SHARE PURCHASE AGREEMENT
------------------------
This AGREEMENT is made as of the ___ day of March, 2002.
GARUDA CAPITAL CORP., a company incorporated pursuant to the laws of
Nevada, having an office located at 0000 00xx Xxxxxx, Xxxx Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
(herein referred to as "Garuda")
OF THE FIRST PART
AND:
NATURAL PROGRAM INC., a company incorporated pursuant to the laws of
Nevada, with its registered agent offices at 000 Xxxxxxx Xxxxxx, Xxx 000
Xxxx, Xxxxxx 00000
(herein referred to as "Nat Pro")
OF THE SECOND PART
AND:
THOSE SHAREHOLDERS OF NATPRO, signatory to this agreement as evidenced by
their names and signatures affixed to the execution pages hereof.
(herein referred to as the "Vendors")
OF THE THIRD PART
WHEREAS:
A. Garuda and NatPro entered a Letter Agreement dated February 26, 2002 for the
purchase of all issued shares in the capital of NatPro (the "NatPro Shares");
B. Garuda wishes to acquire the NatPro Shares from the Vendors, and the Vendors
have agreed to sell to Garuda all of their respective legal and beneficial
interests in the NatPro Shares on the terms and conditions contained herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the payment of
$10.00 to the Vendors the receipt and sufficiency of which is acknowledged, the
premises and the mutual agreements herein contained (the receipt and adequacy of
such consideration is hereby mutually admitted by each party), the parties
hereby covenant and agree as follows:
1. INTERPRETATION
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1.1 Definitions - In this Agreement the following words and phrases shall have
the meanings set forth after each:
(a) "Closing", "Closing Time", "Closing Date" - means 2:00 p.m. on the 1st
of April, 2002, or such later time or date as may be agreed upon in
writing by the parties hereto;
(b) "Company Act" means Nevada Revised Statute 78 (NRS. 78) in effect at
the date of this Agreement;
(c) "Directors" - means the persons holding the position of director of
Garuda;
(d) "Garuda Financial Statements" - means the financial statements for
Garuda, copies of which are contained in the Public Record;
(e) "Material Contracts" - means those subsisting commitments, contracts,
agreements, instruments, leases or other documents entered into by any
party hereto, by which it is bound or to which it or its assets are
subject which have total payment obligations on the part of NatPro
which exceed $10,000.00 or are for a term of or in excess of two
years, all as set out in Schedule "B" hereto;
(f) "NatPro" - means Natural Programs , Inc., incorporated in Nevada under
the Nevada Business Corporations Act; -
(g) "NPC" - means Natural Program Ltd., the wholly owned subsidiary of
NatPro, incorporated pursuant to the British Columbia Company Act;
(h) "NatPro Shares" - means the common shares in the capital of NatPro
issued and outstanding as of the Closing Date, all of which are being
acquired hereunder;
(i) "Public Record" - means the information filed by Garuda with the SEC,
or on the XXXXX system, with the required Securities Commissions and
with the Secretary of State for Nevada, as required in accordance with
Securities Legislation requirements, and which record contains all
material facts (as that term is defined by the Securities Legislation)
relating to the corporate structure, business and operations of
Garuda;
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(j) "Purchase Price" means the sum of US$250,000;
(k) "Purchase Shares" - means a total of 500,000 common shares in the
capital of Garuda, issued at Closing at a deemed price of US$0.50 per
share;
(l) "Securities Legislation" means the Company Act of Nevada (NRS 78), the
Securities (Uniform Act) of Nevada (NRS 90), the Securities Exchange
Act of 1934, the Securities Act of 1933 and the equivalent securities
legislation of the States of America which apply to Garuda, each as
now enacted or as the same may be amended and the applicable rules,
regulations, rulings, orders and forms made or promulgated under such
statutes and the published policies of the regulatory authorities
administering such statutes;
(m) "Vendors" - means the holder of the NatPro Shares signatory hereto;
(n) "NPC" Financial Statements" - means the financial statements of NPC
for the annual period ending December 31, 2001, to consist of a
balance sheet, statement of retained earnings, an income statement and
a statement of changes in financial position of NPC including the
notes to such financial statements, a copy of which is attached hereto
as Schedule "C"; and
(o) "NPC" - means Natural Program Ltd. a company incorporated pursuant to
the laws of British Columbia, and which is now, or will be at Closing,
a wholly owned subsidiary of NatPro.
1.2 Schedules - The following are the schedules to this Agreement:
Schedule "A" - Shareholders and Shareholdings of NatPro
Schedule "B" - Material Contracts
Schedule "C" - NPC Financial Statements for the year ended
December 31, 2001
1.3 Accounting Interpretation - For the purposes of this Agreement, except as
otherwise expressly provided herein all accounting terms not otherwise defined
have the meanings assigned to them in accordance with generally accepted
accounting principles applicable in the United States and applied on a basis
consistent with prior years;
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2.0 REPRESENTATIONS AND WARRANTIES
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2.1 Representations and Warranties of the Vendors - In order to induce Garuda to
enter into and to consummate the transactions contemplated by this Agreement,
the Vendors jointly and severally hereby represent and warrant to Garuda as
follows:
(a) Organization and Good Standing of NatPro and NPC - NatPro and NPC are
duly incorporated and validly existing and in good standing with
respect to the filing of all reports in their respective jurisdictions
of incorporation , and have all necessary corporate powers,
authorities and capacity to own its assets and to carry on their
respective businesses as presently conducted;
(b) Vendors' Title - The list of Vendors set out in Schedule "A" is a
complete list of all persons or parties having a beneficial claim to
the NatPro Shares;
(c) Authority - The Vendors, and each of them, have due and sufficient
right and authority to enter into this Agreement on the terms and
conditions herein set forth and to transfer the legal and beneficial
title and ownership of the NatPro Shares to Garuda as required by this
Agreement;
(d) Absence of Options, etc. - No Person has any agreement or option,
present or future, contingent, absolute or capable of becoming an
agreement or option or which with the passage of time or the
occurrence of any event could become an agreement or option:
(i) to require NatPro or NPC to issue any further or other shares in
their respective capitals or any other security convertible or
exchangeable into shares in their resoective capitals or to
convert or exchange any securities into or for shares in the
capital of NatPro or NPC;
(ii) for the issue or allotment of any of the authorized but unissued
shares in the capital of NatPro or NPC; or
(iii) to acquire the issued shares of NatPro or NPC;
(e) Financial Statements - That the NPC Financial Statements have been
prepared in accordance with generally accepted accounting principles
applied in Canada on a basis consistent with that of prior fiscal
years; such Financial Statements present fairly the financial position
of NPC as at the date thereof and the results of NPC's and the changes
in NPC's financial position for the periods then ending;
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(e) Absence of Undisclosed Liabilities - Except as will be set out in the
NPC Financial Statements or incurred subsequent to the date thereof in
the ordinary and usual course of the business of NatPro and NPC, to
the best of the Vendors' knowledge, information and belief, neither
NatPro nor NPC will have any outstanding indebtedness or any
liabilities or obligations (whether accrued, absolute, contingent or
otherwise);
(f) Title to Assets - At Closing NatPro will be the sole direct and
beneficial shareholder of NPC, and at the execution hereof and at
Closing NPC has title to all of the assets, real and personal,
including those reflected in the NPC Financial Statements or acquired
since the date of the NPC Financial Statements (except as since
transferred, sold or otherwise disposed of in the ordinary course of
business), as have been represented to be held by NPC, subject to such
charges on its assets as have been required pursuant to the bank and
debenture debts reflected in the NPC Financial Statements;
(g) Material Contracts - Except for the contracts, agreements and
debentures listed in Schedule "B", neither NatPro nor NPC is party to
or bound by any material contract or commitment, whether oral or
written, and the contracts, agreements and debentures listed in
Schedule "B" are all in full force and effect and unchanged, no
material default exists in respect thereof on the part of any of the
other parties thereto, the Vendors are not aware of any intention on
the part of any of the other parties thereto to terminate or
materially alter any such contracts or agreements, or take action
under the debentures and Schedule "B" lists all the present
outstanding material contracts entered into by NatPro or NPC in the
course of carrying on their respective businesses;
(h) Litigation - There is not any suit, action, litigation, arbitration
proceeding or governmental proceeding, including appeals and
applications for review, in progress, pending or threatened against,
or relating to NatPro or NPC, or affecting their respective assets,
properties or business which might materially and adversely affect the
assets, properties, business, future prospects or financial condition
of NatPro and or NPC, and there is not presently outstanding against
NatPro or NPC any judgment, decree, injunction, rule or order of any
court, governmental department, commission, agency, instrumentality or
arbitrator;
(i) Corporate Records - To the best of the knowledge of the Vendors,
NatPro and NPC, have kept all corporate records required to be kept by
the applicable legislation of their respective jurisdictions of
incorporation, and such records are, or will at Closing be complete
and accurate and contain all minutes of all meetings of directors and
members of NatPro and NPC;
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(j) Permits and Licenses - NatPro and NPC hold all permits, licenses,
consents and authorities issued by any government or governmental
authority or any municipal, regional or other authority, or any
subdivision thereof, which are necessary or desirable in connection
with the conduct and operation of their respective businesses and the
ownership or leasing of their respective assets and the conduct and
operation of their respective business;
(k) Undisclosed Information - The Vendors do not have any specific
information relating to NatPro or NPC which is not generally known or
which has not been disclosed to Garuda and which if known could
reasonably be expected to have a materially adverse effect on the
value of the NatPro Shares; and
(l) Taxes - NatPro and NPC have each duly filed, if required to date, on a
timely basis all tax returns required to be filed by them and has paid
all taxes which are due and payable, and has paid all assessments and
reassessments, and all other taxes, governmental charges, penalties,
interest and fines due and payable on or before the date hereof.
and the Vendors covenant, represent and warrant to Garuda that all of the
representations and warranties set forth in this Section 2.1 shall be true and
correct at the Closing as if made on that date.
2.2 Survival - The representations and warranties of the Vendors contained in
this Agreement shall survive the Closing and the payment of the Purchase Price
and, notwithstanding the Closing and the payment of the Purchase Price and,
notwithstanding any investigations or enquiries made by Garuda prior to the
Closing and notwithstanding the waiver of any condition by Garuda, the
representations, warranties, covenants and agreements of the Vendors shall
(except where otherwise specifically provided in this Agreement) survive the
Closing and shall continue in full force and effect for a period of one year
from the Closing Date for all matters.
2.3 Reliance - The Vendors acknowledge and agree that Garuda has entered into
this Agreement relying on the warranties and representations and other terms and
conditions of this Agreement notwithstanding any independent searches or
investigations that may be undertaken by or on behalf of Garuda and that no
information which is now known or which may hereafter become known to Garuda or
its officers, directors or professional advisers shall limit or extinguish the
right to indemnification hereunder.
2.4 Independent Legal Advice - the Vendors acknowledge that they have been
advised that this agreement has been prepared by legal counsel acting jointly
for and by the consent of Garuda and NatPro. The Vendors are advised that they
should seek their own independent legal advice prior to executing this
agreement.
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3.0 REPRESENTATIONS AND WARRANTIES OF GARUDA
----------------------------------------
3.1 Garuda represents and warrants to and in favour of the Vendors as follows
and acknowledges that the Vendors are relying upon such representations and
warranties in connection with the transactions contemplated herein:
(a) Garuda is a Nevada company duly organized, validly existing and in
good standing with respect to all filings required under applicable
laws, has the corporate power and capacity to own or lease its
property and assets and to carry on its business as now conducted by
it, is duly licensed or qualified as a foreign corporation in each
jurisdiction in which the character of the property and assets now
owned by it or the nature of its business as now conducted by it
requires it to be so licensed or qualified (save where failure to have
such license or qualification is not in the aggregate material) and
has the corporate power and capacity to enter into this Agreement and
perform its obligations hereunder;
(b) There are 1,247,575 Common Shares issued and outstanding as fully paid
and non-assessable in the capital of Garuda, as at the date hereof;
(c) no person has any agreement, option, understanding or commitment
(including convertible securities, warrants or convertible obligations
of any nature), for the purchase or issue of or conversion into any of
the unissued shares of Garuda or any unissued securities of Garuda;
(d) the financial statements contained in the Public Record present fairly
the financial position of Garuda at the relevant dates and the results
of its operations and cash flows for the periods indicated in the said
statements and have been prepared in accordance with accounting
principles generally accepted in the United States consistently
applied;
(e) except as disclosed in the Public Record, there has been no material
adverse change in the business or condition, financial or otherwise,
of Garuda from that shown in the financial statements referred to in
Paragraph (d) of this Section 3.0 and Garuda has not experienced, nor
is it aware of any occurrence or event which has, or might reasonably
be expected to have, a material adverse effect on the business or the
result of its operations which would materially adversely affect the
value of its business;
7
(f) the execution and delivery of this Agreement and the consummation of
the transaction contemplated herein do not and will not:
(i) result in the breach or violation of any term or provision of the
constating documents of Garuda; or
(ii) conflict with, result in a breach or cancellation of, constitute
a default under, invalidate or impair rights to properties under,
or accelerate or permit the acceleration of the performance
required by, any agreement, instrument, license, permit or
authority to which Garuda is a party or by which it is bound or
to which any property of Garuda is subject or result in the
creation of any lien, charge or encumbrance upon any of the
assets of Garuda under any such agreement or instrument, or give
to others any material interest or rights, including rights of
purchase, termination, cancellation or acceleration, under any
such agreement, instrument, license, permit or authority; or
(iii)violate any provision of law or administrative regulation or any
judicial or administrative order, award, judgment or decree
applicable to Garuda;
(g) the execution, delivery and performance of this Agreement and the
performance of the transactions contemplated herein are within the
corporate power and authority of Garuda and have been authorized by
all necessary corporate action of Garuda; the directors of Garuda
believe this transaction is in the best interests of Garuda and this
Agreement constitutes a valid and binding obligation of Garuda;
(h) Garuda is not a party to, or bound by, any agreements, covenants,
undertakings or other commitments, on its own or as a result of any
partnership or joint venture in which it is a partner or participant:
(i) under which the transaction contemplated herein would have the
effect of imposing restrictions or obligations on Garuda
materially greater than those imposed upon Garuda or any such
partnership or joint venture at the date hereof;
(ii) which would give a third party, as a result of the consummation
of the transaction contemplated herein, a right to terminate any
material agreement to which Garuda or any such partnership or
joint venture is a party or to purchase any of their respective
assets; or
(iii)under which the consummation of the transaction contemplated
herein would impose material restrictions on the ability of
Garuda to carry on any business which it might choose to carry on
within any geographical area, to acquire property or dispose of
its property and assets in their entirety or to change its
corporate status;
8
(j) the description of the business of Garuda, its financial condition,
assets and properties in the Public Record does not contain any untrue
statement of a material fact or omit to state any material fact
necessary to make such description not misleading;
(k) Garuda has not incurred any liability for brokerage fees, finder's
fees, agent's commissions or other similar forms of compensation in
connection with this Agreement;
(l) except as disclosed in the Public Record, there is no basis for and
there are no actions, suits, proceedings or investigations commenced,
or to the knowledge of Garuda contemplated or threatened, against or
affecting Garuda or by any person or before any arbitrator of any kind
which would prevent or hinder the consummation of this Agreement or
which have resulted in, involve the possibility of or could involve
the possibility of any judgment or liability which can reasonably be
expected to have a material adverse effect on the business operations,
properties, assets or condition, financial or otherwise, of Garuda;
(m) there are no known or anticipated material liabilities of any kind
whatsoever (including absolute, accrued or contingent liabilities) nor
any commitments whether or not determined or determinable, in respect
of which Garuda is or may become liable other than the liabilities
disclosed on, reflected in or provided for in the financial statements
referred to in Paragraph (d) of Section 3.0 hereof or reflected in the
Public Record or incurred in the ordinary course of business;
(n) the corporate records and minute books of Garuda as required to be
maintained by it under the laws of its jurisdiction of incorporation
are up to date and contain complete and accurate minutes of all
meetings of its respective directors and shareholders and all
resolutions consented to in writing;
(o) except as disclosed in the Public Record Garuda does not have any
material contracts, and each material contract or agreement between
Garuda and any other person is in full force and effect and, to the
best of the knowledge and belief of Garuda, is valid, binding and
enforceable against each of the parties thereto in accordance with its
terms and no material breach or default exists in respect thereof on
the part of any party thereto and no event has occurred which, with
the giving of notice or lapse of time or both, would constitute such a
material breach or default;
9
(p) Garuda has duly filed on a timely basis all tax returns required to be
filed by it and has paid all taxes which are due and payable, and has
paid all assessments and reassessments, and all other taxes,
governmental charges, penalties, interest and fines due and payable on
or before the date hereof; adequate provision has been made for taxes
payable for the current period for which tax returns are not yet
required to be filed; there are no agreements, waivers or other
arrangements providing for an extension of time with respect to the
filing of any tax return by, or payment of any tax, governmental
charge or deficiency against Garuda; there are no actions, suits,
proceedings, investigations or claims now threatened or pending
against Garuda in respect of taxes, governmental charges or
assessments, or any matters under discussion with any governmental
authority relating to taxes, governmental charges or assessments
asserted by any such authority;
(q) Garuda has withheld from each payment made to any of its officers,
directors, former directors and employees the amount of all taxes
including, but not limited to, income tax and other deductions
required to be withheld therefrom and has paid the same to the proper
tax and other receiving officers within the time required under any
applicable tax legislation;
(r) the common shares of Garuda are at present listed and posted for
trading on the NASD Over the Counter Market (OTC Bulletin Board) and
on no other stock exchange;
(s) Garuda is a reporting issuer pursuant to the U.S. Securities Exchange
Act of 1934 in good standing and in compliance with its obligations
under such legislation and the rules and regulations thereunder, and
all other Securities Legislation, both Federal and State;
(t) all of Garuda's issued Common Shares were issued in compliance with
Securities Legislation, and all applicable securities laws;
(u) to Garuda's knowledge, Garuda is in compliance, in all material
respects, with all applicable laws; and
(v) none of the representations, warranties or statements of fact made in
this Section contain any untrue statement of a material fact or omit
to state any material fact necessary to make any such warranty or
representation not misleading.
3.2 Survival - The representations and warranties of Garuda contained in this
Agreement shall survive the Closing and the purchase of the NatPro Shares, and,
notwithstanding the Closing and the purchase of the NatPro Shares, the
representations and warranties of Garuda shall continue in full force and effect
for the benefit of the Vendors for a period of one year from the Closing Date.
10
3.3 Reliance - Garuda acknowledges and agrees that the Vendors have entered into
this Agreement relying on the warranties and representations and other terms and
conditions of this Agreement notwithstanding any independent searches or
investigations that may be undertaken by or on behalf of the Vendors and that no
information which is now known or should be known or which may hereafter become
known to any of the Vendors or their professional advisers shall limit or
extinguish the right to indemnification hereunder.
4.0 PURCHASE AND SALE
-----------------
4.1 NatPro Shares - Based and relying on the representations and warranties set
forth in Part 2, Garuda hereby agrees to purchase the NatPro Shares from the
Vendors and the Vendors agrees to sell the NatPro Shares to Garuda, free and
clear of all liens, claims, charges, options and encumbrances whatsoever and
Garuda hereby agrees to pay the Purchase Price on the terms and conditions
hereinafter set forth.
4.2 Purchase Price - The Purchase Price shall be $250,000 allocated pro rata
among the Vendors in accordance with their percentage interest in NatPro, as
disclosed in Schedule "A" hereto.
4.3 Payment of Purchase Price - The Purchase Price shall be paid by the issuance
to the Vendors a total of 500,000 common shares of Garuda at a deemed price of
US$0.50 per share (the "Purchase Shares"), pro rata in accordance with their
respective interest in NatPro, each Vendor to receive that number of Purchase
Shares as is set out opposite their names in Schedule "A" hereto. The Purchase
Shares shall be issued at Closing pursuant to section 5.3 hereof.
5.0 CLOSING
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5.1 Closing Date and Location - The transactions contemplated herein shall be
completed at 2:00 p.m. on April 1, 2002, at the offices of Xxxxxxxxx & Company,
000-000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, B.C., or at such other time or at such
other location as may be mutually agreed upon in writing by the parties hereto.
5.2 Vendor's Closing Documents - On the Closing Date, the Vendors shall deliver,
or cause to be delivered, to Garuda the documents set forth in subsection 6.1(g)
hereof and such other documents as Garuda may reasonably require to perfect the
purchase and sale intended hereby.
5.3 Payment of Purchase Price - On the Closing Date, Garuda shall pay the
Purchase Price by delivering to the Vendors or their representatives,
Certificates representing the portion of the Purchase Shares allocated to each
of the Vendors in Schedule "A" hereto.
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5.4 Legending of Purchase Shares - The Vendors acknowledge that the Purchase
shares will be issued pursuant to exemptions contained in the Securities
Legislation, and will be imprinted with such securities legends as are required
thereunder. The Vendors further confirm and acknowledge that no representations
have been made by Garuda or its representatives with respect the transferability
or liquidity of the Purchase Shares, and the Vendors will obtain independent tax
and legal advice with respect to their acceptance of the Purchase Shares
hereunder.
6.0 CONDITIONS PRECEDENT TO THE PERFORMANCE BY GARUDA OF ITS OBLIGATIONS UNDER
----------------------------------------------------------------------------
THIS AGREEMENT
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6.1 The obligations of Garuda to complete the purchase of the NatPro Shares
shall be subject to the satisfaction of, or compliance with, at or before the
Closing Time, each of the following conditions precedent:
(a) NPC Financial Statements - The NPC Financial Statements shall have
been completed and delivered to Garuda and be as represented herein;
(b) Approvals - The directors of Garuda shall have approved the
acquisition contemplated herein;
(c) Truth and Accuracy of Representations of the Vendors at Closing - The
representations and warranties of the Vendors made in Section 2 shall
be true and correct in all material respects as at the Closing and the
Vendors shall have complied in all material respects with his
obligations and covenants hereunder;
(d) Ownership of NPC - NPC shall be a wholly owned subsidiary of NatPro
prior to Closing;
(e) Performance of Obligations - The Vendors shall have caused NatPro and
NPC to have performed and complied with all the obligations to be
performed and complied with by it in order to complete the intent of
this Agreement;
(f) Absence of Injunctions, etc. - No injunction or restraining order of
any Court or administrative tribunal of competent jurisdiction shall
be in effect prohibiting the transactions contemplated hereby and no
action or proceeding shall have been instituted or be pending before
any Court or administrative tribunal to restrain or prohibit the
transactions between the parties contemplated hereby;
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(g) Absence of Change of Conditions - No event shall have occurred or
condition or state of facts of any character shall have arisen or
legislation (whether by statute, rule, regulation, by-law or
otherwise) shall have been introduced which might reasonably be
expected to have a materially adverse effect upon the financial
conditions, results of operations or business prospects of NatPro or
NPC;
(h) Closing Documentation - Garuda shall have received from the Vendors
and, where applicable, NatPro and NPC the following closing
documentation:
(i) share certificates representing all of the issued common shares
in NatPro issued in the name of the Vendors, duly endorsed for
transfer to Garuda;
(ii) a certified copy of resolutions of the directors of NatPro
authorizing the transfer of the shares contemplated herein, the
registration of the respective shares in the name of Garuda and
the issuance of share certificates representing the respective
shares registered in the name of Garuda;
(iii)share certificates registered in the name of Garuda, signed by
the President of NatPro representing the NatPro Shares being
acquired hereunder;
(iv) resignation of such directors of NatPro and NPC as Garuda may
advise;
(v) all other necessary consents, waivers, and authorizations
required to enable the transfer of the respective shares to
Garuda as provided for in this Agreement;
(vi) all such instruments of transfer, duly executed, which in the
opinion of Garuda acting reasonably are necessary to effect and
evidence the transfer of the NatPro Shares from the Vendors to
Garuda free and clear of all liens, charges and encumbrances
whatsoever;
(vi) the corporate minute books and all other books and records of
NatPro and NPC and such copies of corporate records for NatPro
and NPC as counsel for Garuda may determine is appropriate; and
(vii) the corporate seals for NatPro and NPC.
(i) Completion of Due Diligence - Garuda shall have completed its due
diligence on NatPro and NPC, and the results of such due diligence
shall be satisfactory to Garuda in its discretion, failing which at
any time Garuda may provide written notice of its intent to terminate
and this Agreement will be terminated immediately upon receipt of such
notice by the Vendors ("Termination Date").
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6.2 The conditions set forth in this Section 6 are for the exclusive benefit of
Garuda and, with the exception of item (a), may be waived by Garuda in writing
in whole or in part on or before the Closing Date. Notwithstanding any such
waiver, the completion of the purchase and sale contemplated by this Agreement
by Garuda shall not prejudice or affect in any way the rights of Garuda in
respect of the warranties and representations of the Vendors set forth in
Section 2 of this Agreement, and the representations and warranties of the
Vendors set forth in Section 2 of this Agreement shall survive the completion
and payment of the Purchase Price.
7.0 CONDITIONS PRECEDENT TO THE PERFORMANCE OF THE VENDORS OF THEIR OBLIGATIONS
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UNDER THIS AGREEMENT
--------------------
7.1 The obligations of the Vendors to complete the sale of NatPro Shares
hereunder shall be subject to the satisfaction of or compliance with, at or
before the Closing Time, each of the following conditions precedent:
(a) Truth and Accuracy of Representations of Garuda at Closing Time - All
of the representations and warranties of Garuda set forth in Section
3.1 hereof shall be true and correct in all material respects as at
the Closing Time and with the same effect as if made at and as of the
Closing Time;
(b) Performance of Agreements - Garuda shall have complied with and/or
performed all its obligations, covenants and agreements herein;
(c) Approvals - Garuda shall have received, on or before the Closing Date,
all approvals necessary to this transaction; and
(d) Purchase Price - The delivery at Closing, in accordance with paragraph
5.3, of the Purchase Price in the form of the Purchase Shares.
7.2 The conditions set forth in this Section 7 are for the exclusive benefit of
the Vendors and may be waived by the Vendors in writing in whole or in part on
or before the Closing Date. Notwithstanding any such waiver, completion of the
purchase and sale contemplated by this Agreement by the Vendors shall not
prejudice or affect in any way the rights of the Vendors in respect of the
warranties and representations of Garuda set forth in Section 3 of this
Agreement, and the representations and warranties of Garuda set forth in Section
3 of this Agreement shall survive for a period of one year from the date hereof.
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8.0 COVENANTS
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8.1 Covenants of Garuda - Garuda hereby covenants and agrees as follows:
(a) until the Closing Date, Garuda will carry on its business in the
ordinary course, except as otherwise contemplated in this Agreement;
(b) until the Closing Date, Garuda will not merge into or with, or
amalgamate or consolidate with, or enter into any other corporate
reorganization with, any other corporation or person or perform any
act or enter into any transaction or negotiation which interferes or
is inconsistent with the completion of the transactions contemplated
hereby, other than as contemplated in this Agreement or in the
Circular and, without limiting the generality of the foregoing, Garuda
will not:
(i) make any distribution by way of dividend, return of capital or
otherwise to or for the benefit of Garuda's shareholders;
(ii) with the exception of a private placement of 1,000,000 shares,
issue any of its shares or other securities convertible into
shares or enter into any commitment or agreement therefor, other
than as is contemplated by this agreement, or as may be agreed
upon in writing by the Vendors;
(iii) make any payment to any director, officer or employee;
(c) Garuda shall not alter or amend its constating documents as the same
exist at the date of this Agreement except as contemplated in the
Circular;
(d) except as consented to in writing by the Vendors, Garuda shall not,
until the Closing Date, engage in any business, enterprise or other
activity different from that carried on by it at the date of this
Agreement or enter into any transaction or incur (except in respect of
obligations or liabilities to which it is already legally subject) any
obligation, expenditure or liability other than obligations,
expenditures and liabilities relating to the maintenance of its
corporate existence and this Agreement;
(e) Garuda shall furnish to the Vendors such information, in addition to
the information contained in this Agreement, relating to the financial
condition, business, properties and affairs of Garuda as may
reasonably be requested by the Vendors, which information shall be
true and complete in all material respects and shall not contain an
untrue statement of any material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances in which they
are made, not misleading;
15
(f) Garuda shall ensure that the information and financial statements
related to Garuda and provided by Garuda shall be true, correct and
complete in all material respects and shall not contain any untrue
statement of any material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading in light of the circumstances in
which they are made; and
(g) Garuda shall do all such other acts and things as may be necessary or
desirable in order to give effect to the transaction contemplated by
this Agreement and, without limiting the generality of the foregoing,
Garuda shall use its best efforts:
(i) to obtain, before the Closing Date, all authorizations, waivers,
exemptions, consents, orders and other approvals from domestic or
foreign courts, governmental or regulatory agencies, boards,
commissions or other authorities, shareholders and third parties
as are necessary for the consummation of the transactions
contemplated hereby; and
(ii) to satisfy each of the conditions precedent to be satisfied by it
and to take, or cause to be taken, all other actions and to do,
or cause to be done, all other things necessary or advisable
under applicable laws and regulations to permit the completion of
the transaction contemplated herein in accordance with the
provisions of this Agreement.
8.2 Covenants of the Vendors and NatPro The Vendors and NatPro hereby covenant
and agree as follows:
(a) The Vendors and/or NatPro shall furnish to Garuda such information, in
addition to the information contained in this Agreement, relating to
the financial condition, business, properties and affairs of NatPro
and NPC as may reasonably be requested by Garuda, which information
shall be true and complete in all material respects and shall not
contain an untrue statement of any material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances in
which they are made, not misleading;
(b) The Vendors and/or NatPro shall ensure that the information related to
NatPro or NPC and provided by the Vendors or the directors of NatPro
shall be true, correct and complete in all material respects and shall
not contain any untrue statement of any material fact or omit to state
any material fact required to be stated therein or necessary in order
to make the statements therein not misleading in light of the
circumstances in which they are made;
(c) The Vendors and/or NatPro shall do all such other acts and things as
may be necessary or desirable in order to give effect to the
transaction contemplated hereby, including all such acts as may be
required to ensure that NPC is a wholly owned subsidiary of NatPro as
at the Closing Date;
16
(d) until the Closing, NatPro agrees, and the Vendors will cause NatPro
and NPC, to carry on their businesses in the ordinary course, except
as otherwise contemplated in this Agreement;
(e) until the Closing, NatPro agrees, and the Vendors will not cause,
NatPro or NPC to merge into or with, or amalgamate or consolidate
with, or enter into any other corporate reorganization with, any other
corporation or person or perform any act or enter into any transaction
or negotiation which interferes or is inconsistent with the completion
of the transactions contemplated hereby, other than as contemplated in
this Agreement or as disclosed to Garuda and, without limiting the
generality of the foregoing, neither NatPro nor NPC will:
(i) make any distribution by way of dividend, return of capital or
otherwise to or for the benefit of their respective shareholders;
(ii) cause the issuance of any shares or other securities convertible
into shares or enter into any commitment or agreement therefore,
other than with respect to issuances to Vendor's whose interest
is as set out in Schedule "A" hereto;
(iii)make any payment to any director, officer or employee except
pursuant to existing employment arrangements;
(f) except as otherwise consented to in writing by Garuda, NatPro shall
not, and the Vendors shall not permit NatPro nor NPC, until the
Closing, to engage in any business, enterprise or other activity
different from that carried on by them at the date of this Agreement;
(g) The Vendors and NatPro shall furnish to Garuda such valuation and
technical reports and financial statements, in addition to the
information contained in this Agreement, relating to the financial
condition, business, properties and affairs of NatPro and NPC as may
reasonably be requested by Garuda and all other applicable regulatory
authorities, which information shall be true and complete in all
material respects and shall not contain an untrue statement of any
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances in which they are made, not misleading;
(h) The Vendors and NatPro shall do all such other acts and things as
may be necessary or desirable in order to give effect to the
transactions contemplated herein and, without limiting the
generality of the foregoing, the Vendors and NatPro shall use
their best efforts to apply for and obtain such other consents,
orders or approvals as counsel for Garuda may advise are
necessary or desirable for the implementation of this Agreement.
17
9. EXAMINATIONS AND WAIVERS
------------------------
9.1 Access for Investigation - The Vendors shall permit Garuda and its
employees, agents, legal counsel, accountants and other representatives, between
the date hereof and the Closing Date, to have access during normal business
hours to the premises and to all the key employees, books, accounts, records and
other data of NatPro and NPC (including, without limitation, all corporate,
accounting and tax records and any electronic or computer accessed data) and to
the properties and assets of NatPro and NPC, and NatPro and NPC will furnish,
and require that their principal bankers, appraisers and independent auditors
and other advisors furnish, to Garuda such financial and operating data and
other information with respect to the business, properties and assets of NatPro
and NPC as Garuda shall from time to time reasonably request to enable
confirmation of the matters warranted in Section 2 hereof. It is also the
intention of the parties that Garuda will be entitled to meet with NatPro and
NPC's major clients, customers and suppliers prior to Closing.
9.2 Disclosure of Information - Until the Closing Time and, in the event of the
termination of this Agreement without consummation of the transactions
contemplated hereby, thereafter, Garuda will use its best efforts to keep
confidential any information (unless otherwise required by law or such
information is readily available or becomes readily available, from public or
published information or sources) obtained from NatPro or NPC. If this Agreement
is so terminated, promptly after such termination all documents, work papers and
other written material obtained from a party in connection with this Agreement
and not theretofore made public (including all copies and photocopies thereof),
shall be returned to the party which provided such material.
10.0 GENERAL
-------
10.1 Public Notices - The parties hereto agree that all notices to third parties
and all other publicity concerning the transactions contemplated by this
Agreement shall be jointly planned and co-ordinated and no party hereto shall
act unilaterally in this regard without the prior approval of the others, such
approval not to be unreasonably withheld.
10.2 Expenses - All costs and expenses including legal expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by Garuda.
10.3 Currency - Unless otherwise specified, all dollar figures contained in this
agreement refer to U.S. currency.
18
10.4 Time - Time shall be of the essence hereof.
10.5 Notices - Any notice or other writing required or permitted to be given
hereunder or for the purposes hereof shall be sufficiently given if delivered or
telecopied to the party to whom it is given or if mailed, by prepaid registered
mail, addressed to such party at:
(a) If to Garuda,
Xxxx Xxxxx, President
0000 Xxxx 00xx Xxxxxx
Xxxx Xxxxxxxxx, XX, X0X 0X0
Fax: 000-000-0000
(b) If to the Vendors,
C. Xxxxx Xxxxx, Chairman
Natural Program Herbal Laboratories
Suite 102 - 0000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX X0X 0X0
with a copy in each case to:
Xxxx Xxxxxxx, Esq. Barrister & Solicitor
480 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Fax (000) 000-0000
or at such other address as the party to whom such writing is to be given shall
have last notified to the party giving the same in the manner provided in this
section. Any notice mailed as aforesaid shall be deemed to have been given and
received on the fifth business day next following the date of its mailing unless
at the time of mailing or within five (5) business days thereafter there occurs
a postal interruption which could have the effect of delaying the mail in the
ordinary course, in which case any notice shall not be effectively given unless
it is actually delivered or sent by telecopy. Any notice delivered or telecopied
to the party to whom it is addressed shall be deemed to have been given and
received on the day it was delivered, provided that if such day is not a
business day then the notice shall be deemed to have been given and received on
the business day next following such day.
19
10.6 Governing Law - This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
10.7 Severability - If any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable in any respect in any
jurisdiction, the validity, legality and enforceability of such provision or
provisions shall not in any way be affected or impaired thereby in any other
jurisdiction and the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby, unless in either case as a result of such determination this Agreement
would fail in its essential purpose.
10.8 Entire Agreement - This Agreement constitutes the entire agreement between
the parties hereto and supersedes all prior agreements and understandings, oral
or written, by and between any of the parties hereto with respect to the subject
matter hereof.
10.9 Further Assurances - The parties hereto shall with reasonable diligence do
all such things and provide all such reasonable assurances as may be required to
consummate the transactions contemplated hereby, and each party hereto shall
provide such further documents or instruments required by the other party as may
be reasonably necessary or desirable to effect the purpose of this Agreement and
carry out its provisions whether before or after the Closing Date.
10.10 Enurement - This Agreement and each of the terms and provisions hereof
shall enure to the benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and assigns.
10.11 Counterparts - This Agreement may be executed in as many counterparts as
may be necessary or by facsimile and each such agreement or facsimile so
executed shall be deemed to be an original and such counterparts together shall
constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have hereunto duly executed this Agreement
as of the day and year first above written. GARUDA CAPITAL CORP.
20
per: /s/
---------------------------------------
Authorized Signatory
NATURAL PROGRAM, INC.
per: /s/
---------------------------------------
Xxxxx Xxxxx, Director
GARUDA VENTURES LTD
per: /s/
---------------------------------------
Xxxxx Xxxxx, Director
SIGNED, SEALED AND DELIVERED )
by XXXXX XXXXX in the presence of: )
)
__________________________________ )
Name )
) /s/
__________________________________ ) ________________________________
Address ) XXXXX XXXXX
)
)
)
__________________________________ )
Occupation )
21
SIGNED, SEALED AND DELIVERED )
by XXXXXX XXX in the presence of: )
)
__________________________________ )
Name )
) /s/
__________________________________ ) ________________________________
Address ) XXXXXX XXX
)
)
)
__________________________________ )
Occupation )
ARAN ASSET MANAGEMENT S.A.
per: /s/
---------------------------------------
Authorised Signatory
22
SCHEDULE "A"
The Vendors
---------------------------------------------------------- ------------------------------- ---------------------------
Name and address for delivery of Purchase Proceeds: Number of Common Purchase Shares Issuable:
Shares Held
---------------------------------------------------------- ------------------------------- ---------------------------
Garuda Ventures Ltd. 8750 shares 282,258
P O Box 1109 GT
Xxxx Street, Grand Cayman
Cayman Islands
British West Indies
---------------------------------------------------------- ------------------------------- ---------------------------
Xxxxxx Xxx 2500 shares 80,645
#3 - 0000 X. 00xx Xxx.
Xxxxxxxxx, XX X0X 0X0
Xxxxxx
---------------------------------------------------------- ------------------------------- ---------------------------
Aran Asset Mgmt. 1250 shares 40,323
Xxxxxxxx. 00
X. X. Xxx 0000
XX - 0000 Xxx
Switzerland
---------------------------------------------------------- ------------------------------- ---------------------------
C. Xxxxx Xxxxx 3000 shares 96,774
#0, Xxxxxx Xxxxxx
Xxx Xxxx Xxx
Xxx Xxxxxxxxxx
Bahamas
---------------------------------------------------------- ------------------------------- ---------------------------
Total: 15,500 500,000
---------------------------------------------------------- ------------------------------- ---------------------------
SCHEDULE "B"
Material Contracts
Of NatPro
1.
2.
Of NPC
1.
2.
