Exhibit 10.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated this 3rd day of November, 2000
by and among:
HEALTH-PAK, INC., a Delaware corporation, with offices at 0000, Xxxxx Xxxxx
Xxxxx, Xxxxx, Xxx Xxxx hereafter referred to as the "Company " or "Health-Pak.";
LIFE ENERGY TECHNOLOGY HOLDINGS, LTD., a corporation organized under the laws of
the Republic of Ireland with its office address at Finnabair Science Park,
Technology City, Dundalk, Co. Louth, Ireland.; and hereinafter referred to as
"Life."
THE STOCKHOLDERS OF LIFE who are named in Schedule A annexed hereto and made a
part hereof, hereinafter referred to as the "Stockholders" or the "Shareholders"
and who are the holders of all of the outstanding shares of common stock
(ordinary shares) of Life.
All of the foregoing entities and persons are collectively referred to as the
"Parties."
W I T N E S S E T H:
WHEREAS, Health-Pak and Life, with the consent of the Stockholders, have entered
into a plan of reorganization, as contemplated under the United States Internal
Revenue Code (the "Code") adopted by their respective Boards of Directors which
provides as follows:
PLAN OF REORGANIZATION
Both corporations shall be reorganized under and pursuant to Section
368(a)(1)(B) of the Code by the Company acquiring all of the outstanding voting
shares of common stock (or ordinary shares) of Life in a proposed exchange of
such shares solely for the voting shares of common stock of the Company and by
exchanging such shares, Life will become a wholly owned subsidiary of the
Company, and the Company will change its name to "Life Energy Technology
Holdings, Ltd.," or such other name as may be agreed upon, and the Board of
Directors of the Company will be reorganized to include new directors nominated
by Life, the purpose of which is to seek additional restructuring for Health-Pak
and to give Life access to the public market in the United States for its
shares; and
WHEREAS, the Company and Life confirm that they each have no other class of
securities, either issued and outstanding or authorized, except as specifically
set forth herein; and that no other person or entity has any right or
entitlement to receive any further shares of common stock, or of any other class
or type of security of either corporation except as herein described;
NOW, THEREFORE, in consideration of the promises and mutual representations,
warranties and covenants herein contained, the parties hereto adopt this
Agreement and Plan of Reorganization , hereinafter referred to as the
"Agreement," and they hereby agree as follows:
ARTICLE 1
EXCHANGE OF SHARES
1.01 EXCHANGE OF SHARES. All of the outstanding shares of common stock (the
ordinary shares hereinafter called the "Life Shares") owned by the Stockholders
of Life constituting an approximate total of fifteen (15) million shares shall
be exchanged solely for an approximate total of fifteen (15) million shares of
the common stock of Health-Pak (the "Shares") and Life shall thereafter operate
as a wholly owned subsidiary of the Company. All of the shares thereby exchanged
shall be duly authorized and non-assessable shares of common stock of each
corporation, free and clear of all liens and encumbrances. The exchange
transaction is intended to be a tax free exchange pursuant to Section
368(a)(1)(B) of the Internal Revenue Code. All of the outstanding shares of the
class A preferred class stock owned by the Stockholders of Life constituting an
approximate total of sixteen (16) million shares shall be exchanged solely for
an approximate total of sixteen (16) million shares of the class A preferred
class stock of Health-Pak. The shares intended to be issued to the Stockholders
by Health-Pak are to be deemed "restricted securities" as defined by Rule 144
promulgated under the Securities Act of 1933, as amended, (the "Act").
Furthermore, the Parties confirm and acknowledge that as restricted shares the
Health-Pak shares of common stock to be exchanged hereunder will be subject to
restrictions against the further sale or transfer thereof unless subsequently
registered under the Act or an exemption from such registration becomes
available, such as is provided by Rule 144. There is no present intent to
register the shares to be issued. However, in the event the Company elects to
file a registration statement with the Securities and Exchange Commission and/or
any state securities commission in connection with a public offering of its
securities and further seeks to register any then issued and outstanding shares,
Life Shareholders shall have the right to request registration of their shares
and the Company shall prepare and file with the appropriate regulatory agency
all documents necessary to facilitate registration of such shares. The Company
shall notify the Life Shareholders of its intent to file a registration
statement regarding issued and outstanding shares at least sixty days prior to
the anticipated date of filing. Life Shareholders shall have twenty days from
their respective receipt of such notice from the Company to provide written
notice to the Company of their respective request(s) to have their shares
registered.
1.02 DELIVERY OF SHARES. On the Closing Date as set forth herein, the
Stockholders shall deliver to the Company all stock certificates and/or stock
powers representing the Life shares, duly endorsed, so as to make the Company
the sole holder thereof, free and clear of all claims and encumbrances; and the
Company shall deliver to the Shareholder Representative certificates in such
denominations as the Shareholder or their representative shall determine
representing the Health-Pak shares so as to make the Shareholders the sole
holder thereof, free and clear of all claims and encumbrances, subject to the
restrictions on transfer described herein. The terms, conditions, preferences,
and other rights and privileges of the Health-Pak shares shall be the same as
for all other issued and outstanding shares of the Company's capital stock of
the same class.
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1.03 EXEMPT TRANSACTION. The transaction contemplated by the exchange of shares
recited above shall be made subject to an exemption from the registration
requirements of the Act provided by Sections 4(1) and 4(2) thereof as a private
transaction not involving any public offering.
ARTICLE 2
WARRANTIES AND REPRESENTATIONS OF LIFE AND THE STOCKHOLDERS
2.01 WARRANTIES AND REPRESENTATIONS OF LIFE AND THE STOCKHOLDERS. Life hereby
represents and warrants, for itself and for each of its subsidiaries, with
respect to its financial condition, liabilities, operations and to the Life
shares of common stock, and to other matters affecting the transfer contemplated
hereby and the Stockholders hereby represent and warrant with respect to the
matters specified below as being applicable to them, that the representations
listed below are true and correct as of the date hereof and will be true and
correct as of the Closing Date (as hereinafter defined).
2.02 ORGANIZATION. Life is duly organized, validly existing and in good standing
under the laws of the Republic of Ireland and the County where it is organized
and it has all of the requisite power and authority to own, hold, lease or
operate its properties and assets and to carry on its business as now being
conducted. Life has an authorized capitalization of fifteen (15) million shares
of common stock (or ordinary shares), .001 par value, of which fifteen (15)
million shares are duly issued and outstanding and owned by the Shareholders,
which shares constitute the Life shares of common stock (ordinary shares) to be
transferred to the Company hereunder and represent all of the issued and
outstanding shares of capital stock of Life. Life also has an authorized
capitalization of sixteen (16) million shares of Class A stock preferred of
which sixteen (16) million shares are duly issued and outstanding and owned by
the Shareholders, which shares constitute the Life shares of class A preferred
to be transferred to the Company hereunder and represent all of the issued and
outstanding shares of preferred stock of Life.
2.03 LIFE COMMON STOCK. The Life Shares presently owned by the Stockholders are
duly and validly issued, fully paid and non-assessable, and are free and clear
of all voting trusts, agreements, arrangements, liens and all other
encumbrances, claims, equities and liabilities of every nature, and Life, having
duly taken all corporate action required therefore, had the unqualified right to
issue the Life Shares and to deliver clear and unencumbered title thereto to the
Stockholders. There are no outstanding options, contracts, calls, commitments or
demands of any character relating to the authorized, but previously unissued,
shares of common stock (or ordinary shares) of Life. Life's common stock (or
ordinary shares) and the class A preferred stock are the sole classes of stock
authorized by Life's Articles of Incorporation and Life is under no obligation,
legal or otherwise, to establish any other class of common stock, or any other
type of security. The Stockholders have good and marketable title to their
shares of common stock in Life and have the unqualified right to transfer and
dispose of the Life stock as contemplated herein, and upon the closing
hereunder, clear and unencumbered title thereto shall be conveyed to the
Company.
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2.04 QUALIFICATION IN THE UNITED STATES. Life is, or will promptly become, duly
qualified as a foreign corporation in good standing in the United States in each
state in which such qualification is necessary except where the failure to be so
qualified would not materially adversely affect Life. Life will acquire an
office address in the United States as soon as possible.
2.05 AUTHORIZATION OF THIS AGREEMENT. The execution of this Agreement by Life
and the performance by Life of its covenants and undertakings hereunder have
been duly authorized by all requisite corporate action, and approved by the
Board of Directors and, prior to the Closing, shall be approved by the
Stockholders of Life. Life has the corporate power and authority to enter into
this Agreement and perform the covenants and undertakings to be performed by it
hereunder, and is under no impediment which would adversely affect its ability
to consummate or prohibit it from consummating this transaction. Upon execution,
this Agreement shall constitute a legal, binding and valid obligation of Life
and its Stockholders, enforceable against each of them in accordance with its
terms.
2.06 AUTHORITY OF THE STOCKHOLDERS, The Stockholders have full power, competency
and authority to enter into this Agreement and to make a valid transfer of their
common stock as herein contemplated. No authorization or approval or exemption
from or filing or registration with any court, person, personal representative,
executor, governmental agency, commission or board or any instrumentality of any
government or private regulatory body is necessary to authorize this Agreement
by Life or the Stockholders.
2.07 CONFLICT WITH OTHER OBLIGATIONS AND INTERESTS. The execution and delivery
of this Agreement, the consummation of the transactions contemplated hereby and
the compliance by Life and the Stockholders with the provisions hereof will not
(i) conflict with or result in a breach of any provisions of , or constitute a
material default (or an event which, with notice or lapse of time or both, would
constitute a material default) under, or result in the creation of any material
lien, security interest, charge or encumbrance upon Life or the shares of stock
of Life being transferred or any material assets of Life under any of the terms,
conditions or provisions of the Certificate of Incorporation or By-Laws of Life
or any material note, bond, mortgage, indenture, license, lease, agreement or
other instrument or obligation to which either Life or the Stockholders are a
party, or by which they are bound; or (ii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Life or the Stockholders or
any of their respective properties or assets.
2.08 FINANCIAL STATEMENTS. Life and the Stockholders have delivered to the
Company, or on or before the Closing Date will deliver to the Company, an
unaudited balance sheet prepared for review and use by Life management. The
books of account of Life fully and fairly reflect all of the material
transactions of Life as of the date then ended for each financial statement
submitted. Life will have no material liabilities, either fixed or contingent,
not reflected in such financial statements, other than for contracts or
obligations incurred in the ordinary and usual course of business or as set
forth in SCHEDULE B annexed hereto, and no such contracts or obligations
constitute liens or other liabilities which, if disclosed, would alter
substantially the financial condition of Life as reflected in such financial
statements. All
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liabilities for the current and for all prior years, including any income and
sales taxes or other taxes for which Life has any liability, have been paid in
full or have been adequately provided for in said audited financial statements
in accordance with generally accepted accounting principles within 60 days from
the date of closing.
2.09 CHANGES IN FINANCIAL CONDITION. Since the date of the most recent financial
statements of Life as submitted to the Company, there have not been (i) any
adverse changes in the financial condition or in the operations of Life or any
of its subsidiaries (if any); (ii) any damage, destruction or loss, whether
covered by insurance or not, adversely affecting the properties and business of
Life; (iii) any declaration, setting aside of payment of any dividend in respect
of the capital stock of Life; (iv) any issuance of capital stock by Life or
securities exercisable, convertible into or exchangeable for capital stock, any
distribution (whether by way of reclassification, recapitalization, stock split
or otherwise) in respect of the capital stock of Life, or any redemption or
other acquisition of any such stock, (v) any contract or transaction entered
into by Life except contracts and transactions entered into in the ordinary
course of business, this Agreement or as otherwise approved by Health-Pak in
writing; (vi) any material default in any contract, obligation or debt of Life;
or (vii) any other event or condition of any character pertaining to and
materially adversely affecting the assets or business of Life taken as a whole.
2.10 TAX MATTERS. (a) FILING OBLIGATIONS. Life has duly and timely filed (or
there have been duly and timely filed on its behalf), or a valid extension of
time to file has been obtained, with the appropriate governmental authorities,
all Tax Returns ("Tax Returns" as hereinafter defined) required to be filed by
it and all such Tax Returns are true, correct and complete in all material
respects. All taxes for which Life is or may be liable (whether or not shown on
any Tax Return) in respect of periods (or portions thereof) ending on or before
the Closing Date have been timely paid, or will be timely paid, or have been
provided for on the Financial Statements. Regarding any period (or portion
thereof) through the Closing Date for which taxes are not yet due or owing, Life
has established due and sufficient reserves for the payment of such taxes and
such current reserves through the Closing Date are duly and fully provided for
in the Financial Statements.
(b) DEFICIENCIES. No deficiencies for taxes have been claimed, proposed or
assessed by any taxing or other governmental authority against Life and Life has
not received any notice, or otherwise has any knowledge, of any potential claim,
proposal or assessment against the Life for any such deficiency for taxes. There
are no pending, or to the best of Life or the Stockholder's knowledge,
threatened audits, investigations or claims for or relating to any liability in
respect of taxes, and there are no matters under discussion between Life on the
one hand and any governmental authority on the other hand with respect to taxes
that, in the reasonable judgment of Life or the Stockholders, is likely to
result in a material additional liability of Life for taxes.
(c) TAX LIENS. There are no liens for taxes upon any property or assets of Life
except for liens for taxes not yet due and payable, and for which adequate
reserves have been provided for on the Financial Statements.
(d) WITHHOLDING TAXES. Life has duly and timely withheld, collected and paid to
the proper governmental authority all taxes required to have been withheld,
collected or paid.
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(e) TAXES IN FOREIGN JURISDICTIONS. No claim has ever been made to Life by an
authority in any jurisdiction where Life has not filed tax returns that Life is
or may be subject to taxation by that jurisdiction.
(f) WAIVER OF STATUTE OF LIMITATIONS. Life has not waived any statute of
limitations in respect of taxes or agreed to any extension of time with respect
to a tax assessment or deficiency.
(g) SECTION 280G OF THE CODE. There is no contract, plan or arrangement (written
or otherwise) covering any current or former employee or independent contractor
of Life that, individually or in the aggregate, could give rise to the payment
of any amount that will not be deductible by Life under Section 280G of the
Code.
(h) POWER OF ATTORNEY. No power of attorney that is currently in force has been
granted by Life with respect to any matters relating to Taxes.
(i) TAX SHARING AGREEMENTS. There are no tax sharing agreements or other similar
arrangements with respect to or involving Life.
(j) REAL PROPERTY HOLDING COMPANY. Life is not, and during the five-year period
ending on the Closing Date has not been, a "United States Real Property Holding
Corporation," as such term is defined in Section 897(c) of the Code or the
Treasury Regulations promulgated thereunder.
(k) COPIES OF TAX RETURNS TO BE DELIVERED. On or prior to the Closing Date Life
will deliver to the Company copies of its tax returns filed with any taxing
authority or the Internal Revenue Service of the United States and any state
taxing authority, or in the alternative, Life will provide a statement that the
due date for such tax returns has been extended, by Life for its last fiscal
period or that such tax returns are not yet required.
(l) DEFINITION OF "TAXES" AND "TAX RETURNS." For purposes of this Agreement, and
without limiting the generality of the foregoing, "Tax" or "Taxes" shall mean
any and all taxes, charges, fees, levies or other assessments, including all net
income, gross income, gross receipts, excise, stamp, real or personal property,
ad valorem, sales, withholding, estimated, social security, employment,
unemployment, occupation, use, service, service use, license, net worth,
payroll, franchise, environmental, severance, transfer, recording, escheat, or
other taxes, duties, assessments, or charges, imposed by any governmental
authority and any interest, penalties, or additions to tax attributable thereto.
"Tax Return" shall mean any report, return, document, declaration, information,
return or filing (including any related or supporting information) filed or
required to be filed with respect to taxes.
2.11 LITIGATION. Except as set forth in SCHEDULE C, Life is not involved in any
pending litigation or governmental investigation or proceeding, and to the best
of Life and the Stockholders' knowledge, no material litigation, claim,
assessment or governmental investigation or proceeding is threatened which might
reasonably be expected to result in any material change in the business or
condition, financial or otherwise, of Life or in any of its properties or
assets, or which might reasonably be expected to result in any material
liability on the part of Life or which questions the validity of this Agreement,
or which would, in the case of officers, directors or employees of Life, impair
their ability to carry out their duties as such officers, directors or
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employees now or in the future, or which might reasonably be expected to
otherwise adversely affect the Company or Life, or of any action taken or to be
taken pursuant to or in connection with the provisions of this Agreement. The
Stockholders represent that they are not involved in any pending material
litigation or governmental investigation or proceeding which would, to the best
of their knowledge and information, affect their ownership of the Life Shares or
their ability to enter into this Agreement or to carry out its terms and
conditions. Stockholders further covenant that to the best of their knowledge
and information, no such material litigation, claim, assessment or governmental
investigation or proceeding of any kind exists or is threatened.
2.12 BREACH OF CONTRACTS AND COMMITMENTS. Life has not materially breached, and
there are no pending or threatened claims or any legal basis for a claim that
Life has materially breached, any of the terms or conditions of any material
agreement, contract or commitment to which it is a party or is bound, and the
execution and performance hereof will not violate any law or any provisions of
any agreement to which Life is subject.
2.13 COMPLIANCE WITH LAW. Life has complied with all applicable laws of the
Republic of Ireland and its provinces in connection with its formation, issuance
of securities, organization, capitalization and operation, and no contingent
liabilities have been threatened, or claims made or threatened with respect
thereto, including claims for violation of any securities laws and there is no
basis for any such claim or liability except, in all such cases, for violations
and claims which individually or in the aggregate would not materially adversely
affect Life. No consent, approval, authorization or order of, or registration,
qualification, designation, declaration or filing with, any governmental
authority is required on the part of either Life or the Stockholders in
connection with the execution and delivery of this Agreement, or the carrying
out of any of the transactions contemplated hereby.
2.14 CERTIFICATE OF INCORPORATION, BY-LAWS, MINUTES, ETC. Copies of Life's
Certificate of Incorporation, By-laws and Minutes of Life and all Amendments
thereto that have been furnished, or immediately upon execution of this
Agreement, will be furnished to the Company by or on behalf of Life and are or
will be, as applicable, true and complete. Attached hereto as EXHIBITS A AND B
are true and complete copies of the certificate of incorporation and by-laws of
Life, as amended to date.
2.15 CONTRACTS AND COMMITMENTS. Life does not have any material agreement,
contract, lease, commitment or obligation (including employment agreements or
labor contracts) other than as provided on SCHEDULE D; the respective books of
account and other records of Life are true, complete and correct, and accurately
present or reflect all of the transactions entered into by Life or to which Life
has been a party, or to which its properties and assets may be subject.
2.16 MINUTES. The records of directors' and stockholders' meeting of Life
contain a true and complete record of all corporate proceedings of Life since
its date of incorporation, and comply in all respects with all statutes, laws,
rules, and regulations applicable to them and to their respective businesses and
properties.
2.17 OFFICERS, DIRECTORS AND EMPLOYEES. The only officers, directors of the Life
are
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listed IN SCHEDULE E, annexed hereto. The curriculum vitae of the officers,
directors and key management of the Company are set forth in SCHEDULE F hereto
and are true and complete and do not contain any material misstatement of fact
or omit any fact required to make the facts stated therein not misleading.
2.18 PATENTS, LICENSES, SOFTWARE ETC. Annexed hereto as SCHEDULE G is a list of
all of the domestic and foreign patents, patent applications, patent, software
and other licenses, trade names, trademarks, service marks, trademark
registrations and applications, service xxxx registrations and applications,
copyrights, copyright registrations and applications owned or controlled by
Life, used in the operations of the business of Life, or governing the products
or processes of Life (collectively, the "Intellectual Property"). Life owns or
has a valid license to use the Intellectual Property. Life has not received any
notice of infringement of or conflict with, and to their knowledge, there are no
infringements of or conflicts with, the rights of any person with respect to the
use of any Intellectual Property.
2.19 INVESTMENT COMPANY REPRESENTATIONS. Life is not an "Investment Company" as
that term is defined under the Investment Company Act of 1940, as amended.
2.20 ACCOUNTS RECEIVABLE. All accounts receivable of Life, whether reflected in
the Balance Sheet or otherwise, represent sales actually made or services
actually performed in the ordinary course of business, and are current and
collectible consistent with past practices net of any reserves shown on the
Balance Sheet (which reserves are adequate and were calculated in accordance
with generally accepted accounting principles consistent with past practice).
2.21 INVENTORY. To the best knowledge of Life after due inquiry, all inventory
of Life is merchantable and reflected on Life's books at the lower of cost or
market, and of a quality and quantity usable and salable in the ordinary course
of Life's business. 2.22 CONDITION OF MACHINERY AND EQUIPMENT. The equipment
owned by Life is structurally sound with no known defects and is in satisfactory
operating condition and repair and is adequate for the uses to which it is being
put; and none of such equipment is in need of maintenance or repairs except for
ordinary, routine maintenance and repairs which are not material in nature or
cost.
2.23 BANK ACCOUNTS. SCHEDULE H annexed hereto sets forth the names and locations
of all banks, trust companies, savings and loan associations and other financial
institutions at which Life maintain safe deposit boxes or accounts of any nature
and the names of all persons authorized to draw thereon, make withdrawals
therefrom or have access thereto.
2.24 INSURANCE POLICIES. SCHEDULE I annexed hereto contains an accurate and
complete summary description of all material policies of fire, liability,
workmen's compensation and other forms of insurance owned or held by Life. All
such policies are in full force and effect, all premiums with respect thereto
covering all periods up to and including the Effective Time have or will be
paid, and no notice of cancellation or termination has been received with
respect to any such policy. Such policies are sufficient for compliance with all
requirements of law and of all agreements to which Life is party; are valid,
outstanding and enforceable policies; provide
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adequate insurance coverage for the assets and operations of Life; will remain
in full force and effect through the respective dates set forth in SCHEDULE I
without the payment of additional premiums; and will not in any way be affected
by, or terminate or lapse by reason of, the transactions contemplated by this
Agreement.
2.25 EMPLOYMENT LAWS AND REGULATIONS. To the best knowledge of Life after due
inquiry, Life is in compliance with all applicable laws respecting employment
and employment practices, terms and conditions of employment and wages and
hours, and is not engaged in any unfair labor practices; there is no unfair
labor practice complaint against Life pending before the National Labor
Relations Board; there is no labor strike, dispute, slowdown or stoppage
actually pending or, to the best of Life's knowledge after due inquiry,
threatened against or affecting Life; to the best knowledge of Life, after due
inquiry, no representation question exists respecting the employees of Life; to
the best knowledge of Life, after due inquiry, no grievance which might have a
material adverse effect on Life or the conduct of its businesses nor any
arbitration proceeding arising out of or under collective bargaining agreements
is pending and no claim therefor exists; no collective bargaining agreement
which is binding on Life restricts it from relocating or closing its operations;
Life has not experienced any work stoppage or other labor difficulty in the
past; and Life is not a party to any collective bargaining labor representative
agreement.
2.26 COMPENSATION PLANS. Except as disclosed in SCHEDULE J, Life does not have
any bonus, deferred compensation, pension, profit-sharing, retirement, stock
purchase, stock option or any other fringe benefit plan, arrangement or
practice, whether formal or informal.
2.27 ASSETS NOT SUBJECT TO DECREE. Neither the whole nor any portion of the
leaseholds or any other assets of Life is subject to any governmental decree or
order to be sold or is being condemned, expropriated or otherwise taken by any
public authority with or without payment of compensation therefor, nor to the
best knowledge of Life has any such condemnation, expropriation or taking been
proposed.
2.28 ENVIRONMENTAL MATTERS. To the best knowledge of Life and its Stockholders,
Life is in compliance in all material respects with all applicable federal,
state and local laws and regulations relating to pollution control and
environmental contamination, including, without limitation, all discharge or
disposal of Hazardous Materials (as defined below). Except as set forth in
SCHEDULE K annexed hereto, to the best knowledge of Life, Life has not been
alleged to be in violation of, or been subject to any administrative or judicial
proceeding pursuant to, such laws or regulations either now or at any time
during the past. Except as set forth in SCHEDULE K, there are no facts or
circumstances that Life reasonably expects could form the basis for the
assertion of any Claim (as defined below) against Life relating to environmental
matters including, but not limited to, any Claim arising from past or present
environmental practices asserted under the laws of the Republic of Ireland or
CERCLA or RCRA (each as defined below), or any other federal, state or local
environmental statute or regulation.
2.29 DEFINITIONS OF ENVIRONMENTAL TERMS. For purposes of this Agreement, the
following terms shall have the following meanings: (i) "Hazardous Materials"
shall mean materials defined as "hazardous substances," "hazardous wastes" or
"solid wastes" in (A) the Comprehensive
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Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601-9657, and any amendment thereto ("CERCLA"), (B) the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901-6987, and any amendments
thereto ("RCRA"), and (C) any similar state or local environmental statute or
regulation; and (ii) "Claim" shall mean any and all claims, demands, causes of
action, suits, proceedings, and decrees.
2.30 EMPLOYEE BENEFIT PLANS. Life does not have and has never maintained any
employee benefit plan within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
2.31 AGENTS AND BROKERS. Except as set forth in SCHEDULE J, no agent, advisor,
broker, person or firm acting on behalf of Life is, or will be, entitled to any
commission or broker's, advisor's or finder's fees from any of the parties
hereto, or from a person controlling, controlled by or under common control with
any of the parties hereto, in connection with any of the transactions
contemplated herein.
2.32 INSOLVENCY. Neither Life nor any of the Stockholders is insolvent or
bankrupt and there is no pending or threatened insolvency or bankruptcy
proceeding of any kind, either state or federal, affecting either Life or any of
the Stockholders.
2.33 STOCKHOLDERS INVESTMENT REPRESENTATION. The Stockholders represent that
they are acquiring the common stock of Health-Pak in exchange for their shares
of common stock in Life for the purposes of investment only, for each of their
own respective accounts and not with a view to, or for the purpose of resale,
distribution or subdivision. The Stockholders each acknowledge that they have
been informed that the shares of common stock to be issued to them as herein set
forth have not been registered under the Securities Act of 1933, as amended, or
the laws of any state or other jurisdiction and that, therefore, such shares may
not be resold, offered, or pledged except pursuant to a registration statement
or under an exemption from the registration and prospectus delivery requirements
of the Act.
2.34 SUBSIDIARIES. Life is the owner or is the control shareholder of the
following subsidiaries, each of which shall be owned by Life as of the Closing
Date:
ARTICLE 3
WARRANTIES AND REPRESENTATIONS OF THE COMPANY
3.01 WARRANTIES AND REPRESENTATIONS OF THE COMPANY. The Company hereby makes the
following representations and warranties to Life and the Stockholders , each of
which is true as of the date hereof and will be true as of the Closing Date and
each of which shall be deemed to be independently material and to have been
relied upon by Life and the Stockholders in connection with this Agreement.
3.02 ORGANIZATION. The Company is a corporation duly organized, validly existing
by virtue of the laws of Delaware in the United States, and will be in good
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standing under the laws thereof on the Closing Date; and neither the nature of
its business nor the character and location of its properties requires it to be
qualified or licensed to do business in any other jurisdiction. Since its
incorporation, no claim has been asserted by any governmental authority that the
nature of its business, or the character and location of the properties owned or
operated by the Company makes qualification or licensing to do business
necessary in any jurisdiction in which it is not so qualified or licensed.
3.03 HEALTH-PAK COMMON STOCK. The authorized capital stock of the Company
consists solely of 20 million shares of Common Stock, $.001 par value per share.
As of the date of this Agreement, there are approximately 6,544,473 shares
issued and outstanding. All of the issued and outstanding shares of the
Company's capital stock, including the Life Shares to be issued hereunder, are
or will be when issued fully paid and non-assessable shares of the Company's
common stock.
3.04 SUBSIDIARIES. The Company has one subsidiary, Health-Pak, Inc., a New York
corporation, which is presently in Bankruptcy under Chapter 11 of the United
States Bankruptcy Code. The Company does not own any other subsidiaries nor does
it own any interest in any corporation, partnership or proprietorship except as
set forth on SCHEDULE L annexed hereto.
3.04a TAXES AND TAX RETURNS. FILING OBLIGATIONS. (a) The Company has duly and
timely filed (or there have been duly and timely filed on its behalf), or a
valid extension of time to file has been obtained, with the appropriate
governmental authorities all tax returns ("Tax Returns" as hereinafter defined)
required to be filed by it and all such tax returns are true, correct and
complete in all material respects. All taxes for which the Company is or may be
liable (whether or not shown on any tax return) in respect of periods (or
portions thereof) ending on or before the Closing Date have been timely paid, or
will be timely paid, or have been provided for on the Financial Statements. With
respect to any period (or portion thereof) through the Closing Date for which
taxes are not yet due or owing, the Company has established due and sufficient
reserves for the payments of such taxes in accordance with generally accepted
accounting principles, and such current reserves through the Closing Date are
duly and fully provided for in the Financial Statements.
(b) TAX DEFICIENCIES. No deficiencies for taxes have been claimed, proposed or
assessed by any taxing or other governmental authority against the Company and
the Company has not received any notice, or otherwise has any knowledge, of any
potential claim, proposal or assessment against the Company for any such
deficiency for taxes. There are no pending, or to the best of the Company's
knowledge, threatened audits, investigations or claims for or relating to any
liability in respect of taxes, and there are no matters under discussion between
the Company on the one hand and any governmental authority on the other hand
with respect to taxes that, in the reasonable judgment of the Company, is likely
to result in a material additional liability of the Company for taxes.
(c) TAX LIENS. There are no liens for taxes upon any property or assets of the
Company except for liens for taxes not yet due and payable, and for which
adequate reserves have been provided for on the Financial Statements.
11
(d) WITHHOLDING TAXES. The Company has duly and timely withheld, collected and
paid to the proper governmental authority all taxes required to have been
withheld, collected or paid.
(e) TAXES IN FOREIGN JURISDICTIONS. No claim has ever been made to the Company
by an authority in a jurisdiction where the Company has not filed tax returns
that the Company is or may be subject to taxation by that jurisdiction.
(f) WAIVER OF STATUTE OF LIMITATIONS. The Company has not waived any statute of
limitations in respect of taxes or agreed to any extension of time with respect
to a tax assessment or deficiency.
(g) SECTION 280G OF THE CODE. There is no contract, plan or arrangement (written
or otherwise) covering any current or former employee or independent contractor
of the Company that, individually or in the aggregate, could give rise to the
payment of any amount that will not be deductible by the Company under Section
280G of the Code.
(h) POWER OF ATTORNEY No power of attorney that is currently in force has been
granted by the Company with respect to any matters relating to taxes.
(i) TAX SHARING AGREEMENTS. There are no tax sharing agreements or other similar
arrangements with respect to or involving Acquire.
(j) REAL PROPERTY HOLDING COMPANY. The Company is not, and during the five-year
period ending on the Closing Date has not been, a "United States Real Property
Holding Corporation," as such term is defined in Section 897(c) of the Code or
the Treasury Regulations promulgated thereunder.
(i) COPIES OF TAX RETURNS TO BE DELIVERED. Copies of the tax returns filed, or a
statement that the due date for such tax returns has been extended, by the
Company for its last fiscal period have been or prior to closing will be
provided to Life.
(j) DEFINITION OF "TAX" AND "TAX RETURN." For purposes of this Agreement, and
without limiting the generality of the foregoing, "Tax" or "Taxes" shall mean
any and all taxes, charges, fees, levies or other assessments, including all net
income, gross income, gross receipts, excise, stamp, real or personal property,
ad valorem, sales, withholding, estimated, social security, employment,
unemployment, occupation, use, service, service use, license, net worth,
payroll, franchise, environmental, severance, transfer, recording, escheat, or
other taxes, duties, assessments, or charges, imposed by any governmental
authority and any interest, penalties, or additions to tax attributable thereto.
"tax return" shall mean any report, return, document, declaration, information,
return or filing (including any related or supporting information) filed or
required to be filed with respect to taxes.
3.05 COMPLIANCE WITH LAW. The Company has complied with all state, federal and
local laws in connection with its formation, issuance of securities,
organization, capitalization and operation, and no contingent liabilities have
been threatened, or claims made or threatened with respect to said operations,
formation or capitalization, including claims for violation of any state or
federal securities laws and, to the best of its knowledge, no basis for any such
claim or liability exists. All filings required to be made by the Company
pursuant to federal or state securities laws have been made and are current,
comply as to form with all requirements of the
12
securities laws have been made and are current, comply as to form with all
requirements of the securities laws and contain no material misstatement or omit
any facts required so as not to be misleading. No consent, approval,
authorization or order of, or registration, qualification, designation,
declaration or filing with, any governmental authority is required on the part
of the Company in connection with the execution and delivery of this Agreement,
or the carrying out of any of the transactions contemplated hereby.
3.06 DISPUTES AND LITIGATION. The Company is not involved in any pending
litigation, disputes or governmental investigation or proceeding, and to the
best knowledge of the Company, no litigation, claim, assessment or governmental
investigation or proceeding is pending or threatened, except as may be disclosed
on SCHEDULE M annexed hereto.
3.07 BREACH OF AGREEMENTS IN EFFECT. The Company has not breached, nor are there
any pending or threatened claims or any legal basis for a claim that the Company
has breached, any of the terms or conditions of any agreement, contract or
commitment to which it is a party or is bound and the execution and performance
hereof will not result in a violation of any agreement, law or governmental
regulation to which the Company is subject.
3.08 THE SHARES TO BE ISSUED. The Health-Pak Shares to be issued to the
Stockholders have been duly authorized, and when issued in exchange for the Life
Shares as provided herein, will be validly issued, non-assessable and fully paid
under the laws of the state of Delaware and will be issued in a non-public
offering pursuant to exemptions from registration under federal and state
securities laws. The Health-Pak Shares to be issued will have the same dividend,
voting and other rights, powers, preferences, limitations and restrictions as
all of the shares of common stock of the Company issued and outstanding as of
the date hereof, except that the Health-Pak Shares shall be deemed "restricted
shares" as defined in Rule 144 promulgated under the Act and shall bear a
restricted legend and stop transfer instructions will be filed with the
Company's Transfer Agent. All of the Health-Pak Shares will, when delivered, be
free and clear of all voting trusts, agreements, arrangements, liens and all
other encumbrances, claims, equities and liabilities of every nature, and the
Company, having duly taken all corporate action required therefor, has the
unqualified right to issue the Health-Pak Shares and to deliver clear and
unencumbered title thereto.
3.09 APPROVAL BY THE BOARD OF DIRECTORS. The execution of this Agreement by the
Company, and the performance by the Company of its covenants and undertakings
hereunder have been duly authorized by all requisite corporate action, and
approved by the Board of Directors, and the Company has the corporate power and
authority to enter into this Agreement and to perform the covenants and
undertakings to be performed by it hereunder, and is under no other impediment
which would adversely affect its ability to consummate or prohibit it from
consummating the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company enforceable in accordance with its
terms.
3.10 POWER AND AUTHORITY. The Company has full power, authority and legal right
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the compliance by the Company with the
provisions hereof will not: (i) conflict with
13
or result in a breach of any provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
or result in the creation of any lien, security interest, charge or encumbrance
upon the shares to be issued or any of the property or assets of the Company
under any of the terms, conditions or provisions of the Articles of
Incorporation or By-Laws of the Company or any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation to which the Company is a
party, or by which it is bound; or (ii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Company or any of its
properties or assets.
ARTICLE 4
INTERIM OPERATIONS
4.01 INTERIM OPERATIONS. Between the date hereof and the Closing Date the
Company and Life (including their respective subsidiaries) will conduct their
respective operations as follows:
4.02 PRESENT BUSINESS OPERATIONS. Except as herein provided, the Company and
Life will carry on their respective businesses in substantially the same manner
as heretofore and the assets, properties and rights now owned by them will be
maintained, as far as practicable, in the usual and ordinary course of business,
to the same extent, under the same insurance coverage and in the same condition
as on the date of this Agreement. Prior to the closing date, the Company and
Life shall engage in no activity or business other than as is presently
conducted or shall be necessary to effect the transactions contemplated by this
Agreement.
4.03 NON-DISPOSAL OF PROPERTY. Except in the ordinary course of business and as
herein provided, or as may hereafter be mutually agreed to in writing by the
parties, neither the Company nor Life will sell or dispose of any property or
assets, nor will they encumber any property or assets except as may be required
by law or the provisions of the United States Bankruptcy Court.
4.04 ISSUANCE OF STOCK. Neither of the Parties to this Agreement without the
written consent of the other Parties hereto, will issue or sell, or issue the
right to subscribe to, any shares of capital stock or securities exchangeable or
exercisable for capital stock, or acquire for a consideration any shares of
capital stock or warrants, or declare or pay any dividend on any capital stock.
4.05 AMENDMENT OF CORPORATE DOCUMENTS. Except as contemplated herein, neither
the Company nor Life will, absent a written consent of the other party, amend
their respective Certificates of Incorporation or By-Laws.
4.06 ACCESS TO BOOKS AND RECORDS. Life and the Company shall each, at all
reasonable times, permit access to their respective properties, books and
records for the purpose of examination by the other party hereto and its
officers, directors, attorneys, accountants and
14
representatives, and Life and Company shall furnish to the other party hereto
upon request any information reasonably required in respect of such property,
assets and business; 4.07 DEBT. Neither the Company nor Life will incur any
indebtedness or contingent liability, or enter into any contract or agreement
except in the ordinary course of business without the consent of the other
party.
4.08 ACQUISITIONS. Neither the Company nor Life will acquire any business or
assets of any going business, nor will they merge or consolidate with or into
any other corporation, or entity, nor will they change the character of their
business except with the prior consent of the other party.
4.09 NOTICE OF ANY CHANGES. The Company and Life will promptly advise each other
in writing of any material adverse change in their financial condition, business
or affairs, whether arising from matters occurring not in the ordinary course of
business or not.
ARTICLE 5
CONDITIONS PRECEDENT TO CLOSING
5.01. CONDITIONS PRECEDENT TO THE ACQUISITION BY THE COMPANY. The obligations of
the Company to consummate and effect the acquisition contemplated hereunder
shall be subject to the satisfaction, on or prior to the Closing Date, of the
following conditions:
5.02 WARRANTIES AND REPRESENTATIONS OF LIFE SHALL BE TRUE AND CORRECT. Except as
otherwise contemplated by this Agreement, the representations and warranties of
Life and the Stockholders herein contained shall be true and correct as of the
Closing Date with the same effect as though made on the Closing Date and Life
shall have performed all obligations and complied with all covenants required by
this Agreement to be performed or complied with by it prior to such Closing
Date; and Life shall have delivered to the Company a certificate dated at such
Closing Date and signed by the Chairman of the Board of Directors, the
President, Treasurer, or any Vice President of Life to the foregoing effect, to
the best knowledge of the person giving such certificate; 5.03 STOCKHOLDER'S
APPROVAL. The Stockholders shall each have approved this Agreement and the
acquisition contemplated hereunder;
5.04 APPROVAL OF COUNSEL. All transactions contemplated hereby and the form and
substance of all legal proceedings and of all papers used or delivered
hereunder, shall be acceptable to counsel for the Company;
5.05 RESTRAINING LITIGATION OR PROCEEDING. There shall not be any litigation to
restrain or invalidate the transactions contemplated in this Agreement, the
defence of which would, in the judgement of the Board of Directors of Life, made
in good faith and based upon the advice of
15
counsel, involve expense or lapse of time that would be adverse to the interest
of Life or the Stockholders or the Company. There shall not be any governmental
proceeding, claim or other litigation pending or threatened to restrain or
invalidate the exchange, or which, if adversely decided, could adversely affect
the Company 5.06 OPINION OF COUNSEL. The Company shall have received the opinion
of counsel for Life, dated the Closing Date, with respect to the following
matters:
(A) ORGANIZATION. Life is a corporation duly organized, validly existing and in
good standing under the laws of the Republic of Ireland and the County under
which it was formed and it has all requisite corporate power and authority to
carry on the business now conducted and to own and operate its respective
properties.
(B) COMMON STOCK. The capital stock of Life and the number of shares issued and
outstanding immediately prior to the acquisition, all of which are duly
authorized, issued and outstanding, and are non-assessable shares of Life, are
as indicated in Paragraph 4 hereof.
(C) CORPORATE ACTION. All necessary corporate proceedings, including appropriate
action by the Stockholders and the officers and directors of Life, to approve
this Agreement and the execution, delivery and performance thereof and all other
proceedings required by law or by the provisions of this Agreement have been
taken, and Life has the full right, power and authority to enter into this
Agreement and to carry out the terms thereof without further action;
(D) SUITS, ACTIONS OR PROCEEDINGS. To the best knowledge of such counsel, except
as herein indicated, there are no suits, action, claims or proceedings pending
or threatened against Life, nor to the knowledge of such counsel is Life a party
to or subject to any order, judgement, decree, agreement, stipulation or consent
of or with any court or administrative agency, nor, to the best knowledge of
such counsel, is any investigation pending or threatened against Life.
5.07 TAX RETURNS FILED. Life has filed all federal, state, county and local
income, franchise, property and other tax returns, forms or reports which are
due or required to be filed by it prior to the date hereof, and has paid or made
adequate provisions for the payment of all taxes, fees or assessments which have
or may become due pursuant to such returns or pursuant to any assessments
received.
5.08 RECEIPT OF TAX RETURNS AND CORPORATE DOCUMENTS. Health-Pak shall have been
given the opportunity to review and copy the tax returns, corporate minute book
and all other corporate, business and financial records of Life.
5.09 RECEIPT OF ALL INFORMATION, SCHEDULES AND EXHIBITS. Life and Health-Pak
shall have exchanged all of the information, Schedules and Exhibits referred to
in this Agreement, which shall be completed by each party within thirty (30)
days following the date hereof (unless extended by the mutual agreement of the
parties hereto) after which date either party may elect to terminate this
Agreement according to the provisions of Article 8 below.
16
5.10 ASSUMPTION, PAYMENT ON SETTLEMENT OF CERTAIN OBLIGATIONS. Life shall have
assumed, paid or settled the current obligations of Health-Pak to Xxxxxx, Xxxxx
& Xxxx, B. Xxxxx Xxxxxxx and the Company's transfer agent as reflected in
Schedule L and M. Health-Pak represents that Schedules L and M reflects a true
and accurate representation of those amounts currently due and owing to the
aforementioned person and entities. Life shall also have paid the necessary
costs and expenses to complete Health-Pak's filing requirements with the
Securities and Exchange Commission. Said payments, assumptions and settlements
shall not exceed the sum of $125,000. Health-Pak and Xxxxxxx X. Xxxxxxxxxx shall
be jointly and severally responsible for payment of all amounts in excess of
$125,000.00 and for any and all franchise, state, local, or other taxes in
excess of $10,000.00 that are necessary to satisfy the obligations identified in
this paragraph.
5.11 CONDITIONS PRECEDENT TO ACQUISITION BY LIFE. The obligations of Life to
consummate and effect the acquisition contemplated hereunder shall be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
5.12 WARRANTIES AND REPRESENTATIONS OF THE COMPANY ARE TRUE AND CORRECT. The
representations and warranties of the Company herein contained shall be true and
correct as of and at the date of this Agreement and as of the Closing Date of
the acquisition; and the Company shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by it prior to the Closing Date; and the Company shall have
delivered to Life a certificate at such date, signed by the President and
Treasurer to the foregoing effect, to the best knowledge of the person giving
such certificate;
5.13 APPROVAL OF COUNSEL. All transactions contemplated hereby, and the form and
substance of all legal proceedings and of all papers used or delivered
hereunder, shall be acceptable to counsel for Life;
5.14 RESTRAINING LITIGATION. There shall not be any litigation to restrain or
invalidate the transactions contemplated in this Agreement, the defence of which
would, in the judgement of the Board of Directors of Life, made in good faith
and based upon the advice of counsel, involve expense or lapse of time that
would be adverse to the interests of Life or the Stockholders or the Company.
There shall not be any governmental proceeding, claim or other litigation
pending or threatened to restrain or invalidate the exchange, or which, if
adversely decided, could adversely affect Life.
5.15 OPINION OF COUNSEL. Life and the Stockholders shall have received the
opinion of counsel for the Company, dated the Closing Date, with respect to the
following matters:
(A) ORGANIZATION. Health-Pak is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware and it has all
requisite corporate power and authority to carry on the business now conducted
and to own and operate its respective properties;
(B) COMMON STOCK. The capital stock of Health-Pak and the number of shares
issued and outstanding immediately prior to the acquisition, all of which are
duly authorized,
17
issued and outstanding, and are non-assessable shares of Health-Pak, are as
indicated herein;
(C) CORPORATE ACTION. All necessary corporate proceedings, including appropriate
action by the directors of Health-Pak, to approve this Agreement and the
execution, delivery and performance thereof and all other proceedings required
by law or by the provisions of this Agreement have been taken, and Health-Pak
has the full right, power and authority to enter into this Agreement and to
carry out the terms thereof without further action;
(D) SUITS, ACTIONS OR PROCEEDINGS. To the best knowledge of such counsel, except
as herein indicated, there are no suits, action, claims or proceedings pending
or threatened against Health-Pak or its officers and/or directors that would
subject the Company to any claim of indemnity by its officers and/or directors,
nor to the knowledge of such counsel is Health-Pak a party to or subject to any
order, judgement, decree, agreement, stipulation or consent of or with any court
or administrative agency, nor, to the best knowledge of such counsel, is any
investigation pending or threatened against Health-Pak.
5.16 OTHER CONDITIONS. (a) Health-Pak shall have entered into an agreement in
the form set forth in EXHIBIT C attached hereto which shall provide for the
acquisition by Xxxxxxx X. Xxxxxxxxxx of all of the outstanding common stock of
the Health-Pak New York subsidiary and the plant facility in Utica, New York in
exchange for approximately 4,119,382 shares of common stock of Health-Pak owned
by Xx. Xxxxxxxxxx and his family and (b) Xxxxxx X. Xxxxxxx, a shareholder of
Health-Pak shall have returned for cancellation a total of 1 million shares of
the common stock of Health-Pak.
ARTICLE 6
CLOSING
6.01 CLOSING The date for the closing of the transactions described in this
Agreement (the "Closing Date"), shall take place not later than ninety (90) days
from the date of this Agreement unless otherwise mutually agreed between the
parties in writing. The Closing Date shall take place sooner and within five (5)
days of compliance with all conditions precedent to the requirements set forth
in Article 5 of this Agreement and shall take place at the offices of the
Company or such other place as the parties may agree.
6.02 DELIVERY OF DOCUMENTS. Each party will comply with their respective
requirements and obligations at the closing as set forth herein and will deliver
appropriate documents as called for by this Agreement including certificates for
the shares of stock of Life and the Company.
6.03 BOARD OF DIRECTORS. On the Closing Date the Company's Board of Directors
shall be expanded by increasing the total number of authorized directors to six
and the presently existing directors shall appoint the following persons to
serve as directors of the Company until the next annual meeting of shareholders:
18
(a) Xxxxxxx Xxxxxxxxxx
(b) Xxxxxxx Xxxxxxxxxx
(c) Xxxxxxx Xxxxx
(d) Xxxxxx Xxxxxxxx TD
(e) Xx. Xxxxxxxxxxx XxXxxxxxx, X.Xx., Ph.D., N.I.H.C., X.XX.,
M.ARVO.,F.F.,Ful.S.
(f) Xxxx X. Xxxxxx, Esq.
The following directors of Health-Pak shall remain as directors to serve until
the next annual meeting of shareholders:
(a) Xxxxxxx Xxxxxxxxxx
(b) Xxxxxxx Xxxxxxxxxx
(c) Xxxxxxx Xxxxx
Of the foregoing directors, the existing directors of Health-Pak remaining as
directors after the Closing shall immediately sign resignations to be delivered
to the newly appointed directors to be acted upon by said directors at their
will.
6.04 OFFICERS OF THE COMPANY. At the Closing, the Company shall deliver the
resignation, effective as of the Closing Date, of its officers and the following
shall be appointed in their place and stead:
President:: Xx. Xxxxxxxxxxx XxXxxxxxx, X.Xx., Ph.D., N.I.H.C., X.XX.,
M.ARVO.,F.F.,Ful.S.
Treasurer: Xxxx X. Xxxxxx
Secretary: Xxxx X. Xxxxxx
6.05 REPRESENTATIONS The holders of the required number of shares of common
stock of the Company, in accordance with the Certificate of Incorporation,
By-Laws and statutes affecting the Company, shall have voted in favor of this
Agreement and the acquisition contemplated hereunder and the Company shall have
delivered at the Closing Date a Certificate of the President and the Secretary
of the Company attesting thereto.
ARTICLE 7
INDEMNIFICATION
7.01 INDEMNIFICATION BY LIFE AND THE STOCKHOLDERS. In order to induce the
Company to enter into this Agreement, and for other good and valuable
consideration, receipt whereof is
19
acknowledged, Life and the Stockholders agree to indemnify the Company and its
successors and assigns, and to hold them harmless in respect of (i) all
liabilities of Life of any nature, whether accrued, contingent, absolute or
otherwise, as of the Closing Date, which are not disclosed or provided for in
the financial statements delivered to the Company as herein provided; (ii) any
damage or deficiency arising from any misrepresentation or breach of warranty
made by Life herein; and (iii) all actions, suits, proceedings, demands,
assessments, fines, judgements, costs, expenses, or reasonable attorney's fees
incident to the foregoing;
7.02 INDEMNIFICATION BY THE COMPANY. In order to induce Life and the
Stockholders to enter into this Agreement, and for other good and valuable
consideration, receipt whereof is acknowledged, the Company agrees to indemnify
Life and Shareholders Representative and their successors and assigns, and their
respective officers, directors, employees, controlling persons and agents, and
to hold each of them harmless in respect of (i) all liabilities of the Company
of any nature, whether accrued, contingent, absolute or otherwise, as of the
Closing Date, which are not disclosed or provided for in the financial
statements delivered to Life and the Shareholders as herein provided; (ii)any
damage or deficiency arising from any misrepresentation or breach of warranty or
agreement made by the Company herein; and (iii) all actions, suits, proceedings,
demands, assessments, fines, judgements, costs, expenses, or reasonable
attorney's fees (whether related to claims between the parties, involving third
parties or otherwise), as they are incurred, incident to the foregoing.
ARTICLE 8
TERMINATION
8.01 TERMINATION. This Agreement may be terminated or abandoned at any time
prior to the Closing Date upon the following conditions: (a) By the mutual
consent of the Boards of Directors of the Company and Life; or (b) By the Board
of Directors of either the Company or Life if, in the bona fide judgement of
such Board there shall have been a material violation of any covenant or
agreement set forth herein; or if any warranty or representation shall be
untrue; or such Board of Directors should, in its bona fide judgement deem the
acquisition inadvisable or impractical by reason of any defect which, in the
opinion of counsel for the company whose Board of Directors has made such a
determination, constitutes a material part of its assets or there exists or
there is a threat of a material liability or obligation of such other company
not previously known at the time of this Agreement; or (c) By the election of
either party in the event that all of the conditions precedent to closing, as
set forth in paragraph 7 above, have not been complied with within ninety (90)
days following the date hereof, unless extended by the mutual consent of the
parties hereto.
8.02 EFFECT OF TERMINATION PRIOR TO CLOSING. In the event of the termination and
abandonment of the acquisition and this Agreement as herein provided, written
20
notice shall be given to the company or person to be notified of the termination
or abandonment as herein provided, and thereupon this Agreement shall become
wholly void and of no effect, and there shall be no liability on the part of any
person who is a party hereto, or any liability for the Board of Directors,
stockholders, officers or directors of either the Company or Life or any other
party to this Agreement.
ARTICLE 9
NATURE AND SURVIVAL OF WARRANTIES AND REPRESENTATIONS
9.01. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations, warranties
and covenants made by a party to this Agreement shall survive the execution of
this Agreement and the consummation of the transactions contemplated hereby. All
of the parties hereto are executing and carrying out the provisions of this
Agreement, and relying solely upon the representations, warranties and covenants
contained in this Agreement and not upon any investigation upon which he she or
it might have made, or any representation, warranties, agreements, promises or
information, written or oral, made by the other party, or by persons other than
as specifically set forth herein.
ARTICLE 10
INVESTMENT REPRESENTATIONS OF THE STOCKHOLDERS AND
RESTRICTION ON SALE OF STOCK
10.01. INVESTMENT REPRESENTATIONS OF SHAREHOLDERS. The Stockholders, warrant,
represent and agree with respect to the Health-Pak Shares to be received in
exchange for the Life Shares pursuant to this Agreement that the Shares are
being acquired for the purpose of investment, for the separate accounts of the
Stockholders, and not with a view to distribution or resale or any present
intention to divide their participation with others. Shareholder Representative
further represents and warrants that he has been informed that the Health-Pak
Shares to be received by the Stockholders are not being registered under the Act
in reliance upon the exemption provided by Section 4(2) of the Act as a
transaction not involving any public offering and that reliance upon such
exemptions is predicated in part on the representations made in this paragraph
10.01.
10.02 LIMITATIONS ON SALE OF SHARES OF THE COMPANY. The Stockholders consent to
the imposition of a legend on the certificate or certificates of stock to be
acquired by them to the effect that such securities have not been registered
under the Act and such securities may not be sold, pledged or hypothecated,
except in compliance with said Act, or upon an appropriate opinion of counsel
acceptable to the Company to the effect that an exemption from the registration
provisions of said Act is available to the selling shareholder. The Stockholders
21
further consent to the imposition of "stop transfer" instructions with respect
to each of their respective accounts as recorded by the transfer agent of the
Company, to the effect that such shares may not be sold or disposed of without
evidence of compliance with the requirements of said Act, or upon an acceptable
opinion of counsel.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1. MISCELLANEOUS. PROVISIONS. The following miscellaneous provisions shall be
observed in this Agreement.
11.2 COUNTERPARTS. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.3 ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement among the
parties pertaining to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection
herewith. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution of this Agreement.
11.4 SUCCESSORS. This Agreement shall be binding upon the parties hereto, and
inure to the benefit of the parties, and their respective heirs, administrators,
executors, personal representatives, successors in interest and assigns.
11.5 FURTHER ASSURANCES. At any time and from time to time after the date
hereof, each party will execute such additional instruments and take such action
as may be reasonably requested by the other party to confirm or perfect title to
any property transferred hereunder or otherwise to carry out the intent and
purposes of this Agreement.
11.6 WAIVER. Any failure on the part of any party hereto to comply with any of
the obligations, agreements or conditions hereunder may be waived in writing by
the party to whom such compliance is owed. 11.7 NOTICES. All notices and
communications required or permitted hereunder shall be sufficient if made in
writing and shall be deemed to have been given if delivered in person or sent by
postage prepaid, first class, registered or certified mail, return receipt
requested to the addresses first set forth above or to such other or additional
addresses as any party hereto shall reasonably designate with respect to itself
from time to time.
11.8 SEVERABILITY. The parties to this Agreement hereby agree and affirm that
none of the above provisions is dependent upon the validity or of any other
provisions, and if any part of this Agreement is deemed to be unenforceable, the
balance of the Agreement shall remain in full force and effect; provided that
the essential purposes of this Agreement are capable of being fulfilled in the
absence of such invalid provisions.
22
11.9 HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only, and shall not affect in any way the meaning or
interpretation of this Agreement.
11.10 GOVERNING LAW. This Agreement shall be governed by the laws of the State
of Florida in the United States applicable to contracts entered into and to be
fully performed therein notwithstanding any laws of conflicts.
11.11 AMENDMENT. This Agreement or any provision hereof, may not be changed,
waived, terminated or discharged except by means of a written supplemental
instrument signed by the party against whom enforcement of the change, waiver,
termination or discharge is sought.
11.12 ASSIGNMENT. This Agreement is personal to the Parties hereto and may not
be assigned, transferred to any other party or person.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
23
11.13 RIGHT OF RESCISSION. In accordance with the requirement that the parties
receive and be given an opportunity to review Schedules to this Agreement and
other information identified herein, Life reserves the right to rescind this
Agreement due to any misrepresentation or omission of material fact related to
the transaction if, in its sole and exclusive determination its ongoing due
diligence investigation reveals any material information that causes its Board
of Directors to conclude that consummation of the merger transaction is not in
the best interests of Life. Said right of rescission shall expire in 180 days
from the date of closing but shall not limit any matter relating to fraud.
IN WITNESS WHEREOF, the parties have executed this Agreement on the above
written date by authority of their respective Boards of Directors or have
otherwise set their hand and seal hereto on the date above written.
ATTEST: HEALTH-PAK, INC.
/s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------ ----------------------------------
XXXXXXX X. XXXXXXXXXX, PRESIDENT
ATTEST: LIFE ENERGY TECHNOLOGY
HOLDINGS, LTD.
/s/ X. X'Xxxxxx BY: /s/ Xx. Xxxxxxxxxxx XxXxxxxxx
--------------------------- ---------------------------------
XX. XXXXXXXXXXX XXXXXXXXX, CHIEF
EXECUTIVE OFFICER
The Shareholder's representative hereby executes and ratifies this Agreement for
and on behalf of himself, individually, and all behalf of all other existing
shareholders as named in Schedule A.
ATTEST: /s/ X. X'Xxxxx BY: /s/ Xx. Xxxxxxxxxxx XxXxxxxxx
------------------------ -----------------------------------------
XX. XXXXXXXXXXX XXXXXXXXX, INDIVIDUALLY, AND
ON BEHALF OF ALL SHAREHOLDERS LISTED ON
SCHEDULE A.
24
SCHEDULE A
STOCK HOLDER OF LIFE
FULL NAME AND ADDRESS SHARE CLASS NUMBER OF
SHARES ALLOCATED
Chelise Investment Ltd Ordinary 2,573,350
Fernleigh House
Palace Road
Douglas Isle of Man
Eden Development Ltd Ordinary 2,573,350
Fernleigh House
Palace Road
Douglas Isle of Man
Xxxxxxxx Enterprises Ltd Ordinary 2,573,350
Fernleigh House
Palace Road
Xxxxxxx Isle of Man
Xxxxxx X'Xxxxxxx Ordinary 786,450
00 Xxxxxx Xxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxx XX0 0XX
Xxxxx XxXxxxxxx Ordinary 000,000
Xxxxxxxx Xxxx
Xxxxxxxxxxx
Xx Xxxxxx X. Xxxxxxx
Xxxxx Xxxxxx Ordinary 786,450
00 Xxxxxx
Xxxxx
Xx. Xxxx X. Xxxxxxx
QMT Limited Ordinary 786,450
Xxxxx 000
XXX Xxx Xxxxxxxx Xxxx
Xxxxxx XX0 3 DL
Xxxxxxx XxXxxxxxx Ordinary 786,450
0 Xxxxxxxx Xxxx
Xxxxx Xx Xxxx X. Xxxxxxx
Xxxx X'Xxxxxxx Ordinary 786,450
Flat A 00, Xxxxxxxx Xxxx
Xxxxxx XX0 3 TN England
Xxxx Xxxxxx Ordinary 321,000
Suite 615
00 Xxx Xxxxxxxx Xxxx
Xxxxx Xxxxxxxxxx Xxxxxx XX0 0XX
Xx Xxxxxxxxxxx XxXxxxxxx Ordinary 876,000
for XxXxxxxxx Consulting
Xx Xxxxxxxxx
Xxxxxxxxx Xxx Xxxxxx Xxxxxx 00
Dr. Xxxxxx Xxxxxxxx Ordinary 801,500
00 Xxxxxxxxx Xxxx
Xxxxxx 0
Xxxxxxx Company Limited Ordinary 561,750
0 Xxx xxx Xxxxx
0000 Xxxxxx Xxxxxxxxxxx
SCHEDULE B
DRAFT FINANCIAL STATMENTS
Schedule B DRAFT
USD$
Commodities, Stock & Assets
Commodities stock
Commodities stock (1) $92,187,500
Shareholding in Energy Producers Inc (2) $20,000,000
Fixed Assets (3)
Subsidiary companies
Axis Controls Ltd $2,000,000
SRL Ltd $1,200,000
O'Dwayers Machinery Ltd $1,250,000
PFA Ireland Ltd $16,400,000
Viper International Ltd $15,000,000
Life Manufacturing $30,000,000
Perka Manufacturing & Patents Ltd $3,000,000
subtotal $68,850,000
Real Estate Holdings
Dundalk Convertibles Property $1,500,000
Belfast Property $2,400,000
Ballinsole Property $160,000
Life Energy Dublin Property $460,000
Life Energy West Property $900,000
Swatra Property $300,000
subtotal $5,720,000
(1) Commodities stocks belonging to the company currently trade at IE(pound)25
per xxxxx, and the company holds title to 3,125,000 tonnes
(2) Shareholding in Energy Producers Inc is included at the cost of the
purchase only
(3) All fixed assets are included at purchase cost and are valued using
purchase method accounting
Letter
HEALTH-PAK INC X.X. XXX 0000
Xxxxx Xxx Xxxx 00000-0000
Phone 000-000-0000
Fax 000-000-0000
12-Jan-01
Xx. Xxxxxxxxxxx XxXxxxxxx
Life Energy Technology Holdings Ltd
Dear Xxxxx,
Health-Pak, Inc has agreed to waive the requirement of audited statements within
60 days of closing.
This was mutually agreed upon by both parties
Sincerely
Xxxxxxx Xxxxxxxxxx
President / Chariman
SCHEDULE C
Litigation nothing added
SCHEDULE D
Contract and Commitments
Biosphere Process Manufacturing Agreement
Alia Holdings
Xxxxxxxx 0,
Xxxx Xxxxxxxxxxx,
Xxxxxxxx,
Xxxxxx 000000
Xxxxxx
AND
Life Energy & Technology Holdings Limited
St Helena's Terrace
Dundalk Co. Louth.
Ireland.
TABLE OF CONTENTS
1. DEFINITION AND INTERPRETATION 62
2. BIOSPHERE SUBSYSTEM ASSEMBLIES 64
3. DURATION 64
4. CHARGES 64
5. FORMAL CONTRACT 65
6. LIABILITY 65
7. FORCE MAJEURE 66
8. SUSPENSION OF SERVICES 67
9. TERMINATION 67
10. CONSEQUENCES OF TERMINATION 68
11. CONFIDENTIALITY 68
12. INTELLECTUAL PROPERTY RIGHTS 70
13. ASSIGNMENT 72
14. NOTICES 73
15. WARRANTIES 74
16. MISCELLANEOUS 74
17. GOVERNING LAW AND DISPUTE RESOLUTION 75
18. SCHEDULE 1 77
19. SCHEDULE 2 78
20. SCHEDULE 3 79
21. SCHEDULE 4 80
This Agreement is made this 5th day of October 2000 (the "Effective Date")
BY AND BETWEEN:
Alia Holdings, a company incorporated under the laws Lebanon and having its
business offices at Building 0, Xxxx Xxxxxxxxxxx, Xxxxxxxx, Xxxxxx
000000,Xxxxxx,
hereinafter for descriptive purposes called ALIA.
And,
Life Energy & Technology Holdings Limited of St Helena's Terrace, Dundalk
Ireland hereinafter for descriptive purposes called LETH.
Both hereinafter also collectively referred to as "the Parties" and
individually as "the Party".
Whereas LETH is appointing ALIA to complete the manufacture, assembly and
testing of the Biosphere Process System(TM)3 to the plans and
specifications appended hereto as per schedule 1.
Whereas ALIA and its servants or agents have represented to LETH that they
can contract all of the requisite skills and engineering expertise to
complete the manufacture, assembly, testing and delivery of a fully
functional demonstration model in Ireland, for commissioning on or before
March 12th 2001 at a complete cost of USD$9,000,000 payable as per schedule
4.
NOW THEREFORE the Parties hereto agree with each other as follows:
3. DEFINITION AND INTERPRETATION
1.1 In this Agreement, words and expressions shall have the meanings ascribed
to them below. Other words and phrases defined elsewhere in this Agreement
shall have the meanings provided for therein:
"Agreement" this agreement, together with the Schedules, and any amendment
thereto;
"Affiliate" a Subsidiary or Holding Company of either Party or any other
Subsidiary of that Holding Company;
---------
3 Biosphere Process System is a copyright trademark of the Life Energy
Partnership 1994.
"Confidential Information" all know-how, techniques, ideas, principles and
concepts which underlie any of the Services provided hereunder, and
business or commercial information in whatever form obtained by either
Party directly or indirectly from the other Party pursuant to this
Agreement or prior to and in contemplation of it (save for information
which the originating Party has expressly identified as being
non-confidential);
"Force Majeure" any cause beyond a Party's reasonable control affecting its
performance of its obligations hereunder including but not limited to acts
of God, insurrection or civil disorder, war or military operations,
national or local emergency, acts or omissions of Government or regulatory
authority, industrial disputes of any kind (not involving that Party's
employees), fire, flood, lightning, explosion, subsidence, inclement
weather, acts or omissions of persons or bodies for whom the affected Party
is not responsible;
"Holding Company" any company controlling a Subsidiary; for the purposes of
this Agreement a controlling company shall be a company which (i) holds a
majority of the voting rights in that company; or (ii) is a member of that
company and has the right to appoint or remove a majority of the board of
directors of that company; or (iii) is a member of that company and
controls alone, pursuant to an agreement with other shareholders or
members, a majority of the voting rights in that company;
"Intellectual Property Rights" all intellectual property rights including
trade marks applications and rights to apply for any of the foregoing,
whether registered or not, and all pending applications thereof in any part
of the world;
"Licence" a licence permit or other authority required by law for the
running or operation of either Party's Intellectual property;
"SLA" ("Service Level Agreement") Specifications for Biosphere Process
Systems(TM) subassemblies as detailed in schedule 3.
"Subsidiary" any company controlled by a Holding Company or a Subsidiary
which is itself a Subsidiary of such Holding Company.
"Working Day" any day other than a Saturday, Sunday, public or bank
holidays in Ireland, Russia and the Lebanon;
"Working Hours" the hours from 9:00 a.m. to 6:00 p.m. (as determined, in
the case of a notice or other communication contemplated by Clause 14, in
the place to which the notice or other communication is sent) on any
Working Day.
1.2 References to "ALIA" and "LETH" also include reference to their respective
Affiliates, successors, whether by operation of law or otherwise, and
permitted assignees.
1.3 Headings are included in this Agreement for ease of reference only and
shall not affect the interpretation or construction of this Agreement.
1.4 References to the singular include the plural and vice-versa.
1.5 References to Clauses and Schedules are, unless otherwise provided,
references to clauses and schedules to this Agreement, as the same may be
amended from time to time.
1.6 In the event of conflict between any of the terms of this Agreement and
those of the Schedules, the terms of this Agreement shall prevail.
4. BIOSPHERE SUBSYSTEM ASSEMBLIES
2.1 Subject to ALIA completing the design work on the Biosphere Process
System(TM) and completing the manufacture, assembly, testing and delivery
of a fully functional demonstration model in Ireland as detailed above,
ALIA will be invited to provide the subassemblies of fifty (50) Biosphere
Process Systems(TM) (as detailed in schedule 3) for the LETH group
beginning in February 2001, at an initial agreed cost to LETH of
USD$1,000,000 per subassembly. It is agreed that the initial fifty (50)
subassemblies will be manufactured and ready to ship to LETH's instructions
and that all sub assemblies will remain the property of LETH from the date
of assembly.
2.2 Subject to 2.1 above ALIA is granted the right to manufacture all of LETH's
subassembly requirements for the Russian, European, Middle Eastern and
North African marketplaces for a period of not longer than five (5) years
from the date of this agreement.
5. DURATION
3.1 This Agreement shall commence on the Effective Date and shall remain in
force for an indeterminate period unless and until terminated by either
Party pursuant to Clause 9, or upon [three (3)] calendar months written
notice to the other, such notice to expire at the end of any calendar month
thereafter.
6. CHARGES
4.1 Except as otherwise provided in this Clause, ALIA shall invoice LETH for
the Services in accordance with the agreed schedule as specified in
Schedule 4, as the same may be amended from time to time.
4.2 All invoices shall be agreed before presentation between the parties.
4.4 Invoices shall be paid in [the currency stated in the relevant invoice], in
immediately available funds within [thirty (30)] days from the date of such
invoice; any amounts due hereunder that are not paid on or before the due
date shall accrue interest at the rate equal to [three (3) per cent above
the London Inter Bank Offering Rate (as reported in the Financial Times on
the date that payment is due)] per year, compounded daily, beginning with
the day following the date on which payment was due, and continuing until
paid in full, whether before or after any judgement.
4.5 Subject to Clause 4.8, all payments made under this Agreement shall be paid
in full, without set-off, counterclaim or payment netting unless expressly
agreed otherwise between the Parties.
4.6 All Charges due hereunder are exclusive of all applicable taxes, including
value added tax, sales taxes, and duties or levies imposed by any
authority, government or government agency, all of which shall be paid
promptly when due by LETH.
4.7 ALIA may in a separate invoice make backdated claims for amounts
outstanding relating to a previous billing period which were not previously
invoiced for technical or other reasons. Any backdated claims shall be made
within [three (3)] months of the date upon which the Services were
rendered. For this purpose such date shall be the last day of the relevant
billing period. The Parties acknowledge and agree that failure to raise any
invoice within such [three (3) months] period shall operate as a waiver by
the Party having provided the Services of its right to claim payment
thereof.
4.8 Without prejudice to the foregoing, LETH may deduct amounts reasonably
disputed from ALIA's invoice, provided LETH (i) pays all undisputed Charges
on or before the due date of the applicable invoice, (ii) presents a
written statement of any billing discrepancies together with available
supporting data within sixty (60) days of the date of receipt of the
relevant invoice, and (iii) negotiates in good faith with ALIA for the
purposes of resolving such dispute in accordance with the provisions of
Schedule 3.
7. FORMAL CONTRACT
5.1 It is understood and agreed this document is a formal contract.
8. LIABILITY
6.1 In performing any obligation under this Agreement, ALIA's duty of care is
only to exercise the reasonable skill and care of a competent
subcontractor.
6.2 All warranties and conditions whether expressed or implied by statute,
common law or otherwise (including but not limited to fitness for purpose)
are hereby excluded to the extent permitted by law.
6.3 ALIA does not warrant that parts manufactured for LETH will be free from
faults. In the event of a fault which adversely affects the operability of
parts supplied ALIA will use all reasonable endeavours to correct the fault
in a timely manner.
6.4 Subject to Clauses 6.5 and 6.6, the maximum aggregate liability of ALIA for
any loss or damage sustained by LETH in connection with anything done or
omitted to be done under this Agreement (whether arising as a result of
negligence or otherwise) shall be [USD$10,000,000] in respect of any single
incident or series of related incidents; and subject in any event to a
maximum of [USD$20,000,000] for all incidents in any twelve-month period.
6.5 Neither Party shall in any circumstances be liable for loss of revenue,
profit, anticipated savings or business or any indirect or consequential
loss or damage (whether arising as a result of negligence or otherwise)
notwithstanding such Party having being informed of the same. In the event
that a Court of competent jurisdiction shall deem the exclusion referred to
herein as unlawful or unenforceable in any way the Parties' liabilities for
any indirect or consequential losses shall be limited to the amounts set
forth in Clause 6.4.
6.6 Nothing in this Agreement limits in any manner either Party's liability for
death or personal injury.
6.7 LETH shall be responsible for the settlement of any and all claims arising
from the use or misuse of the parts supplied to any third party it supplies
and the LETH shall indemnify and hold harmless ALIA in respect of all
costs, expenses and damages incurred in respect thereof.
6.8 Without thereby limiting their responsibilities under this Clause 6, each
Party shall insure with a reputable insurance company against all loss of
and damage to property and injury to persons (including death) arising out
of or in consequence of its obligations under this Agreement and against
all actions, claims, demands, costs and expenses in respect thereof.
9. FORCE MAJEURE
7.1 Subject to Clauses 7.2, 7.3 and 7.4, any delay or failure to perform an
obligation under this Agreement (other than payment obligations) by either
Party (the "affected Party") shall not constitute a breach of this
Agreement to the extent that it is caused by an event of Force Majeure.
7.2 The affected Party shall promptly notify the other Party in writing of the
estimated extent and duration of the inability to perform its obligations.
7.3 Upon the cessation of the event of Force Majeure, the affected Party shall
promptly notify the other Party in writing of such cessation and resume
performance of its obligations under this Agreement.
7.4 The affected Party shall use all reasonable endeavours to mitigate the
effect of each event of Force Majeure.
7.5 If, [thirty (30)] days after the date of notification under Clause 7.2, the
event of Force Majeure persists, the unaffected Party may forthwith
terminate this Agreement by service of notice in writing on the affected
Party.
10. SUSPENSION OF SERVICES
8.1 ALIA may suspend forthwith the provision of its respective Services until
further notice (i) if ALIA has a right to terminate this Agreement pursuant
to Clause 9; or (ii) if ALIA needs to carry out planned works (e.g.,
preventative maintenance) or emergency works (including Force Majeure
events); or (iii) if ALIA is required to comply with a government,
administrative or judicial order, decision or other such requirement that
would prevent ALIA from providing the Services; or (iv) where the use of
the Services, in the reasonable opinion of ALIA, adversely affect, or is
likely to adversely affect, ALIA's facilities or service to its other
customers.
8.2 In the event that ALIA exercises its right to suspend the provision of its
Services to LETH it shall provide advance notice to LETH where it is
reasonably practicable to do, failing which, as soon as reasonably
practicable following suspension.
8.3 In the event that ALIA suspends the provision of the Services to LETH for
emergency technical reasons, ALIA shall employ its best efforts to repair
or resolve said condition as expeditiously as possible.
8.4 ALIA shall not be liable for any loss, damage or inconvenience suffered by
LETH as a result of any suspension made pursuant to this Clause, save in
the case of gross negligence or intentional misconduct.
11. TERMINATION
9.1 Either Party may terminate forthwith this Agreement by giving notice in
writing:
9.1.1 if the other Party fails to pay any undisputed sums arising under
this Agreement as they fall due;
9.1.2 if the other Party commits a material breach of this Agreement
and (if the breach is capable of remedy) fails to remedy the
breach within thirty (30) days after receipt of written notice by
the other requesting it to do so;
9.1.3 if the other Party makes an arrangement or composition with its
creditors generally or makes an application to a court of
competent jurisdiction for protection from its creditors
generally or a resolution is passed by it for its winding up, a
court of competent jurisdiction makes an order for its winding-up
or dissolution, an administration order is made in relation to it
or a receiver or administrative receiver is appointed over or a
person legally appointed to do so takes possession of or sells
any of its assets or its undergoes any analogous insolvency event
under the laws of its country of incorporation;
9.1.5 in accordance with Clause 7 ("Force Majeure");
9.1.6 Upon the giving of three calendar months notice in writing
pursuant to Clause 3.
12. CONSEQUENCES OF TERMINATION
10.1 Upon the termination of this Agreement, each Party shall refund to the
other a fair and equitable proportion of those sums, if any, paid under
this Agreement which are periodic in nature and which have been paid in
respect of a period which extends beyond the date of termination.
10.2 Upon termination of this Agreement, each Party shall, upon request, return
to the other all copies of any Confidential Information of the other Party,
which is in its possession.
10.3 Upon any termination or expiry of this Agreement, the Parties shall ensure
that each other or their respective agents have prompt access to any
relevant site to remove equipment and that all necessary consents to do so
are obtained.
10.4 The terms and provisions contained in this Agreement that by their nature
and context are intended to survive the performance thereof by the Parties
shall so survive the completion of performance and termination of this
Agreement, including, without limitation, provisions for indemnification
and the making of any and all payments due hereunder.
13. CONFIDENTIALITY
11.1 The obligation of confidentiality under this Clause 11 shall remain for the
whole duration of this Agreement and for two (2) years following its
termination or expiry.
11.2 The Parties hereto agree to disclose and provide to each other Confidential
Information.
11.3 The Parties acknowledge that the Confidential Information is a valuable,
special and unique asset belonging to the disclosing Party. The Parties
agree that they will not during or after the term of this Agreement
disclose the Confidential Information of the other Party to any person,
firm, corporation, association or any other entity for any reason or
purpose whatsoever without the prior written consent of the disclosing
Party.
11.4 Notwithstanding the foregoing, the Parties agree that Confidential
Information may be disclosed to their professional advisors, agents and
consultants (collectively "Representatives"), provided that such
Representatives sign an undertaking relating to confidentiality on the same
terms as contained herein. The Parties further agree that they shall not
use, employ, exploit or in any other manner whatsoever use the Confidential
Information disclosed by the other Party for any purpose, other than that
required for the performance of this Agreement, without the prior written
consent of the disclosing Party, including, but not limited to, for
purposes of competing in any way with the other Party.
11.5 The Parties agree that they shall protect the Confidential Information of
the other Party using not less than the same standard of care each Party
applies to its own proprietary, secret or Confidential Information and that
the Confidential Information shall be stored and handled in such a way as
to prevent unauthorised disclosure.
11.6 The disclosing Party may request in writing at any time that any written
Confidential Information disclosed pursuant to the terms of this Agreement
and any copies thereof be returned with a written statement to the effect
that upon such return it has not knowingly retained in its possession or
under its control, either directly or indirectly, any Confidential
Information or copies thereof and the receiving Party shall comply with any
such request within seven (7) days of receipt of such request.
11.7 The obligation pursuant to this Agreement shall not apply to any
information that:
11.7.1 is in possession of the receiving Party prior to receipt from the
disclosing Party;
11.7.2 is or becomes publicly known, otherwise than as a consequence of
a breach of this Agreement;
11.7.3 is developed independently by the receiving Party;
11.7.4 is disclosed by the receiving Party to satisfy a legal demand by
a competent court of law or governmental body ("Government
Authorities"), provided however that in these circumstances the
receiving Party shall advise the disclosing Party prior to
disclosure so that the disclosing Party has an opportunity to
defend limit or protect against such production or disclosure
provided further that the receiving Party will disclose only that
portion of the Confidential Information which is legally required
to be disclosed and the receiving Party will exercise its
reasonable efforts to obtain a protective order or other reliable
assurance from such Government Authorities that confidential
treatment will be accorded to any Confidential Information
required to be disclosed;
11.7.5 is disclosed (with the prior consent of either Party, such
consent not to be unreasonably withheld) to obtain or maintain
any listing on a Stock Exchange, or to a lender or investor or
prospective lender or investor in connection with the financing
of the disclosing Party's business or the sale of its business;
11.7.6 is disclosed to a third party pursuant to written authorisation
from the disclosing Party;
11.7.7 is received from a third party pursuant to written authorisation
from the disclosing Party;
11.7.8 is expressly identified by the disclosing Party as being
non-confidential.
11.8 The Parties further agree that any press release, advertisement or
publication ("Press Releases") generated by a Party regarding this
Agreement, the Service provided hereunder or in which a Party desires to
mention the name of the other Party or the other Party's Affiliate(s) will
be submitted to the non-publishing Party for its written approval prior to
publication, save when such Press Releases are necessary to comply with the
rule, regulation or request of any governmental or other regulatory
authority or agency regarding it and/or a parent or Affiliate(s).
14. INTELLECTUAL PROPERTY RIGHTS
12.1.1 Dr CA XxXxxxxxx (XxXxxxxxx) has developed a proprietary system,
the Biosphere Process(TM) System (hereafter "System" or
"Systems"), all components thereof and associated know how
developed prior to this Agreement or during the course of the
undertakings called for in this Agreement, which XxXxxxxxx has
assigned to Life Energy & Technology Holdings for purposes of
commercial marketing, manufacturing and development. Life Energy
& Technology Holdings enjoys an assignment from XxXxxxxxx to
commercially market, manufacture and develop the System. This
Agreement is subject to approval by XxXxxxxxx in his individual
capacity and the boards of directors of both ALIA and LETH and
effectuated only upon the execution of the appendices. This
Agreement may be modified from time to time in whole or in part
by mutual consent in writing by all Parties.
12.1.2 ALIA acknowledges, accepts and will maintain exclusively for
XxXxxxxxx any redesigns or plans as developed by ALIA or by LETH
which redesigns and plans are deemed to the sole proprietary
property of XxXxxxxxx.
12.1.3 ALIA will negotiate and work with component and subcomponent
manufacturers, material men and other vendors to maintain
competitive pricing and quality control in the manufacture of the
Systems.
12.2 ALIA shall consign, transport and deliver Systems as directed by LETH.
12.2.1 ALIA shall undertake the training of all persons for those
purposes and in the manner directed by LETH or XxXxxxxxx.
12.2.2 ALIA shall offer a continuous service, support & maintenance
contract for Systems to those persons utilizing the Systems upon
terms and conditions to be agreed between ALIA and LETH relative
to each System.
12.2.3 ALIA shall provide a manufacturers warranty in accordance with
those terms and conditions set forth by LETH.
12.2.4 ALIA and LETH hereby acknowledge and declare that all information
relevant to the Systems which was developed by any Party is
deemed to have arisen out of and pursuant to the use of
proprietary information developed by XxXxxxxxx. Accordingly, any
Confidential Information which has been developed by either LETH
or ALIA during the course of the undertakings called for in this
Agreement, including by way of illustration only such information
resulting from Systems use, redesign in response to information
derived from Systems use, non-empirically based redesign or
improvements in design, manufacture, installation or operation,
inures to and is exclusively the property of XxXxxxxxx.
12.2.5 Each Party accepts and agrees that the principal point of contact
for LETH is LETH's President & Chief Executive Officer, Dr. CA
XxXxxxxxx. All contact, discussions or negotiations between ALIA
and LETH will be with Dr. CA XxXxxxxxx or with those persons
authorized by Dr. CA XxXxxxxxx in writing. All contact with
XxXxxxxxx in his individual capacity shall be with XxXxxxxxx or
persons designated by XxXxxxxxx in writing as representatives of
XxXxxxxxx.
12.2.6 ALIA shall have a non-exclusive right to solicit customers and
resulting Purchase Orders for construction of Systems. The terms
and conditions of such Purchase Orders shall be negotiated
between the Parties with respect to each such Purchase Order.
12.2.7 When requested by LETH or XxXxxxxxx, XXXX shall provide copies of
all documents relating to the services performed by ALIA,
including bids, test results, laboratory analyses, plans, blue
prints, designs, drawings or any other information related to
manufacture of the Systems and ALIA shall maintain a complete
documentary record of any and all undertakings performed under
this Agreement. ALIA shall maintain true and correct records in
connection with each service performed and all undertakings
related thereto and shall retain all such records for twenty-four
(24) months after the end of the calendar year in which the last
service or undertaking pursuant to this Agreement was performed.
LETH or XxXxxxxxx may, at any time, at their expense audit all
records of ALIA connected to costs and expenses for which LETH
was invoiced. The right of audit by LETH or XxXxxxxxx shall be
good for two years after the termination of this Agreement. Any
error or discrepancy disclosed as the result of such audit shall
be promptly corrected and any monies due any Party shall be
promptly paid by the obliged Party.
12.2.8 ALIA shall use its best efforts to provide services, which do not
infringe on any valid patent or proprietary technology or involve
the use of any confidential information that is the property of
others unless ALIA is licensed or otherwise has the right to use
and dispose of the patent or proprietary information. ALIA shall
also use its best efforts to inform XxXxxxxxx and LETH of any
patent infringement that occur or may be reasonably expected to
result from the use of ALIA's services.
15. ASSIGNMENT
13.1 This Agreement is personal to the Parties hereto and neither Party shall
without the prior consent in writing of the other Party assign, charge or
otherwise deal with the whole or any part of this Agreement or its rights
or obligations hereunder provided that such consent shall not be
unreasonably withheld or delayed.
13.2 Notwithstanding Clause 13.1, either Party may assign upon giving thirty
(30) days written notice to the other its rights and obligations hereunder
to an Affiliate without the other Party's consent, subject to such Party
guaranteeing the performance by such Affiliates of the financial and other
contractual obligations set forth in this Agreement.
13.3 Neither Party shall make an assignment under this Clause 13, unless it has
ensured that the assignee is competent or otherwise qualified to provide
the services herein under.
13.4 ALIA enjoys the right to employ sub-contractors or agents for the purposes
of providing the Services, provided that ALIA shall remain liable at all
times for the performance of its obligations hereunder.
13.5 This Agreement is from Life Energy & Technology Holdings to ALIA its
owners, subsidiaries, affiliates, successors and or assigns.
13.6 LETH and ALIA acknowledge that Dr. CA XxXxxxxxx (XXXXXXXXX) has developed
and owns a proprietary system, the Biosphere Process(TM) System, the design
and all components thereof and associated know how developed prior to the
execution of this agreement or during the course of the operation of this
agreement which XXXXXXXXX has assigned to Life Energy & Technology Holdings
for purposes of commercial marketing, manufacturing and development
(hereafter "System" or "Systems"). The Parties further acknowledge and
declare that XXXXXXXXX is a third party beneficiary to this Agreement.
13.7 LETH hereby permits ALIA and ALIA hereby acknowledges all of the
obligations of this agreement by which ALIA is allowed to use such design
and production technology and documentation for the purpose of
manufacturing Systems. The Parties agree that this agreement is given by
LETH to ALIA solely and only for the purpose of manufacturing and that all
plans, designs, and engineering, and any developments, modifications,
alterations, enhancements and/or improvements arising there from are and
shall remain at all times the sole property of XXXXXXXXX and that LETH
shall retain all other rights to the System in accordance with the
assignment it enjoys from XXXXXXXXX.
16. NOTICES
14.1 Any notice or communication required to be given hereunder must be given in
writing sent by recorded delivery in Ireland (or equivalent in other
countries) or by facsimile (with a confirmation sent forthwith by recorded
delivery) to
in the case of LETH, to:
Xx Xxxxxx'x Xxxxxxx, Xxxxxxx Xxxxxxx
Phone: (000) 00 000 0000
Facsimile: (000) 00 000 0000
in the case of ALIA, to:
Alia Holdings, Building 0,
Xxxx Xxxxxxxxxxx,
Xxxxxxxx,
Xxxxx 000000,Xxxxxx
Phone: (00000) 00000000
Facsimile: (00000) 00000000
14.2 Any notice, invoice or communication shall be deemed to have been validly
and duly given or served:
14.2.1 If sent by facsimile transmission at the time of its transmission
if during Working Hours or if not at the commencement of Working
Hours on the following Working Day and in proving transmission it
shall be sufficient to show a facsimile confirmation note
confirming the number of pages transmitted and the facsimile
number or station ID of the recipient;
14.2.2 If delivered by hand at the time of its being delivered or;
14.2.3 if dispatched by pre-paid post seven (7) days from the date of
posting (by Air Mail if available).
14.3 Either Party may amend its address and facsimile number specified in Clause
14.1 by notice to the other Party.
17. WARRANTIES
15.1 Each Party LETH and ALIA., represents and warrants that it is duly
empowered to enter into this Agreement on its own behalf as well as on
behalf of its Affiliates, and to bind such Affiliates to the terms and
conditions of this Agreement.
18. MISCELLANEOUS
16.1 Without prejudice to Clause 4.7, failure by either Party at any time to
enforce any of the provisions of this Agreement shall neither be construed
as a waiver of any rights or remedies hereunder nor in any way affect the
validity of this Agreement or any part of it, and no waiver of a breach of
this Agreement shall constitute a waiver of any subsequent breach, and such
waiver shall be effective only if given in writing.
16.2 Any part of this Agreement which is or becomes illegal, invalid or
unenforceable shall be severed here from and shall not affect or impair the
remaining parts hereof, such parts shall remain in full force and effect.
16.3 If further lawful performance of this Agreement or any part of it shall be
made impossible by the final judgement or final order of any court of
competent jurisdiction, commission or government agency or similar
authority having jurisdiction over either Party, the Parties shall
forthwith use their best endeavours to agree amendments to this Agreement
so as to comply with such judgement or order.
16.4 No variation, modification or addition to or cancellation of any provision
of this Agreement shall be effective unless agreed in writing by a duly
authorised representative of each of the Parties.
16.5 Nothing herein shall be deemed to constitute a partnership or joint venture
between the Parties or to constitute one Party the agent of the other for
any purpose whatsoever.
16.6 This Agreement has been made and is made solely for the benefit of the
Parties, their Affiliates, and their respective successors and permitted
assignees. Nothing in this Agreement is intended to confer any
rights/remedies under or by reason of this Agreement on any third party.
16.7 Each Party shall promptly supply to the other such information and
assistance which the other may reasonably request to enable it to perform
its obligations under this Agreement.
16.8 This Agreement including the Schedules hereto represent the entire
agreement and understanding between the Parties in relation to the subject
matter hereof and supersedes all other agreements and representations made
by either Party, whether oral or written.
16.9 This Agreement may be executed in several counterparts, each of which shall
constitute an original, but all of which shall constitute one and the same
instrument.
19. GOVERNING LAW AND DISPUTE RESOLUTION
17.1 This Agreement shall be governed by and construed in accordance with the
Laws of Ireland.
17.2 Where any dispute (other than an invoice dispute which shall be determined
in accordance with the provisions of Schedule 3) arises between the Parties
in connection with or in consequence of the terms of this Agreement, the
Parties shall immediately enter into bona fide discussions and use all
reasonable endeavours to resolve such dispute amicably.
17.3 If the Parties fail to resolve any dispute under Clause 17.2 within fifteen
(15) days of the first notification of such a dispute by either Party to
the other, the matter shall be submitted to the non-exclusive jurisdiction
of the Courts of Ireland.
As WITNESS the hands of the Parties (or their duly authorised representatives)
the day and year first about written:
ACCEPTED AND AGREED for and on behalf of ALIA
(signed) /s/Xxxxxxx Sergof
------------------------------------
(name) Xxxxxxx Sergof
(position) Chairman
ACCEPTED AND AGREED for and on behalf of LETH
(signed)/s/Dr CA XxXxxxxxx
(name) Dr CA XxXxxxxxx
(position) Chief Executive_________________________________
20. SCHEDULE 1
Plans and for
Biosphere Process Systems(TM) Demonstration Unit.
Both parties acknowledge that the Plans and for Biosphere Process Systems(TM)
Demonstration Unit are contained in the set of CD Computer Discs marked as Disc
1 through 4, given to Alia on the date of signature of this contract and that
Alia will not save as part of the manufacturing process copy or otherwise
reproduce these discs or the designs thereon.
(end)
(rest of page left intentionally blank)
21. SCHEDULE 2
EU Environmental permit requirements
Both parties agree that the Biosphere Process Systems and sub assemblies
produced for LETH must be capable of meeting the following Environmental Permit
Requirements.
1 : EPA Integrated Pollution Control Licensing - Batneec Guidance Note for
the Waste Sector (Revision 1 - May 1996).
2 : Council Directive of 8 June 1989 on the prevention of air pollution
from new municipal waste incineration plants (89/369/EEC).
3 : Common position (ec) no 7/2000 adopted by the Council on 25 November
1999 with a view to adopting Directive 2000/.../EC of the European
Parliament and of the Council of... on the incineration of waste - (2000/C
25/02).
(end)
(rest of page left intentionally blank)
22. SCHEDULE 3
"SLA" ("Service Level Agreement")
Specifications for
Biosphere Process Systems(TM) subassemblies.
Both parties acknowledge that the Plans and for Biosphere Process Systems(TM)
subassemblies are contained in the set of CD Computer Discs marked as Disc 1
through 9, given to Alia on the date of signature of this contract and that Alia
will not save as part of the manufacturing process copy or otherwise reproduce
these discs or the designs thereon.
(end)
(rest of page left intentionally blank)
23. SCHEDULE 4
Schedule of payments from LETH to ALIA
* USD $7,000,000 payable upon delivery of the Biosphere Process
System(TM)to take place on or before December 1st 2000
* USD $2,000,000 payable upon successful commissioning on or before
March 12th 2001,
* Bonus payment of USD $500,000 payable only if the unit passes EU
Environmental permit requirements as detailed in schedule 2 appended
hereto, on or before March 12th 2001.
* USD $1,000,000 per subassembly payable on order.
* USD $3,500,000 balance per fully assembled Biosphere Process
System(TM) delivered to site and commissioned to LETH requirements.
(end)
(rest of page left intentionally blank)
SCHEDULE E
Number 3333446
Certificate of Incorporation
I hereby certify that
LIFE ENERGY TECHNOLOGY HOLDINGS LIMTED
Is this day incorporated under The Companies Acts 1963 to 1999 And that this
company is limited
Given under my hand at Dublin this
Tuesday, the 3rd day of October, 2000
/s/Signature ineligible
For Registrar of Companies
Particulars of Directors (Including shadow directors)
Names and particulars of the persons who are to be the first directors of the
company
Surname Note one XxXxxxxxx Forename Note one Xxxxxxxxxxx Xxxxxxxxx
Former Surname Former Forename
Business Occupation Consultant Nationality Irish
Home Address Note Xxx Xxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx 00
Other Directors Note two Registered at Note Three Company Number
Life Energy Corporation Limited Xxxxxx 000000
I herby consent to act as director of the
aforementioned company X Irish resident Note Four
Signature Date
/s/Dr. CA XxXxxxxxx September 11, 20000
Surname Note one Xxxxxxxx Forename Note one Xxxxxx
Former Surname Former Forename
Business Occupation Business Man Nationality Irish
Home Address Note One 00 Xxxxxxxx Xxxx, Xxxxxx 0
Other Directors Note two Registered at Note Three Company Number
Blairton Limited Dublin CN 228468
XxXxxxxx Xxxxxx Group Limited Xxxxxx XX 000000
J Smurfit Group PLC Dublin CN 008610
Asia Pacific Resources PTE Investments Ltd Singapore
Bula Resources PLC Holdings CN990
I herby consent to act as director of the
aforementioned company X Irish resident Note Four
Signature Date
/s/Xxxxxx Xxxxxxxx September 11, 20000
Signed by or on behalf of the subscribers to the
Memorandum
Signature Subscriber Agent
Companies capital duty statement
Class Specify number value of No. of shares No. of shares
Ordinary or Preference Such shares class authorized being offered
ordinary (euro)1.00 1 million 2
Consideration for such shares Total Number
(euro)1.00 Cash
I the undersigned Name in Block Letters
Xxxxxxxxxxx Alphonsue XxXxxxxxx
Furnish these particular as DESCRIBED
Directors
Signature /s/ Xxxxxxxxxxx Alphonsue XxXxxxxxx
Date 11 September 2000
Description of compliance and Section 42 (2) Declaration
Name Xxxxxxxxxxx Xxxxxxxxx XxXxxxxxx
Of Home Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx 00
Do Solemnly and sincerely declare that I am Note Five
A person named as (X) Director ( ) a secretary of the Company or
( ) a solicitor in the formation of the company
And that all the requirements of the Companies Acts 1993 to 1999 in respect of
the registration of the said company and of matters precedent and incidental
thereto have been complied with
I further declare that the purpose, or one of the purposes for which the company
is being formed is the carrying on by it of any activity in the State Note Six
And that it appears to me that either Note Seven
(a) the activity can be classified in accordance with the relevant
classification system Note Eight as follows 21-15
And that the general nature of the activity is
Investment Holding Company
Or (b) that the activity can be classified bust is precisely described as
follows:
Investment Holding Company
I further declare that the place or places in the State where it is proposed to
carry on the activity is/are
Finnbair Estates, Technology City Dundalk Co Louth
And that the place where the contract administration of the company will
normally be carried on will be:
Finnbair Estates, Technology City Dundalk Co Louth
And I make this solemn declaration Declared before me by Consciously believing
the same to be true And by virtue of the Statutory Act
Signature of Declarant /s/Xxxxxxxxxxx Xxxxxxxxx XxXxxxxxx
Xxxxx and X'Xxxxxxx
Who is personally known to me at
In the Presence of
Signature /s/Xxxxxxx Xxxxxxxx
Practicing solicitor
Name Block Letters
Xxxxxxx Xxxxxxxx 11 day of September 2000
COMPANIES REGISTRATION OFFICE
Statement of first secretary and
the directors and situation of registered office
Section 3, Companies (amended) Xxx 0000
Declaration of compliance and declaration that
The purpose or one of the purposes for which the
Company is being formed is the carrying on by it
Of an activity in the State
Section 5, Companies (amended) Xxx 0000 and
Section 42 (2) Companies (Amended) (No 2) Xxx
0000 Company Number 3333446
Companies' capital duty statement
Section 117, Stamp Duties Consolidation Act, 1999
Company name in Full
Life Energy Technology Holdings Limited Registered 03 Oct 2000
Address of registered office
Life Energy Group Finnibair Estate Technology City Dudalk Co Louth
If the memorandum is delivered by an agent for the Agent's name (ineligible)
Subscribers of the memorandum make "x" in the box Agent's address
And insert the agent's name Law Society of Ireland
Xxxxxxxxx Xxxxx
Xxxxxx 0
Particulars of secretary
Name and particulars of person(s) who is or
Act to be secretary or joint secretaries
Surname Note one XxXxxxxxx Forename Note one Xxxxxxxxxxx Xxxxxxxxx
Former Surname Former Forename
Business Occupation Consultant Nationality Irish
Home Address Note Xxx Xxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx 00
I hereby consent to act as secretary of the aforementioned company
Signature Date
/s/Dr. C.A. XxXxxxxxx 11th September 2000
Presenters Name Address
Law Society of Ireland
Xxxxxxxxx Xxxxx
Xxxxxx 0
Telephone Number Reference 28236
SCHEDULE F
Offices and Directors Resume
XXXXXX XXXXXXXX, CHAIRMAN OF THE BOARD OF DIRECTORS. Xx. Xxxxxxxx, is a former
Prime Minister of Ireland and also serves as Chairman of Life. Apart from a
prestigious political career, Xx. Xxxxxxxx brings to Life and Registrant his
extensive business experience and international recognition.
XX. XXXXXXXXXXX X. XXXXXXXXX, X.Xx., Ph. D., N.I.H.C., M. PS, M. ARVO, F.F.,
Ful. S. will serve both as a Director and Chief Executive Officer of Registrant.
Xx XxXxxxxxx also serves as the Chief Executive Officer of Maxol & CB Biofuels
and the inventor of the DiGenter'TM' process for BioEthanol'TM' production from
biomass. He is also Managing Director of XxXxxxxxx Consultants Dublin, a Dublin
based practice which specializes as a consultant in various areas including,
telecommunications, pharmaceuticals, textiles, fuels, transport logistics,
strategic planning and corporate structuring. Educated at University College
Dublin, Xx. XxXxxxxxx holds both X.Xx.(1st. Hon's), and a Ph.D., awarded by the
National University of Ireland and an N.I.H.C. awarded by the National
Institutes of Health at Bethesda Maryland. In addition to being an elected
member of both the Physiological Society and the Association for Research in
Vision and Ophthalmology Xx. XxXxxxxxx is a distinguished Fulbright Scholar a
Xxxxxxx Fellow and the author of over 100 technical and scientific
contributions, including several patents for the production of ethanol as a
green fuel alternative from biomass and waste materials.
XXXXX XXXXXXX, a specialist in oil and gas operations, is a Director and also
serves as Vice-President for Middle Eastern Operations for Life. Xx. Xxxxxxx
holds a Masters in Business Administration.
XXXX X. XXXXXX. Xx. Xxxxxx is a Florida attorney and businessman. He is also the
founder and President of SIDI, a diversified holding company, which, among other
ventures, owns Millennium Licensing Company, owner of the U.S. "MILLENNIUM"
trademark for the beverage industry; International Spirits Corporation, Tampa
Hotel Development Group and Mad Dogs and Englishmen Restaurant. From 1985 to
1987, Xx. Xxxxxx served as a tax attorney for Xxxxxx Xxxxxxxx & Co.. Xx. Xxxxxx
graduated Tulane University in 1981 and received his Juris Doctorate and Masters
of Business Administration in 1985.
XXXXXXX X. XXXXXXXXXX, a co-founder of Health-Pak, Inc., a New York corporation,
("Health") The Company's wholly owned subsidiary, has served as President, Chief
Executive Officer and Chairman of the Board of directors of the Company since
April 30, 1991. He has held the same positions with Health since its formation
in April 1985. From May 1980 until formation of Health in 1985, Xx. Xxxxxxxxxx
was employed as a senior procurement specialist by the Utica, New York based
North American Division of International Computers Ltd., a British corporation.
From 1970 until 1980, xx. Xxxxxxxxxx was general manager of Disposable
Profiles/Spartan Healthcare Inc.("Disposable"), also based in Utica, New York, a
wholly-owned subsidiary of the Palm Beach Company of Cincinnati, Ohio, which
manufactured and marketed nonwoven disposable products for the medical market.
In his capacity as general manager of Disposable, Xx. Xxxxxxxxxx among other
responsibilities, was charged with the development of that company's sterilized
product line.
XXXXXXX X. XXXXXXXXXX has been Vice President-Marketing, Assistant Secretary,
Treasurer and a Director of the Company and Health, the Company's wholly owned
subsidiary, since April 30, 1991. Prior thereto he served as Secretary and
Assistant Treasurer of Health from January 1990, having originally joined Health
in May 1987 as its director of Sales and Marketing. From 1986 until joining
Health, Xx. Xxxxxxxxxx was employed as an assistant store manager by the Chicago
Market, a department store chain. Xx. Xxxxxxxxxx is a graduate of Mohawk Valley
community College having received his Associates degree in Individual studies in
1986.
XXXXXXX X. XXXXX has been a Director of the Company since April 30, 1991 and has
served as a Director of Health, the Company's wholly owned subsidiary, since May
1987. Since March, 1993, Xx. Xxxxx has been employed as a registered
representative with the Albany Savings Bank, Utica, new York. From September
1988 until March 1993, Xx. Xxxxx was a self-employed financial consultant and
also sales manager and a registered representative with the Prudential Insurance
Company. From January to September 1988, Xx. Xxxxx was employed as an Assistant
Vice President and District Manager of the Dime Savings Bank of New York. From
August 1982 until shortly before joining the Dime Savings Bank of New York, Xx.
Xxxxx was employed as Vice President of the SBU Insurance Agency of Utica New
York. Prior thereto, from 1973 until 1982, Xx. Xxxxx held various positions
within the insurance and financial planning industry, owning and operating his
own insurance agency from 1980 until its sale in 1982. Xx. Xxxxx is a graduate
of Utica College of Syracuse University, having received his Bachelor of Science
Degree in Biology.
SCHEDULE G
Patents etc
Nothing added
SCHEDULE H
Bank Accounts
Life Energy Technology Holdings Limited
Name of Bank Ulster Bank Limited
Address Xxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Tel 0000000
Fax 0000000
SCHEDULE I
Insurance Policy
Nothing added
SCHEDULE J
Compensation Plans, Agents, Brokers
1. Ator's Consulting 30,000 Shares of Health-Pak
2. Xxxxxxx Xxxxxxx & Xxxxxx Xxxxxxx at Millennium Consulting 50,000 shares of
Health Pak
3. Xxxxxxx Xxxxxx Technology Brain Source 75,000 shares of Health Pak
SCHEDULE K
Environmental Matters
Nothing Added
SCHEDULE L
Bills to be paid at closing by Life Energy Technology Holdings Limited
Xxxxxx Xxxxx & Khan $ 50,000.00
B Freitag $ 59,000.00
Xxxxxxxxx & Co $ 3,440.30
Depository Trust Company $ 4,661.00
Business Wire $ 612.42
SCHEDULE M
ACQUISITION AGREEMENT
AGREEMENT, made this 3rd day of November, 2000 by and between:
XXXXXXX XXXXXXXXXX, having an address at 2005 Beechgrove, Utica, New York,
hereinafter referred to as "Xxxxxxxxxx"; and
HEALTH-PAK, INC., a Delaware corporation with its offices at 2005 Beechgrove,
Utica, New York, hereinafter referred to as "HPI";
LIFE ENERGY TECHNOLOGY HOLDING COMPANY, LTD., a corporation organized under the
laws of the Republic of Ireland with its office address at Finnabair Science
Park, Technology City, Dundaulk, Co. Louth, Ireland. hereinafter referred to as
"Life.";
who are collectively referred to herein as the "parties."
W I T N E S S E T H
WHEREAS, Life has entered into an Agreement and Plan or Reorganization with HPI
dated November 3rd, 2000, pursuant to which Life shall become a wholly owned
subsidiary of HPI (the HPI Agreement"); and
WHEREAS, Health-Pak, Inc., a New York corporation ("Health"), is presently a
wholly owned subsidiary of HPI; and
WHEREAS, Xxxxxxxxxx desires to acquire the parties desire to acquire all of the
capital stock of Health (the "Health Shares") from HPI upon the terms and
conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. ACQUISITION OF THE HEALTH SHARES. The parties agree that simultaneously with
the Closing of the HPI Agreement Xxxxxxxxxx shall acquire all of Health Shares
from HPI in consideration for that number of the shares of Common Stock of HPI
currently owned by Xxxxxxxxxx which, after giving consideration to the planned
reverse split of such common shares as contemplated by the HPI Agreement, will
leave Xxxxxxxxxx as the owner of 100,000, post-reverse split shares of HPI
common stock (the "Residual Shares"). For purposes of this provision, the number
of HPI shares owned by Xxxxxxxxxx shall also include any and all such shares
owned by Xxxxxxxxx Xxxxxxxxxx, his wife, and Xxxxxxx Xxxxxxxxxx, his son, it
being understood and agreed that the ownership of the Residual Shares shall be
as determined by Xxxxxxxxxx. The parties further understand and agree that
1
should any of the provisions of the HPI Agreement be changed or modified, or if
the parties shall agree otherwise, the number of Residual Shares may be changed
provided that in no event shall the Residual Shares be less than 100,000.
2. COMMITMENT TO PAY DEBTS. Anything contained herein or in the HPI Agreement to
the contrary notwithstanding, the parties agree that Xxxxxxxxxx shall use his
best efforts following his acquisition of the Health Shares to either pay or
refinance all existing obligations of Health which are either guaranteed by HPI
or which may otherwise result in any material, unsecured liability to HPI. As of
the date hereof, the parties understand and agree that such existing obligations
include the existing mortgage on the building owned by Health in Utica, New York
and Health's existing obligation to Foothills Capital Corp., its factor
(collectively, the "HPI Guaranteed Obligations"). In addition, Xxxxxxxxxx shall
as soon as practicable following the Closing of the HPI Agreement effect the
sale of up to 50,000 of the Residual Shares and apply all of the proceeds
therefrom, net of any capital gains taxes that may be due in connection with the
sale of such Residual Shares, to the reduction of the HPI Guaranteed
Obligations. In the event that such proceeds are not adequate to fully pay the
HPI Guaranteed Obligations, Xxxxxxxxxx shall use his best efforts to refinance
such obligations or otherwise remove HPI from any obligation in connection
therewith. However, the parties agree that in no event shall Xxxxxxxxxx be
obligated to commit any more than the net proceeds from the sale of 50,000
Residual Shares to the repayment of the HPI Guaranteed Obligations, it being the
intention of the parties that Xxxxxxxxxx shall have available for his personal
benefit not less than 50,000 Residual Shares.
3. CONTINUING LIEN. Xxxxxxxxxx agrees that to the extent that any HPI Guaranteed
Obligations remain unpaid that he shall use his best efforts as the sole
shareholder of Health to permit a continuing lien on the building owned by
Health in Utica, New York, which lien shall be superior to that of any other
party except for the present Mortgagee, until such time as all HPI Guaranteed
Obligations have been fully satisfied and duly released of record.
4. MISCELLANEOUS. PROVISIONS. The following miscellaneous provisions shall be
observed in this Agreement.
a. COUNTERPARTS. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
b. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement among the
parties pertaining to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection
herewith. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution of this Agreement.
2
c. FURTHER ASSURANCES. At any time and from time to time after the date hereof,
each party will execute such additional instruments and take such action as may
be reasonably requested by the other party to carry out the purposes of this
Agreement.
d. NOTICES. All notices and communications required or permitted hereunder shall
be sufficient if made in writing and shall be deemed to have been given if
delivered in person or sent by postage prepaid, first class, registered or
certified mail, return receipt requested to the addresses first set forth above
or to such other or additional addresses as any party hereto shall reasonably
designate with respect to itself from time to time.
e. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
New York in the United States applicable to contracts entered into and to be
fully performed therein without regard to the laws of conflicts of the State of
New York.
f. AMENDMENT. This Agreement or any provision hereof, may not be changed,
waived, terminated or discharged except by means of a written supplemental
instrument signed by the party against whom enforcement of the change, waiver,
termination or discharge is sought.
g. ASSIGNMENT. This Agreement is personal to the Parties hereto and may not be
assigned, transferred to any other party or person. HEALTH-PAK, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------------------
XXXXXXX X. XXXXXXXXXX, PRESIDENT
LIFE ENERGY TECHNOLOGY HOLDING COMPANY, LTD.
By: /s/ Xx. Xxxxxxxxxxx XxXxxxxxx
--------------------------------------------------
XX. XXXXXXXXXXX XXXXXXXXX, CHIEF EXECUTIVE OFFICER
/s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------------
XXXXXXX XXXXXXXXXX
EXHIBIT A
Certificate of Incorporation of Life Energy Technology Holdings Limited
Number 3333446
Certificate of Incorporation
I hereby certify that
LIFE ENERGY TECHNOLOGY HOLDINGS LIMTED
Is this day incorporated under The Companies Acts 1963 to 1999 And that this
company is limited
Given under my hand at Dublin this
Tuesday, the 3rd day of October, 2000
Signature ineligible
For Registrar of Companies
EXHIBIT B
By-laws of Life Energy Technology Holdings Limited
COMPANIES ACTS, 1963 T41999
PRIVATE COMPANY LIMITED BY SHARES
MEMORANDUM & ARTICLES OF ASSOCIATION
LIFE ENERGY TECHNOLOGY HOLDINGS
LIMITED
Messrs. Xxxxx & X'Xxxxxxx, Solicitors, Carrickmacross, Co. Monaghan.
(copy) Number 333446
CERTIFICATE OF INCORPORATION
I hereby certify that
LIFE ENERGY TECHNOLOGY HOLDINGS LIMITED
is this day incorporated under the Companies Acts, 1963 to 1499 and
that the Company is limited.
Given under my hand at Dublin, this
Tuesday, the 3rd October, 2000
COMPANIES ACTS, 1'963 TO 1999
PRIVATE COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
LIFE ENERGY TECHNOLOGY HOLDINGS LIMITED
1. The name of the Company is LIFE ENERGY TECHNOLOGY HOLDINGS LIMITED
2. The objects for which the Company is established are;
(1) (a) To carry on the business of an investment company and for that
purpose to acquire and hold either in the name of the Company or in that of
any nominee, shares, stocks, debentures; debenture stock, bonds, notes,
obligations and securities issued or guaranteed by any company wherever
incorporated or carrying on business and debentures, debenture stock,
bonds, notes, obligations and securities issued or guaranteed by any
government, sovereign ruler, commissioners, public, body or authority,
supreme, dependent, municipal, local or otherwise in any part of the world.
(b) To acquire any such shares, stock, debenture stock, bonds, notes,
obligation or other securities by original subscription, contract, tender,
purchase, exchange, underwriting, participation in syndicates or otherwise,
and whether or not fully paid up, and to subscribe for the same subject to
such terms and conditions (if any) as may be thought fit.
(c) To exercise and enforce all rights and powers conferred by or incident
to the ownership of any such shares, stock, obligations or other securities
including without prejudice to the generality of the foregoing all such
powers of veto or control as may be conferred by virtue of the holding by
the Company of some special; proportion of the issued or nominal amount
thereof and to provide managerial and other executive supervisory and
consultant services for or in relation to any company in which the Company
is interested upon such terms as may be thought fit.
(2) To carry on all or any of the following businesses, namely, builders
and contractors, decorators, merchants, engineers, surveyors, estate
agents, valuers, auctioneers, carriers, shippers, forwarding agents,
garagemen, caterers, licensed publicans, fuel suppliers, textile
manufacturers and dealers, insurance agents and brokers, entertainment
caterers, farmers and generally to import, export, manufacture, make, grow,
produce, repair, adapt for sale and prepare for market, goods and materials
of every kind or otherwise to carry on any business which may seem to the
Company capable of being conveniently carried on in connection with the
above or any one of the above or calculated directly or indirectly to
enhance the value of or render more profitable any of the Company's
property or rights
(3) To purchase, take on lease or in exchange, hire or otherwise acquire
and hold real, chattel real and personal property of all kinds and in
particular lands, tenements and hereditaments of any tenure whether subject
or not to any charge or Incumbrances.
(4) To hold, sell, let, alienate, mortgage, charge or otherwise deal with
any of the real and personal property, assets or undertakings of the
Company or any part thereof for such consideration as the Company may think
fit, and in particular (without prejudice to the generality of the
foregoing) for shares, debentures or securities of any other company
whether or not having objects altogether or in part similar to those of the
Company.
(5) To vest any real or personal property, rights or interests acquired by
or belonging to the Company in any person or company on behalf of or for
the benefit of the Company, and with or without any declared Trust in favor
of the Company.
(6) To undertake and execute the office of nominees far the purpose of
holding and dealing with any real or personal property or security of any
kind for or on behalf of any, government, local authority, mortgagee,
company, person or body to act as nominee or agent generally for any
purpose and either solely or jointly with another or others for any person,
company, corporation, government, state or province, or for any municipal
or other authority. or local body; to undertake and execute the office of
trustee, executor, administrator, registrar, secretary, committee or
attorney to undertake the management of any business or undertaking or
transaction, and generally to undertake, perform and fulfill any trust or
agency business of any kind and any office of trust or confidence.
(7) To construct, erect, enlarge, alter and maintain buildings, houses,
flats, shops and all other works, erections and things of any description
whatsoever either upon the lands acquired by the Company or upon other
lands and to hold, retain as investments or to sell, let, alienate,
mortgage, charge or deal with all or any of the same and generally to
alter, develop and improve the lands and other property of the Company.
(8) To apply far, purchase, or by other means acquire and protect, prolong
and renew, any patents, patent rights, brevets d'invention, licenses. trade
marks, registered designs, protections and concessions or other rights
which may appear likely to be advantageous or useful to the Company.
(9) To pay all costs, charges and expenses incurred or sustained in or
about the promotion, and establishment of the Company or which the company
shall consider to be preliminary thereto and to issue shares as fully or in
part paid up, and to pay out of the funds of the Company all brokerage and
charges incidental thereto.
(10) To invest and deal with the monies of the Company not immediately
required in such manner as from time to time may be determined
(11) To draw, make, accept, endorse, discount, negotiate and issue bills of
exchange, promissory notes, bills of lading and other negotiable or
transferable instruments.
(12) To borrow or raise or secure the payment of money in such manner as
the Company shall think fit, and in particular to issue debentures,
debenture stock, bonds, obligations and securities of all kinds, either
perpetual or terminable and either redeemable or otherwise, and to charge
and secure the same by trust, deed or otherwise on the undertaking of the
Company or upon any specific property and rights, present and future, of
the Company (including if thought fit, its uncalled capital) or otherwise
howsoever.
(13) To hold in trust as trustees or as nominees and to deal with, manage
and turn to account any real or personal property of any kind and in
particular shares, stocks, debentures, securities, policies, book debts,
claims and chooses in action; lands, buildings, hereditaments, business
concerns and undertakings, mortgages, charges, annuities, patents, licenses
and any interest in real or personal property and any claims against such
property or against any person or company,
(14) To acquire deal with, manage and turn to account policies of life
assurance and any other real or personal property of any kind.
(15) To guarantee, support or secure whether by personal covenant or by
mortgaging or charging all or any part of the undertaking, property and
assets (present and future) and uncalled capital of the Company or by both
such methods, the performance of the obligations of and the repayment or
payment of the principal amounts of and premiums, interest and dividends on
any securities of any person, firm or company, and in particular (without
prejudice to the generality of the foregoing) give (with or without
consideration) security for any debts, obligations or liabilities of any
company which is for the time being the holding company or a subsidiary
(both as defined by Section 155 of the Companies Act, 1963) of the Company
or other subsidiary as defined by the said Section of the Company's holding
company or otherwise associated with the Company in business.
(16) To lend and advance money or give credit to such persons or companies
and on such terms as may seem expedient.
(17) To establish, promote and otherwise assist any company or companies or
associations for the purpose of acquiring all or any of the properties or
liabilities of this Company or for furthering the objects of the Company or
for the purpose of prosecuting or executing any undertaking, works,
projects or enterprises of any description.
(18) To establish agencies and branches and appoint agents and others to
assist in the conduct or extension of the Company's business and to
regulate and discontinue the same.
(19) To farm; constitute or promote, or to concur in the formation
constitution or promotion of Irish or foreign companies, syndicates,
associations and undertakings of all kinds and to secure 'by indemnity or
otherwise the subscription of all or any part of the capital of any such
company, syndicate, association or undertaking and to pay any commission,
brokerage or other remuneration in connection therewith and to employ
experts to investigate and examine into the conditions, proposals, value,
character and circumstances of any business concerns and undertakings and
generally of any assets, property or rights.
(20) To constitute any trusts with a view to the issue of preferred and
deferred or other special stocks or securities based on or representing any
shares, stock and other assets specifically appropriated for the purposes
of any such trust and -to settle and regulate and if thought fit to
undertake and execute any such trusts and to issue, dispose of or hold any
such preferred, deferred or other special stocks or securities.
(21) To. transact or carry on all or any kinds of agency business and in
particular in relation to the investment of money, the sale of property and
the collection and receipt of money.
(22) To procure the Company to be registered or recognised in any place
outside Ireland.
(23) To do all or any of the matters hereby authorised in any place outside
Ireland, either alone or in conjunction with or as trustees or agent for
any other company or person or by or through any factors, trustees or
agents.
(24) To acquire and undertake the whole or any part of the business,
goodwill and assets of any person, firm or company carrying on or proposing
to carry on any of the businesses which the Company is authorised to carry
on and as part of the consideration far such acquisition to undertake all
or any of the liabilities of such person, firm or company.
(25) To enter into arid carry, into effect any arrangement for joint
working in business or for sharing of profits or for amalgamation with any
other company or association or any partnership or person carrying on any
business or proposing to carry on any business within the objects of the
Company.
(26) To distribute in specie or otherwise as may be resolved any assets of
the Company; among its members and in particular the shares, debentures or
other securities of any other company belonging to the Company or of which
the Company may have the power of disposal.
(27) To enter into any arrangement with any government or local or other
authority: that may seem. conducive to the Company's objects or any of them
and to obtain from any such government or authority any rights, privileges
and concessions which the Company may think desirable to obtain and to
carry out and to exercise and comply with the same.
(28) To provide for the welfare of persons in the employment of or holding
office under or formerly in the employment of or holding office under the
Company. or Directors or ex Directors of the Company and the wives, widows
and families, dependants or connections of such persons by grants of money,
pensions or other payments and by forming and contributing to pension,,"
provident or benefit funds or profit sharing or co-partnership schemes for
the benefit of such persons and to form subscribe to or otherwise aid
charitable, benevolent, religious, scientific, national or other
institutions exhibitions, or objects which shall have any moral or other
claims to support or aid by the Company by reason of the locality of its
operations or otherwise.
(29) To remunerate by cash payment or allotment of shares or securities of
the Company credited as fully paid up or otherwise any person or company
for service rendered or to be rendered to the Company whether in the
conduct or management of its business, or in placing or assisting to place
or guaranteeing the placing of any of the shares of the Company's capital,
or any debentures or other securities of the Company or in or about the
formation or promotion of the Company,
(30) To make gifts or grant bonuses to the Directors or any other persons
who are or have been in the employment of the Company including substitute
and alternate Directors.
(31) To accept stock or shares in or debentures, mortgages or securities of
any other company in payment or part payment for any services rendered or
for any sales made to or debt owing from any such company whether such
shares shall be wholly or only partly paid up.
(32) To do all such other things as the Company may consider incidental or
conducive to the attainment of the above objects or as are usually carried
on in connection therewith.
(33) To transact or carry on any other business which may seem to be
capable of being conveniently carried on in connection with any of these
objects or calculated directly or indirectly to enhance the value of or
facilitate the realisation of or render profitable any of the Company's
property or rights.
The word "company" in this clause, except where used in reference to this
Company, where the context so admits, shall be deemed to include any
partnership or other body of persons whether incorporated or not
incorporated or whether domiciled or registered in Ireland, Great Britain
or Northern Ireland or elsewhere and the intention is that in the
construction of this Clause the objects set forth in each of the foregoing
sub-paragraphs shall, except where otherwise expressed in the same
paragraph be in no wise limited or be deemed merely subsidiary or auxiliary
by reference to or inference, from the terms of any other paragraph in this
Clause.
PROVIDED ALWAYS that the provision of this Clause shall be subject to the
Company obtaining where necessary for the purpose of carrying any of its
objects into effect such license permit or authority as may be required by
law.
3. The liability of the members is limited.
4. The Share Capital of the Company is(pound)1,000,000 divided into
1,000,000 shares of(pound)1.t30 each.
WE, the several persons whose names and addresses are subscribed, wish to
be formed into a company in pursuance of the Memorandum of Association and
we agree to take the number of shares in the Capital of the Company set
opposite our respective names.
-------------------------------------------------------------------------------
NUMBER OF SHARES
NAMES, ADDRESSES AND TAKEN BY EACH
DESCRIPTIONS: OF SUBSCRIBERS SUBSCRIBER
-------------------------------------------------------------------------------
Xxxxxx Xxxxxx, One
Secretary,
00, Xxxxxxxx,
Xxxxxxxx,
Xx. Xxxxxx
Xxxxx Xxxxxx, One
Xxxxxxxxx,
0, Xxxxxxxxxx,
Xxxxx Xxxx,
Xxxxxx 00.
-------------------------------------------------------------------------------
TOTAL SHARES TAKEN Two
-------------------------------------------------------------------------------
Dated this 11th day of September, 2000
Witness to the above signatures,
/s/Xxxx Xxxxx,
Secretary,
The Law Society.
Xxxxxxxxx Xxxxx, Xxxxxx 0.
COMPANIES ACTS, 1963 TO 1999 PRTVATE COMPANY LIMITED BY
SHARES ARTICLES OF Association OF
LIFE ENERGY TECHNOLOGY HOLDINGS LIMITED
1. The regulations contained in or incorporated in Part 11 of Table A in
the First Schedule to the Companies Acts, 1963 to 1986 (hereinafter
referred to as "Table A, Part 11") shall apply to the Company, and together
with the Regulations hereinafter contained shall constitute the Regulations
of the Company save in so far as they are hereby varied or excluded.
2. Regulations 79 and 138 of Part 1 of Table A in the said Schedule as so
amended (hereinafter referred to as "Table A, Part 1") shall not apply to
the Company.
SHARES
3. The Share Capital Of the Company is(pound)1,000,000 divided into
1,000,000 shares of(pound)1.00 each.
4. The Directors are generally and unconditionally authorised to exercise
all powers of the Company to allot relevant securities (as such expression
is defined in Section 20 of the Companies (Amendment) Act 1983) up to a
maximum aggregate of the number, of' unissued shares in* ft capital of the
Company from time to time but this authority shall not extend beyond such
date as shall be five years from the date of incorporation of the Company
provided always that the Directors shall have power, notwithstanding that
the date aforesaid shall have expired, to allot relevant securities in
pursuance of an offer or agreement made before the expiry of such date as
aforesaid as if the authority conferred hereby had not expired.
5. Section 23 (1) of the Companies (Amendment) Act, 1983 is hereby excluded
in its application in relation to all allotments by the Company of equity
securities as defined for the purposes of that Section.
6. Subject to the provisions of Section 64 of the Act any preference shares
may with the sanction of a special resolution be issued upon the terms that
they are or at the option of the Company are liable to be redeemed.
LIEN
7. In Regulation 11 of Table A, Part 1, the words ("not being a fully paid
share") shall be omitted and the lien conferred by that Regulation shall
attach to all shares registered in the name of any person indebted or under
liability to the Company whether he shall be the sole registered holder
thereof or one of two or more joint holders.
PROCEEDINGS AT GENERAL MEETINGS
8. Regulation 53 of Table A, Part 1, shall apply as if the following words
were added at the end thereof "and the fixing of the remuneration of the
Directors".
9. A poll may be demanded by the Chairman or by any member present in
person or by proxy and Regulation 59 of Table A, Part 1, shall be modified
accordingly.
RESOLUTI0NS
10. Any such resolution in writing as is referred to in Regulation 6 of
Table A, Part 11, may consist of several documents, in the like form each
signed by one or more of the members (or their duly authorised
representatives) in that Regulation referred to.
DIRECTORS
11. Every Director shall be, entitled to receive notices of and attend and
speak at all General Meetings of the holders of any class of shares, in the
capital of the Company, and Regulation 136 shall be amended accordingly.
12. A. Director appointed to fill a casual vacancy or as an addition to the
Board shall not retire from office at the Annual General Meeting next
following his appointment and the last sentence of Regulation 98 of Table
A, Part 1, shall be deleted.
13. The Directors. of the Company shall not be required to retire by
rotation and Regulations 92 to 100 (inclusive) of Table A, Part I, shall be
amended accordingly.
14. Unless and until the Company in General Meeting shall otherwise
determine the number of the Directors shall not be less than two nor more
than seven, and regulation 75 of Table A, Part 1, shall be modified
accordingly.
15. Any Director may in writing appoint any person who is approved by the
majority of the Directors, to be his alternate to act in his place at any
meeting of the Directors at which he is unable to be present. Every such
alternate shall be entitled to notice of meetings of the Directors and to
attend and vote thereat as a Director when the person appointing him is not
personally present, and where he is a Director to have a separate vote on
behalf of the Director he is representing in addition to his own vote. A
Director may at any time in writing revoke the appointment of an alternate
appointed by him. Every such alternate shall be an officer of the Company
and shall not be entitled to be an agent of the Director appointing him The
remuneration of such an alternate shall be payable out of the remuneration
payable to the Director appointing him, and the proportion thereof shall be
agreed between them. An alternate need not hold any share qualification.
BORROWING POWERS
16. The Directors may exercise all the powers of the company to borrow
money and to mortgage or charge its undertaking, property and uncalled
capital, or any pan, thereof, and to issue debentures, debenture stock and
other securities whether outright or as security for any debt, liability or
obligation of the Company or of any third party.
DISQUALIFICATION OF DIRECTORS
17. Regulation 91 of Table A, Part 1. relating to the vacation of office by
a Director, shall apply as if paragraph (g) thereof was deleted.
INDEMNITY
18. Every Managing Director, Agent, Secretary or other officer of the
Company shall be entitled to be indemnified out of the assets of the
Company against all losses or liabilities which he may sustain or incur in
or about the execution of the duties of his office or otherwise in relation
thereto, including liability incurred . by' him in defending any
proceedings, whether civil or criminal, in which judgment is given in his
favour or, in which he is acquitted or in connection with any application
under Section 391 of the Act in which relief is granted to him by the
court, and no Director or other officer shall be liable for any loss,
damage or misfortune which may happen to or be incurred by the Company in
the execution of the duties of his office or in relation thereto. But this
Article shall only have effect in so far as its provisions are not avoided
by section 200 of the Act:
NAMES, ADDRESSES AND Descriptions OF SUBSCRIBERS
Xxxxxx Xxxxxx,
Secretary,
00, Xxxxxxxx,
Xxxxxxxx, Xx. Xxxxxx
Xxxxx Xxxxxx,
Secretary,
0, Xxxxxxxxxx,
Xxxxx Xxxx, Xxxxxx. 15.
Dated this 11th day of September, 2000
Witness to the above signatures;
Xxxx Xxxxx,
Secretary,
x/x Xxx Xxx Xxxxxxx,
Xxxxxxxxx Xxxxx,
Xxxxxx 0.
EXHIBIT C
Escrow Agreement
THIS ESCROW AGREEMENT made and entered into the 3 day of November 2000 by and
between Xx. Xxxxxxx Xxxxxxxxxx (for purposes of this agreement, the number of
Health Pa, Inc common shares owned by Xxxxxxxxxx shall also include any and all
such shares owned by Xxxxxxxxx Xxxxxxxxxx, his wife, and Xxxxxxx Xxxxxxxxxx, his
son, hereinafter referred to as ("XXXXXXXXXX") and Life Energy & Technology
Holdings, Ltd (ACQUIRING GROUP).
For and in consideration of the sum of $10.00 and other good and valuable
consideration the receipt and sufficiency of all of which is hereby
acknowledged, it is agreed by and between XXXXXXXXXX and ACQUIRING GROUP as
follows:
1. XXXXXXXXXX agree that simultaneously with the Closing of the HPI Agreement
Xxxxxxxxxx shall deliver into escrow $4,119,382 shares of Health-Pak common
stock currently owned by Xxxxxxxxxx as contemplated by the HPI Agreement, which
will leave Xxxxxxxxxx as the owner of 100,000, shares of HPI common stock (the
"Residual Shares"). For purposes of this provision, the number of HPI shares
owned by Xxxxxxxxxx shall also include any and all such shares owned by
Xxxxxxxxx Xxxxxxxxxx, his wife, and Xxxxxxx Xxxxxxxxxx, his son, it being
understood and agreed that the ownership of the Residual Shares shall be as
determined by Xxxxxxxxxx. The parties further understand and agree that should
any of the provisions of the HPI Agreement be changed or modified, or if the
parties shall agree otherwise, the number of Residual Shares may be changed
provided that in no event shall the Residual Shares be less than 100,000.
2. XXXXXXXXXX COMMITMENT TO PAY DEBTS:. Anything contained herein or in the HPI
Agreement to the contrary notwithstanding, the parties agree that Xxxxxxxxxx
shall use his best efforts following his acquisition of the Health Shares to
either pay or refinance all existing obligations of Health which are either
guaranteed by HPI or which may otherwise result in any material, unsecured
liability to HPI. As of the date hereof, the parties understand and agree that
such existing obligations include the existing mortgage on the building owned by
Health in Utica, New York and Health's existing obligation to Foothills Capital
Corp., its factor (collectively, the "HPI Guaranteed Obligations"). Xxxxxxxxxx
shall use his best efforts to refinance such obligations or otherwise remove HPI
from any obligation in connection therewith. However, the parties agree that in
no event shall Xxxxxxxxxx be obligated to commit any more than the net proceeds
from the sale of 50,000 Residual Shares to the repayment of the HPI Guaranteed
Obligations, it being the intention of the parties that Xxxxxxxxxx shall have
available for his personal benefit not less than 50,000 Residual Shares.
3. DELIVERY OF SHARES TO ACQUIRING GROUP: Upon completion and discharge of the
bankruptcy by the Court or at such time as the Bankruptcy is converted from a
Chapter 11 reorganization to a Chapter 7 liquidation all shares will be
delivered by escrow agent to Xx. Xxxxxxxxxxx XxXxxxxxx for distribution to the
original investors in Life Energy Technology Holdings, Ltd or their designees.
4. MISCELLANEOUS. PROVISIONS. The following miscellaneous provisions shall be
observed in this Agreement.
a. COUNTERPARTS. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
b. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement among the
parties pertaining to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings of the parties in connection
herewith. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution of this Agreement.
c. FURTHER ASSURANCES. At any time and from time to time after the date hereof,
each party will execute such additional instruments and take such action as may
be reasonably requested by the other party to carry out the purposes of this
Agreement.
d. NOTICES. All notices and communications required or permitted hereunder shall
be sufficient if made in writing and shall be deemed to have been given if
delivered in person or sent by postage prepaid, first class, registered or
certified mail, return receipt requested to the addresses first set forth above
or to such other or additional addresses
Health-Pak, Inc Stock Certificate Transfer December 6, 2000
2005 Beechgrove Place
Utica N.Y. 13501
Certificate # Name Number of Shares
HP 02924 Xxxxxxx Xxxxxxxxxx 220,000
HP 02923 Xxxxxxx Xxxxxxxxxx & Xxxxxxxxx Xxxxxxxxxx 729,333
HP 02970 Xxxxxxx Xxxxxxxxxx & Xxxxxxxxx Xxxxxxxxxx 500,000
HP 02971 Xxxxxxx Xxxxxxxxxx & Xxxxxxxxx Xxxxxxxxxx 500,000
HP 02968 Xxxxxxx Xxxxxxxxxx & Xxxxxxxxx Xxxxxxxxxx 500,000
HP 02969 Xxxxxxx Xxxxxxxxxx & Xxxxxxxxx Xxxxxxxxxx 500,000
HP 02973 Xxxxxxx Xxxxxxxxxx & Xxxxxxxxx Xxxxxxxxxx 500,000
HP 02972 Xxxxxxx Xxxxxxxxxx & Xxxxxxxxx Xxxxxxxxxx 500,000
Total Shares 3,949,333
Delivered by hand
Received this 6th day of December 2000
/s/ Xxxx Xxxxxx
------------------------
Xxxx Xxxxxx, Esq.
