REDEMPTION, SETTLEMENT AND RELEASE AGREEMENT
REDEMPTION, SETTLEMENT AND RELEASE AGREEMENT, dated as of
April ___, 2005 (this "Agreement"), by and between SMARTIRE SYSTEMS INC., a
corporation organized and existing under the laws of the Yukon Territory (the
"Purchaser"), Palisades Master Fund, L.P. ("Palisades"), a British Virgin Island
limited partnership and PEF Advisors, Ltd. ("PEF"), a [_______] (Palisades and
PEF shall be referred to herein, collectively, as the "Seller").
WHEREAS, on December 24, 2003, the Purchaser issued to
Palisades and PEF a Convertible Debenture due April 1, 2006 (the "Convertible
Debenture"), evidencing the Purchaser's indebtedness to Palisades in the
principal amount of $961,530.43 and to PEF in the principal amount of
$320,512.82;
WHEREAS, a dispute arose between the Purchaser and the Seller
over certain provisions contained in the Convertible Debenture;
WHEREAS, the Purchaser and the Seller have previously
attempted to settle their differences with respect to this dispute; and
WHEREAS, the Purchaser and the Seller desire to resolve all
remaining disputes over the Convertible Debenture, and for this reason, have
entered into this Agreement, which sets forth the terms and conditions upon
which the Seller is conveying to the Purchaser and the Purchaser is redeeming
from the Seller the remaining balance of $379,902.74 due to Seller under the
Convertible Debenture (comprised of $354,559.58 with respect to Palisades and
$25,343.16 with respect to PEF) .
NOW THEREFORE, in consideration of the mutual agreements
contained herein, the parties agree as follows:
1. Purchase and Sale of Convertible Debenture. Subject to the
terms and conditions of this Agreement, and in reliance on the respective
representations, warranties and covenants contained herein, at and immediately
following the Closing described in Section 2 hereof, the Seller will sell,
assign, transfer and convey to the Purchaser free and clear of all Liens (as
such term is defined in Section 4(c)) and the Purchaser will redeem from the
Seller, the Convertible Debenture for aggregate consideration of $457,998.72
(comprised of $427,586.93 to Palisades and $30,411.79 to PEF) in cash (the
"Purchase Price").
2. Deliveries at the Closing. At the closing of the sale and
purchase of the Convertible Debenture contemplated by Section 1 hereof (the
"Closing"), presently contemplated to occur on April 26, 2005, (i) the Seller
(or Escrow Agent, as hereinafter defined) shall deliver to the Purchaser the
Convertible Debenture and (ii) the Purchaser shall deliver to the Seller (or
Escrow Agent) the Purchase Price by a wire transfer of immediately available
funds to a bank account or accounts previously designated to the Purchaser by
the Seller (or Escrow Agent). The Closing shall be held at the offices of
Xxxxxxxxx Xxxxxxx, LLP, MetLife Building, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Purchaser will furnish advance notice to the Seller (or Escrow Agent)
of the time and date of the Closing.
3. Escrow of Convertible Debenture. Concurrently with the
execution of this Agreement, the Seller shall deliver to Xxxxxxxxx Traurig, LLP,
as escrow agent (the "Escrow Agent"), the Convertible Debenture to be held in
escrow pending the Closing. The Seller hereby irrevocably appoints the Escrow
Agent as its attorney-in-fact to deliver the Convertible Debenture to the
Purchaser at the Closing.
4. Representations and Warranties of the Seller. The Seller
represents and warrants to the Purchaser both on the date hereof and on the date
of the Closing as follows:
(a) The Seller has the requisite power and authority
to execute, deliver and carry out the terms and provisions of this Agreement and
to consummate the transactions contemplated hereby, and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement;
(b) The Seller is duly organized and validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
has the requisite corporate power and authority to execute, deliver and to
consummate the transactions contemplated hereby, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement;
(c) The Seller is the sole beneficial owner (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of the Convertible Debenture and has good and marketable title to the
Convertible Debenture and there exists no liens, claims, options, proxies,
voting agreements, charges or encumbrances of whatever nature ("Liens")
affecting the Convertible Debenture;
(d) Upon transfer to the Purchaser by the Seller of
the Convertible Debenture, the Purchaser will have good and marketable title to
the Convertible Debenture free and clear of all Liens;
(e) The Convertible Debenture constitutes all of the
securities of the Purchaser beneficially owned, directly or indirectly, by the
Seller or any of its "affiliates" (as such term is defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended, which definition shall apply
for all purposes of this Agreement);
(f) The Convertible Debenture has never been
converted, in whole or in part, into shares of Common Stock of the Purchaser
other than the partial conversion of $104,514.35 on September 24, 2004;
(g) The execution of this Agreement by the Seller
does not, and the performance by the Seller of its obligations hereunder will
not, constitute a violation of, conflict with or result in a default under any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which the Seller is a party or by which the Seller is bound or any
judgment, decree or order applicable to the Seller; and
(h) Neither the execution and delivery of this
Agreement nor the performance by the Seller of its obligations hereunder will
violate any provision of law applicable to the Seller or require any consent or
approval of, or filing with or notice to any public body or authority under any
provision of law applicable to the Seller other than notices or filings pursuant
to the federal securities laws.
5. Representations and Warranties of the Purchaser. The
Purchaser represents and warrants to the Seller both on the date hereof and on
the date of the Closing as follows:
(a) The Purchaser is duly organized and validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, has the requisite corporate power and authority to execute,
deliver and to consummate the transactions contemplated hereby, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement;
(b) The execution of this Agreement by the Purchaser
does not, and the performance by the Purchaser of its obligations hereunder will
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not, constitute a violation of, conflict with or result in a default under any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which the Purchaser is a party or by which the Purchaser is bound or
any judgment, decree or order applicable to the Purchaser; and
(c) Neither the execution and delivery of this
Agreement nor the performance by the Purchaser of its obligations hereunder will
violate any provision of law applicable to the Purchaser or require any consent
or approval of, or filing with or notice to any public body or authority under,
any provision of law applicable to the Purchaser other than notice or filings
pursuant to the federal securities laws.
6. Release and Waiver.
(a) Effective upon the Closing, the Seller, for itself and its
affiliates and successors and assigns, hereby releases and discharges
the Purchaser and its respective directors and officers, affiliates,
representatives, attorneys, agents, successors and assigns from all
suits, claims, charges, liabilities and causes of action, whatsoever,
whether known or unknown, in law or equity or otherwise, which the
Seller or its affiliates, successors and assigns have or may have
against any or all of them arising out of, relating to, or in
connection with any occurrences or events whatsoever occurring up to
the Closing, but excluding obligations under this Agreement. The
Seller, for itself and its affiliates and successors and assigns,
hereby waives any right it may have under any provision contained in
the Convertible Debenture and hereby consents to the Purchaser's
prepayment of the Convertible Debenture.
(b) Effective upon the Closing, the Purchaser, for itself and
its affiliates and successors and assigns, hereby releases and
discharges the Seller and its respective directors and officers,
affiliates, representatives, attorneys, agents, successors and assigns
from all suits, claims, charges, liabilities and causes of action,
whatsoever, whether known or unknown, in law or equity or otherwise,
which the Purchaser or its affiliates, successors and assigns have or
may have against any or all of them arising out of, relating to, or in
connection with any occurrences or events whatsoever occurring up to
the Closing, but excluding obligations under this Agreement.
7. Specific Performance. Each of the Purchaser and the Seller
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party would be irreparably harmed and would not be made whole by
monetary damages. It is accordingly agreed that the Purchaser and the Seller, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and/or to compel specific performance of this Agreement in any action
instituted in any court of the United States or any state thereof having
personal and/or subject matter jurisdiction.
8. Expenses. All fees and expenses incurred by any of the
parties hereto shall be borne by the party incurring such fees and expenses and
all sales, transfer or other similar taxes payable in connection with this
Agreement (including, but not limited to, any transfer taxes payable in
connection with the sale of the Convertible Debenture), will be borne by the
party incurring such taxes.
9. Brokerage. Each of the Purchaser and the Seller represents
and warrants to the other that the negotiations relevant to this Agreement have
been carried on by each of the Purchaser, on the one hand, and the Seller, on
the other hand, directly with the other, and that there are no claims for
finder's fees or brokerage commissions or other like payments in connection with
this Agreement.
10. Cashless Exercise of the Warrants. Concurrently with the
Closing, the Palisades, PEF, HPC Capital Management ("HPC") and Talisman
Management Limited ("Talisman") hereby exercise all warrants held by them of the
Purchaser via cashless exercise whereupon Palisades whereupon, at the Closing
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each such holder shall deposit their respective warrants to the Escrow Agent and
the Purchaser shall deliver certificates representing the common stock of the
Purchaser registered as follows:
Palisades Master Fund LP 2,597,839
HPC Capital Management 197,368
PEF Advisors, Ltd. (assigned from Talisman) 789,474
Talisman hereby assigns and transfers all of its warrant shares
issuable upon said exercise to PEF Advisors, Ltd. Pursuant to Rule 144 under the
Securities Act of 1933, as amended, all certificates representing such shares
shall be issued free of any legend and may be immediately resold, except a
certificate registered in the name of Palisades Master Fund LP representing
146,344 shares, which shall be eligible for resale pursuant to Rule 144 on the
earlier of July 15, 2005 and the date SmarTire Systems Inc. files an effective
registration statement.
11. Further Assurances. The Seller shall use its best efforts
to take, or cause to be taken, all appropriate action, do or cause to be done
all things necessary, proper or advisable under applicable law, and to execute
and deliver such documents and other papers, as may be required to carry out the
provisions of this Agreement and consummate and make effective the transactions
contemplated hereby.
12. Miscellaneous.
(a) This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, whether oral or written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may not be amended orally, but only by an instrument in writing signed
by each of the parties to this Agreement.
(b) This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective directors, officers,
heirs, legal representatives, attorneys, successors and assigns, including any
person who may succeed to the assets or business of the Purchaser by way of a
consolidation, merger, sale of substantially all of the Purchaser's assets or
purchase of substantially all of the Purchaser's stock.
(c) All representations, warranties and covenants
shall survive the Closing.
(d) This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York, without
reference to the conflict of laws principles thereof. The Purchaser and the
Seller consent to the jurisdiction and venue of the Courts of the State of New
York within New York County and the United States District Court of the Southern
District of New York in connection with any claim or controversy arising out of
or relating to this Agreement.
(e) All notices and other communications under this
Agreement shall be in writing and delivery thereof shall be deemed to have been
made when transmitted by hand delivery, commercial overnight delivery service,
telegram, telex, telecopier or facsimile transmission, when confirmed, to the
party entitled to receive the same at the address indicated below or at such
other address as such party shall have specified by written notice to the other
parties hereto given in accordance herewith:
(i) if to the Purchaser, addressed to:
SmarTire Systems Inc.
Suite 150, 13151 Vanier Place
4
Richmond, British Columbia
Attn: Xxxx Xxxxxxxxxxx
Fax: 000-000-0000
with a copy to:
Xxxxxxxxx Traurig, LLP
The MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
(ii) if to the Seller, addressed to:
Xxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxxx Drive
PO Box 972, Road Town, Tortola
British Virgin Islands
Attn:
Fax:
Delivery of securities to:
PEF Advisors LLC
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Xx.
with a copy to:
Xxxxxxx Xxxxxxxxx, LLP
The Graybar Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000 0000
(f) Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other terms of this Agreement. This Agreement may be executed
in counterparts.
(g) Time is of the essence with respect to the
obligations of the parties under this Agreement.
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IN WITNESS WHEREOF, and intending to be legally bound hereby,
the Purchaser and the Seller have executed this Agreement on the date first
above written.
SMARTIRE SYSTEMS, INC.
By: /s/X. Xxxxxx
-------------------------------
Name: X. Xxxxxx
Title:President and CEO
PALISADES MASTER FUND, L.P.
By: /s/Xxxx X Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: General Partner
PEF ADVISORS, Ltd.
By: /s/Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title:
For purposes of Section 10 only:
HPC Capital Management Talisman Management Limited
By: /s/Xxxxxxx Xxxxxx By: /s/Xxxxxx X. Xxxxx
------------------ -------------------
Name: Xxxxxxx Xxxxxx Name: /s/Xxxxxx X. Xxxxx
Title: President Title: Director
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