ASSET PURCHASE AGREEMENT Between: AERODYNE LLC And: EAGLE AERO HOLDINGS CORP.
Between:
AERODYNE
LLC
And:
1
THIS
ASSET PURCHASE AGREEMENT
is dated
and made for reference as fully executed on this 29th day of September, 2006
(the “Effective
Date”).
BETWEEN:
AERODYNE
LLC,
a
company duly incorporated under the laws of the State of Delaware
(the
“Transferor”);
OF
THE FIRST PART
AND:
EAGLE
AERO HOLDINGS CORP.,
a
company duly incorporated under the laws of the state of Delaware.
(the
“Transferee”);
OF
THE SECOND PART
(the
Transferor and the Transferee being hereinafter singularly also referred to
as a
“Party”
and
collectively referred to as the “Parties”
as
the
context so requires).
WHEREAS:
A. The
Transferor is the owner of certain assets (the “Assets”),
a
complete listing of such Assets of the Transferor being set forth in Schedule
“A” which is attached to this Agreement and which forms a material part
hereof;
B. The
Transferee is desirous of acquiring the Assets of the Transferor.
NOW
THEREFORE THIS AGREEMENT WITNESSETH that,
in
consideration of the mutual covenants and provisos herein contained, THE
PARTIES HERETO AGREE AS FOLLOWS:
Article
I
DEFINITIONS,
SCHEDULES AND INTERPRETATION
1.1 Definitions.
For all
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires, the following words and phrases shall have the
following meanings:
2
| (a) |
“Agreement”
means this Asset Purchase Agreement as entered into between the Transferor
and the Transferee herein, together with any amendments and any
Schedules;
|
| (b) |
“Assets”
has the meaning ascribed to it in recital “A” hereinabove, and which
Assets are particularly described in Schedule “A” which is attached
hereto;
|
| (c) |
“Board
of Directors”
means the respective Board of Directors of each of the Parties hereto,
where applicable;
|
| (d) |
“Confidential
Information”
has the meaning ascribed to it in section “9.1”
hereinbelow;
|
| (e) |
“Defaulting
Party”
and “Non-Defaulting
Party”
have the meanings ascribed to them in section “12.1”
hereinbelow;
|
| (f) |
“Effective
Date”
means the date first herein appearing;
|
| (g) |
“Execution
Date”
means the actual date of the complete execution of this Agreement and
any
amendment thereto as set forth on the front page
hereof;
|
| (h) |
“Indemnified
Party”
has the meaning ascribed to it in section “13.1”
hereinbelow;
|
| (i) |
“Parties”
or “Party”
means, respectively, the Transferor and/or the Transferee hereto, as
the
case may be, together with their respective successors and permitted
assigns as the context so requires;
|
| (j) |
“person”
or “persons”
means an individual, corporation, partnership, party, trust, fund,
association and any other organized group of persons and the personal
or
other legal representative of a person to whom the context can apply
according to law;
|
| (k) |
“Product”
has the meaning set forth in recital “A”
herein;
|
| (l) |
“Regulatory
Authorities”
and “Regulatory
Authority”
means a governmental or securities exchange and/or such other regulatory
bodies and agencies who have jurisdiction over the affairs of any of
the
Parties hereto and including, without limitation, all Regulatory
Authorities from whom any such authorization, approval or other action
is
required to be obtained or to be made in connection with the transactions
contemplated by this Agreement;
|
1.2 Schedules. For
the
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires, the following shall represent the Schedules which
are attached to this Agreement and which form a material part
hereof:
| Schedule | Description | |
| Schedule “A”: | List of Assets being sold to the Transferee |
1.3 Interpretation. For
the
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires,:
|
(a)
|
the
words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular Article,
section or other subdivision of this
Agreement;
|
3
|
(b)
|
the
headings are for convenience only and do not form a part of this
Agreement
nor are they intended to interpret, define or limit the scope or
extent of
this or any provision of this
Agreement;
|
|
(c)
|
any
reference to an entity shall include and shall be deemed to be a
reference
to any entity that is a permitted successor to such entity;
and
|
|
(d)
|
words
in the singular include the plural and words in the masculine gender
include the feminine and neuter genders, and vice
versa.
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Article
2
PURCHASE
AND SALE OF ASSETS
2.1 Purchase
and Sale.
The
Transferee hereby purchases, without condition, and the Transferor hereby sells,
without condition, the Assets in exchange for 1,600,000 shares of common stock
of the Transferee (having a deemed value of $800,000 US) (the “Purchase Price”)
to be paid upon closing.
Article
3
INSPECTION
3.1 Inspection.
The
Transferor shall have, on at least five business days’ notice, unimpeded right
and authority to enter on the premises of the Transferee, its representatives,
its agents, its counsel or any other party having control or possession of
records or premises of the Transferee or in relation to its production or sales
or distribution of the Products, for the purpose of all such investigations
as
the Transferor may require to assure themselves as to the compliance by the
Transferee with appropriate accounting provisions of this Agreement. In this
regard the Transferee covenants to allow and assist the Transferor, and the
Transferor’s duly authorized representatives, access to all the aforesaid
premises and locations and access to all such personnel and other persons as
the
Transferor may require, and the Transferee shall make such premises, records
and
persons available within five business days of notice by the Transferor. In
the
event that any aforesaid party refuses or delays or omits to give the Transferor
entry and access to premises or records, the Transferee warrants to give the
Transferor all reasonable assistance to effect such end (including any written
permissions or filings or affidavits for applications to Courts) and the
Transferee attorns to the jurisdiction of Delaware the
Court
selected by the Transferor and waives any and all defenses to any applications
for relief from the Transferor’ selected Court jurisdiction, including for
injunctions, mareva
orders,
freeze orders or any other relief that the Transferor may think good and
appropriate.
Article
4
REPRESENTATIONS,
WARRANTIES AND COVENANTS BY THE TRANSFEROR
4.1 Representations,
Warranties and Covenants by the Transferor.
In
order to induce the Transferee to enter into and consummate this Agreement,
the
Transferor represents to and warrants to the Transferee that, to the best of
the
informed knowledge, information and belief of the Transferor, after having
made
due inquiry:
4
(a) the
Transferor is duly incorporated under the laws of its jurisdiction of
incorporation and is validly existing and in good standing with respect to
all
statutory filings required by the applicable corporate laws;
(b) the
Transferor is qualified to do business in those jurisdictions where it is
necessary to fulfill its obligations under this Agreement and the Transferor
has
the full power and authority to enter into this Agreement and any agreement
or
instrument referred to or contemplated by this Agreement;
|
(c)
|
the
Transferor is the registered and beneficial owner of all interests
in the
Assets and has the requisite power, authority and capacity to own
and use
the Assets and the Transferor owns the right to develop and maintain
the
Assets;
|
(d) the
Transferor owns and possesses and has good and marketable title to and
possession of all of the Assets free and clear of all actual or threatened
liens, charges, options, encumbrances, voting agreements, voting trusts,
demands, limitations and restrictions of any nature whatsoever;
|
(e)
|
no
person, firm or corporation has any written or oral agreement, option,
understanding or commitment, or any right or privilege capable of
becoming
an agreement, for the purchase from the Transferor of any of the
Assets;
|
|
(f)
|
there
are no outstanding orders or directions relating to any matters requiring
any work, repairs, construction or capital expenditures with respect
to
any of the Assets and the conduct of the operations related thereto,
nor
has the Transferor received any notice of
same;
|
|
(g)
|
there
is no adverse claim or challenge against or to the ownership of or
title
to any of the Assets or which may impede the development of any of
the
Assets, nor, to the best of the knowledge, information and belief
of the
Transferor, after having made due inquiry, is there any basis for
any
potential claim or challenge, and, to the best of the knowledge,
information and belief of the Transferor, after having made due inquiry,
and other than as provided for herein, no persons have any royalty,
net
profits or other interests whatsoever in revenues or sales from any
of the
Assets;
|
| (h) |
there
are no actions, suits, proceedings or investigations (whether or
not
purportedly against or on behalf of the Transferor or the Assets),
pending
or threatened, which may affect, without limitation, the rights of
the
Transferor to transfer any of the Assets to the Transferee at law
or in
equity, or before or by any federal, state, provincial, municipal
or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, and, without limiting the generality
of the foregoing, there are no claims or potential claims under any
relevant family relations legislation or other equivalent legislation
affecting the Assets. In addition, the Transferor is not now aware
of any
existing ground on which any such action, suit or proceeding might
be
commenced with any reasonable likelihood of
success;
|
| (i) |
the
Transferor has not experienced, nor is the Transferor aware of, any
occurrence or event which has had, or might reasonably be expected
to
have, a materially adverse affect on the
Assets;
|
| (j) |
there
is not any proceeding, claim or, to the best of the knowledge, information
and belief of the Transferor, after having made due inquiry, any
investigation by any federal, state or municipal taxation authority,
or
any matters under discussion or dispute with such taxation authorities,
in
respect of taxes, governmental charges, assessments or reassessments
in
connection with the Transferor or the Assets, and the Transferor
is not
aware of any contingent tax liabilities or any grounds that could
result
in an assessment, reassessment, charge or potentially adverse
determination by any federal, state or municipal taxation authority
as
against the Transferor or the
Assets;
|
5
| (k) |
the
Transferor is not in breach of any provision or condition of, nor
has the
Transferor done or omitted to do anything that, with or without the
giving
of notice or lapse or both, would constitute a breach of any provision
or
condition of, or give rise to any right to terminate or cancel or
accelerate the maturity of any payment under, any deed of trust,
contract,
certificate, consent, permit, license or other instrument to which
the
Transferor is a party, by which the Transferor is bound or from which
the
Transferor derives benefit, or any judgment, decree, order, rule
or
regulation of any Court or governmental authority to which the Transferor
is subject, or any statute or regulation applicable to the Transferor,
to
an extent that, in the aggregate, has a material adverse affect on
the
Transferor or the Assets;
|
|
(l)
|
the
Transferor is not required to obtain any authorizations, approvals,
or
waivers that may be necessary or desirable in connection with the
transactions contemplated in this
Agreement;
|
|
(m)
|
the
Transferor has not committed to sell, license, distribute, option,
or
otherwise dispose of or grant any interest in all or any part of
the
Assets or agree to do or perform any act or enter into any transaction
or
negotiation which could reasonably be expected to interfere with
this
Agreement or which would render inaccurate any of the representations,
warranties or covenants set forth in this
Agreement;
|
|
(n)
|
the
execution and delivery of this Agreement and the agreements contemplated
hereby have been duly authorized by all necessary action, corporate
or
otherwise, or will have been so authorized at the relevant
time;
|
| (o) |
this
Agreement constitutes a legal, valid and binding obligation of the
Transferor enforceable against it in accordance with its terms, except
as
enforcement may be limited by laws of general application affecting
the
rights of creditors;
|
| (p) |
no
proceedings are pending for, and the Transferor is unaware of, any
basis
for the institution of any proceedings leading to its respective
dissolution or winding up, or the placing of it in bankruptcy or
subject
to any other laws governing the affairs of insolvent
companies;
|
| (q) |
the
making of this Agreement and the completion of the transactions
contemplated hereby and the performance of and compliance with the
terms
hereof does not and will not:
|
| (i) |
conflict
with or result in a breach of or violate any of the terms, conditions
or
provisions of the Transferor’s constating
documents;
|
| (ii) |
conflict
with or result in a breach of or violate any of the terms, conditions
or
provisions of any law, judgment, order, injunction, decree, regulation
or
ruling of any court or governmental authority, domestic or foreign,
to
which the Transferor is subject, or constitute or result in a default
under any agreement, contract or commitment to which the Transferor
is a
party;
|
| (iii) |
give
to any party the right of termination, cancellation or acceleration
in or
with respect to any agreement, contract or commitment to which the
Transferor is a party;
|
6
| (iv) |
give
to any government or governmental authority, or any municipality
or any
subdivision thereof, including any governmental department, commission,
bureau, board or administration agency, any right of termination,
cancellation or suspension of, or constitute a breach of or result
in a
default under, any permit, license, control or authority issued to
the
Transferor which is necessary or desirable in connection with the
conduct
and operations of its respective Business and the ownership or leasing
of
its respective Assets or other assets;
or
|
| (v) |
constitute
a default by, or any event which, with the giving of notice or lapse
of
time or both, might constitute an event of default, under any agreement,
contract, indenture or other instrument of the Transferor which would
give
any party to that agreement, contract, indenture or other instrument
the
right to terminate, accelerate, modify, or effect any act which would
materially negatively affect the
Assets;
|
| (r) |
the
Transferor is not aware of any fact or circumstance which has not
been
disclosed to the Transferee which should be disclosed in order to
prevent
the representations, warranties and covenants contained in this section
from being misleading or which would likely affect the decision of
the
Transferee to enter into this Agreement;
|
| (s) |
neither
this Agreement nor any other document, certificate or statement furnished
to the Transferee by or on behalf of the Transferor in connection
with the
transactions contemplated hereby knowingly or negligently contains
any
untrue or incomplete statement of material fact or omits to state
a
material fact necessary in order to make the statements therein not
misleading which would likely affect the decision of the Transferee
to
enter into this Agreement; and
|
| (t) |
the
Transferor will employ good faith, due diligence, and best efforts
to
perform its obligations of this Agreement and will enter into such
additional or collateral agreements as may be reasonably required
by the
Transferee to effect and complete the objects and intent of this
Agreement.
|
4.2 Continuity
of the Representations, Warranties and Covenants by the
Transferor.
The
representations, warranties and covenants by the Transferor contained in this
Article, or in any certificates or documents delivered pursuant to the
provisions of this Agreement or in connection with the transactions contemplated
hereby, will be true at and as of the Effective Date. Notwithstanding any
investigations or inquiries made by the Transferee or by the Transferee’s
professional advisors, or the waiver of any condition by the Transferee, the
representations, warranties and covenants of the Transferor contained in this
Article shall continue in full force and effect for a period of twelve (12)
months from the Effective Date; provided, however, that the Transferor shall
not
be responsible for the breach of any representation, warranty or covenant of
the
Transferor contained herein caused by any act or omission of the Transferee.
In
the event that any of the representations, warranties or covenants of the
Transferor are found by a Court of competent jurisdiction to be incorrect and
such incorrectness results in any loss or damage sustained, directly or
indirectly, by the Transferee, then the Transferor will pay the amount of such
loss or damage to the Transferee within 30 calendar days of receiving notice
of
judgment therefor; provided that the Transferee will not be entitled to make
any
claim unless the loss or damage suffered may exceed the amount of
$10,000.
7
Article
5
WARRANTIES,
REPRESENTATIONS AND COVENANTS BY THE TRANSFEREE
5.1 Warranties,
Representations and Covenants by the Transferee.
In
order to induce the Transferor to enter into and consummate this Agreement,
the
Transferee hereby warrants to and represents to the Transferor that, to the
best
of the informed knowledge, information and belief of the Transferee, after
having made due inquiry:
| (a) |
the
Transferee is duly incorporated under the laws of its jurisdiction
of
incorporation and is validly existing and in good standing with respect
to
all statutory filings required by the applicable corporate
laws;
|
|
(b)
|
the
execution and delivery of this Agreement and the agreements contemplated
hereby has been duly authorized by all necessary corporate action
on its
part;
|
|
(c)
|
there
are no consents, approvals or conditions precedent to the performance
of
this Agreement;
|
|
(d)
|
this
Agreement constitutes a legal, valid and binding obligation of the
Transferee enforceable against the Transferee in accordance with
its
terms, except as enforcement may be limited by laws of general application
affecting the rights of creditors;
|
|
(e)
|
no
proceedings are pending for, and the Transferee is unaware of, any
basis
for the institution of any proceedings leading to the dissolution
or
winding up of the Transferee or the placing of the Transferee in
bankruptcy or subject to any other laws governing the affairs of
insolvent
companies;
|
|
(f)
|
the
Transferee is not in breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which it is subject or
which
apply to it;
|
|
(g)
|
there
has been and there will be prepared and filed on a timely basis all
federal and state income tax returns, elections and designations,
and all
other governmental returns, notices and reports of which the Transferee
had, or ought reasonably to have had, knowledge required to be or
reasonably capable of being filed with respect to the operations
of the
Transferee, and no such returns, elections, designations, notices
or
reports contain or will contain any material misstatement or omit
any
material statement that should have been included, and each such
return,
election, designation, notice or report, including accompanying schedules
and statements, is and will be true, correct and complete in all
material
respects;
|
|
(h)
|
the
making of this Agreement and the completion of the transactions
contemplated hereby and the performance of and compliance with the
terms
hereof does not and will not:
|
|
(i)
|
conflict
with or result in a breach of or violate any of the terms, conditions
or
provisions of the constating documents of the
Transferee;
|
|
(ii)
|
conflict
with or result in a breach of or violate any of the terms, conditions
or
provisions of any law, judgment, order, injunction, decree, regulation
or
ruling of any Court or governmental authority, domestic or foreign,
to
which the Transferee is subject, or constitute or result in a default
under any agreement, contract or commitment to which the Transferee
is a
party;
|
|
(iii)
|
give
to any party the right of termination, cancellation or acceleration
in or
with respect to any agreement, contract or commitment to which the
Transferee is a party;
|
8
|
(iv)
|
give
to any government or governmental authority, or any municipality
or any
subdivision thereof, including any governmental department, commission,
bureau, board or administration agency, any right of termination,
cancellation or suspension of, or constitute a breach of or result
in a
default under, any permit, license, control or authority issued to
the
Transferee which is necessary or desirable in connection with the
conduct
and operations of its business and the ownership or leasing of its
business assets; or
|
|
(v)
|
constitute
a default by the Transferee, or any event which, with the giving
of notice
or lapse of time or both, might constitute an event of default, under
any
agreement, contract, indenture or other instrument relating to any
indebtedness of the Transferee which would give any party to that
agreement, contract, indenture or other instrument the right to accelerate
the maturity for the payment of any amount payable under that agreement,
contract, indenture or other
instrument;
|
|
(i)
|
neither
this Agreement nor any other document, certificate or statement furnished
to the Transferor by or on behalf of the Transferee in connection
with the
transactions contemplated hereby knowingly or negligently contains
any
untrue or incomplete statement of material fact or omits to state
a
material fact necessary in order to make the statements therein not
misleading;
|
| (j) |
the
Transferee is not aware of any fact or circumstance which has not
been
disclosed to the Transferor which should be disclosed in order to
prevent
the representations, warranties and covenants contained in this section
from being misleading or which would likely affect the decision of
the
Transferor to enter into this Agreement;
and
|
| (k) |
the
Transferee will employ good faith, due diligence, and best efforts
to
perform its obligations of this Agreement and will enter into such
additional or collateral agreements as may be reasonably required
to
effect and complete the objects and intent of this
Agreement.
|
5.2 Continuity
of the Representations, Warranties and Covenants by the
Transferee.
The
representations, warranties and covenants of the Transferee contained in this
Article, or in any certificates or documents delivered pursuant to the
provisions of this Agreement or in connection with the transactions contemplated
hereby, will be true at and as of the Effective Date. Notwithstanding any
investigations or inquiries made by the Transferor or by the Transferor’s
respective professional advisors prior to the Effective Date, or the waiver
of
any condition by the Transferor, the representations, warranties and covenants
of the Transferee contained in this Article shall survive the Effective Date
and
shall continue in full force and effect for a period of twelve (12) months
from
the Effective Date; provided, however, that the Transferee shall not be
responsible for the breach of any representation, warranty or covenant of the
Transferee contained herein caused by any act or omission of the Transferor.
In
the event that any of the said representations, warranties or covenants are
found by a Court of competent jurisdiction to be incorrect and such
incorrectness results in any loss or damage sustained, directly or indirectly,
by the Transferor, then the Transferee will pay the amount of such loss or
damage to the Transferor within 30 calendar days of receiving notice of judgment
therefor; provided that the Transferor will not be entitled to make any claim
unless the loss or damage suffered may exceed the amount of
$10,000.
9
Article
6
N/A
Article
7
ADDITIONAL
TERMS
7.1 Due
Diligence.
Each of
the Parties hereto may conduct such further due diligence examination of the
other Parties hereto as it deems appropriate. In that regard the Parties agree
that each shall have full and complete access to the other Parties’ books,
records, financial statements and other documents, articles of incorporation,
by-laws, minutes of Board of Directors’ meetings and its committees, investment
agreements, material contracts and as well such other documents and materials
as
the Parties hereto, or their respective counsel, may deem reasonable and
necessary to conduct an adequate due diligence investigation of each Party,
its
respective operations and financial condition prior to the Closing.
7.2 No
Conflict, No Competition and Non-Circumvention.
The
Transferor hereby warrants and agrees with the Transferee that the Transferor
shall not engage in any business or activity whatsoever which reasonably may
be
determined by the Transferee, in its sole and absolute discretion, to compete
with any portion of the Business or Asset interests as contemplated hereby
without the prior written consent of the Board of Directors of the Transferee.
For the purposes of the foregoing the Transferor hereby recognizes and agrees
that a breach of any of the covenants herein contained would result in
irreparable harm and significant damage to the Transferee that would not be
adequately compensated for by monetary award. Accordingly, the Transferor agrees
that in the event of any such breach, in addition to being entitled as a matter
of right to apply to a Court of competent equitable jurisdiction for relief
by
way of restraining order, injunction, decree or otherwise as may be appropriate
to ensure compliance with the provisions hereof, the Transferor will also be
liable to the Transferee, as liquidated damages, for an amount equal to the
amount received and earned by the Transferor as a result of and with respect
to
any such breach. The Parties hereto hereby acknowledge and agree that if any
of
the aforesaid restrictions, activities, obligations or periods are considered
by
a Court of competent jurisdiction as being unreasonable, the Parties hereto
agree that said Court shall have authority to limit such restrictions,
activities or periods as the Court deems proper in the circumstances. In
addition, the Parties hereto further acknowledge and agree that all restrictions
or obligations in this Agreement are necessary and fundamental to the protection
of the proposed Business of the Transferee and are reasonable and valid, and
all
defenses to the strict enforcement thereof by the Transferor are hereby
waived.
7.3 Opinions,
Reports and Advice of the Transferor.
The
Transferor hereby acknowledges and agrees that all written and oral opinions,
reports, advice and materials provided by the Transferor to the Transferee
in
connection with the Assets hereunder are intended solely for the Transferee’s
benefit and for the Transferee’s use only, and that any such written and oral
opinions, reports, advice and information are the exclusive property of the
Transferee. In this regard the Transferor hereby covenants and agrees that
the
Transferee may utilize any such opinion, report, advice and materials for any
other purpose whatsoever and, furthermore, may reproduce, disseminate, quote
from and refer to, in whole or in part, at any time and in any manner, any
such
opinion, report, advice and materials in its sole and absolute
discretion.
7.4 Additional
Documents and Acts by Transferor.
The
Transferor will also cause or deliver, or cause to be delivered, to the
Transferee, at the times stipulated, the following:
|
(a)
|
upon
the request of the Transferee, all documentation as may be necessary
and
as may be required by counsel for the Transferee, acting reasonably,
to
ensure that all of the Assets have been duly transferred, assigned
and are
registerable in the name of and for the benefit of the Transferee
under
applicable corporate laws and including, without limitation, all
necessary
deeds, conveyances, bills of sale, assurances, transfers, contract
assignments, sales agreement assignments, development agreement
assignments, royalty assignments, license assignments, manufacturing
agreement assignments, supply agreement assignments, consents and
any
other documents necessary or reasonably required effectively to transfer
all of the Assets and the business of the Assets to the Transferee
with a
good and marketable title, free and clear of all mortgages, liens,
charges, pledges, claims, security interests or encumbrances
whatsoever;
|
10
|
(b)
|
within
10 days of the Effective Date, a certified copy of the resolutions
of the
directors and shareholders of the Transferor authorizing the transfer
by
the Transferor to the Transferee of all of the Assets in accordance
with
the terms of this Agreement;
|
|
(c)
|
within
30 days of the Effective Date, all necessary consents and approvals
in
writing to the completion of the transactions contemplated herein
and
including, without limitation, approval from all Regulatory Authorities
having jurisdiction over the Transferor and the Assets or a certificate
of
counsel of the Transferor that no such consents are required;
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Article
8
NON-DISCLOSURE
8.1 Non-disclosure.
The
Parties hereto, for themselves, their officers, directors, shareholders,
consultants, employees and agents, agree that they each will not disseminate
or
disclose, or knowingly allow, permit or cause others to disseminate or disclose
to third parties who are not subject to express or implied covenants of
confidentiality, without the other Parties’ express written consent, either: (i)
the fact or existence of this Agreement or discussions and/or negotiations
between them involving, inter
alia,
possible business transactions; (ii) the possible substance or content of those
discussions; (iii) the possible terms and conditions of any proposed
transaction; (iv) any statements or representations (whether verbal or written)
made by either Party in the course of or in connection with those discussions;
or (v) any written material generated by or on behalf of any Party and such
contacts, other than such disclosure as may be required under applicable
securities legislation or regulations, pursuant to any order of a Court or
on a
“need to know” basis to each of the Parties’ respective professional
advisors.
Article
9
PROPRIETARY
INFORMATION
9.1 Confidential
Information.
Each
Party hereto acknowledges that any and all information which a Party may obtain
from, or have disclosed to it, about the other Parties constitutes valuable
trade secrets and proprietary confidential information of the other Parties
(collectively, the “Confidential
Information”).
No
such Confidential Information shall be published by any Party without the prior
written consent of the other Parties hereto, however, such consent in respect
of
the reporting of factual data shall not be unreasonably withheld, and shall
not
be withheld in respect of information required to be publicly disclosed pursuant
to applicable securities or corporation laws. Furthermore, each Party hereto
undertakes not to disclose the Confidential Information to any third party
without the prior written approval of the other Parties and to ensure that
any
third party to which the Confidential Information is disclosed shall execute
an
agreement and undertaking on the same terms as contained herein.
9.2 Impact
of Breach of Confidentiality.
The
Parties hereto acknowledge that the Confidential Information is important to
the
respective businesses of each of the Parties and that, in the event of
disclosure of the Confidential Information, except as authorized hereunder,
the
damage to each of the Parties hereto, or to either of them, may be irreparable.
For the purposes of the foregoing sections the Parties recognize and hereby
agree that a breach by any of the Parties of any of the covenants therein
contained would result in irreparable harm and significant damage to each of
the
other Parties that would not be adequately compensated for by monetary award.
Accordingly, the Parties agree that in the event of any such breach, in addition
to being entitled as a matter of right to apply to a Court of competent
equitable jurisdiction for relief by way of restraining order, injunction,
decree or otherwise as may be appropriate to ensure compliance with the
provisions hereof, any such Party will also be liable to the other Parties,
as
liquidated damages, for an amount equal to the amount received and earned by
such Party as a result of and with respect to any such breach. The Parties
also
acknowledge and agree that if any of the aforesaid restrictions, activities,
obligations or periods are considered by a Court of competent jurisdiction
as
being unreasonable, the Parties agree that said Court shall have authority
to
limit such restrictions, activities or periods as the court deems proper in
the
circumstances. In addition, the Parties further acknowledge and agree that
all
restrictions or obligations in this Agreement are necessary and fundamental
to
the protection of the respective businesses of each of the Parties and are
reasonable and valid, and all defenses to the strict enforcement thereof by
either of the Parties are hereby waived by the other Parties.
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Article
10
N/A
Article
11
FORCE
MAJEURE
11.1 Events.
If any
Party hereto is at any time prevented or delayed in complying with any
provisions of this Agreement by reason of strikes, walk-outs, labour shortages,
power shortages, fires, wars, acts of God, earthquakes, storms, floods,
explosions, accidents, protests or demonstrations by environmental lobbyists
or
native rights groups, delays in transportation, breakdown of machinery,
inability to obtain necessary materials in the open market, unavailability
of
equipment, governmental regulations restricting normal operations, shipping
delays or any other reason or reasons beyond the control of that Party, then
the
time limited for the performance by that Party of its respective obligations
hereunder shall be extended by a period of time equal in length to the period
of
each such prevention or delay.
11.2 Notice.
A Party
shall, within seven calendar days, give notice to the other Party of each event
of force
majeure
under
section “14.1” hereinabove, and upon cessation of such event shall furnish the
other Party with notice of that event together with particulars of the number
of
days by which the obligations of that Party hereunder have been extended by
virtue of such event of force
majeure
and all
preceding events of force
majeure.
Article
12
DEFAULT
AND TERMINATION
12.1 Default.
The
Parties hereto agree that if any Party hereto is in default with respect to
any
of the provisions of this Agreement (herein called the “Defaulting
Party”),
the
non-defaulting Party (herein called the “Non-Defaulting
Party”)
shall
give notice to the Defaulting Party designating such default, and within 10
calendar days after its receipt of such notice, the Defaulting Party shall
cure
such default, or commence proceedings to cure such default and prosecute the
same to completion without undue delay.
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Article
13
INDEMNIFICATION
AND LEGAL PROCEEDINGS
13.1 Indemnification.
The
Parties hereto agree to indemnify and save harmless the other Party hereto,
including its respective affiliates and their respective directors, officers,
employees and agents (each such party being an “Indemnified
Party”)
from
and against any and all losses, claims, actions, suits, proceedings, damages,
liabilities or expenses of whatever nature or kind, including any investigation
expenses incurred by any Indemnified Party, to which an Indemnified Party may
become subject by reason of an act or inaction of the other Party.
13.2 Claim
of Indemnification.
The
Parties hereto agree to waive any right they might have of first requiring
the
Indemnified Party to proceed against or enforce any other right, power, remedy,
security or claim payment from any other person before claiming this
indemnity.
13.3 Notice
of Claim.
In case
any action is brought against an Indemnified Party in respect of which indemnity
may be sought against any of the Parties hereto, the Indemnified Party will
give
the relevant Party hereto prompt written notice of any such action of which
the
Indemnified Party has knowledge and such Party will undertake the investigation
and defense thereof on behalf of the Indemnified Party, including the prompt
retaining of counsel acceptable to the Indemnified Party affected and the
payment of all expenses. Failure by the Indemnified Party to so notify shall
not
relieve any Party hereto of such Party’s obligation of indemnification hereunder
unless (and only to the extent that) such failure results in a forfeiture by
any
Party hereto of substantive rights or defenses.
13.4 Settlement.
No
admission of liability and no settlement of any action shall be made without
the
consent of the Indemnified Party affected, such consent not to be unreasonably
withheld.
13.5 Legal
Proceedings.
Notwithstanding that the relevant Party hereto will undertake the investigation
and defense of any action, an Indemnified Party will have the right to employ
separate counsel in any such action and participate in the defense thereof,
but
the fees and expenses of such counsel will be at the expense of the Indemnified
Party unless:
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(a)
|
such
counsel has been authorized by the relevant Party
hereto;
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(b)
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the
relevant Party hereto has not assumed the defense of the action within
a
reasonable period of time after receiving notice of the
action;
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(c)
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the
named parties to any such action include that any Party hereto and
the
Indemnified Party shall have been advised by counsel that there may
be a
conflict of interest between any Party hereto and the Indemnified
Party;
or
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(d)
|
there
are one or more legal defenses available to the Indemnified Party
which
are different from or in addition to those available to any Party
hereto.
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Article
14
NOTICE
14.1 Notice.
Each
notice, demand or other communication required or permitted to be given under
this Agreement shall be in writing and shall be sent by prepaid registered
mail
addressed to the Party entitled to receive the same, or delivered to such Party,
at the address for such Party specified above. The date of receipt of such
notice, demand or other communication shall be the date of delivery thereof
if
delivered, or, if given by registered mail as aforesaid, shall be deemed
conclusively to be the third calendar day after the same shall have been so
mailed, except in the case of interruption of postal services for any reason
whatsoever, in which case the date of receipt shall be the date on which the
notice, demand or other communication is actually received by the
addressee.
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14.2 Change
of Address.
Either
Party may at any time and from time to time notify the other Party in writing
of
a change of address and the new address to which notice shall be given to it
thereafter until further change.
Article
15
GENERAL
PROVISIONS
15.1 Entire
Agreement.
This
Agreement constitutes the entire agreement to date between the Parties hereto
and supersedes every previous agreement, communication, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the Parties hereto with respect
to
the subject matter of this Agreement.
15.2 Enurement.
This
Agreement will enure to the benefit of and will be binding upon the Parties
hereto, their respective heirs, executors, administrators and
assigns.
15.3 Schedules.
The
Schedules to this Agreement are hereby incorporated by reference into this
Agreement in its entirety.
15.4 Time
of the Essence.
Time
will be of the essence of this Agreement.
15.5 Applicable
Law.
The
situs of this Agreement is Vancouver, British Columbia, and for all purposes
this Agreement will be governed exclusively by and construed and enforced in
accordance with the laws and Courts prevailing in the Province of British
Columbia.
15.6 Further
Assurances.
The
Parties hereto hereby, jointly and severally, covenant and agree to forthwith,
upon request, execute and deliver, or cause to be executed and delivered, such
further and other deeds, documents, assurances and instructions as may be
required by the Parties hereto or their respective counsel in order to carry
out
the true nature and intent of this Agreement.
15.7 Currency.
Unless
otherwise stipulated, all payments required to be made pursuant to the
provisions of this Agreement and all money amount references contained herein
are in lawful currency of the U.S.A.
15.8 Severability
and Construction.
Each
Article, section, paragraph, term and provision of this Agreement, and any
portion thereof, shall be considered severable, and if, for any reason, any
portion of this Agreement is determined to be invalid, contrary to or in
conflict with any applicable present or future law, rule or regulation in a
final unappealable ruling issued by any court, agency or tribunal with valid
jurisdiction in a proceeding to any of the Parties hereto is a party, that
ruling shall not impair the operation of, or have any other effect upon, such
other portions of this Agreement as may remain otherwise intelligible (all
of
which shall remain binding on the Parties and continue to be given full force
and agreement as of the date upon which the ruling becomes final).
15.9 Captions.
The
captions, section numbers and Article numbers appearing in this Agreement are
inserted for convenience of reference only and shall in no way define, limit,
construe or describe the scope or intent of this Agreement nor in any way affect
this Agreement.
15.10 Counterparts.
This
Agreement may be signed by the Parties hereto in as many counterparts as may
be
necessary and, if required, by facsimile, each of which so signed being deemed
to be an original, and such counterparts together shall constitute one and
the
same instrument and notwithstanding the date of execution will be deemed to
bear
the Execution Date as set forth on the front page of this Agreement.
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15.11 Consents
and Waivers.
No
consent or waiver expressed or implied by either Party hereto in respect of
any
breach or default by any other Party in the performance by such other of its
obligations hereunder shall:
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(a)
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be
valid unless it is in writing and stated to be a consent or waiver
pursuant to this section;
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(b)
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be
relied upon as a consent to or waiver of any other breach or default
of
the same or any other obligation;
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(c)
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constitute
a general waiver under this Agreement;
or
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(d)
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eliminate
or modify the need for a specific consent or waiver pursuant to this
section in any other or subsequent
instance.
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IN
WITNESS WHEREOF
each of
the Parties hereto has set their respective hands and seals in the presence
of
their duly authorized signatories as of the Execution Date determined
hereinabove.
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The
COMMON SEAL of
AERODYNE
LLC,
the
Transferor herein,
was
hereunto affixed in the presence of:
|
)
)
)
)
|
(C/S) |
| Authorized Signatory | ) | |
| The
COMMON SEAL of
the
Transferee herein,
was
hereunto affixed in the presence of:
|
)
)
)
)
)
|
(C/S) |
| Authorized Signatory | ) |
15
SCHEDULE
“A”
THIS
IS SCHEDULE “A”
to the
Asset Purchase Agreement dated the ___ day of _____________, 2006.
The
Assets
16