Exhibit 10.4
STOCK REDEMPTION AND SETTLEMENT AGREEMENT
This Stock Redemption and Settlement Agreement (this "Agreement") is made
as of January 22, 2002 between ASPi Europe, Inc., a Delaware corporation
("ASPi") and F. Xxxxxx Xxxxxxx III ("Xxxxxxx") and Xxxxx Xxx ("Dow") (Xxxxxxx
and Dow are collectively refereed to as the "Holders") (ASPi and the Holders are
collectively referred to herein as the "Parties").
RECITALS
WHEREAS:
A. The Parties desire to terminate certain business arrangements on terms
mutually agreeable among them.
B. The Holders together own approximately 2,944,611 Exchangeable Shares
(the "Exchangeable Shares") of GrowthExperts Group Inc. ("GrowthExperts")
which are exchangeable at any time, at the Holder's option, for shares of
ASPi's common stock on a one-for-one basis.
X. Xxxxxxx has the right to purchase 300,000 shares of common stock of
ASPi (the "Options").
D. The Parties desire that Exchangeable Shares and Options be terminated
on the terms and conditions as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the representations, warranties,
mutual covenants, and agreements of the Parties contained in this Agreement, the
Parties hereby agree as follows:
ARTICLE 1
TERMS OF TERMINATION
1.1 Termination of Shares and Options. Upon execution of this Agreement, each
Holder agrees not to convert their respective Exchangeable Shares or Options
(the "Securities") into common shares of ASPi. At the Closing (as defined in
Section 2.1 hereof), the Holders hereby terminate any and all right, title, and
ownership interest in the Securities. The Securities are free and clear of all
liens, security interests, charges and encumbrances of any kind or nature in
consideration of the benefits provided herein.
1.2 Voting at meeting of Holders. The Holders must vote "For" the three
proposals as set out in the information circular for the meeting of Exchangeable
Shareholders on January 22, 2002.
ARTICLE 2
THE CLOSING
2.1 Closing. The closing of the transactions contemplated in this Agreement
shall occur on the earlier of January 23, 2002 or (b) on the day the conditions
set forth in Article 3 are satisfied or waived in writing by the Parties hereto
(the "Closing").
2.2 Obligations of Holders at the Closing. At the Closing, the Holders
hereby agree to deliver to ASPi the following instruments and documents:
a. a copy of the executed minutes of the meeting of Exchangeable
Shareholders of GrowthExperts, dated January 22, 2002, whereby the
Exchangeable Shareholders voted "For" all three proposals as set out in
the information circular;
b. an executed copy of the amended Voting and Exchange Agreement and an
executed copy of the amended Support Agreement; and
c. the resignation of Xxxxxxx and Dow, in the form attached hereto as
Schedule A and Schedule B.
---------- -----------
ARTICLE 3
CONDITIONS TO THE CLOSING
3.1 Conditions to the Closing. The obligations of the Parties at the
Closing are subject to the satisfaction of each of the following conditions:
a. executed minutes of the Exchangeable Shareholders, dated January 22,
2002, whereby all three proposals have been successfully passed;
b. executed amendments to the Voting and Exchange Agreement and Support
Agreement as set out in the information circular of the meeting of
Exchangeable Shareholders on January 22, 2002;
c. the filing of the amended Articles of Amalgamation with the Alberta
Government which terminates all conversion rights of Exchangeable
Shareholders; and
b. No Exchangeable Shareholder has exercised his/her/its rights to acquire
common shares of ASPi prior to the filing of the amended Articles of
Amalgamation with the Alberta Government.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
The Holders represent and warrant to ASPi that at the date of this
Agreement:
4.1 Authority. No permit, consent, approval, authorization or other order
of or filing with any other person or entity is required, other than those
described in this Agreement, in connection with the execution, delivery, and
performance by the Holders of this Agreement, and the transactions contemplated
by this Agreement shall not result in the violation or breach of any term or
provision of, or constitute (with or without due notice or lapse of time or
both) a default under any agreement or instrument to which the Holders is a
party or otherwise bound.
4.2 Ownership of the Securities. The Securities conveyed by the Holders
herein are free and clear of all liens, encumbrances, pledges, restrictions on
sale or transfer (other than restrictions imposed by applicable securities
laws), preemptive rights, options, and claims of any and all kind.
4.3 Restrictive Documents. The Holders are not subject to, or a party to,
any agreement, contract, order, judgment or decree or any other restriction of
any kind or character which would prevent consummation of the transactions
contemplated by this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF ASPi
ASPi represent and warrant to the Exchangeable Shareholders at the date of
this Agreement:
5.1 Authority. No permit, consent, approval, authorization or other order
of or filing with any other person or entity is required, other than board of
director approval, in connection with the execution, delivery, and performance
by ASPi of this Agreement, and the transactions contemplated by this Agreement
shall not result in the violation or breach of any term or provision of, or
constitute (with or without due notice or lapse of time or both) a default under
any agreement or instrument to which ASPi are a party or otherwise bound.
5.2 Restrictive Documents. ASPi is not subject to, or a party to, any
agreement, contract, order, judgment or decree or any other restriction of any
kind or character which would prevent consummation of the transactions
contemplated by this Agreement.
ARTICLE 6
MUTUTAL RELEASE OF THE PARTIES
6.1 Release of the Holders. Effective as of the Closing, ASPi, for
themselves and on behalf of all affiliated persons and entities,
representatives, and all predecessors in interest, successors and assigns
(collectively, the "ASPi Releasing Parties"), hereby unconditionally releases
and forever discharges the Holders and all direct and indirect partners,
officers, directors, employees, affiliates, representatives, agents, trustees,
beneficiaries, predecessors in interest, successors in interest and nominees of
each such party, of and from any and all obligations, duties, claims, demands,
actions and causes of action, whether known or unknown, fixed or contingent,
that any of the ASPi Releasing Parties may have had or may now have with respect
to any matters whatsoever arising under or in any way related to the
Amalgamation and Re-organization Agreement. This includes the release of the
Holders of the US $150,000 promissory note dated May 1, 2001 between ASPi,
GrowthExperts and the Holders.
6.2 Release of ASPi. Effective as of the Closing, the Holders, for
themselves and on behalf of all direct and indirect partners, officers,
directors, employees, affiliates, representatives, agents, trustees,
beneficiaries, predecessors in interest, successors in interest and nominees of
each such party (collectively, the "Holder Releasing Parties"), hereby releases
and forever discharges ASPi, and all affiliated persons and entities,
representatives, and all predecessors in interest, successors and assigns, of
and from any and all claims, demands, actions and causes of action, whether
known or unknown, fixed or contingent, that any of the Holder Releasing Parties
may have had or may now have with respect to any matters whatsoever arising
under or in any way related to ASPi's performance of its obligations under the
Amalgamation and Re-organization Agreement dated June 11, 2001, the Amending
Agreement dated June 29, 2001 or the Holders ownership of the Securities.
6.3 No Conveyance Prior to Mutual Release. Each of the Parties hereto
represents, warrants and covenants that it has not, and at the time this
Agreement becomes effective will not have, sold, assigned, transferred or
otherwise conveyed to any other person or entity all or any portion of its
rights, claims, demands, actions or causes of action herein released.
ARTICLE 7
GENERAL PROVISIONS
7.1 Entire Agreement. This Agreement, and the Schedules attached hereto,
contain the entire understanding of the Parties with respect to the transactions
contemplated in this Agreement and the terms of this Agreement expressly replace
and supersede any prior oral or written communication, understanding or
agreement among the Parties including, but not limited to the future obligations
of the Parties, and this Agreement may be amended only by agreement in writing
executed by the Parties.
7.3 Expenses. Except as otherwise expressly provided in this Agreement,
each party to this Agreement shall bear such party's own expenses incurred in
connection with the negotiation, preparation, execution, delivery and
performance of this Agreement, including all fees and expenses of such party's
representatives. The prevailing party in any action to enforce, interpret, or
recover damages for breach of this Agreement shall be entitled to the award of
reasonable attorneys' fees and costs at all levels of proceedings.
7.4 Confidentiality. The Parties agree that this Agreement and the
transactions provided for herein shall be held in confidence by each of them,
except incident to judicial process and as otherwise approved by the Parties to
this Agreement (which consent shall not be unreasonably withheld), or as
necessary to accomplish the transactions provided herein.
7.5 Notices.
-------
a. All notices, consents, requests, instructions, approvals and
other communications provided for in this Agreement shall be validly given, made
or served, if in writing and delivered personally or sent by certified mail,
return receipt requested to:
Holders: F. Xxxxxx Xxxxxxx III
0000 Xxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
ASPi: Xxxxxxx XxXxxxx
ASPi Europe, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx
Fax (000) 000-0000
b. The address of a party provided in a. above may be changed
by that party by giving written notice to all other Parties.
7.6 Termination. This Agreement and the transactions contemplated hereby
may be terminated by either: (a) mutual agreement of the Parties or (b) in the
event the Closing does not occur on or before January 23, 2002. Notwithstanding
the provisions of this Section, termination of this Agreement shall not relieve
any party of its liability for breach of any provisions of this Agreement.
7.7 Choice of Law, Jurisdiction and Venue. It is the intention of the
Parties hereto that this Agreement and the performance hereunder shall be
interpreted and construed in accordance with and pursuant to the laws of the
Province of British Columbia. Any action or proceeding arising out of or in
connection with this Agreement shall be brought in the Province or federal
courts in Vancouver, British Columbia, and the Parties hereby consent to the
jurisdiction and venue of those courts.
7.8 Survival. The representations, warranties, covenants and agreements
set forth in this Agreement shall survive the Closing of the transaction
contemplated in this Agreement.
7.9 Heading. The headings of the articles and sections herein are inserted
for convenience of reference only and shall be ignored in the construction or
interpretation of this Agreement.
7.10 Invalid Provisions. If any one or more of the provisions of this
Agreement, or the applicability of any provision to a specific situation, shall
be held invalid or unenforceable, that provision shall be modified to the
minimum extent necessary to make it or its application valid and enforceable,
and the validity and enforceability of all other provisions of this Agreement
and all other applications of any such provision shall not be affected thereby.
7.11 Successors and Assigns. This Agreement is binding on and inures to
the benefit of the Parties and their respective heirs, personal representatives,
successors and assigns and all of their past, present, and future principals,
officers, directors, agents, and employees and their respective heirs and legal
representatives. None of the Parties may assign any rights or obligations
hereunder without the prior written consent of the other Parties, which consent
shall not be unreasonably withheld.
7.12 Time is of the Essence. Time is of the essence in this Agreement.
----------------------
7.13 Further Assurances. The Parties agree (a) to furnish upon request to
the other party such further information, (b) to execute and deliver to the
other party such other documents, and (c) to do such other acts and things, all
as the other party may reasonably request for the purpose of carrying out the
intent of this Agreement.
7.14 Cooperation Among the Parties. The Parties agree to cooperate in
performing their duties under this Agreement, including without limitation,
those provided under Articles 2 and 3 above.
7.15 Counterparts. This Agreement may be executed in one or more
counterparts, each of which counterparts shall be deemed to be an original and
all of which counterparts, when taken together shall be deemed to constitute one
and the same agreement.
Dated as of the day and year first above written.
ASPI EUROPE, INC.,
a Delaware corporation
____"Xxxxxxx XxXxxxx"__________________
Xxxxxxx XxXxxxx, Chief Financial Officer
"Xxxxx Xxx" "F. Xxxxxx Xxxxxxx III"
------------------------------------ ------------------------------------
XXXXX XXX F. XXXXXX XXXXXXX III
Schedule A
RESIGNATION OF F. XXXXXX XXXXXXX III
Effective as of the Closing, as described in the Stock Redemption and
Settlement Agreement by and among ASPi Europe, Inc., a Delaware corporation
("ASPi") and the Holders dated January 22, 2002, the terms of which are
incorporated herein by reference, I, F. Xxxxxx Xxxxxxx III, hereby resign any
positions I may hold as a director and officer of ASPi, and waive notice of a
special meeting of the shareholders of ASPi to elect a replacement director.
Dated as of January 22, 2002.
"F. Xxxxxx Xxxxxxx III"
--------------------------------------
F. Xxxxxx Xxxxxxx III
ACCEPTED BY:
ASPI EUROPE, INC.
a Delaware corporation
"Xxxxxxx XxXxxxx"
---------------------------------------
Xxxxxxx XxXxxxx, Chief Financial Officer
Schedule B
RESIGNATION OF XXXXX XXX
Effective as of the Closing, as described in the Stock Redemption and
Settlement Agreement by and among ASPi Europe, Inc., a Delaware corporation
("ASPi") and the Holders dated January 22, 2002, the terms of which are
incorporated herein by reference, I, Xxxxx Xxx, hereby resign any positions I
may hold as a director and officer of ASPi, and waive notice of a special
meeting of the shareholders of ASPi to elect a replacement director.
Dated as of January 22, 2002.
"Xxxxx Xxx"
------------------
Xxxxx Xxx
ACCEPTED BY:
ASPI EUROPE, INC.
a Delaware corporation
"Xxxxxxx XxXxxxx"
---------------------
Xxxxxxx XxXxxxx, Chief Financial Officer
