first obtaining the written consent of each party. Without the
prior written consent of the Company or the Shareholders, except as required or
specifically contemplated hereby, each party shall not undertake or fail to
undertake any action if such action or failure would render any of said
warranties and representations untrue in any material respect as of the Closing.
4.4 Litigation. From the date hereof through the Closing, each party
hereto shall promptly notify the other parties of any lawsuits, claims,
proceedings or investigations which after the date hereof are threatened or
commenced against such party or any of its affiliates or any officer, director,
employee, consultant, agent or shareholder thereof, in their capacities as such,
which, if decided adversely, could reasonably be expected to have a material
adverse effect upon the condition (financial or otherwise), assets, liabilities,
business, operations or prospects of such party or any of its subsidiaries.
4.5 Notice of Default. From the date hereof through the Closing,
each party hereto shall give to the other parties prompt written notice of the
occurrence or existence of any event, condition or circumstance occurring which
would constitute a violation or breach of this Agreement by such party or which
would render inaccurate in any material respect any of such party's
representations or warranties herein.
7
5. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
All representations, warranties and covenants of the parties hereto
contained herein shall survive the consummation of the transactions contemplated
herein and remain in full force and effect for a period of one year from the
Closing.
6. CONDITIONS TO CLOSING
6.1 Conditions to Obligation of the Shareholders. The obligations of
the Shareholders under this Agreement shall be subject to each of the following
conditions:
(a) Representations and Warranties of Company to be True. The
representations and warranties of the Company herein contained shall be true in
all material respects at the Closing with the same effect as though made at such
time. The Company shall have performed in all material respects all obligations
and complied in all material respects, to its actual knowledge, with all
covenants and conditions required by this Agreement to be performed or complied
with by it at or prior to the Closing.
(b) No Legal Proceedings. No injunction or restraining order
shall be in effect prohibiting this Agreement, and no action or proceeding shall
have been instituted and, at what would otherwise have been the Closing, remain
pending before the court to restrain or prohibit the transactions contemplated
by this Agreement.
(c) Statutory Requirements. All statutory requirements for the
valid consummation by the Company of the transactions contemplated by this
Agreement shall have been fulfilled. All authorizations, consents and approvals
of all governments and other persons required to be obtained in order to permit
consummation by the Company of the transactions contemplated by this Agreement
shall have been obtained.
(d) DMS Transaction. Concurrently herewith, the DMS
Transaction shall have closed.
(e) Certificate. The Company shall have delivered to the
Shareholders an officer's certificate in form and substance reasonably
satisfactory to the Shareholders, as to the satisfaction of the foregoing
conditions.
6.2 Conditions to Obligations of Company. The obligation of the
Company under this Agreement shall be subject to the following conditions:
(a) Representations and Warranties of the Shareholders to be
True. The representations and warranties of the Shareholders herein contained
shall be true in all material respects as of the Closing and shall have the same
effect as though made at such time except as to effect of transactions, payments
and liabilities incurred in the ordinary course of business since the date
hereof. The Shareholders shall have performed in all material respects all
obligations and complied in all material respects, with all covenants and
conditions required by this Agreement to be performed or complied with by them
prior to the Closing.
8
(b) No Legal Proceedings. No injunction or restraining order
shall be in effect, and no action or proceeding shall have been instituted and,
at what would otherwise have been the Closing, remain pending before the court
to restrain or prohibit the transactions contemplated by this Agreement.
(c) Statutory Requirements. All statutory requirements for the
valid consummation by the Shareholders of the transactions contemplated by this
Agreement shall have been fulfilled. All authorization, consents and approvals
of all governments and other persons required to be obtained in order to permit
consummation by the Shareholders of the transactions contemplated by this
Agreement shall have been obtained.
(d) Certificate. The Shareholders shall have delivered to the
Company a certificate in form and substance reasonably satisfactory to the
Company, as to the satisfaction of the foregoing conditions.
7. INDEMNIFICATION.
7.1 Indemnification by the Shareholders. Provided the Company's
claim therefor is instituted by written notice within the time period specified
in Section 5 hereof, the Shareholders, jointly and severally, shall indemnify,
defend and hold harmless and in all respects make whole the Company from and
against any and all damages, judgments and payments ("Losses") which may be
incurred or suffered by the Company or to which it may be subject, which may
arise out of or result from any breach of or exist in violation of any
representation, warranty, covenant or agreement of the Shareholders contained in
this Agreement. Notwithstanding the foregoing, the Shareholders shall have no
liability to the Company hereunder until such time as the aggregate amount of
Losses exceed $25,000 (the "Basket") and then only for the amounts, if any, in
excess thereof. Payment of the indemnity hereunder shall be made by the return
to the Company of Company Shares valued at $7.20 per Share.
7.2 Indemnification by the Company. Provided the claim therefor is
instituted by written notice within the time period specified in Section 5
hereof, the Company shall indemnify, defend and hold harmless and in all respect
make whole the Shareholders from and against any Losses which may be incurred or
suffered by any such party or to which any such party may be subject, which may
arise out of or result from any breach of or exist in violation of any
representation, warranty, covenant or agreement of the Company contained in this
Agreement. Notwithstanding the foregoing, the Company shall have no liability to
the Shareholders hereunder until such time as the aggregate amount of Losses
exceed $25,000 and then only for the amounts in excess, if any, in excess
thereof. Payment of the indemnity shall be made by the issuance by the Company
of additional Company Shares valued at $7.20 per share.
7.3 Computation of Losses. For purposes of calculating any Losses
suffered by an indemnified party pursuant to Sections 7.1 or 7.2 hereof, the
amount of the Losses suffered by the indemnified party shall be the net amount
of damage so suffered after giving effect to any insurance proceeds recovered
with respect to such matter and to any tax benefits attributable to such damage
and actually derived therefrom in the same year or in a subsequent taxable
period.
9
7.4 Notice to Indemnifying Party. If any party (the "Indemnified
Party") receives notice of any claim or other commencement of any action or
proceeding with respect to which any other party (or parties) (the "Indemnifying
Party") is obligated to provide indemnification pursuant to Sections 7.1 or 7.2
hereof, the Indemnified Party shall promptly give the Indemnifying Party written
notice thereof which notice shall specify, if known, the amount or an estimate
of the amount of the Losses arising therefrom. Such notice shall be a condition
precedent to any liability of the Indemnifying Party for indemnification
hereunder. The Indemnified Party shall not settle or compromise any claim by a
third party for which it is entitled to indemnification hereunder, without the
prior written consent of the Indemnify Party (which shall not be unreasonably
withheld or delayed) unless suit shall have been instituted against it and the
Indemnifying Party shall not have taken control of such suit after notification
thereof as provided in Section 7.5 hereof.
7.5 Defense by Indemnifying Party. In connection with any claim
giving rise to indemnity hereunder resulting from or arising out of any claim or
legal proceeding by a person who is not a party to this Agreement, the
Indemnifying Party at its sole cost and expense shall assume the defense of any
such claim or legal proceeding using counsel of its choice (subject to the
approval of the Indemnified Party, which approval may not be unreasonably
withheld or delayed). The Indemnified Party shall be entitled to participate in
the defense of any such action, with its counsel and at its own expense;
provided, however, that if the Indemnified Party, in its sole reasonable
discretion, determines that there exists a conflict of interest between the
Indemnifying Party (or any constituent party thereof) and the Indemnified Party
or that the Indemnifying Party does not have sufficient financial resources to
fully defend the proceeding or to pay the claim or judgment, the Indemnified
Party (or any constituent party thereof) shall have the right to engage separate
counsel, the reasonable costs and expenses of which shall be paid by the
Indemnifying Party, but in no event shall the Indemnifying Party be liable for
the costs and expenses of more than one such separate counsel. If the
Indemnifying Party does not assume the defense of any such claim or litigation
resulting therefrom, the Indemnified Party may defend against such claim or
litigation, after giving notice of the same to the Indemnifying Party, on such
terms as the Indemnified Party may deem appropriate, and the Indemnifying Party
shall be entitled to participate in (but not control) the defense of such
action, with its counsel and at its own expense.
8. MISCELLANEOUS
8.1. Further Assurances. From time to time, at the other party's
request and without further consideration, each of the parties will execute and
deliver to the others such documents and take such action as the other party may
reasonably request in order to consummate more effectively the transactions
contemplated hereby.
8.2. Expenses of Sale. Except as otherwise provided herein, each
party shall bear its own direct and indirect expenses incurred in connection
with the negotiation and preparation of this Agreement and the consummation and
performance of the transactions contemplated herein. Without limitation, such
expenses shall include the fees and expenses of all attorneys, brokers,
investment bankers, accountants, agents and finders and other professionals
incurred in connection herewith, acting on behalf of such party. The parties
shall indemnify each other against any claims, costs, losses, expenses or
liabilities arising from any
10
claim or commissions, finder's fees or other compensation in connection with the
contemplated transactions which may be asserted by any person based on any
agreement or arrangement for payment by the other party.
8.3. Use and Confidentiality. All of the information, records,
books, and data to which the parties are given access as set forth herein shall
be used by the parties solely for the purpose of confirming the representations
and warranties set forth herein. Subject to any obligation to comply with (i)
any law (ii) any rule or regulation of any authority or securities exchange of
(iii) any subpoena or other legal process to make information available to the
persons entitled thereto, whether or not the transactions contemplated herein
shall be concluded, all information obtained by any party about the other, and
all of the terms and conditions of this Agreement, shall be kept in confidence
by each party, and each party shall cause its shareholders, directors, trustees,
officers, employees, agents and attorneys to hold such information confidential.
Such confidentiality shall be maintained to the same degree as such party
maintains its own confidential information and shall be maintained until such
time, if any, as any such data or information either is, or becomes, published
or a matter of public knowledge; provided, however, that the foregoing shall not
apply to any information obtained by either party through its own independent
investigations of the other party or received by such party from a third party
not under any obligation to keep such information confidential nor to any
information obtained by such party which is generally known to others engaged in
the trade or business; and provided, further, that, from and after the Closing,
such party shall be under no obligation to maintain confidential any such
information concerning the other party. If this Agreement shall be terminated
for any reason, each party shall return or cause to be returned to the other all
written data, information, files, records and copies of documents, worksheets
and other materials obtained by such party in connection with the transactions
contemplated herein.
8.4. Notices. All notices, requests and other communications
thereunder shall be in writing and shall be delivered by courier or other means
of personal service (including by means of a nationally recognized courier
service or professional messenger service), or sent by telex or telecopy or
mailed first class, postage prepaid, by certified mail, return receipt
requested, or by Federal Express or other reputable overnight delivery service,
in all cases, addressed to:
To the Shareholders:
Fire International Research and Equipment, Inc.
0000 X Xxxxxxxx Xxxx
Xxxxxxxxxx, X.X. X0X 0XX
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
To the Company:
WaterPur International Inc.
x/x XXXX Xxxxx - Xxxxxxxx #00
00
00000 Xxxx, Xxxxxxxxx
Xxxxx
Attn: Xxxx Xxxxx
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery as evidenced by written receipt, acknowledgment or
other evidence of actual receipt or delivery to the address. In case of service
by telecopy, a copy of such notice shall be personally delivered or sent by
registered or certified mail, in the manner set forth above, within three (3)
business days thereafter. Either party hereto may from time to time by notice in
writing served as set forth above designate a different address or a different
or additional person to which all such notices or communications thereafter are
to be given.
8.5. Parties in Interest. Except as otherwise expressly provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective heirs,
beneficiaries, personal and legal representatives, successors and assigns of the
parties hereto; provided, however, that no assignment or transfer by any party
of this Agreement or its rights or obligations hereunder shall occur without the
prior written consent of the other parties hereto.
8.6. Entire Agreement, Amendments. This Agreement, including the
Schedules, Exhibits and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to this subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
than those expressly set forth herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a written instrument duly
executed by the parties or their respective permitted successors or assigns.
8.7. Headings, Etc. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretations of this Agreement.
8.8. Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
12
8.9. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.10. Governing Law. This Agreement shall be governed by the laws of
the State of California.
8.11. Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement or because of any dispute, breach,
default or claim hereunder, the successful or prevailing party shall be entitled
to recover reasonable attorneys' fees and other costs it incurred in that action
or proceeding, in addition to any other relief to which it may be entitled.
13
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto as of the date first above written.
WaterPur International, Inc.
By:
-------------------------------
Name: Xxxx Xxxxx
Title: President
-------------------------------
Xxxx X.X. Xxxxx
-------------------------------
Xxxxxxxxx Xxxxxxxxx
14
SCHEDULE 2.15
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS PROHIBITED EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF THE SECURITIES ACT OF 1933 (THE "ACT"). THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE LAW AND MAY NOT BE OFFERED OR SOLD IN
ANY TRANSACTION SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE ACT OR
APPLICABLE STATE LAW UNLESS SUCH SECURITIES ARE REGISTERED UNDER THE ACT OR
APPLICABLE STATE LAW OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
ACT OR APPLICABLE STATE LAW IS AVAILABLE.
15
Schedule 2.8
Contracts and Undertakings
1. Agreement to repay Xxxxxx Construction Loan $268,200 (Cdn) plus
accumulated interest.
2. Pitney Xxxxx - 2 Rental Agreements for fax machines, $60.00.
Per month each - expiry dates November 1999.
3. Teletech Financial Lease - Telephone System - Cost $5,406.40.
Terms 60 months at $120.78 per month from August 98.
4. Auto Leases -
Lessor: Xxxxxxxxx Pontiac - 1995 Suburban - Cost $29,300
Lease Commencement Date: May 27, 1997
Term: 36 months at $499 per month + PST & GST
Lessor: GMAC - 1998 Blazer - Cost $39,745
Lease Commencement: 28 July, 1998
Term: 36 months at $508.10 + PST & GST
Lessor: GMAC - 1999 Chevrolet Suburban - Cost $48,701
Lease Commencement Date: July 28, 1998
Term: 36 months at $800.85 + PST & GST
Lessor: GMAC - 1999 Chevrolet 4WD Reg Cab - Cost $42,323
Lease Commencement Date: July 28, 1998
Term: 36 months at $635.31 + GST and PST
Lessor: Newcourt Vehicle Leasing 1994 Ford Crew Cab - Cost $37,000
Lease Commencement Date: 14 September 1994
Term: 48 months at $624.00 + PST and GST
Schedule 2.9
Transaction with Affiliates, etc.
None
Schedule 3.2
Outstanding Warrants and Options
Xxxx X. Xxxxx 1,000,000 @ $.10
Xxxxxx Xxxxxx 100,000 @ $.10
Xxxxx Xxxxxx 100,000 @ $.10
Xxxx Xxxxxxxxx 50,000 @ $.10
Al-Xxxxx Xxxxx 50,000 @ $.10
Xxxxxxx Xxxxx 50,000 @ $.10
Warrants (September 1997 private placement)
3,300,000 shares
Warrants (April 1999 private placement)
1,340,000 shares
Shares issuable to former shareholders of Casmyn International Inc. -
200,000
Schedule 3.3
Subsidiaries
Vector Ventures Corp. (VVC) 100% owned private Canadian entity
Vector Vietnam Ltd. (VVL) 100% owned Vietnamese subsidiary
STOX Systems Inc. (STOX) 100% owned Canadian entity
Vector Manufacturing Corp. 100% owned US entity
Vector India
Schedule 3.5
Absence of Material Changes
The Company's activities have been slowed down due to lack of financing
and working capital. The Company is presently insolvent and unable to continue
as a going concern.
Schedule 3.6
Litigation
(a) Xxxxxxx Xxxxxx
Amount: $28,513.82
Representing Attorney: Xxxxx X. Xxxxx, Esq., Reno, NV
WaterPur Attorney: Xxxxxxx Xxxxxxxx, Esq.
(b) Print Consultants Inc.
Amount: $20,000
Representing Attorney: Xxxxxxx X. Xxxxxx
WaterPur Attorney: Xxxxxxx Xxxxxxxx, Esq.
Schedule 3.8
Contracts and Undertaking
(a) 10 year contract with Xxxx X. Xxxxx effective 1994
(b) A letter of Agreement with Basm Resources Inc. for waste water
treatment which was announced in summer of '98. This agreement has been
cancelled. The cancellation has not been announced.
Schedule 3.9
Transactions with Affiliates, Directors and Shareholders
The company has borrowed funds from Casmyn Corp. and the amounts have been
disclosed in the Schedule of Liabilities previously provided.