EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
BY AND AMONG
SUITE 000.XXX, INC.,
"BUYER"
XXXX XXXX XXX
"SELLER"
AND
GEOGLOBAL RESOURCES (INDIA) INC.
THE "COMPANY"
FOR ALL THE OUTSTANDING COMMON SHARES OF GEOGLOBAL RESOURCES (INDIA) INC.
APRIL 4, 2003
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TABLE OF CONTENTS
ARTICLE I. Terms of Purchase and Sale
1.1 Purchase and Sale of Shares of the Company
1.2 The Closing
1.3 Purchase Price
1.4 The Note
ARTICLE II. Representations and Warranties of Seller
2.1 Capacity of Seller, Etc.
2.2 Title to Shares
2.3 Investment Intent
2.4 Company Core Agreements
2.5 Exploration Block Reserve Potential
ARTICLE III. Representations and Warranties of Seller
3.1 Corporate Existence of Company, Etc.
3.2 Capitalization
3.3 Consents and Approvals
3.4 No Conflicts
3.5 Subsidiaries
3.6 Financial Statements and Information
3.7 Liabilities
3.8 Absence of Certain Changes or Events
3.9 Title to Properties
3.10 Company Contracts
3.11 Litigation
3.12 Taxes
3.13 Compliance with Laws
3.14 Employee Agreements
3.15 Licenses and Permits
3.16 Bonding; Security Arrangements
3.17 Interest in Affiliates, Vendors, Suppliers, Consultants, Etc.
3.18 Employees
ARTICLE IV. Representations and Warranties of Buyer
4.1 Organization
4.2 Corporate Power and Authority
4.3 Capitalization
4.4 The Buyer's Shares
4.5 Consents and Approvals
4.6 No Conflicts
4.7 Subsidiaries
4.8 SEC Documents; Financial Statements and Cash
4.9 Liabilities
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4.10 Absence of Certain Changes or Events
4.11 Title to Properties
4.12 Buyer Contracts
4.13 Litigation
4.14 Taxes
4.15 Compliance With Laws
4.16 Employee Agreements
4.17 Consent
4.18 Licenses and Permits
4.19 Employees
4.20 Investment Intent
4.21 Reporting Issuer
ARTICLE V. Certain Covenants of the Parties
5.1 Conduct of Business Prior to Closing Date
5.2 Restrictions on Seller
5.3 Undertakings
5.4 Access
5.5 Directors and Officers of Buyer and the Company
5.6 Grant of Options Under the 1998 Stock Incentive Plan
5.7 Seller Consulting Agreement
5.8 Confidentiality
5.9 Exclusivity
5.10 Conduct of Business Subsequent to Closing Date
ARTICLE VI. Conditions to Buyer's Obligations
6.1 Representations, Warranties and Covenants of Seller and the Company
6.2 Further Action
6.3 No Governmental or Other Proceeding
6.4 Opinion of Seller's Counsel
6.5 Delivery of Company Shares
6.6 Resignations
6.7 Certificates
6.8 Escrow Agreement
6.9 Sale of i5ive Capital Stock
6.10 Exercise and Cancellation of Outstanding Stock Options
6.11 Xxx Group First Refusal Agreement
ARTICLE VII. Conditions to Seller's Obligations
7.1 Representations, Warranties and Covenants of Buyer
7.2 Further Action
7.3 No Governmental or Other Proceeding
7.4 Opinion of Buyer's Counsel
7.5 Delivery of Purchase Price
7.6 Resignations
7.7 Certificates
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7.8 Escrow Agreement
7.9 Sale of i5ive Capital Stock; Transfer of Cash
7.10 Exercise and Cancellation of Outstanding Stock Options
ARTICLE VIII. Additional Covenants of the Parties
8.1 Seller's Covenants
8.2 Seller's and Company's Covenants
8.3 Buyer's Covenants
ARTICLE IX. Termination Prior to Closing
9.1 Termination of Agreement
9.2 Termination of Obligations
ARTICLE X. MISCELLANEOUS
10.1 Entire Agreement
10.2 Successors and Assigns
10.3 Survival of Representations and Warranties
10.4 Counterparts
10.5 Headings
10.6 No Waiver
10.7 Expenses
10.8 Notices
10.9 Further Assurances
10.10 Governing Law
10.11 Public Announcements
10.12 Specific Performance
10.13 Additional Definitions
INDEX OF EXHIBITS
Exhibit I Form of Promissory Note of Buyer
Exhibit II Opinion of Xxxxxxx X. Xxxxxx, Lawyer, Seller's Counsel
Exhibit III-a Opinion of Xxxxxxx X. Xxxxxx, P.A., Buyer's Counsel
Exhibit III-b Opinion of Xxxxxxx Xxxxxx, Buyer's Special Counsel
Exhibit IV Omitted Exhibit V-1 Omitted.
Exhibit V-2 Memorandum of Flow of Funds
Exhibit VI Forms of Omnibus Agreement and Release:
1. Xxxxxxxx X. Xxxxxxxx
2. Xxxx Xxxxxxxx
3. Xxxxxxx X. Loblaw
4. Xxxx X. Xxxxxxxx
5. Xxxxx X. Xxxxxx
Exhibit VII Business Plan of the Company
Exhibit VIII Participating Interest Agreement with Xxx Group
Exhibit IX Option Grant and Warrant Schedule
Exhibit X Consulting Agreement with Seller
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CONTENTS OF DISCLOSURE SCHEDULE
SECTION
Company Certificate of Incorporation and By-Laws 3.1
No Conflicts 3.4
Financial Statements of the Company 3.6
Liabilities of the Company 3.7
Certain Changes or Events 3.8
Title to Properties 3.9
Company Contracts 3.10
Taxes 3.12
Compliance With Laws 3.13
Employee Agreements 3.14
Company Material Permits 3.15
Bonding; Security Arrangements 3.16
Interest in Affiliates, Vendors, Suppliers, Consultants 3.17
Company Employees 3.18
Buyer Certificate of Incorporation and By-Laws 4.2
Outstanding Options, etc. 4.3
Subsidiaries of Buyer 4.7
Buyer's SEC Documents 4.8
Liabilities of Buyer 4.9
Certain Changes or Events 4.10
Title to Properties 4.11
Buyer Contracts 4.12
Taxes 4.14
Compliance With Laws 4.15
Employee Agreements 4.16
Buyer Material Permits 4.18
Buyer Employees 4.19
Company Conduct of Business 5.1
Buyer Conduct of Business 5.1
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DEFINITIONS
LIST OF DEFINED TERMS SECTION
"Affiliate" 10.14
"Audited Balance Sheet" 3.6
"Business Plan" 5.9
"Buyer" Preamble
"Buyer Contracts" 4.12
"Buyer Material Permits" 4.18
"Buyer's Representative" 5.4
"Buyer SEC Document" 4.8
"Buyer's Shares" 1.3
"Carried Interest" 2.4
"Cash" 4.8
"CIA" 2.4
"Closing" 1.2
"Closing Date" 1.2
"Company" Preamble
"Company Contracts" 3.10
"Company Material Permits" 3.15
"Company Representative" 5.4
"Company Shares" Preamble
"Confidential Information" 4.5
"Core Agreements" 2.4
"Court" 10.14
"Disclosure Schedule" 10.14
"Disinterested Stockholders" 8.2
"Encumbrances" 2.2
"Escrow Agent" 6.8
"Escrow Agreement" 6.8
"Exploration Block" 2.4
"Financial Statements" 3.6
"GAAP" 3.6
"i5ive" 6.9
"JOA" 3.8
"Litigation" 2.15
"Marketeam" 6.9
"1933 Act" 10.14
"1934 Act" 10.14
"Note" 1.4
"Notice" 10.7
"Participating Interest" 2.4
"Participating Interest Agreement" 2.4
"Preemptive Rights" 5.3
"Prohibited Actions" 8.2
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"PSC-KG" 2.4
"Purchase Price" 1.3
"Xxx Group" 2.4
"SEC" 3.6
"Seller" Preamble
"Tax" or Taxes" 3.12
"Voting Stock" 5.3
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into as of this 4th of April, 2003, by and
between GeoGlobal Resources (India) Inc., a corporation organized under the laws
of the Province of Alberta, Canada (the "Company"), Xxxx Xxxx Xxx, an individual
resident in Guatemala City, Guatemala (the "Seller") and Xxxxx000.xxx, Inc., a
Delaware corporation (the "Buyer");
WITNESSETH:
WHEREAS, Seller owns of record and beneficially all of the outstanding shares of
capital stock of the Company;
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller,
all of the issued and outstanding common shares of the Company (the "Company
Shares");
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein, and upon the terms and subject to the
conditions hereinafter set forth, the parties do hereby agree as follows:
ARTICLE I. TERMS OF PURCHASE AND SALE
1.1 Purchase and Sale of Shares of the Company. On the Closing Date,
Seller shall sell to Buyer, and Buyer shall purchase from Seller, the Company
Shares for the purchase price specified herein. At the Closing, Seller shall
deliver to Buyer certificates representing all of the Company Shares which are
required to be delivered or are otherwise deliverable by Seller pursuant hereto
at the Closing duly endorsed in blank for transfer or accompanied by duly
executed stock powers assigning such Shares in blank, and Buyer shall deliver to
Seller the Purchase Price.
1.2 The Closing. The purchase and sale of the Company Shares shall take
place at the offices of Xxxxxxx X. Xxxxxx, Lawyer, #200, 000 Xxxxxx Xxxxxx, XX,
Xxxxxxx, Xxxxxxx, X0X OJ9 at 10;00 a.m. local time on the third business day
following the date on which all the conditions to the Buyer's and Seller's
obligations hereunder set forth in Articles VI and VII shall have been met, or
at such other place and/or other date as the partners may mutually agree (the
"Closing" or "Closing Date"). In no event shall the Closing Date be later than
120 days from the date of submission of the application for consent under
Article 28 of the PSC-KG. The Closing shall be deemed to have taken place at
5:00 P.M. on the Closing Date.
1.3 Purchase Price. The purchase price (the "Purchase Price") for the
Company Shares shall be 34.0 million shares of Common Stock, $0.001 par value
per share, of
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Buyer ("Buyer's Shares") and the Note described in Article 1.4 below and the
form of which is attached as Exhibit I. The Purchase Price shall be paid over
and delivered at the Closing as follows:
(a) Seller shall receive delivery of (i) a certificate issued
in the name of Seller for 14.5 million shares of Common Stock
of the Buyer, and (ii) the Note described in Article 1.4.
(b) the Escrow Agent shall receive delivery of a certificate
issued in the name of Seller for 14.5 million shares of Common
Stock of Buyer to be held subject to the terms of the Escrow
Agreement and not released from escrow to Seller until the
sooner of: (i) the completion of the Work Programme, as
outlined in Article 5.2(a) and (b) and (c) in the PSC-KG,
provided the results from that Programme demonstrate a
commercial basis for drilling and the commencement of a
Drilling Programme, or (ii) the commencement of a Drilling
Programme. The completion of the Work Programme or the
commencement of the Drilling Programme to be declared no later
than the end of Phase I of PSC-KG.
(c) the Escrow Agent shall receive delivery of a certificate
issued in the name of Seller for 5.0 million shares of Common
Stock of Buyer to be held subject to the terms of the Escrow
Agreement and not released from escrow to Seller until a
Commercial Discovery, as defined by Article 1.19 of the
PSC-KG, has been declared no later than the completion of
Phase III of the PSC-KG.
(d) if the conditions for the release to Seller from escrow of
the shares delivered to the Escrow Agent at the Closing
pursuant to subparagraphs (b) and (c) above are not met at the
times and upon fulfillment of the conditions to their release
as provided in the Escrow Agreement, such shares are to be
thereupon promptly returned by the Escrow Agent to the Buyer.
1.4 The Note. The promissory note of the Buyer (the "Note") to be
delivered pursuant to Article 1.3(a) hereof as a portion of the Purchase Price
is to be payable to the Seller and be interest free and payable in three (3)
installments of principal as follows: (U.S.) $1.0 million at the Closing but not
before March 31, 2003, (U.S.) $500,000 on June 30, 2003 and (U.S.) $500,000 on
June 30, 2004. The Note is to be secured by the Carried Interest and the
principal payments are to be made when due out of the funds of the Buyer. The
form of the Note is attached as Exhibit I.
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants:
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2.1 Capacity of Seller, Etc. Seller is a natural person. Seller has the
capacity, legal and otherwise, to execute and deliver this Agreement and to
perform his obligations hereunder, and the execution, delivery and performance
of this Agreement by Seller does not require any authorization by any other
person or governmental entity or Court. This Agreement has been duly executed
and delivered by Seller and constitutes the valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject to
general equitable principles and except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general application relating to creditors' rights.
2.2 Title to Shares. The sale and delivery of the Company Shares to
Buyer pursuant to this Agreement will vest in Buyer legal and valid title to the
Company Shares, free and clear of all liens, security interests, adverse claims
or other rights or encumbrances of any character whatsoever ("Encumbrances")
(other than Encumbrances created by Buyer and restrictions on re-sales of the
Company Shares under applicable securities laws).
2.3 Investment Intent. Seller is acquiring the Buyer's Shares solely
for his own account and not with a view to a sale or distribution thereof in
violation of any securities laws. Seller acknowledges that he and his
representatives have received, or have had access to, all information which he
and they consider necessary or advisable to enable them to make a decision
concerning Seller's acquisition of the Buyer's Shares, provided that the
foregoing shall not limit or otherwise affect any representations, warranties,
covenants or agreements of Buyer contained herein. Seller understands and agrees
that the Buyer's Shares are "restricted securities" as defined in Rule 144
adopted under the 1933 Act. Seller and his representatives have received copies
of the Buyer's SEC Documents and have reviewed the contents thereof to their
satisfaction.
2.4 Company Core Agreements. (a) The Company is a party to the
following agreements (the "Core Agreements"):
(i) On February 4, 2003, the Company entered into a Production
Sharing Contract among the Government of India, Gujarat State Petroleum
Corporation Limited and Jubilant Enpro Limited granting to the Company
a 10% participating interest (the "Participating Interest") in an
exploration block known as Block KG-OSN-2001/03, or sometimes referred
to as Block 7 offered under NELP III (the "Exploration Block") (herein
this contract is referred to as "PSC-KG").
(ii) On August 27, 2002, the Company entered into a Carried
Interest Agreement with Gujarat State Petroleum Corporation Limited
granting the Company a 10% carried interest in the Exploration Block.
The Carried Interest Agreement is referred to as the "CIA" and the
carried interest is referred to as the "Carried Interest." The Carried
Interest carries the Company for 100% of all its share of any costs
incurred during the
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Exploration Phase prior to the date Commercial Production (as such
terms are defined in the PSC-KG) commences on the Exploration Block.
(iii) The Company has agreed with Xxx Group (Mauritius) Inc.,
a corporation incorporated under the laws of Mauritius ("Xxx Group")
and wholly-owned by Seller, to transfer and assign to Xxx Group a 50%
interest in the Participating Interest and related Carried Interest
pursuant to the terms of a definitive Participating Interest Agreement
(the "Participating Interest Agreement") between the Company and Xxx
Group whereby Xxx Group is granted by Seller, as of February 4, 2003, a
5% carried interest in the Exploration Block and the Company is granted
by Xxx Group a right of first refusal with respect to the 5% interest
held by Xxx Group. The Participating Interest Agreement is attached as
Exhibit VIII.
(b) Each of the Core Agreements is valid, binding, and enforceable in
accordance with its terms for the periods (if any) stated therein, except to the
extent enforceability may be limited by bankruptcy, insolvency, moratorium, or
other similar laws affecting creditors' rights generally and limitations on the
availability of equitable remedies. The Company has fulfilled or has taken all
actions necessary to enable it to fulfill when due all of its obligations under
the Core Agreements, and there is not, under any of the Core Agreements, any
existing default or event of default or any event which, with or without the
giving of notice or the passage of time, would constitute a default under any of
the Core Agreements or provide to any party to any Core Agreement a right of
termination thereunder. There are no laws, regulations, rules or decrees
currently in effect or to be in effect which adversely affect or might adversely
affect the Company's rights under any of the Core Agreements.
(c) Subject to the terms of the Participating Interest Agreement, the
Company has a good and valid ownership interest in and holds an enforceable
interest constituting the Participating Interest and has not sold, conveyed,
transferred or created any encumbrance on or with respect to the Participating
Interest.
2.5. Exploration Block Reserve Potential. On the basis of geophysical
and geological work and 2D seismic studies conducted by Seller or under Seller's
supervision, which studies Seller represents are adequate for the purpose,
Seller has a commercially and professionally reasonable basis to conclude (A)
that the Exploration Block may contain 13 major pools of hydrocarbons, (B) that
there may be 20 exploratory well locations on the Exploration Block which, when
drilled, have a reasonable likelihood of resulting in discoveries of
hydrocarbons declared to be commercial discoveries, and (C) that there may be a
reserve potential for the Exploration Block ranging between a minimum of 10.0
trillion cubic feet and a maximum of 45.0 trillion cubic feet of natural gas.
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ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
Seller and the Company hereby represent and warrant:
3.1 Corporate Existence of Company, Etc. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
Province of Alberta, Canada and has all requisite corporate power and authority
to carry on its business as presently being conducted. The execution, delivery
and performance of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on behalf of the Company. The Company is not required to
qualify as a foreign corporation in any jurisdiction where the character of its
business done or properties owned or held under lease require it to be so
qualified. Attached to the Disclosure Schedule is a complete and correct copy of
the Company's Certificate of Incorporation, as amended to date, certified by the
Registrar of Companies, Province of Alberta, and the Company's By-Laws, as
currently in effect. This Agreement has been duly executed and delivered on
behalf of the Company and constitutes the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that such enforceability (i) may be limited by bankruptcy, insolvency
or other similar laws relating to creditors' rights generally, and (ii) is
subject to general principles of equity.
3.2 Capitalization. The authorized capital stock of the Company
consists of an unlimited number of common shares, of which 1,000 shares are
issued and outstanding, all of which are owned of record and beneficially by
Seller, and an unlimited number of preferred shares, none of which is issued or
outstanding. All outstanding Company Shares have been duly authorized and
validly issued, are fully paid and non-assessable and were not issued in
violation of any preemptive rights. There is outstanding no security, option,
warrant, right, call, subscription, agreement, commitment or understanding of
any nature whatsoever, fixed or contingent, that directly or indirectly (i)
calls for the issuance, sale, pledge, transfer or other disposition of any
Company Shares or of any other capital stock of the Company or any securities
convertible into, or other rights to acquire, any such Company Shares or other
capital stock of the Company, (ii) obligates the Company or Seller to grant,
offer or enter into any of the foregoing, or (iii) relates to the voting or
control of such Company Shares, capital stock, securities or rights.
3.3 Consents and Approvals. Except as set forth in the Disclosure
Schedule, there is no authorization, consent, order or approval of, or notice to
or filing with, any governmental authority required to be obtained or given or
waiting period required to expire as a condition to the lawful consummation by
the Seller of the sale of the Company Shares pursuant to this Agreement.
3.4 No Conflicts. Except as set forth in the Disclosure Schedule, the
execution, delivery and performance of this Agreement by Seller and the Company
and the consummation by Seller and the Company of the transactions contemplated
hereby will
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not conflict with, or constitute or result in a breach, default or violation of
(with or without the giving of notice or the passage of time) any of the terms,
provisions or conditions of, (i) the Certificate of Incorporation or By-Laws of
the Company; (ii) any law, ordinance, regulation or rule applicable to Seller or
the Company; (iii) any order, judgment, injunction or other decree by which
Seller or the Company or any of their respective assets or properties is bound;
or (iv) any written or oral contract, agreement, or commitment to which Seller
or the Company is a party, including, without limitation, the Core Agreements,
or by which they or any of their respective assets or properties is bound; nor
will such execution, delivery and performance result in the creation of any
material Encumbrance upon any properties, assets or rights of the Company,
including, without limitation, the Participating Interest.
3.5 Subsidiaries. The Company does not own any equity ownership
interest, directly or indirectly, in any person, corporation or other entity.
3.6 Financial Statements and Information.
(a) A copy of the audited balance sheet of the Company as of December
31, 2002 (the "Audited Balance Sheet") and the audited statement of operations
and deficit, statement of cash flows, including notes thereto of the Company as
of December 31, 2002 and the period August 21, 2002 to December 31, 2002
(collectively the Audited Balance Sheet and the related financial statements and
notes for the period then ended are referred to as the "Financial Statements"),
are contained in the Disclosure Schedule. Except as noted therein, the Financial
Statements fairly present the financial position of the Company as of December
31, 2002 and its results of operations for the period August 21, 2002 to
December 31, 2002, in conformity with generally accepted accounting principles
consistently applied ("GAAP") for such periods.
(b) There is available financial information and documentation relating
to the Company which will enable the Company and the Buyer to comply with, and
the Company is presently able to comply with, all applicable regulations of the
U.S. Securities and Exchange Commission (the "SEC") relating to the
certification of its financial statements in connection with periodic reports
required to be filed by the Buyer under the 1934 Act in response to Items 2 and
7 of Form 8-K as adopted under the 1934 Act.
(c) Other than as a party to the Core Agreements, the Company has no
business activities, no assets, liabilities (other than liabilities of
approximately (U.S.) $150,000 for out-of-pocket expenses incurred in entering
into the CIA and PSC-KG), employees, customers or suppliers and has no revenues.
3.7 Liabilities. The Company does not have and has not incurred any
debts, obligations or liabilities of whatever kind or nature, either direct or
indirect, absolute or contingent, matured or un-matured, except debts,
obligations and liabilities that are fully reflected in, or reserved against on
the Financial Statements or set forth in the Disclosure Schedule.
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3.8 Absence of Certain Changes or Events. Except as contemplated by
this Agreement or as set forth in the Disclosure Schedule, since December 31,
2002 there has not been (a) any material change in the business, operations or
financial condition of the Company; (b) any entry into any transaction,
commitment or agreement (including without limitation any borrowing or capital
expenditure) material to the Company; (c) any redemption or other acquisition by
the Company of the Company's capital stock or any declaration, setting aside or
payment of any dividend or other distribution in cash, stock or property with
respect to the Company's capital stock; (d) any increase in the rate or terms of
compensation payable or to become payable by the Company to its directors,
officers or employees or any increase in the rate or terms of any bonus,
pension, insurance or other employee benefit plan, payment or arrangement made
to, for or with any such directors, officers or key employees; (e) any change in
administrative expenses; (f) any sale, transfer or other disposition of any
asset of the Company to any party, including Seller except for payment of
third-party obligations incurred in the ordinary course of business in
accordance with the Company's regular payment practices; (g) any termination or
waiver of any rights of value to the business or prospects of the Company; or
(i) any failure by the Company to pay its accounts payable or other obligations
in the ordinary course of business.
3.9 Title to Properties. Except as set forth on the Disclosure
Schedule, the Company has good and marketable title to all of the assets and
properties which it purports to own and which are reflected on the Financial
Statements, free and clear of all Encumbrances, except for (a) liens for current
taxes not yet due and payable or for taxes the validity of which is being
contested in good faith by appropriate proceedings, and (b) encumbrances which
individually or in the aggregate do not materially and adversely affect the
business, operations or financial condition of the Company.
3.10 Company Contracts. The Disclosure Schedule lists all agreements,
commitments, and written summaries of oral agreements (being sometimes
collectively referred to herein as the "Company Contracts") to which the Company
is a party. Except as set forth in the Disclosure Schedule, each of the Company
Contracts is valid, binding, and enforceable in accordance with its terms for
the periods (if any) stated therein, except to the extent enforceability may be
limited by bankruptcy, insolvency, moratorium, or other similar laws affecting
creditors' rights generally and limitations on the availability of equitable
remedies; the Company has fulfilled or has taken all actions necessary to enable
it to fulfill when due all of its obligations under the Company Contracts, and
there is not, under any of the foregoing, any existing default or event of
default or any event which, with or without the giving of notice or the passage
of time, would constitute a default under any of the Company Contracts or
provide to any party to any Company Contract a right of termination thereunder.
There are no laws, regulations, rules or decrees currently in effect or to be in
effect which adversely affect or might adversely affect the Company's rights
under any of the Company Contracts.
3.11 Litigation. There is no action, proceeding or investigation in any
court or before any governmental or regulatory authority pending or threatened
in writing or
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orally (a) against the Company or against Seller, in connection with the conduct
of the business of the Company or otherwise, (b) which seeks to enjoin or obtain
damages in respect of the consummation of the transactions contemplated hereby.
3.12 Taxes. (a) Except as set forth in the Disclosure Schedule, (i) all
Canadian, United States and foreign, federal, state, provincial, local and other
income, franchise, excise, sales and use tax ("Taxes" or "Tax") returns required
to be filed with respect to the Company have been filed in a timely manner
(taking into account all extensions of due dates); (ii) the Company has paid, or
has made sufficient provision for, or has set up adequate reserves for the
payment of, all Taxes shown as due on such returns; (iii) the Company has not
executed any presently effective waiver or extension of any statute of
limitations against assessment and collection of Taxes with respect to the
Company; and (iv) the proper amounts have been withheld by the Company from
employees with respect to all cash compensation paid to employees for all
periods in compliance in all material respects with the tax and other
withholding provisions of all applicable laws. Except as set forth in the
Disclosure Schedule, or as reflected in the Financial Statements, no
deficiencies for any taxes have been asserted in writing or assessed against the
Company which remain unpaid.
3.13 Compliance with Laws. Except as set forth in the Disclosure
Schedule, the Company has complied in all material respects with all laws,
statutes, rules, regulations, judgments, decrees and orders applicable to its
business (including without limitation, any of the above which relate to the
environment).
3.14 Employee Agreements. (a) The Disclosure Schedule contains a list
of (1) all material contracts between the Company and each executive officer,
employee or consultant thereof, (2) all bonus, incentive, stock option, stock
purchase, phantom stock, stock appreciation rights, performance shares, and
similar plans either currently maintained by the Company or, if terminated,
under which employees or former employees have rights that are outstanding, and
all awards and agreements under any of such plans pursuant to which any
employees or former employees hold outstanding rights.
(b) Except as disclosed in the Disclosure Schedule, the Company has no
other compensation, remuneration, pension, retirement or other employee benefit
plans.
3.15 Licenses and Permits. Except as set forth in the Disclosure
Schedule, the Company has all governmental licenses and permits and other
governmental authorizations and approvals required for the conduct of its
business as presently conducted and as proposed to be conducted ("Company
Material Permits"). The Disclosure Schedule includes a list of all Company
Material Permits.
3.16 Bonding; Security Arrangements. Except as disclosed in the
Disclosure Schedule, the Company is not required to provide any bonding or other
financial security arrangements in connection with any presently existing
transactions.
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3.17 Interest in Affiliates, Vendors, Suppliers, Consultants, Etc.
Except as set forth in the Disclosure Schedule, neither the Seller nor any
officer or director of the Company or any Affiliate of any such officer or
director has any ownership interest in any Affiliate, vendor, supplier,
consultant or other person providing goods or services to the Company.
3.18 Employees. The Company has no employees other than those listed in
the Disclosure Schedule.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
4.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to carry on its business as it is
now being conducted.
4.2 Corporate Power and Authority. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on behalf of Buyer. The Buyer is not required to qualify as a
foreign corporation in any jurisdiction where the character of its business done
or properties owned or held under lease require it to be so qualified. Attached
to the Disclosure Schedule is a complete and correct copy of the Buyer's
Certificate of Incorporation, as amended to date, certified by the Secretary of
State of the State of Delaware, and the Buyer's By-Laws, as currently in effect.
This Agreement has been duly and validly executed and delivered by Buyer and
constitutes the valid and binding obligation of Buyer, enforceable in accordance
with its terms, except to the extent that such enforceability (i) may be limited
by bankruptcy, insolvency or other similar laws relating to creditors' rights
generally, and (ii) is subject to general principles of equity.
4.3 Capitalization. The authorized capital stock of the Buyer consists
of 100,000,000 shares of Common Stock, $0.001 par value per share, of which
14,086,687 shares are issued and outstanding, and 1,000,000 shares of Preferred
Stock, $0.01 par value per share, none of which are issued and outstanding. All
outstanding shares have been duly authorized and validly issued, are fully paid
and non-assessable and were not issued in violation of any preemptive rights.
Except as set forth in the Disclosure Schedule, there is outstanding no
security, option, warrant, right, call, subscription agreement, commitment or
understanding of any nature whatsoever, fixed or contingent, that directly or
indirectly (i) calls for the issuance, sale, pledge or other disposition of any
capital stock of the Buyer or any securities convertible into, or other rights
to acquire, any such capital stock of the Buyer or (ii) obligates the Buyer to
grant, offer or enter into any of the foregoing or (iii) relates to the voting
or control of such capital stock, securities or rights.
17
4.4 The Buyer's Shares. The Buyer's Shares when issued pursuant to the
terms of this Agreement will be duly authorized, and when the consideration
therefor has been paid by the Seller and received by the Buyer as provided under
the terms of this Agreement, the Buyer's Shares will be validly issued and fully
paid and non-assessable.
4.5 Consents and Approvals. There is no authorization, consent, order
or approval of, or notice to or filing with, any governmental authority required
to be obtained or given or waiting period required to expire as a condition to
the lawful consummation by the Buyer of the purchase of the Company Shares
pursuant to this Agreement.
4.6 No Conflicts. The execution, delivery and performance by Buyer of
this Agreement and the consummation by Buyer of the transactions contemplated
hereby will not, with or without the giving of notice or the lapse of time, or
both, (i) violate any provision of law, statute, rule or regulation to which
Buyer is subject, (ii) violate any order, judgment or decree applicable to
Buyer, or (iii) conflict with, or result in a breach or default under, any term
or condition of the Certificate of Incorporation or By-Laws of Buyer or any
material agreement or other instrument to which Buyer is a party or by which it
may be bound; except for violations, conflicts, breaches or defaults which in
the aggregate would not materially hinder or impair the consummation of the
transactions contemplated hereby.
4.7 Subsidiaries. Except as set forth in the Disclosure Schedule, the
Buyer does not own any equity ownership interest, directly or indirectly, in any
person, corporation or other entity.
4.8 SEC Documents; Financial Statements and Cash. (a) Buyer has made
all filings with the SEC that it has been required to make under the 1933 Act
and the 1934 Act since December 31, 2001. Buyer has provided to the Seller true,
complete and correct copies of Buyer's annual report on Form 10-KSB for the
fiscal year ended December 31, 2002, together with all amendments thereto,
Buyer's quarterly reports on Form 10-QSB for the fiscal quarters ended March 31,
2002, June 30, 2002 and September 30, 2002, together with all amendments
thereto, and any and all filings with the SEC made by Buyer (including all
requested exhibits to such filings) since the filing of said Form 10-KSB (all
such documents that have been filed since March 31, 2002 with the SEC, as
amended, are referred to as the "Buyer SEC Documents"). As of their respective
dates, and except as amended, Buyer SEC Documents complied in all material
respects with the requirements of the 1933 Act or the 1934 Act, as the case may
be, and none of Buyer SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(b) The financial statements of Buyer included in the Buyer SEC
Documents comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, have been
18
prepared in accordance with GAAP applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto or, in the
case of the unaudited statements, as permitted by Form 10-QSB) and fairly
present (subject, in the case of the unaudited statements, to normal recurring
audit adjustments) the consolidated financial position of Buyer as of the dates
thereof and the consolidated results of its operations and cash flows for the
periods then ended. Since December 31, 2002, (i) there have been no material
adverse changes in Buyer's business, operations or financial condition and (ii)
Buyer's operations have been conducted in the ordinary course of business except
as disclosed in the Buyer's SEC Documents or as set forth in the Disclosure
Schedule.
(c) Buyer has no other assets other than cash, as of January 31, 2003,
of (U.S.) $3,021,232 (plus interest accrued less accounts payable paid to
Closing) (the "Cash") and common shares of its only active subsidiary, i5ive,
and i5ive holds an equity interest in Marketeam, which as of June 1, 2002
represented a 15% equity interest. The Cash is held in an account of i5ive at
HSBC Bank of Canada, of which $3,010,032 is held in U.S. dollars and the balance
is held in Canadian dollars. Effective on the Closing, the Cash will be held in
an account of Buyer at the Canadian Western Bank, Main Branch, Calgary, Alberta.
Except as set forth in the Disclosure Schedule, the Buyer has no material
liabilities or undisclosed or contingent liabilities.
4.9 Liabilities. Except as set forth in the Disclosure Schedule, the
Buyer has not incurred any debts, obligations or liabilities of whatever kind or
nature, either direct or indirect, absolute or contingent, matured or unmatured,
except debts, obligations and liabilities that are fully reflected in, or
reserved against on, the Financial Statements.
4.10 Absence of Certain Changes or Events. Except as set forth in the
Disclosure Schedule or except as otherwise contemplated by this Agreement, since
December 31, 2002 there has not been (a) any material change in the business,
operations or financial condition of the Buyer; (b) any entry into any
transaction, commitment or agreement (including without limitation any borrowing
or capital expenditure) material to the Buyer; (c) any redemption or other
acquisition by the Buyer of the Buyer 's capital stock or any declaration,
setting aside or payment of any dividend or other distribution in cash, stock or
property with respect to the Buyer 's capital stock; (d) any increase in the
rate or terms of compensation payable or to become payable by the Buyer to its
directors, officers or employees or any increase in the rate or terms of any
bonus, pension, insurance or other employee benefit plan, payment or arrangement
made to, for or with any such directors, officers or key employees; (e) any
change in administrative expenses; (f) any sale, transfer or other disposition
of any asset of the Buyer to any party, except for payment of third-party
obligations incurred in the ordinary course of business in accordance with the
Buyer 's regular payment practices; (g) any failure by the Company to pay its
accounts payable or other obligations in the ordinary course of business.
4.11 Title to Properties. Except as set forth on the Disclosure
Schedule, the Buyer has good and marketable title to all of the assets and
properties which it purports to own and which are reflected on the December 31,
2002 balance sheet, free and clear of all Encumbrances, except for (a) liens for
current taxes not yet due and payable or for
19
taxes the validity of which is being contested in good faith by appropriate
proceedings, and (b) encumbrances which individually or in the aggregate do not
materially and adversely affect the business, operations or financial condition
of the Buyer.
4.12 Buyer Contracts. The Disclosure Schedule lists all agreements,
commitments, and written summaries of oral agreements (being sometimes
collectively referred to herein as the "Buyer Contracts") to which the Buyer is
a party. Except as set forth in the Disclosure Schedule, each of the Buyer
Contracts is valid, binding, and enforceable in accordance with its terms for
the periods (if any) stated therein, except to the extent enforceability may be
limited by bankruptcy, insolvency, moratorium, or other similar laws affecting
creditors' rights generally and limitations on the availability of equitable
remedies; the Buyer has fulfilled or has taken all actions necessary to enable
it to fulfill when due all of its obligations under the Buyer Contracts, and
there is not, under any of the foregoing, any existing default or event of
default or any event which, with or without the giving of notice or the passage
of time, would constitute a default under any of the Buyer Contracts or provide
to any party to any Buyer Contract a right of termination thereunder. There are
no laws, regulations, rules or decrees currently in effect or to be in effect
which adversely affect or might adversely affect the Buyer 's rights under any
of the Buyer Contracts. Each of the Buyer Contracts can be terminated in
accordance with its termination provisions as is described in the Disclosure
Schedule.
4.13 Litigation. There is no action, proceeding or investigation in any
court or before any governmental or regulatory authority, including, without
limitation, the SEC, pending or threatened in writing or orally (a) against the
Buyer, in connection with the conduct of the business of the Buyer, or otherwise
or (b) which seeks to enjoin or obtain damages in respect of the consummation of
the transactions contemplated hereby.
4.14 Taxes. (a) Except as set forth in the Disclosure Schedule, (i) all
Tax returns required to be filed with respect to the Buyer have been filed in a
timely manner (taking into account all extensions of due dates); (ii) the Buyer
has paid, or has made sufficient provision for, or has set up adequate reserves
for the payment of, all Taxes shown as due on such returns; (iii) the Buyer has
not executed any presently effective waiver or extension of any statute of
limitations against assessment and collection of Taxes with respect to the
Buyer, and (iv) the proper amounts have been withheld by the Buyer from
employees with respect to all cash compensation paid to employees for all
periods in compliance in all material respects with the tax and other
withholding provisions of all applicable laws. Except as set forth in the
Disclosure Schedule, or as reflected in the Buyer SEC Documents, no deficiencies
for any taxes have been asserted in writing or assessed against the Buyer which
remain unpaid.
4.15 Compliance with Laws. Except as set forth in the Disclosure
Schedule, the Buyer has complied in all material respects with all laws,
statutes, rules, regulations, judgments, decrees and orders applicable to its
business (including without limitation, any of the above which relate to the
environment).
20
4.16 Employee Agreements. (a) The Disclosure Schedule contains a list
of (1) all material contracts between the Buyer and each executive officer,
employee or consultant thereof, (2) all bonus, incentive, stock option, stock
purchase, phantom stock, stock appreciation rights, performance shares, and
similar plans either currently maintained by the Buyer or, if terminated, under
which employees or former employees have rights that are outstanding, and all
awards and agreements under any of such plans pursuant to which any employees or
former employees hold outstanding rights. (b) Except as disclosed in the
Disclosure Schedule, the Buyer has no other compensation, option, remuneration,
pension, retirement or other employee benefit plans.
4.17 Consents. The Buyer is not required to obtain any consent,
approval or authorization of, exemption by, or make any filing with, any
governmental or regulatory authority in connection with the execution, delivery
and performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby.
4.18 Licenses and Permits. The Buyer has all governmental licenses and
permits and other governmental authorizations and approvals required for the
conduct of its business as presently conducted and as proposed to be conducted
("Buyer Material Permits"). The Disclosure Schedule includes a list of all Buyer
Material Permits.
4.19 Employees. The Buyer has no employees other than those listed in
the Disclosure Schedule.
4.20 Investment Intent. Buyer is acquiring the Company Shares solely
for its own account and not with a view to a sale or distribution thereof in
violation of any securities laws. Buyer acknowledges that it has received, or
has had access to, all information which it considers necessary or advisable to
enable it to make a decision concerning its acquisition of the Company Shares,
provided that the foregoing shall not limit or otherwise affect any
representations, warranties, covenants or agreements of Seller contained herein.
4.21 Reporting Issuer. Buyer is a reporting issuer in British Columbia,
Alberta, Ontario and Quebec.
ARTICLE V. CERTAIN COVENANTS OF THE PARTIES
Seller and Company, on the one hand, and Buyer, on the other hand,
hereby covenant to and agree with one another as follows:
5.1 Conduct of Business Prior to Closing Date. (a) Except as may be
otherwise contemplated by this Agreement or required by any of the documents
listed in the Disclosure Schedule or except as Buyer may otherwise consent to in
writing (which consent shall not be unreasonably withheld), between the date
hereof and the Closing Date, the Company will continue to conduct its operations
and business in the ordinary course as conducted on the date hereof and will not
engage in or permit any transactions
21
outside the ordinary course. The parties hereby agree that transactions outside
the ordinary course include for the purposes of this paragraph 5.1(a), without
limitation, any business combination transaction, the offer or sale of any debt
or equity securities or rights or options to acquire such securities, the sale
of any assets, the modification of any material agreement or the execution of
any material agreement, commitment, agreement in principal or letter of intent,
the incurrence of any material liability, agreeing to any compensation for any
executive officer or employee, any distributions with respect to any capital
stock, the grant or issuance of any option, warrant or other derivative
security, and the amendment, termination of or default under any material
agreements or contracts. Seller will cause the Company not to (i) make any
change in the Company's Certificate of Incorporation, By-Laws or similar charter
documents; (ii) make any change in its issued or outstanding capital stock, or
issue any warrant, option or other right to purchase shares of its capital stock
or any security convertible into shares of its capital stock, or redeem,
purchase or otherwise acquire any shares of its capital stock, or declare any
dividends or make any other distribution in respect of its capital stock; (iii)
voluntarily incur or assume, whether directly or by way of guarantee or
otherwise, any material obligation or liability; (iv) mortgage, pledge or
encumber any material part of its properties or assets, tangible or intangible;
(v) sell or transfer any material part of its assets, property or rights, or
cancel any material debts or claims; (vi) amend or terminate any Company
Contract or any Company Material Permit to which it is a party; (vii) adopt any
employee benefit plan; (viii) make any changes in the accounting methods,
principles or practices employed by it, except as required by generally accepted
accounting principles; (ix) make any capital expenditure or enter into any
commitment therefor; (x) incur any debt or make any borrowings, or enter into
any commitment therefor; or (xi) enter into any other agreement, course of
action or transaction material to the Company.
(b) Except as may be otherwise contemplated by this Agreement or
required by any of the documents listed in the Disclosure Schedule or except as
Seller may otherwise consent to in writing (which consent shall not be
unreasonably withheld), between the date hereof and the Closing Date, the Buyer
will continue to conduct its business in the ordinary course as conducted on the
date hereof and will not engage in or permit any transactions outside the
ordinary course. The parties hereby agree that transactions outside the ordinary
course include for the purposes of this paragraph 5.1(b), without limitation,
any business combination transaction, the offer or sale of any debt or equity
securities or rights or options to acquire such securities, the sale of any
assets, the modification of any material agreement or the execution of any
material agreement, commitment, agreement in principal or letter of intent, the
incurrence of any material liability, agreeing to any compensation for any
executive officer or employee, any distributions with respect to any capital
stock, the grant or issuance of any option, warrant or other derivative
security, and the amendment, termination of or default under any material
agreements or contracts. Except as set forth in the Disclosure Schedule, Buyer
will not (i) make any change in its Certificate of Incorporation, By-Laws or
similar charter documents; (ii) make any change in its issued or outstanding
capital stock, or issue any warrant, option or other right to purchase shares of
its capital stock or any security convertible into shares of its capital stock,
or redeem, purchase or otherwise acquire any shares of its capital stock, or
declare any dividends or make any other distribution in respect of its capital
stock; (iii) voluntarily incur or assume, whether
22
directly or by way of guarantee or otherwise, any material obligation or
liability; (iv) mortgage, pledge or encumber any material part of its properties
or assets, tangible or intangible; (v) sell or transfer any material part of its
assets, property or rights, or cancel any material debts or claims; (vi) amend
or terminate any Buyer Contract or any Buyer Material Permit to which it is a
party; (vii) adopt any employee benefit plan; (viii) make any changes in the
accounting methods, principles or practices employed by it, except as required
by generally accepted accounting principles; (ix) make any capital expenditure
or enter into any commitment therefor; (x) incur any debt or make any
borrowings, or enter into any commitment therefor; or (xi) enter into any other
agreement, course of action or transaction material to the Buyer.
5.2 Restrictions on Seller. Between the date hereof and the Closing
Date, Seller will not offer or sell any of the Company Shares or rights or
options to acquire the Company Shares or enter into any agreement, commitment,
agreement in principal or letter of intent with respect to the Company Shares or
grant or issue any option, warrant or derivative security with respect to the
Company Shares or otherwise take any steps which are reasonably likely to impair
Seller's ability or capacity to consummate this Agreement.
5.3 Undertakings. Seller, Company, and Buyer will use their best
efforts, and will cooperate with one another, to secure all necessary consents,
approvals, authorizations and exemptions from governmental agencies and other
third parties, and to obtain the satisfaction of the conditions specified in
Articles VI and VII, as shall be required in order to enable Seller and Buyer to
effect the transactions contemplated hereby in accordance with the terms and
conditions hereof.
5.4 Access. Between the date hereof and the Closing Date:
(a) Subject to the execution of reasonable and customary
confidentiality agreements, the Company will cause its
officers, directors, employees, accountants, engineers,
investment bankers, legal counsel and all other
representatives and agents (the "Company Representatives") to
provide full and free access to the books, contracts, assets,
records, seismic studies, geological and geophysical
information relating to the Exploration Block, businesses and
representatives of the Company as the Buyer may request in
connection with Buyer's review and investigation of the
Company. The Company and the Company Representatives will
cooperate fully with Buyer and Buyer's representatives in
completing Buyer's due diligence of the Company.
(b) Buyer will cause its officers, directors, employees,
accountants, engineers, investment bankers, legal counsel and
all other representatives and agents (the "Buyer's
Representatives") to provide full and free access to the
books, contracts, assets, records, business and
representatives of the Buyer as the Seller may request in
connection with Seller's review and investigation of the
Buyer. The
23
Buyer and the Buyer's Representatives will cooperate fully
with Seller and Seller's representatives in completing
Seller's due diligence of the Buyer.
5.5 Directors and Officers of Buyer and the Company. Concurrently with
the Closing, the following persons shall be the Directors and officers of the
Buyer and the Company:
Xxxx Xxxx Xxx - President, Director, and Chairman of the Board
Xxxxxxx X. Xxxxxx - Interim CEO
Xxxxx X. Xxxx - Executive VP and CFO and Director
Xxxx Xxxxxxxx - Director
Xxxxx Xxxxxx - Director
Xxxxx Xxxxx - Corporate Secretary
5.6 Grant of Options Under 1998 Stock Incentive Plan. Concurrently with
the Closing, options will be granted by the Buyer's Board of Directors under the
Buyer's 1998 Stock Incentive Plan to purchase an aggregate of 2.0 million shares
of Common Stock at an exercise price of not less than (U.S.) $1.00 per share to
the persons and in the amounts appearing on the Option Grant Schedule attached
hereto as Exhibit IX.
5.7 Seller Consulting Agreement. Concurrently with the Closing, Seller
will enter into a three-year consulting agreement with the Buyer at a salary of
(U.S.) $250,000 per year and will provide that Seller will bring other
opportunities to the Buyer during the course of Seller's employment. Exhibit X
hereto is the form of such agreement.
5.8 Confidentiality. Each of the parties hereto, including all Company
Representatives and Buyer's Representatives employed by them, hereby undertake
and agree to retain in confidence, and to require its employees, consultants,
professional representatives, and agents to retain in confidence, all such
confidential information transmitted to it by the other party, and each party
will not use or disclose to others, or permit the use or disclosure of, any such
confidential information obtained from or revealed by the other party. In the
event that either party terminates this Agreement as herein provided, each party
shall forthwith deliver to the other (without retaining copies thereof) any and
all documents or other written information (whether in paper or electronic form)
obtained from the other in connection with this letter.
5.9 Exclusivity. Buyer shall have the exclusive right through the close
of business on 120 days from the date of submission of the application for
consent under Article 28 of the PSC-KG (or such later date as the term of this
Agreement may be extended by the parties hereto in writing) to consummate the
transactions contemplated herein, and during such exclusive period, neither
Seller, the Company nor any of their authorized representatives will solicit or
accept any other offer to purchase any of the capital stock or all or any
significant part of the assets of the Company or any similar transaction nor
hold discussions or negotiations with, or provide any information to, any other
individual or corporation, partnership or other entity concerning such purchase
(other than such discussions which are in furtherance of the transactions
contemplated herein).
24
5.10. Conduct of Business Subsequent to Closing Date. The business of
the Company subsequent to the Closing Date shall be conducted substantially as
described in the Business Plan (the "Business Plan") attached hereto as Exhibit
VII.
ARTICLE VI. CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer to consummate the transactions contemplated
hereby shall be subject to the satisfaction on or prior to the Closing Date of
all of the following conditions, except such conditions as Buyer may waive:
6.1 Representations, Warranties and Covenants of Seller. Seller and the
Company shall have complied in all material respects with all of their
agreements and covenants contained herein required to be complied with at or
prior to the Closing Date, and all the representations and warranties of Seller
and the Company, as applicable to each of them, contained herein shall be true
on and as of the Closing Date with the same effect as though made on and as of
the Closing Date, except as otherwise contemplated hereby, and except to the
extent that such representations and warranties expressly make reference to a
specified date and as to such representations and warranties the same shall
continue on the Closing Date to have been true as of the specified date. Buyer
shall have received a certificate executed by or on behalf of Seller and the
Company, and dated as of the Closing Date, certifying as to the fulfillment of
the conditions set forth in this Section 6.1.
6.2 Further Action. All action (including notifications and filings)
that shall be required to be taken by Seller and the Company in order to
consummate the transactions contemplated hereby shall have been taken and all
consents, approvals, authorizations and exemptions from third parties that shall
be required in order to enable Seller and the Company to consummate the
transactions contemplated hereby shall have been duly obtained (except for such
actions, consents, approvals, authorizations and exemptions, the absence of
which would not prohibit consummation of such transactions or render such
consummation illegal), and, as of the Closing Date, the transactions
contemplated hereby shall not violate any applicable law or governmental
regulation.
6.3 No Governmental or Other Proceeding. No order of any court or
governmental or regulatory authority or body which restrains or prohibits the
transactions contemplated hereby shall be in effect on the Closing Date and no
suit or investigation by any government agency to enjoin the transactions
contemplated hereby or seek damages or other relief as a result thereof shall be
pending or threatened as of the Closing Date.
6.4 Opinion of Sellers' Counsel. Buyer shall have received the opinion
of counsel to the Seller and the Company substantially in the form of Exhibit
II. In expressing such opinions, such counsel may rely (i) as to factual matters
upon the representations and warranties of the Seller and the Company contained
in this Agreement and upon certificates or other documents furnished by Seller
and the Company, by the officers and
25
directors of the Company or by governmental officials and (ii) upon such other
documents (including opinions of local counsel) and information as such counsel
deem appropriate and reasonable as a basis for such opinion.
6.5 Delivery of Company Shares. Buyer shall have received delivery of
the Company Shares.
6.6 Resignations. Buyer shall have received (a) the resignations of
Xxxxxxxx X. Xxxxxxxxx and Xxxxxxx X. Loblaw as Directors and officers of the
Buyer and i5ive, and Buyer shall have accepted those resignations, and their
release of the Buyer from all claims and liabilities, and (b) from Xxxx X.
Xxxxxxxx and Xxxxx X. Xxxxxx, their release of Buyer from all claims and
liabilities.
6.7 Certificates. Buyer shall have received:
(a) Copies of the Certificate of Incorporation and all amendments
thereto of the Company as certified by the office of Registrar
of Corporations of the Province of Alberta,
(b) A certificate from the Registrar of Corporations of the
Province of Alberta as to the good standing of the Company in
the Province of Alberta, the province of its incorporation,
(c) Certificates of the President and the Secretary of the Company
dated the date of the Closing, in form and substance
satisfactory to Buyer, certifying as to the fulfillment of the
matters mentioned in Articles 6.1, 6.2 and 6.3 hereof, the
adoption of Directors' resolutions relating to this Agreement
and the related transactions and attesting to true and correct
copies of the By-laws of the Seller, a copy of which shall be
attached, and
(d) Such other certificates of the Seller as to his capacity and
fulfillment of the covenants, agreements, representations and
warranties of the Seller and the Company contained in this
Agreement as the Buyer may reasonably request.
6.8 Escrow Agreement. Buyer, Seller and Computershare Trust Company of
Canada, as escrow agent (the "Escrow Agent") shall have executed and delivered
an Escrow Agreement (the "Escrow Agreement") and completed the deliveries called
for by the Escrow Agreement.
6.9 Sale of i5ive Capital Stock. The outstanding capital stock of i5ive
Communications Inc, a corporation organized under the laws of British Columbia
("i5ive") and a wholly owned subsidiary corporation of Buyer shall have been
sold by Buyer to Creative Marketeam, Canada Ltd., a corporation organized under
the laws of British Columbia ("Marketeam").
6.10 Exercise and Cancellation of Outstanding Stock Options. The
outstanding options granted under the Buyer's 1998 Stock Incentive Plan shall
have been exercised and cancelled as provided in the Omnibus Agreement and
Release between the Buyer and each of Xxxxxxxx X. Xxxxxxxx, Xxxx Xxxxxxxx,
Xxxxxxx X. Loblaw, Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx attached hereto as
Exhibits VI-1 through 5.
26
6.11 Xxx Group Participating Interest Agreement. Xxx Group shall grant
to the Company, pursuant to the terms of the Participating Interest Agreement
attached hereto as Exhibit VII, a right of first refusal to acquire the 5%
carried interest held by Xxx Group which right shall extend for the term of the
Exploration Period under the PSC-KG.
ARTICLE VII. CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate the transactions contemplated
hereby shall be subject to the satisfaction on or prior to the Closing Date of
all of the following conditions, except such conditions as Seller may waive:
7.1 Representations, Warranties and Covenants of Buyer. Buyer shall
have complied in all material respects with all of its agreements and covenants
contained herein required to be complied with at or prior to the Closing Date,
and of the representations and warranties of Buyer contained herein shall be
true in all material respects on and as of the Closing Date with the same effect
as though made on and as of the Closing Date, except as otherwise contemplated
hereby, and except to the extent that such representations and warranties
expressly make reference to a specified date and as to such representations and
warranties the same shall continue on the Closing Date to have been true as of
the specified date. Sellers shall have received a certificate of Buyer, dated as
of the Closing Date and signed by an officer of Buyer, certifying as to the
fulfillment of the condition set forth in this Section 7.1.
7.2. Further Action. All action (including notifications and filings)
that shall be required to be taken by Buyer in order to consummate the
transactions contemplated hereby shall have been taken and all consents,
approvals, authorizations and exemptions from third parties that shall be
required in order to enable Seller to consummate the transactions contemplated
hereby shall have been duly obtained (except for such actions, consents,
approvals, authorizations and exemptions, the absence of which would not
prohibit consummation of such transactions or render such consummation illegal),
and, as of the Closing Date, the transactions contemplated hereby shall not
violate any applicable law or governmental regulation.
7.3 No Governmental or Other Proceeding. No order of any court or
governmental or regulatory authority or body which restrains or prohibits the
transactions contemplated hereby shall be in effect on the Closing Date and no
suit or investigation by any government agency to enjoin the transactions
contemplated hereby or seek damages or other relief as a result thereof shall be
pending or threatened in writing as of the Closing Date.
7.4 Opinion of Buyer's Counsel. Sellers shall have received the
opinions of counsel to Buyer, dated the Closing Date, substantially in the forms
of Exhibits III-a and III-b. In expressing such opinions, such counsel may rely
(i) as to factual matters upon the representations and warranties of Buyer
contained in this Agreement and upon
27
certificates or other documents furnished by Buyer, by the officers and
directors of Buyer or by governmental officials and (ii) upon such other
documents and information as such counsel deem appropriate and reasonable as a
basis for such opinions.
7.5 Delivery of Purchase Price. Seller and the Escrow Agent shall have
received delivery of the Purchase Price.
7.6 Resignations. Buyer shall have received the resignations of
Xxxxxxxx X. Xxxxxxxx and Xxxxxxx X. Loblaw as Directors and officers of Buyer,
and Buyer shall have accepted those resignations, and their release of the Buyer
from all claims and liabilities.
7.7 Certificates. Seller shall have received:
(a) Copies of the Buyer's Certificate of Incorporation and all
amendments thereto as certified by the office of the Secretary
of State of the State of Delaware,
(b) A certificate from the Secretary of State of the State of
Delaware as to the good standing of the Buyer in the State of
Delaware, the state of its incorporation, and
(c) Certificates of the President and the Secretary of the Buyer
dated the date of the Closing, in form and substance
satisfactory to Seller, certifying as to the fulfillment of
the matters mentioned in Articles 7.1, 7.2 and 7.3 hereof, the
adoption of Directors' resolutions relating to this Agreement
and the related transactions and attesting to true and correct
copies of the By-laws of the Buyer, a copy of which shall be
attached.
7.8 Escrow Agreement. Buyer, Seller and the Escrow Agent shall have
executed and delivered the Escrow Agreement and completed the deliveries called
for by the Escrow Agreement.
7.9 Sale of i5ive Capital Stock; Transfer of Cash.
(a) The outstanding capital stock of i5ive shall have been sold by
Buyer to Marketeam.
(b) The Cash shall have been deposited in a bank account at
Canadian Western Bank, Calgary, Alberta, Canada, in accordance
with the Memorandum of Flow of Funds attached hereto as
Exhibit V-2.
7.10 Exercise and Cancellation of Outstanding Stock Options. The
outstanding options granted under the Buyer's 1998 Stock Incentive Plan shall
have been exercised and cancelled as provided in the Omnibus Agreement and
Release between the Buyer and each of Xxxxxxxx X. Xxxxxxxx, Xxxx Xxxxxxxx,
Xxxxxxx X. Loblaw, Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx attached hereto as
Exhibits VI-1 through 5.
28
ARTICLE VIII. ADDITIONAL COVENANTS OF THE PARTIES
8.1 Seller's Covenants. Seller covenants and agrees as follows:
(a) Each certificate representing the Buyer's Shares shall be
stamped or otherwise imprinted on its face with a legend in
the following form:
"The Shares represented by this certificate have not
been registered under the US Securities Act of 1933.
The Shares have been acquired for investment and may
not be sold, transferred or otherwise disposed of
except in compliance with such Act. In addition, the
shares represented by this certificate are subject
to a Stock Purchase Agreement dated as of April 3,
2003, a copy of which is on file at the office of
the Secretary of the Company, the provisions of
which the holder hereof, by acceptance hereof,
agrees to be bound."
(b) After the Closing and during the term of the PSC-KG, Seller
and the Company, and each of them, agree to use their best
efforts to negotiate the acquisition by the Company or Buyer
of an additional interest in the PSC-KG from both Gujarat
State Petroleum Corporation Limited and Jubilant Enpro
Limited.
8.2 Seller's and Company's Covenants. Seller and the Company, as well
as the Buyer, agree that during the period commencing on the Closing Date until
the earlier of (i) the date Commercial Production occurs under the PSC-KG, or
(ii) the termination of the PSC-KG as provided in Article 3.9 thereof, none of
them shall take any actions (the "Prohibited Actions") that will have the effect
of in any way amending, altering, accelerating or delaying the provisions
relating to the release and delivery to Seller or return to Buyer of Buyer's
Shares from the escrow provided for in Articles 1.3 (b), (c) or (d) of this
Agreement or as provided in Article II of the Escrow Agreement which actions are
materially adverse to the interests of those shares of stock of the Buyer that
are outstanding immediately prior to the Closing Date, including such shares as
may be held by transferees of such shares who acquire their shares on or after
the Closing Date. The Prohibited Actions shall include, without limitation, the
following:
(a) as to the Company, by entering into any written or oral amendment
of, or giving, seeking or agreeing to any waiver, consent or other
accommodation, formally or informally, written or oral, including by any failure
to take any action, under this Agreement, the Escrow Agreement or the PSC-KG,
provided, however, the PSC-KG shall not be subject to this Article 8.2 and
Prohibited Actions shall not relate to the PSC-KG at any time after one year
after the Closing Date, and
(b) as to the Seller, in his capacity as a stockholder, of the Buyer,
by proposing, seeking approval for, voting in favor of, consenting with respect
to or failing to take action to enforce the terms of this Agreement, the Escrow
Agreement or the PSC-KG, provided, however the PSC-KG shall not be subject to
this Article 8.2 and Prohibited Actions shall not relate to the PSC-KG at any
time after one year after the Closing Date.
29
(i) Notwithstanding any provision of this Article 8.2 of this
Agreement, a Prohibited Action may be taken by the Buyer, the Seller or
the Company upon receiving the favorable vote of the holders of a
majority of the shares of Common Stock of the Buyer outstanding prior
to the Closing Date at a meeting of stockholders of the Buyer called
for the purpose (herein referred to as the "Disinterested
Stockholders"). At such meeting, the Seller agrees, for himself and any
transferee of those shares, that he will cause the Buyer's Shares to be
present for purposes of enabling Buyer to obtain a quorum for
conducting the meeting. Subject to the exceptions of Article 8.2(ii),
none of such Buyer's Shares issued to Seller on the Closing Date
(inclusive of Buyer's shares held in escrow) and no shares of Buyer
otherwise acquired, directly or indirectly, by Seller or his Affiliates
or associates subsequent to the Closing Date outside of this Agreement
shall be entitled to vote on the subject matter of the proposal at such
meeting of stockholders. The proposal to take such Prohibited Action
shall be deemed approved if it receives the favorable vote of the
majority of the shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter of the proposal
presented to the meeting.
(ii) With respect to the 14.5 million shares issued to Seller
in accordance with Article 1.3(a) hereof, any such shares as are
transferred by Seller after the Closing pursuant to the provisions of
Rule 144 adopted under the '33 Act may be transferred free of any
restrictions imposed by the provisions of this Article 8.2. As to any
other transfers of any shares issued to Seller under Article 1.3(a),
(b) or (c), such transfer shall be conditioned upon the transferee's
agreeing to be bound by the provisions of this Agreement, and in
particular, this Article.
(d) Buyer, Seller, and the Company agree that none of them shall take
any actions, directly or indirectly, including the amendment of Buyer's or the
Company's Certificate of Incorporation or By-Laws, transfers of Buyer Shares, or
entering into any agreement or amendment, written or oral, that will or is
likely to adversely affect or prevent the enforcement thereafter of the
provisions of this Article 8.2. Subject to Article 8.2(b)(ii), Seller agrees to
take such steps as are necessary to cause any transferee of his shares to agree
to the provisions of this Article 8.2.
(e) The By-Laws of the Buyer shall be amended at or before the Closing
Date to contain the foregoing provisions to be in effect for the period of time
the provisions of this Article 8.2 remain in effect, and which By-Law provisions
shall only be amended after their adoption by a favorable vote of the
Disinterested Stockholders of the Buyer.
8.3 Buyer's Covenants. The Buyer covenants and agrees as follows:
(a) Buyer will submit to its stockholders a proposal, to be voted upon
at its next annual meeting of stockholders following the Closing or at such
other meeting as its Directors may determine, to Amend its Certificate of
Incorporation to change its corporate name to GeoGlobal Resources Inc. or such
other name as the Board may select.
30
(b) Subject to the approval in each instance of the Board of Directors
of Buyer, at or following the Closing, Buyer will seek to raise additional
capital in accordance with the following:
(x) with the intention to issue no more than 4.0 million
shares in a private placement, seek to raise not less than (U.S.) $4.0
million at a price per share of not less than (U.S.) $1.00 per share,
and
(y) with the intention to issue no more than 10.0 million
shares in a brokered private placement, seek to raise not less than
(U.S.) $25.0 million (intending to coincide with the completion of
seismic acquisition and interpretation under Sections 5.2 (a) and (b)
of the PSC-KG and prior to commencement of exploratory drilling).
ARTICLE IX. TERMINATION PRIOR TO CLOSING
9.1 Termination of Agreement. This Agreement may be terminated at any
time prior to the Closing:
(a) By the mutual written consent of Buyer and the Seller; or
(b) By the Buyer or Seller in writing addressed to the
non-terminating party if the Closing shall not have occurred on or
before 120 days from the date of submission of the application for
consent under Article 28 of the PSC-KG or such other date to which the
Agreement has been extended pursuant to Section 1.2;
(c) By either party, against the other, if one or the other,
as the case may be, shall (x) fail to perform in any material respect
its agreements contained herein required to be performed prior to the
Closing Date, or (y) is in material breach of any of its
representations, warranties, covenants or agreements contained herein,
which failure or breach is not cured within (five) days after the party
seeking to terminate has notified the other party of its intent to
terminate this Agreement pursuant to this clause.
9.2 Termination of Obligations. Termination of this Agreement pursuant
to this Article IX shall terminate all obligations of the parties hereunder,
except for the obligations under Section 5.8; provided, however, that
termination pursuant to clause (b) or (c) of Section 9.1 shall not relieve the
defaulting or breaching party from any liability to the other party hereto
resulting from its willful breach of this Agreement.
ARTICLE X. MISCELLANEOUS
10.1 Entire Agreement. This Agreement (including the Disclosure
Schedule) constitutes the sole understanding of the parties with respect to the
subject matter hereof. No amendment, modification or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto.
31
10.2 Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors of
the parties hereto; provided, however, that this Agreement may not be assigned
by any party without the prior written consent of the other party hereto. If
this Agreement is assigned with such consent, the terms and conditions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective assigns; provided, however, that no assignment of this
Agreement or any of the rights or obligations hereof shall relieve any party of
its obligations under this Agreement. With the exception of the parties to this
Agreement, (except as set forth in Section 8.2) there shall exist no right of
any person to claim a beneficial interest in this Agreement or any rights
occurring by virtue of this Agreement.
10.3 Survival of Representations and Warranties. All representations,
warranties, covenants and agreements of the parties hereto made in this
Agreement, the Disclosure Schedule or in any certificate or document delivered
by it or him pursuant hereto, shall survive the execution and delivery hereof
and Closing hereunder.
10.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
10.5 Headings. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
10.6 No Waiver. No action taken pursuant to this Agreement, including
any investigation by or on behalf of any party hereto, will be deemed to
constitute a waiver by the party taking any action of compliance with any
representation, warranty or agreement contained herein. The waiver by any party
hereto of any condition or of a breach of any other provision of this Agreement
will not operate or be construed as a waiver of any other condition or
subsequent breach. The waiver by any party of any of the conditions precedent to
its obligations under the Agreement will not preclude it from seeking redress
for breech of this Agreement other than with respect to the condition so waived.
No waiver of any provision of this Agreement shall be given in violation of
Section 8.2 hereof.
10.7 Expenses. Seller and Buyer shall each pay all costs and expenses
incurred by it or on its behalf in connection with this Agreement and the
transactions contemplated hereby, including, without limiting the generality of
the foregoing, fees and expenses of its own financial consultants, accountants
and counsel.
10.8 Notices. Any notice, request, instruction or other document (each,
a "notice") to be given hereunder by any party hereto to any other party hereto
shall be in writing and delivered personally or sent by registered or certified
mail, postage prepaid,
32
if to Buyer to: Xxxxx000.xxx, Inc.
000 Xxx Xxxxxx - Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxxx Xxxxxx
with a copy to: Xxxxxxx X. Xxxxxx, P.A.
000 X. Xxxxxxxx Xxxxxx - Xxxxx 000
Xxxxxxxxx, XX 00000
if to Seller to: Xxxx Xxxx Xxx
0X Xxxxx 0-00 Xxxx 0 Xxx Xxxxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxxx
with a copy to: Xxxxxxx X. Xxxxxx, Lawyer
000, 000 0xx Xxxxxx, XX
Xxxxxxx, Xxxxxxx X0X OJ9
if to Company to: GeoGlobal Resources (India), Inc.
000, 000 0xx Xxxxxx, XX
Xxxxxxx, Xxxxxxx X0X OJ9
with a copy to: Xxxxxxx X. Xxxxxx, Lawyer
000, 000 0xx Xxxxxx, XX
Xxxxxxx, Xxxxxxx X0X OJ9
10.9 Further Assurances. From and after the Closing Date, each party,
at the request of the other party and at the requesting party's expense, will
each take all such action and deliver all such documents as shall be reasonably
necessary or appropriate to confirm and vest title to the Shares in Buyer and
otherwise enable Buyer and Seller to enjoy the respective benefits contemplated
by this Agreement, provided, however, in no event shall such action or document
amend any of the material terms of this Agreement.
10.10 Governing Law. The validity, performance and enforcement of this
Agreement and any agreement entered into pursuant hereto, unless expressly
provided to the contrary, will be governed by the Laws of the State of Delaware,
without giving effect to the principles of conflicts of law thereof.
10.11 Public Announcements. Seller and Buyer shall consult with each
other before issuing any press releases or otherwise making any public
statements with respect to this Agreement and the transactions contemplated
hereby and shall not issue any such press release or make any public statement
prior to such consultation, provided, however, (a) approval of any such press
release or other public disclosure shall not be unreasonably withheld, and (b)
if any party is advised by legal counsel that disclosure is required by law,
such party may make such disclosure without approval of the other party provided
33
the disclosing party has first provided such other party with prior written
notice of such disclosure and a copy of the material to be disclosed..
10.12 Specific Performance. Buyer on the one hand, and Seller, on the
other hand, each acknowledges that the other will be irreparably harmed and that
there will be no adequate remedy at law in the event of a violation by it of any
of its covenants or agreements which are contained in this Agreement. It is
accordingly agreed that, in addition to any other remedies which may be
available upon the breach of such covenants and agreements, Seller or Buyer, as
the case may be, shall have the right to obtain injunctive relief to restrain
any breach or threatened breach of, or otherwise to obtain specific performance
of, the other's covenants or agreements contained in this Agreement.
10.13 Additional Definitions. Terms used in this Agreement that are not
otherwise defined herein shall have the following definitions:
"Affiliate" means with respect to any person, any other person
that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such
person.
"Disclosure Schedule" means the Disclosure Schedule attached
to this Agreement.
"1933 Act" means the U.S. Securities Act of 1933, as amended.
"1934 Act" means the U.S. Securities Exchange Act of 1934, as
amended.
Terms used in this Agreement as defined terms that are not otherwise
defined herein and are defined in the PSC-KG shall be defined as used in the
PSC-KG.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date first above written.
SUITE 000.XXX, INC., BUYER
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx,
Chief Financial Officer
/s/ Xxxx Xxxx Xxx
-------------------------------------
Xxxx Xxxx Xxx,
Seller
GEOGLOBAL RESOURCES (INDIA) INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx,
Vice President
34
EXHIBIT I
XXXXX000.XXX, INC.
$2,000,000 PROMISSORY NOTE
$2,000,000 ________, 2003
Xxxxx000.xxx, Inc., a Delaware corporation (the "Company") hereby
promises to pay to Xxxx Xxxx Xxx (the "Payee"), the principal amount of
$2,000,000 in three installments of principal as herein provided. The sum of
$1,000,000 shall be paid on the Closing under a Stock Purchase Agreement dated
April [___], 2003 among the Company, the Payee and GeoGlobal Resources (India)
Inc. (the "Stock Purchase Agreement") but not before March 31, 2003, the sum of
$500,000 shall be paid on June 30, 2003 and the sum of $500,000 shall be paid on
June 30, 2004. No interest shall accrue or be payable at any time on the
outstanding principal of this Note. All dollar amounts referred to herein are
denominated in United States dollars.
The principal amount of this Note is pre-payable, without premium or
penalty, at the option of the Company, at any time and from time to time, in
whole or in part.
All payments (including pre-payments) by the Company on account of
principal on this Note shall be made in cash or by certified or official bank
cashier's check at the following address:
Xxxx Xxxx Xxx
c/o Xxxxxxx X. Xxxxxx, Lawyer
-----------------------------
200, 000 Xxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx, Xxxxxx X0X OJ9
This Note is issued pursuant to, and is subject to the provisions and
is entitled to the benefits of, the Stock Purchase Agreement.
If any of the following events ("Default") shall occur and be
continuing for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary, come about, or be effected by operation of law or
otherwise):
(a) if the Company defaults in the payment of any installment of the
principal on this Note when it becomes due and payable; or
(b) if the Company makes an assignment for the benefit of creditors; or
(c) if an order, judgment, or decree is entered adjudicating the
Company bankrupt or insolvent; or
35
(d) if the Company petitions or applies to any tribunal for the
appointment of a trustee, receiver, or liquidator of the Company, or commences
any proceedings relating to the Company under any bankruptcy, re-organization,
insolvency, dissolution, or liquidation law of any jurisdiction, whether now or
hereafter in effect; or
(e) if an order, judgment or decree is entered appointing any such
trustee, receiver, or liquidator, or approving the petition in any such
proceedings; or
(f) if any order, judgment, or decree is entered in any proceedings
against the Company decreeing the dissolution of the;
then all monies owing under this Note shall accelerate and this Note is due and
payable in full.
The Company waives presentment and notice of dishonor.
This Note is payable only to the Payee, is not assignable or
transferable (other than by the Payee's last will or, in default thereof, by
operation of law), is non-negotiable and may not be pledged as collateral for
any debts.
This Note is secured by the shares of GeoGlobal owned by the Company
which were acquired under the Stock Purchase Agreement and in the event of
default under this Note the Company will forthwith deliver to the payee at the
aforesaid address duly endorsed certificates representing all the shares of
GeoGlobal.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by
officers of the Company, duly authorized by a resolution of the Company's
directors.
XXXXX000.XXX, INC.
By
-------------------------------
Xxxxxxxx X. Xxxxxxxx, President
ATTEST:
-----------------------------
Xxxxx Xxxxxx, Secretary
36
EXHIBIT II
DRAFT April___, 2003
Xxxxx000.xxx, Inc.
000 Xxx Xxxxxx - Xxxxx 000
Xxxxxxx, Xxxxxxx, X0X 0X0
Xxxxxx
Attn: Xx. Xxxxx Xxxxxx
RE: STOCK PURCHASE AGREEMENT (THE "AGREEMENT") BY AND
AMONG XXXXX000.XXX, INC., A DELAWARE CORPORATION
("BUYER"), XXXX XXXX XXX, AN INDIVIDUAL ("SELLER") AND
GEOGLOBAL RESOURCES (INDIA) INC., INCORPORATED UNDER
THE LAWS OF THE PROVINCE OF ALBERTA (THE "COMPANY")
DATED APRIL __, 2003
Dear Xx. Xxxxxx:
I have acted as counsel on behalf of Seller and the Company in
connection with the preparation, execution and delivery of the Agreement. This
opinion is being furnished pursuant to Section 6.4 of the Agreement. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Agreement.
In connection herewith, I have examined the following documents:
(i) A counterpart of the Agreement, executed by the parties
thereto;
(ii) A counterpart of the Escrow Agreement (herein collectively
referred to with the Agreement, as the "Transaction Documents");
(iii) The documents furnished by the Seller pursuant to Sections 6.1
and 6.7 of the Agreement;
37
(iv) The Certificate of Incorporation and By-Laws of the Company as
amended through the date hereof;
(v) A Certificate of Status issued by the Registrar of Corporations
for the Province of Alberta, dated ____________, 2003, attesting to the
continued corporate existence and good standing of the Company in that
Province;
(vi) Copies of the PSC-KG, the CIA and the Participating Interest
Agreement;
(vii) Opinion of Xxxxxxx Xxxxx, Solicitor in India, attached hereto;
(viii) Consent of the Government of India;
(ix) Representations from Xxxx Xxxx Xxx and Xxxxx X. Xxxx, attached;
and
(x) The Minute Book of the Company
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records or documents, as I have deemed
necessary as a basis for the opinions expressed below. In my examination of the
documents referred to above, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity to the original of documents submitted to me as certified or
photostatic copies. I have assumed the due execution and delivery, pursuant to
due authorization, of the Transaction Documents by the Buyer.
Based upon the foregoing, and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. Organization, Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the province of its incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as it is now being conducted. The Company carries on business in Canada and
India and I am advised by the officers of the Company that it carries on
business in no others jurisdictions. Based on the above-noted opinion of Xx.
Xxxxx, the Company is licensed and qualified to do business as a foreign
corporation in India in which the character of the Company's properties, owned
or leased, or the nature of its activities makes such qualification or license
necessary. The Company has taken steps to continue to Barbados but, as at this
date, it is still incorporated in Alberta.
2. Authority; No Defaults. The Company has all requisite corporate
power and authority to enter into the Transaction Documents and to consummate
the transactions contemplated thereby. The execution and delivery of the
Transaction
38
Documents and the consummation of the transactions contemplated thereby have
been duly authorized by all necessary corporate action on the part of the
Company. The Transaction Documents have been executed and delivered by the
Seller and the Company and constitute the valid and binding obligation of the
Seller and the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, moratorium and other similar laws affecting creditors'
rights generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The execution
and delivery of the Transaction Documents do not, and the consummation of the
transactions contemplated thereby will not, conflict with or result in a breach
of or the acceleration of any obligation under, or constitute a default or event
of default (or event which, with notice or lapse of time or both, would
constitute a default or event of default) under, any provision of any charter or
bylaws of the Company. To the best of the knowledge of the undersigned, the
Company is not in material violation or default of any applicable law, statute,
order, rule or regulation promulgated or judgment entered by any court,
administrative agency or commission or other governmental agency or
instrumentality, domestic or foreign (a "Governmental Entity"), relating to or
affecting the operation, conduct or ownership of the property or business of the
Company.
3. Approvals. There is no legal impediment to the execution and
delivery of the Transaction Documents by the Seller or the Company or to the
consummation of the transactions contemplated thereby, and no filing or
registration with, or authorization, consent or approval of, a Governmental
Entity, shareholders or any other third party is necessary for the consummation
by the Seller or the Company of the transactions contemplated thereby; however,
I express no opinion as to the sufficiency in Indian law of the Consents
obtained from the Government of India.
4. Capitalization. The Company's authorized capital stock consists of
an unlimited number of common shares, of which, as of the date hereof, there are
1,000 shares issued and outstanding and an unlimited number of preferred shares
of which none are issued. All of the issued and outstanding common shares were
duly and validly issued and are fully paid and non-assessable. None of the
outstanding common shares has been issued in violation of any preemptive rights
of the current or past stockholders of the Company.
5. Certain Agreements. The execution and delivery of each of the
PSC-KG, the CIA and the Participating Interest Agreement and the consummation of
the transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of the Company.
The opinions set forth are qualified as follows:
(i) The enforceability of the rights and remedies provided in any
of the Transaction Documents against any particular party or parties is
subject to applicable federal and provincial bankruptcy,
reorganization,
39
insolvency, moratorium and other similar laws of general application
relating to or affecting the enforcement of creditors' rights from time
to time in effect;
(ii) The availability of the remedy of specific performance,
injunctive relief, other equitable relief and "self help" lender's
remedies, as contemplated by or provided for in the Transaction
Documents, is subject to the discretion of the court (whether sitting
in law or in equity) before which any proceedings therefor may be
brought; and
(iii) Applicable provincial and federal laws, court decisions and
constitutional requirements may limit or render unenforceable certain
of the remedies purportedly available to the Buyer under the
Transaction Documents.
I am authorized to practise law in the Province of Alberta and express
no opinion other than relating to the laws of the jurisdiction of Alberta and
the laws of Canada applicable thereto.
This opinion is rendered solely for your benefit and no other person or
entity shall be entitled to rely on any matters set forth herein, nor shall any
portion or all of this opinion be quoted or in any way published, without the
express prior written consent of the undersigned. This opinion is limited to the
matters set forth herein, and no opinion is intended to be implied or may be
inferred beyond those expressly stated herein.
Very truly yours,
-----------------------------------
40
EXHIBIT III-A
April [___], 2003
Xx. Xxxx Xxxx Xxx
000, 000 Xxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx X0X OJ9
RE: STOCK PURCHASE AGREEMENT (THE "AGREEMENT") BY AND
AMONG XXXXX000.XXX, INC., A DELAWARE CORPORATION
("BUYER"), XXXX XXXX XXX, AN INDIVIDUAL ("SELLER") AND
GEOGLOBAL RESOURCES (INDIA) INC., INCORPORATED UNDER
THE LAWS OF THE PROVINCE OF ALBERTA (THE "COMPANY")
Dear Xx. Xxx:
I have acted as counsel on behalf of Buyer in connection with the
preparation, execution and delivery of the Agreement. This opinion is being
furnished pursuant to Section 7.4 of the Agreement. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Agreement.
In connection herewith, I have examined the following documents:
(i) A counterpart of the Agreement, executed by the parties
thereto;
(ii) A counterpart of the Note and the Escrow Agreement (herein
collectively referred to with the Agreement, as the "Transaction
Documents");
(iii) The documents furnished by the Buyer pursuant to Sections 7.1
and 7.7 of the Agreement;
(iv) The Certificate of Incorporation and By-Laws of Buyer as
amended through the date hereof; and
(v) A Certificate of the Secretary of State of Delaware, dated
March 31, 2003, attesting to the continued corporate existence and good
standing of the Buyer in that State.
41
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records or documents, as I have deemed
necessary as a basis for the opinions expressed below. In my examination of the
documents referred to above, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals and the
conformity to the original of documents submitted to me as certified or
photostatic copies. I have assumed the due execution and delivery, pursuant to
due authorization, of the Transaction Documents by the Seller and the Company.
Based upon the foregoing, and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. Organization, Standing and Qualification. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation and has all requisite corporate power and authority
to own, lease and operate its properties and to carry on its business as it is
now being conducted. Buyer is licensed and qualified to do business as a foreign
corporation in each jurisdiction in which the character of Buyer's properties,
owned or leased, or the nature of its activities makes such qualification or
license necessary.
2. Authority; No Defaults. Seller has all requisite corporate power and
authority to enter into the Transaction Documents and to consummate the
transactions contemplated thereby. The execution and delivery of the Transaction
Documents and the consummation of the transactions contemplated thereby have
been duly authorized by all necessary corporate action on the part of Buyer. The
Transaction Documents have been executed and delivered by Buyer and constitute
the valid and binding obligation of Buyer, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, moratorium and other similar laws
affecting creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). The execution and delivery of the Transaction Documents do
not, and the consummation of the transactions contemplated thereby will not,
conflict with or result in a breach of or the acceleration of any obligation
under, or constitute a default or event of default (or event which, with notice
or lapse of time or both, would constitute a default or event of default) under,
any provision of any charter or bylaws of the Buyer. To the best of the
knowledge of the undersigned, Buyer is not in material violation or default of
any applicable law, statute, order, rule or regulation promulgated or judgment
entered by any court, administrative agency or commission or other governmental
agency or instrumentality, domestic or foreign (a "Governmental Entity"),
relating to or affecting the operation, conduct or ownership of the property or
business of Buyer.
3. Approvals. There is no legal impediment to the execution and
delivery of the Transaction Documents by Buyer or to the consummation of the
transactions contemplated thereby, and no filing or registration with, or
authorization, consent or approval of, a Governmental Entity, shareholders or
any other third party is necessary for the consummation by Buyer of the
transactions contemplated thereby.
42
4. Capitalization. Buyer has authorized capital stock of 100,000,000
shares of Common Stock, par value $0.001 per share, of which, as of the date
hereof and prior to reflecting the events occurring at the Closing under the
Agreement, there are 14,086,687 shares issued and outstanding, and 1,000,000
shares of Preferred Stock, par value $0.01 per share, of which, as of the date
hereof, none are outstanding. All of the issued and outstanding shares of Common
Stock were duly and validly issued and are fully paid and non-assessable. None
of the outstanding shares of Common Stock has been issued in violation of any
preemptive rights of the current or past stockholders of Buyer.
5. SEC Periodic Reports and OTC Bulletin Board. Buyer's shares of
Common Stock are registered pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "'34 Act"), and as of March 31, 2003 it has filed
all Annual Reports on Form 10-KSB and Quarterly Reports on Form 10-QSB that it
is required to file pursuant to Section 13 of the '34 Act. No consent,
authorization or other approval is required from the National Association of
Securities Dealers, Inc. with respect to the Closing under the Agreement by
reason of quotations for the Buyer's Common Stock appearing on the OTC Bulletin
Board and following the Closing its shares will remain eligible for quotation on
the OTC Bulletin Board.
The opinions set forth are qualified as follows:
(i) The enforceability of the rights and remedies provided in any
of the Transaction Documents against any particular party or parties is
subject to applicable federal and state bankruptcy, reorganization,
insolvency, moratorium and other similar laws of general application
relating to or affecting the enforcement of creditors' rights from time
to time in effect;
(ii) The availability of the remedy of specific performance,
injunctive relief, other equitable relief and "self help" lender's
remedies, as contemplated by or provided for in the Transaction
Documents, is subject to the discretion of the court (whether sitting
in law or in equity) before which any proceedings therefor may be
brought; and
(iii) Applicable state and federal laws, court decisions and
constitutional requirements may limit or render unenforceable certain
of the remedies purportedly available to the Seller under the
Transaction Documents.
This opinion is rendered solely for your benefit and no other person or
entity shall be entitled to rely on any matters set forth herein, nor shall any
portion or all of this opinion be quoted or in any way published, without the
express prior written consent of
43
the undersigned. This opinion is limited to the matters set forth herein, and no
opinion is intended to be implied or may be inferred beyond those expressly
stated herein.
Very truly yours,
Xxxxxxx X. Xxxxxx, P.A.
By:
------------------------------------
Xxxxxxx X. Xxxxxx, Esquire
44
EXHIBIT III-B
Via Fax and Courier
Xxxxxxx X. Xxxxxx
Barrister & Solicitor
200, 000 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
AND
Xxxx Xxxx Xxx
000 - 000 Xxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx X0X 0X0
Dear Sirs:
Re: Xxxxx000.xxx,Inc. - Reporting Issuer Status
We act as local counsel in the Province of British Columbia to Xxxxx000.xxx,
Inc. (the "Company").
We have been asked to provide this opinion, relating to the reporting issuer
status of the Company in the provinces of British Columbia, Alberta, Ontario and
Quebec (collectively, the Provinces") in connection with the proposed
acquisition (the "Acquisition") by the Company of all of the issued and
outstanding shares of Geoglobal Resources (India) Inc. in exchange of, inter
alia, 34,000,000 common shares of the Company.
We have not assisted in the preparation of the Share Purchase Agreement (the
"Agreement") by and among the Company, Xxxx Xxxx Xxx and Geoglobal Resources
(India) Inc. and no opinion is expressed as to the accuracy or completeness of
the Agreement or any documentation related to the Acquisition, and nothing
therein shall be considered to be a statement by us or deemed to imply that we
are generally familiar with the affairs of the Company.
In addition, our opinion expressed below is subject to the following
qualifications, assumptions and reservations:
1. we have assumed the genuineness of all signature and the authenticity
of all documents submitted to us as originals, the conformity to
originals of all
45
documents submitted to us as copies of originals and legal capacity of
all natural persons;
2. we have assumed the accuracy and completeness of all information and
certificates provided to us by public officials or officers of public
records, that the public officials delivering the certificates have
been duly appointed to the positions indicated and have the power,
capacity and authority to certify the information contained therein and
that the certificates, if dated earlier that the date hereof, continue
to be accurate as of the date hereof;
3. in expressing the opinion set forth below, we have relied exclusively
on the following, copies of which are attached to this opinion;
(a) a certificate of no default, dated ____, 2003, issued by the
British Columbia Securities Commission;
(b) a certificate of no default, dated ______, 2003, issued by the
Ontario Securities Commission;
(c) a section 141 certificate, dated _______, 2003, issued by
Alberta Securities Commission;
(d) a certificate, dated ________, issued by the Quebec Securities
Commission.
Based on and subject to the foregoing, we are of the opinion that at the date
hereof, the Company is a "reporting issuer" under the securities legislation of
the Provinces and is not on the list of defaulting issuers maintained under such
legislation of the Provinces.
Yours truly,
XXXXXXX & XXXXXX
Encl.
46
EXHIBIT V-2
To: Xxxxxxxx Xxxxxxxx
Xxxxx Xxxxxx
Xxxx Loblaw
Xxxx Xxxxxxxx
(the Directors of Suite 000.xxx Inc.)
From Xxxxxxx X. Xxxxxx, PA
Memo of flow of funds
In regard to the closing (the "Closing") of the acquisition by Suite 000.xxx,
Inc. of all the shares of GeoGlobal Resources (India) Inc. from Xxxx Xxxx Xxx,
and specifically in relation to the approx. $3,000,000 funds (the "Funds") (Cara
will provide a detail of the current account numbers with account balances)
which the majority are in a HSBC brokerage account in the name of i5ive
Communications Inc., it is proposed that the following steps be taken:
1) The present directors of Suite101 open two bank accounts (one US
Dollars and one Canadian Dollars) in the name of Suite101 with the
Canadian Western Bank ("CWB") in Calgary. (This is the bank that
Suite101 will be using post closing.) The signing authorities will be
two of the present Suite101 board members. It is recommended that the
signing officers remain as the current signing officers; Xxxxxxxx and
Loblaw.
2) The Funds will be transferred from the Suite101 and i5ive bank accounts
to the CWB accounts before Closing. This will be mostly a transfer from
the subsidiary to the parent company. This transaction will be effected
partially as a repayment by i5ive of intercorporate advances from Suite
101.
3) The current accounts will be closed at closing.
4) At the Closing the new directors of Suite101 will table the necessary
resolutions and signature cards and on closing to become the new
signing authorities at the CWB accounts, and such documents will be
delivered to the CWB.
This avoids any potential delays in transferring the Funds around the Closing
date and at all times the Funds remain the property of Suite101. The requisite
documents will be forthcoming from Xxxxx Xxxxxx for your signature. Please
return them directly to Xxxxx, as he will be coordinating this procedure.
Xxxx Xxxxxx
cc Xxxxxxx X. Xxxxxx, Lawyer
47
EXHIBIT VI-1
(XXXXXXXX)
OMNIBUS AGREEMENT AND RELEASE
This Omnibus Agreement and Release is being executed and delivered in
accordance with Sections 6.10 and 7.10 of the Stock Purchase Agreement dated
March 31, 2003 (the "Agreement"), among Xxxxx000.xxx, Inc., a Delaware
corporation ("Buyer"), Xxxx Xxxx Xxx, an individual, and GeoGlobal Resources
(India) Inc., a corporation organized under the laws of the Province of Alberta,
Canada. Capitalized terms used in this Omnibus Agreement and Release without
definition have the respective meaning given to them in the Agreement.
The undersigned acknowledges that execution and delivery of this
Omnibus Agreement and Release is a condition to the obligations of the parties
to effect the closing of the transaction contemplated by the Agreement and that
each party is relying on this Omnibus Agreement and Release in consummating such
closing.
1. AGREEMENTS WITH RESPECT TO OPTIONS GRANTED TO AND HELD BY THE
UNDERSIGNED UNDER THE BUYER'S 1998 STOCK INCENTIVE PLAN AND CANCELLATION OF
CERTAIN OPTIONS.
(a) The undersigned represents, covenants and agrees that the following
is a true, complete, and accurate list of all options held by the undersigned
granted by the Buyer and accurately sets forth the material terms of such
options granted under the Buyer's 1998 Stock Incentive Plan (the "Plan") and the
undersigned holds no other options or other rights to acquire securities of the
Buyer granted under the Plan or any other benefit or compensation plan or
arrangement of the Buyer:
VESTING OR EXERCISE
Date of Grant Exercise Price Number of Shares EXPIRATION DATE SCHEDULE
------------- -------------- ---------------- --------------- -------------------
25 Feb. 99 $1.50 50,000 31 Mar. 04(1) Fully vested
11 June 99 $1.50 5,000 31 Mar. 04(1) Fully vested
13 Nov. 99 $1.50 20,000 30 June 03 Fully vested
12 June 00 $1.50 5,000 31 Mar. 04(1) Fully vested
4 Jan. 01 $0.25 20,000 30 June 03 Fully vested
4 June 01 $0.17 5,000 31 Mar. 04(1) Fully vested
27 Feb. 02 $0.27 50,000 30 June 03 16,667 vested as of
27 Feb. 03
11 June 02 $0.50 5,000 31 Mar. 03 -0- exercisable
27 Nov. 02 $0.25 75,000 31 Mar. 04 Fully vested
------------------
(1) Assumes the undersigned ceases to be in Service to the Buyer as of March 31,
2003, the assumed Closing Date. In any event, the option will expire one (1)
year from cessation of Service, or on whatever date that event may occur.
48
(b) At or before the Closing under the Agreement, the undersigned
agrees to (i) exercise the following options for the number of shares stated,
and (ii) cancel the following options for the number of shares stated:
AGGREGATE NUMBER NUMBER OF SHARES AS
OF SHARES UNDER NUMBER OF SHARES TO WHICH THE OPTION
DATE OF GRANT OPTION EXERCISE PRICE PURCHASED ON EXERCISE IS CANCELLED
------------- ----------------- -------------- --------------------- -------------------
4 Jan. 01 20,000 $0.25 20,000 - 0 -
4 June 01 5,000 $0.17 5,000 - 0 -
27 Feb. 02 50,000 $0.27 16,667 33,333
11 June 02 5,000 $0.50 - 0 - 5,000
27 Nov. 02 75,000 $0.25 75,000 - 0 -
(c) The undersigned will be given by the Buyer not less than five (5)
days' notice of the Closing Date under the Agreement. Not later than the close
of business (local time in Calgary, Alberta, Canada) on the day before the
Closing Date, the undersigned will cause Xxxxxxx Xxxxxx, Esq., as closing agent,
at 000, 000 Xxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx X0X OJ9 to receive (with the
undersigned utilizing a reputable overnight delivery service) this fully
executed Omnibus Agreement and Release and a bank check payable in U.S. funds
PAYABLE TO XXXXX000.XXX, INC. in the amount of
(U.S.) $29,100.09
in full payment of the exercise price of all 116,667 shares of Common Stock of
Buyer purchased by the undersigned on exercise of the options held by the
undersigned, as set forth above. Options set forth in the table above not
exercised and which are agreed to be cancelled are and shall be deemed cancelled
as of the Closing Date.
(d) On the Closing Date, Xxxxxxx Xxxxxx, Esq., as closing agent, will
receive from Computershare Trust Company of Canada, transfer agent for the
Buyer, a certificate issued in the name of the undersigned, free of any
restrictive legends under the U.S. Securities Act of 1933, as amended,
representing
116,667 shares
of the Common Stock, $0.001 par value per share, of the Buyer, which shares
shall be delivered by Xx. Xxxxxx, on the Closing Date or the first business day
immediately
49
following, to a reputable overnight delivery service for delivery to the
undersigned at the following address:
0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
(e) It is understood by the undersigned and the Buyer that the
following options shall remain outstanding held by the undersigned and fully
exercisable through the expiration date of such options:
VESTING OR
DATE OF GRANT EXERCISE PRICE NUMBER OF SHARES EXPIRATION DATE EXERCISE SCHEDULE
------------- -------------- ---------------- --------------- -----------------
25 Feb. 99 $1.50 50,000 31 Mar. 04(1) Fully vested
11 June 99 $1.50 5,000 31 Mar. 04(1) Fully vested
13 Nov. 99 $1.50 20,000 30 June 03 Fully vested
12 June 00 $1.50 5,000 31 Mar. 04 Fully vested
--------------------
(1) Assumes the undersigned ceases to be in Service to the Buyer as of March 31,
2003, the assumed Closing Date. In any event, the option will expire one(1) year
from cessation of Service, or on whatever date that event may occur.
2. RELEASE. The undersigned, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged and intending to be
legally bound, in order to induce the parties to effect the Closing pursuant to
the Agreement, hereby agrees as follows:
The undersigned, on behalf of himself and each of his representatives,
agents and Affiliates, hereby releases and forever discharges the Buyer and
i5ive Communications, Inc., a corporation organized under the laws of the
Province of British Columbia, and each of them, and each of their respective
individual, joint or mutual, past, present and future representatives,
Affiliates, stockholders, Directors, officers, agents, controlling persons,
subsidiaries, successors and assigns (individually, a "Releasee" and
collectively, "Releasees") from any and all claims, demands, proceedings, causes
of action, orders, obligations, contracts, agreements, debts and liabilities
whatsoever, whether known or unknown, suspected or unsuspected, both at law and
in equity, which the undersigned, or any of the undersigned's representatives,
agents and Affiliates now has, have ever had or may hereafter have against the
respective Releasees arising contemporaneously with or prior to the Closing or
on account of or arising out of any matter, cause or event occurring
contemporaneously with or prior to the Closing, including, but not limited to,
any rights to payment, indemnification or reimbursement from the Buyer, whether
50
pursuant to its Certificate of Incorporation, By-laws, contract or otherwise and
whether or not relating to claims pending on, or asserted after, the Closing.
Notwithstanding the foregoing, the following are expressly excluded from this
Release: (a) all rights of indemnification in favor of the undersigned pursuant
to the Indemnification Agreement dated February 25, 2002 between the undersigned
and the Buyer, any indemnification rights under the provisions of Section 145
Indemnification of Officers, directors, employees and agents; Insurance, of the
Delaware General Corporation Law, and rights under any policy of insurance of
Buyer for the benefit of the undersigned; (b) rights of the undersigned under
this Omnibus Agreement and Release to receive delivery of shares of Common Stock
of Buyer as and to the extent provided in Section 1(b) and 1(c) hereof; and (c)
rights under those options to purchase Common Stock of the Buyer listed in
Section 1(e) hereof that will continue to be outstanding and held by the
undersigned subsequent to the Closing Date.
The undersigned hereby irrevocably covenants to refrain from, directly
or indirectly, asserting any claim or demand, or commencing, instituting or
causing to be commenced, any proceeding of any kind against any Releasees, based
upon any matter purported to be released hereby.
3. MISCELLANEOUS. If any provision of this Omnibus Agreement and
Release is held invalid or unenforceable by any court of competent jurisdiction,
the other provisions of this Omnibus Agreement and Release will remain in full
force and effect. Any provision of this Omnibus Agreement and Release held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
This Omnibus Agreement and Release may not be changed except in a
writing signed by the person(s) against whose interest such change shall
operate. This Release shall be governed by and construed under the laws of the
State of Delaware without regard to principles of conflicts of law.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered
this Omnibus Agreement and Release as of this _______ day of March, 2003.
-------------------------------------
Xxxxxxxx X. Xxxxxxxx
Accepted and Agreed:
Xxxxx000.xxx, Inc.
By
-------------------------------
Duly Authorized
51
EXHIBIT VI - 2
(X. XXXXXXXX)
OMNIBUS AGREEMENT AND RELEASE
This Omnibus Agreement and Release is being executed and delivered in
accordance with Sections 6.10 and 7.10 of the Stock Purchase Agreement dated
March 31, 2003 (the "Agreement"), among Xxxxx000.xxx, Inc., a Delaware
corporation ("Buyer"), Xxxx Xxxx Xxx, an individual, and GeoGlobal Resources
(India) Inc., a corporation organized under the laws of the Province of Alberta,
Canada. Capitalized terms used in this Omnibus Agreement and Release without
definition have the respective meaning given to them in the Agreement.
The undersigned acknowledges that execution and delivery of this
Omnibus Agreement and Release is a condition to the obligations of the parties
to effect the closing of the transaction contemplated by the Agreement and that
each party is relying on this Omnibus Agreement and Release in consummating such
closing.
1. AGREEMENTS WITH RESPECT TO OPTIONS GRANTED TO AND HELD BY THE
UNDERSIGNED UNDER THE BUYER'S 1998 STOCK INCENTIVE PLAN AND CANCELLATION OF
CERTAIN OPTIONS.
(a) The undersigned represents, covenants and agrees that the following
is a true, complete, and accurate list of all options held by the undersigned
granted by the Buyer and accurately sets forth the material terms of such
options granted under the Buyer's 1998 Stock Incentive Plan (the "Plan") and the
undersigned holds no other options or other rights to acquire securities of the
Buyer granted under the Plan or any other benefit or compensation plan or
arrangement of the Buyer:
VESTING OR
Date of Grant Exercise Price Number of Shares EXPIRATION DATE EXERCISE SCHEDULE
------------- -------------- ---------------- --------------- -----------------
31 Jan. 00 $1.50 30,000 30 June 03 Fully vested
17 April 00 $1.50 40,067 30 June 03 Fully vested
27 Nov. 02 $0.25 50,000 31 Mar. 04(1) Fully vested
----------------------
(1) Assumes the undersigned ceases to be in Service to the Buyer as of March 31,
2003, the assumed Closing Date. In any event, the option will expire one(1) year
from cessation of Service, or on whatever date that event may occur.
52
(b) At or before the Closing under the Agreement, the undersigned
agrees to (i) exercise the following options for the number of shares stated,
and (ii) cancel the following options for the number of shares stated:
AGGREGATE NUMBER NUMBER OF SHARES NUMBER OF SHARES AS
OF SHARES UNDER PURCHASED ON TO WHICH THE OPTION
DATE OF GRANT OPTION EXERCISE PRICE EXERCISE IS CANCELLED
------------- ---------------- -------------- ----------------- --------------------
27 Nov. 02 50,000 $0.25 50,000 - 0 -
(c) The undersigned will be given by the Buyer not less than five (5)
days' notice of the Closing Date under the Agreement. Not later than the close
of business (local time in Calgary, Alberta, Canada) on the day before the
Closing Date, the undersigned will cause Xxxxxxx Xxxxxx, Esq., as closing agent,
at 000, 000 Xxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx X0X OJ9 to receive (with the
undersigned utilizing a reputable overnight delivery service) this fully
executed Omnibus Agreement and Release and a bank check payable in U.S. funds
PAYABLE TO XXXXX000.XXX, INC. in the amount of
(U.S.) $12,500
in full payment of the exercise price of all 50,000 shares of Common Stock of
Buyer purchased by the undersigned on exercise of the options held by the
undersigned, as set forth above. Options set forth in the table above not
exercised and which are agreed to be cancelled are and shall be deemed cancelled
as of the Closing Date.
(d) On the Closing Date, Xxxxxxx Xxxxxx, Esq., as closing agent, will
receive from Computershare Trust Company of Canada, transfer agent for the
Buyer, a certificate issued in the name of the undersigned, free of any
restrictive legends under the U.S. Securities Act of 1933, as amended,
representing
50,000 shares
of the Common Stock, $0.001 par value per share, of the Buyer, which shares
shall be delivered by Xx. Xxxxxx, on the Closing Date or the first business day
immediately following, to a reputable overnight delivery service for delivery to
the undersigned at the following address:
53
(e) It is understood by the undersigned and the Buyer that the
following options shall remain outstanding held by the undersigned and fully
exercisable through the expiration date of such options:
VESTING OR
DATE OF GRANT EXERCISE PRICE NUMBER OF SHARES EXPIRATION DATE EXERCISE SCHEDULE
------------- -------------- ---------------- --------------- -----------------
31 Jan. 00 $1.50 30,000 30 June 03 Fully vested
17 April 00 $1.50 40,067 30 June 03 Fully vested
2. RELEASE. The undersigned, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged and intending to be
legally bound, in order to induce the parties to effect the Closing pursuant to
the Agreement, hereby agrees as follows:
The undersigned, on behalf of himself and each of his representatives,
agents and Affiliates, hereby releases and forever discharges the Buyer and
i5ive Communications, Inc., a corporation organized under the laws of the
Province of British Columbia, and each of them, and each of their respective
individual, joint or mutual, past, present and future representatives,
Affiliates, stockholders, Directors, officers, agents, controlling persons,
subsidiaries, successors and assigns (individually, a "Releasee" and
collectively, "Releasees") from any and all claims, demands, proceedings, causes
of action, orders, obligations, contracts, agreements, debts and liabilities
whatsoever, whether known or unknown, suspected or unsuspected, both at law and
in equity, which the undersigned, or any of the undersigned's representatives,
agents and Affiliates now has, have ever had or may hereafter have against the
respective Releasees arising contemporaneously with or prior to the Closing or
on account of or arising out of any matter, cause or event occurring
contemporaneously with or prior to the Closing, including, but not limited to,
any rights to payment, indemnification or reimbursement from the Buyer, whether
pursuant to its Certificate of Incorporation, By-laws, contract or otherwise and
whether or not relating to claims pending on, or asserted after, the Closing.
Notwithstanding the foregoing, the following are expressly excluded from this
Release: (a) all rights of indemnification in favor of the undersigned pursuant
to the Indemnification Agreement dated February 25, 2002 between the undersigned
and the Buyer, any indemnification rights under the provisions of Section 145
Indemnification of Officers, directors, employees and agents; Insurance, of the
Delaware General Corporation Law, and rights under any policy of insurance of
Buyer for the benefit of the undersigned; (b) rights of
54
the undersigned under this Omnibus Agreement and Release to receive delivery of
shares of Common Stock of Buyer as and to the extent provided in Section 1(b)
and 1(c) hereof; and (c) rights under those options to purchase Common Stock of
the Buyer listed in Section 1(e) hereof that will continue to be outstanding and
held by the undersigned subsequent to the Closing Date.
The undersigned hereby irrevocably covenants to refrain from, directly
or indirectly, asserting any claim or demand, or commencing, instituting or
causing to be commenced, any proceeding of any kind against any Releasees, based
upon any matter purported to be released hereby.
3. MISCELLANEOUS. If any provision of this Omnibus Agreement and
Release is held invalid or unenforceable by any court of competent jurisdiction,
the other provisions of this Omnibus Agreement and Release will remain in full
force and effect. Any provision of this Omnibus Agreement and Release held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
This Omnibus Agreement and Release may not be changed except in a
writing signed by the person(s) against whose interest such change shall
operate. This Release shall be governed by and construed under the laws of the
State of Delaware without regard to principles of conflicts of law.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered
this Omnibus Agreement and Release as of this _______ day of March, 2003.
----------------------------------------
Xxxx Xxxxxxxx
Accepted and Agreed:
Xxxxx000.xxx, Inc.
By
-------------------------------
Duly Authorized
55
EXHIBIT VI - 3
(LOBLAW)
OMNIBUS AGREEMENT AND RELEASE
This Omnibus Agreement and Release is being executed and delivered in
accordance with Sections 6.10 and 7.10 of the Stock Purchase Agreement dated
March 31, 2003 (the "Agreement"), among Xxxxx000.xxx, Inc., a Delaware
corporation ("Buyer"), Xxxx Xxxx Xxx, an individual, and GeoGlobal
Resources(India) Inc., a corporation organized under the laws of the Province of
Alberta, Canada. Capitalized terms used in this Omnibus Agreement and Release
without definition have the respective meaning given to them in the Agreement.
The undersigned acknowledges that execution and delivery of this
Omnibus Agreement and Release is a condition to the obligations of the parties
to effect the closing of the transaction contemplated by the Agreement and that
each party is relying on this Omnibus Agreement and Release in consummating such
closing.
1. AGREEMENTS WITH RESPECT TO OPTIONS GRANTED TO AND HELD BY THE
UNDERSIGNED UNDER THE BUYER'S 1998 STOCK INCENTIVE PLAN AND CANCELLATION OF
CERTAIN OPTIONS.
(a) The undersigned represents, covenants and agrees that the following
is a true, complete, and accurate list of all options held by the undersigned
granted by the Buyer and accurately sets forth the material terms of such
options granted under the Buyer's 1998 Stock Incentive Plan (the "Plan") and the
undersigned holds no other options or other rights to acquire securities of the
Buyer granted under the Plan or any other benefit or compensation plan or
arrangement of the Buyer:
VESTING OR EXERCISE
Date of Grant Exercise Price Number of Shares EXPIRATION DATE SCHEDULE
------------- -------------- ---------------- --------------- -------------------
4 Dec. 98 $1.50 10,000 30 June 03 Fully vested
5 July 00 $1.50 46,443 30 June 03 Fully vested
25 Feb. 02 $0.27 50,000 31 Mar. 04(1) 16,667 on 25 Feb. 03
16,667 on 25 Feb. 04
16,666 on 25 Feb. 05
27 Nov. 02 $0.25 50,000 31 Mar. 04(1) Fully vested
------------------------
(1) Assumes the undersigned ceases to be in Service to the Buyer as of March 31,
2003, the assumed Closing Date. In any event, the option will expire one(1) year
from cessation of Service, or on whatever date that event may occur.
56
(b) At or before the Closing under the Agreement, the undersigned
agrees to (i) exercise the following options for the number of shares stated,
and (ii) cancel the following options for the number of shares stated:
AGGREGATE NUMBER NUMBER OF SHARES AS
OF SHARES UNDER NUMBER OF SHARES TO WHICH THE OPTION
DATE OF GRANT OPTION EXERCISE PRICE PURCHASED ON EXERCISE IS CANCELLED
------------- ----------------- -------------- --------------------- -------------------
25 Feb. 02 50,000 $0.27 16,667 33,333
27 Nov. 02 50,000 $0.25 50,000 - 0 -
(c) The undersigned will be given by the Buyer not less than five (5)
days' notice of the Closing Date under the Agreement. Not later than the close
of business (local time in Calgary, Alberta, Canada) on the day before the
Closing Date, the undersigned will cause Xxxxxxx Xxxxxx, Esq., as closing agent,
at 000, 000 Xxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx X0X OJ9 to receive (with the
undersigned utilizing a reputable overnight delivery service) this fully
executed Omnibus Agreement and Release and a bank check payable in U.S. funds
PAYABLE TO XXXXX000.XXX, INC. in the amount of
(U.S.) $17,000.09
in full payment of the exercise price of all 66,667 shares of Common Stock of
Buyer purchased by the undersigned on exercise of the options held by the
undersigned, as set forth above. Options set forth in the table above not
exercised and which are agreed to be cancelled are and shall be deemed cancelled
as of the Closing Date.
(d) On the Closing Date, Xxxxxxx Xxxxxx, Esq., as closing agent, will
receive from Computershare Trust Company of Canada, transfer agent for the
Buyer, a certificate issued in the name of the undersigned, free of any
restrictive legends under the U.S. Securities Act of 1933, as amended,
representing
66,667 shares
of the Common Stock, $0.001 par value per share, of the Buyer, which shares
shall be delivered by Xx. Xxxxxx, on the Closing Date or the first business day
immediately following, to a reputable overnight delivery service for delivery to
the undersigned at the following address:
57
(e) It is understood by the undersigned and the Buyer that the
following options shall remain outstanding held by the undersigned and fully
exercisable through the expiration date of such options:
VESTING OR
DATE OF GRANT EXERCISE PRICE NUMBER OF SHARES EXPIRATION DATE EXERCISE SCHEDULE
------------- -------------- ---------------- --------------- -----------------
4 Dec. 98 $1.50 10,000 30 June 03 Fully vested
5 July 00 $1.50 46,443 30 June 03 Fully vested
2. RELEASE. The undersigned, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged and intending to be
legally bound, in order to induce the parties to effect the Closing pursuant to
the Agreement, hereby agrees as follows:
The undersigned, on behalf of himself and each of his representatives,
agents and Affiliates, hereby releases and forever discharges the Buyer and
i5ive Communications, Inc., a corporation organized under the laws of the
Province of British Columbia, and each of them, and each of their respective
individual, joint or mutual, past, present and future representatives,
Affiliates, stockholders, Directors, officers, agents, controlling persons,
subsidiaries, successors and assigns (individually, a "Releasee" and
collectively, "Releasees") from any and all claims, demands, proceedings, causes
of action, orders, obligations, contracts, agreements, debts and liabilities
whatsoever, whether known or unknown, suspected or unsuspected, both at law and
in equity, which the undersigned, or any of the undersigned's representatives,
agents and Affiliates now has, have ever had or may hereafter have against the
respective Releasees arising contemporaneously with or prior to the Closing or
on account of or arising out of any matter, cause or event occurring
contemporaneously with or prior to the Closing, including, but not limited to,
any rights to payment, indemnification or reimbursement from the Buyer, whether
pursuant to its Certificate of Incorporation, By-laws, contract or otherwise and
whether or not relating to claims pending on, or asserted after, the Closing.
Notwithstanding the foregoing, the following are expressly excluded from this
Release: (a) all rights of indemnification in favor of the undersigned pursuant
to the Indemnification Agreement dated February 25, 2002 between the undersigned
and the Buyer, any indemnification rights under the provisions of Section 145
Indemnification of Officers, directors, employees and agents; Insurance, of the
Delaware General Corporation Law, and rights under any policy of insurance of
Buyer for the benefit of the undersigned; (b) rights of the undersigned under
this Omnibus Agreement and Release to receive delivery of shares
58
of Common Stock of Buyer as and to the extent provided in Section 1(b) and 1(c)
hereof; and (c) rights under those options to purchase Common Stock of the Buyer
listed in Section 1(e) hereof that will continue to be outstanding and held by
the undersigned subsequent to the Closing Date.
The undersigned hereby irrevocably covenants to refrain from, directly
or indirectly, asserting any claim or demand, or commencing, instituting or
causing to be commenced, any proceeding of any kind against any Releasees, based
upon any matter purported to be released hereby.
3. MISCELLANEOUS. If any provision of this Omnibus Agreement and
Release is held invalid or unenforceable by any court of competent jurisdiction,
the other provisions of this Omnibus Agreement and Release will remain in full
force and effect. Any provision of this Omnibus Agreement and Release held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
This Omnibus Agreement and Release may not be changed except in a
writing signed by the person(s) against whose interest such change shall
operate. This Release shall be governed by and construed under the laws of the
State of Delaware without regard to principles of conflicts of law.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered
this Omnibus Agreement and Release as of this _______ day of March, 2003.
-------------------------------------
Xxxxxxx X. Loblaw
Accepted and Agreed:
Xxxxx000.xxx, Inc.
By
-------------------------------
Duly Authorized
59
EXHIBIT VI -4
(XXXXXXXX)
OMNIBUS AGREEMENT AND RELEASE
This Omnibus Agreement and Release is being executed and delivered in
accordance with Sections 6.10 and 7.10 of the Stock Purchase Agreement dated
March 31, 2003 (the "Agreement"), among Xxxxx000.xxx, Inc., a Delaware
corporation ("Buyer"), Xxxx Xxxx Xxx, an individual, and GeoGlobal
Resources(India) Inc., a corporation organized under the laws of the Province of
Alberta, Canada. Capitalized terms used in this Omnibus Agreement and Release
without definition have the respective meaning given to them in the Agreement.
The undersigned acknowledges that execution and delivery of this
Omnibus Agreement and Release is a condition to the obligations of the parties
to effect the closing of the transaction contemplated by the Agreement and that
each party is relying on this Omnibus Agreement and Release in consummating such
closing.
1. AGREEMENTS WITH RESPECT TO OPTIONS GRANTED TO AND HELD BY THE
UNDERSIGNED UNDER THE BUYER'S 1998 STOCK INCENTIVE PLAN AND CANCELLATION OF
CERTAIN OPTIONS.
(a) The undersigned represents, covenants and agrees that the following
is a true, complete, and accurate list of all options held by the undersigned
granted by the Buyer and accurately sets forth the material terms of such
options granted under the Buyer's 1998 Stock Incentive Plan (the "Plan") and the
undersigned holds no other options or other rights to acquire securities of the
Buyer granted under the Plan or any other benefit or compensation plan or
arrangement of the Buyer:
VESTING OR EXERCISE
Date of Grant Exercise Price Number of Shares EXPIRATION DATE SCHEDULE
------------- -------------- ---------------- --------------- -------------------
25 Feb. 02 $0.27 50,000 25 Feb. 12 16,667 on 25 Feb. 03
16,667 on 25 Feb. 04
16,666 on 25 Feb. 05
27 Nov. 02 $0.25 50,000 27 Nov. 07 Fully vested
60
(b) At or before the Closing under the Agreement, the undersigned
agrees to (i) exercise the following options for the number of shares stated,
and (ii) cancel the following options for the number of shares stated:
AGGREGATE NUMBER NUMBER OF SHARES AS
OF SHARES UNDER NUMBER OF SHARES TO WHICH THE OPTION
DATE OF GRANT OPTION EXERCISE PRICE PURCHASED ON EXERCISE IS CANCELLED
------------- ----------------- -------------- --------------------- -------------------
25 Feb. 02 50,000 $0.27 16,667 33,333
27 Nov. 02 50,000 $0.25 50,000 - 0 -
(c) The undersigned will be given by the Buyer not less than five (5)
days' notice of the Closing Date under the Agreement. Not later than the close
of business (local time in Calgary, Alberta, Canada) on the day before the
Closing Date, the undersigned will cause Xxxxxxx Xxxxxx, Esq., as closing agent,
at 000, 000 Xxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx X0X OJ9 to receive (with the
undersigned utilizing a reputable overnight delivery service) this fully
executed Omnibus Agreement and Release and a bank check payable in U.S. funds
PAYABLE TO XXXXX000.XXX, INC. in the amount of
(U.S.) $17,000.09
in full payment of the exercise price of all 66,667 shares of Common Stock of
Buyer purchased by the undersigned on exercise of the options held by the
undersigned, as set forth above. Options set forth in the table above not
exercised and which are agreed to be cancelled are and shall be deemed cancelled
as of the Closing Date.
(d) On the Closing Date, Xxxxxxx Xxxxxx, Esq., as closing agent, will
receive from Computershare Trust Company of Canada, transfer agent for the
Buyer, a certificate issued in the name of the undersigned, subject to a
restrictive legend under the U.S. Securities Act of 1933, as amended, with
respect to re-sales under Buyer's effective registration statements on Form S-8
(File Nos. 333-74245, effective 11 March 99; 333-39450, effective 16 June 2000;
and 333-67720, effective 16 August 2001, representing: Buyer agrees to promptly
file with the U.S. Securities and Exchange Commission such post-effective
amendments to the foregoing registration statements on Form S-8 as will enable
the undersigned to re-sell the shares issued to the undersigned on the Closing
Date subject to the re-sale requirements and limitations of Form S-8.
66,667 shares
61
of the Common Stock, $0.001 par value per share, of the Buyer, which shares
shall be delivered by Xx. Xxxxxx, on the Closing Date or the first business day
immediately following, to a reputable overnight delivery service for delivery to
the undersigned at the following address:
(e) It is understood by the undersigned and the Buyer that the
following options shall remain outstanding held by the undersigned and fully
exercisable through the expiration date of such options:
VESTING OR
DATE OF GRANT EXERCISE PRICE NUMBER OF SHARES EXPIRATION DATE EXERCISE SCHEDULE
------------- -------------- ---------------- --------------- -----------------
Nil
The undersigned will hold no options after the Closing Date.
2. RELEASE. The undersigned, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged and intending to be
legally bound, in order to induce the parties to effect the Closing pursuant to
the Agreement, hereby agrees as follows:
The undersigned, on behalf of himself and each of his representatives,
agents and Affiliates, hereby releases and forever discharges the Buyer and
i5ive Communications, Inc., a corporation organized under the laws of the
Province of British Columbia, and each of them, and each of their respective
individual, joint or mutual, past, present and future representatives,
Affiliates, stockholders, Directors, officers, agents, controlling persons,
subsidiaries, successors and assigns (individually, a "Releasee" and
collectively, "Releasees") from any and all claims, demands, proceedings, causes
of action, orders, obligations, contracts, agreements, debts and liabilities
whatsoever, whether known or unknown, suspected or unsuspected, both at law and
in equity, which the undersigned, or any of the undersigned's representatives,
agents and Affiliates now has, have ever had or may hereafter have against the
respective Releasees arising contemporaneously with or prior to the Closing or
on account of or arising out of any matter, cause or event occurring
contemporaneously with or prior to the Closing, including, but not limited to,
any rights to payment, indemnification or reimbursement from the Buyer, whether
pursuant to its Certificate of Incorporation, By-laws, contract or otherwise and
whether or not relating to claims pending on, or asserted after, the Closing.
Notwithstanding the foregoing, the following are expressly excluded from this
Release: (a) all rights of indemnification in favor of the undersigned pursuant
to the Indemnification Agreement dated February 25, 2002 between the undersigned
and the Buyer, any indemnification rights under the provisions of Section 145
Indemnification of Officers, directors, employees and agents; Insurance, of the
Delaware General Corporation Law, and rights
62
under any policy of insurance of Buyer for the benefit of the undersigned; (b)
rights of the undersigned under this Omnibus Agreement and Release to receive
delivery of shares of Common Stock of Buyer as and to the extent provided in
Section 1(b) and 1(c) hereof; and (c) rights under those options to purchase
Common Stock of the Buyer listed in Section 1(e) hereof that will continue to be
outstanding and held by the undersigned subsequent to the Closing Date.
The undersigned hereby irrevocably covenants to refrain from, directly
or indirectly, asserting any claim or demand, or commencing, instituting or
causing to be commenced, any proceeding of any kind against any Releasees, based
upon any matter purported to be released hereby.
3. MISCELLANEOUS. If any provision of this Omnibus Agreement and
Release is held invalid or unenforceable by any court of competent jurisdiction,
the other provisions of this Omnibus Agreement and Release will remain in full
force and effect. Any provision of this Omnibus Agreement and Release held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
This Omnibus Agreement and Release may not be changed except in a
writing signed by the person(s) against whose interest such change shall
operate. This Release shall be governed by and construed under the laws of the
State of Delaware without regard to principles of conflicts of law.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered
this Omnibus Agreement and Release as of this _______ day of March, 2003.
-------------------------------------
Xxxx X. Xxxxxxxx
Accepted and Agreed:
Xxxxx000.xxx, Inc.
By
-------------------------------
Duly Authorized
63
EXHIBIT VI -5
(XXXXXX)
OMNIBUS AGREEMENT AND RELEASE
This Omnibus Agreement and Release is being executed and delivered in
accordance with Sections 6.10 and 7.10 of the Stock Purchase Agreement dated
March 31, 2003 (the "Agreement"), among Xxxxx000.xxx, Inc., a Delaware
corporation ("Buyer"), Xxxx Xxxx Xxx, an individual, and GeoGlobal
Resources(India) Inc., a corporation organized under the laws of the Province of
Alberta, Canada. Capitalized terms used in this Omnibus Agreement and Release
without definition have the respective meaning given to them in the Agreement.
The undersigned acknowledges that execution and delivery of this
Omnibus Agreement and Release is a condition to the obligations of the parties
to effect the closing of the transaction contemplated by the Agreement and that
each party is relying on this Omnibus Agreement and Release in consummating such
closing.
1. AGREEMENTS WITH RESPECT TO OPTIONS GRANTED TO AND HELD BY THE
UNDERSIGNED UNDER THE BUYER'S 1998 STOCK INCENTIVE PLAN AND CANCELLATION OF
CERTAIN OPTIONS.
(a) The undersigned represents, covenants and agrees that the following
is a true, complete, and accurate list of all options held by the undersigned
granted by the Buyer and accurately sets forth the material terms of such
options granted under the Buyer's 1998 Stock Incentive Plan (the "Plan") and the
undersigned holds no other options or other rights to acquire securities of the
Buyer granted under the Plan or any other benefit or compensation plan or
arrangement of the Buyer:
VESTING OR EXERCISE
Date of Grant Exercise Price Number of Shares EXPIRATION DATE SCHEDULE
------------- -------------- ---------------- --------------- -------------------
25 Feb. 02 $0.27 50,000 25 Feb. 12 16,667 on 25 Feb. 03
16,667 on 25 Feb. 04
16,666 on 25 Feb. 05
27 Nov. 02 $0.25 75,000 27 Nov. 07 Fully vested
64
(b) At or before the Closing under the Agreement, the undersigned
agrees to (i) exercise the following options for the number of shares stated,
and (ii) cancel the following options for the number of shares stated:
AGGREGATE NUMBER NUMBER OF SHARES AS
OF SHARES UNDER NUMBER OF SHARES TO WHICH THE OPTION
DATE OF GRANT OPTION EXERCISE PRICE PURCHASED ON EXERCISE IS CANCELLED
------------- ----------------- -------------- --------------------- -------------------
25 Feb. 02 50,000 $0.27 16,667 33,333
27 Nov. 02 75,000 $0.25 75,000 - 0 -
(c) The undersigned will be given by the Buyer not less than five (5)
days' notice of the Closing Date under the Agreement. Not later than the close
of business (local time in Calgary, Alberta, Canada) on the day before the
Closing Date, the undersigned will cause Xxxxxxx Xxxxxx, Esq., as closing agent,
at 000, 000 Xxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx X0X OJ9 to receive (with the
undersigned utilizing a reputable overnight delivery service) this fully
executed Omnibus Agreement and Release and a bank check payable in U.S. funds
PAYABLE TO XXXXX000.XXX, INC. in the amount of
(U.S.) $23,250.09
in full payment of the exercise price of all 91,667 shares of Common Stock of
Buyer purchased by the undersigned on exercise of the options held by the
undersigned, as set forth above. Options set forth in the table above not
exercised and which are agreed to be cancelled are and shall be deemed cancelled
as of the Closing Date.
(d) On the Closing Date, Xxxxxxx Xxxxxx, Esq., as closing agent, will
receive from Computershare Trust Company of Canada, transfer agent for the
Buyer, a certificate issued in the name of the undersigned, subject to a
restrictive legend under the U.S. Securities Act of 1933, as amended, with
respect to re-sales under Buyer's effective registration statements on Form S-8
(File Nos. 333--74245, effective 11 March 99; 333-39450, effective 16 June 2000;
and 333-67720, effective 16 August 2001, representing: Buyer agrees to promptly
file with the U.S. Securities and Exchange Commission such post-effective
amendments to the foregoing registration statements on Form S-8 as will enable
the undersigned to re-sell the shares issued to the undersigned on the Closing
Date subject to the re-sale requirements and limitations of Form S-8.
91,667 shares
65
of the Common Stock, $0.001 par value per share, of the Buyer, which shares
shall be delivered by Xx. Xxxxxx, on the Closing Date or the first business day
immediately following, to a reputable overnight delivery service for delivery to
the undersigned at the following address:
(e) It is understood by the undersigned and the Buyer that the
following options shall remain outstanding held by the undersigned and fully
exercisable through the expiration date of such options:
VESTING OR
DATE OF GRANT EXERCISE PRICE NUMBER OF SHARES EXPIRATION DATE EXERCISE SCHEDULE
------------- -------------- ---------------- --------------- -----------------
Nil
The undersigned will hold no options after the Closing Date.
2. RELEASE. The undersigned, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged and intending to be
legally bound, in order to induce the parties to effect the Closing pursuant to
the Agreement, hereby agrees as follows:
The undersigned, on behalf of himself and each of his representatives,
agents and Affiliates, hereby releases and forever discharges the Buyer and
i5ive Communications, Inc., a corporation organized under the laws of the
Province of British Columbia, and each of them, and each of their respective
individual, joint or mutual, past, present and future representatives,
Affiliates, stockholders, Directors, officers, agents, controlling persons,
subsidiaries, successors and assigns (individually, a "Releasee" and
collectively, "Releasees") from any and all claims, demands, proceedings, causes
of action, orders, obligations, contracts, agreements, debts and liabilities
whatsoever, whether known or unknown, suspected or unsuspected, both at law and
in equity, which the undersigned, or any of the undersigned's representatives,
agents and Affiliates now has, have ever had or may hereafter have against the
respective Releasees arising contemporaneously with or prior to the Closing or
on account of or arising out of any matter, cause or event occurring
contemporaneously with or prior to the Closing, including, but not limited to,
any rights to payment, indemnification or reimbursement from the Buyer, whether
pursuant to its Certificate of Incorporation, By-laws, contract or otherwise and
whether or not relating to claims pending on, or asserted after, the Closing.
Notwithstanding the foregoing, the following are expressly excluded from this
Release: (a) all rights of indemnification in favor of the undersigned pursuant
to the Indemnification Agreement dated February 25, 2002 between the undersigned
and the Buyer, any indemnification rights under the provisions of Section 145
Indemnification of Officers, directors, employees and agents; Insurance, of the
Delaware General Corporation Law, and rights
66
under any policy of insurance of Buyer for the benefit of the undersigned; (b)
rights of the undersigned under this Omnibus Agreement and Release to receive
delivery of shares of Common Stock of Buyer as and to the extent provided in
Section 1(b) and 1(c) hereof; and (c) rights under those options to purchase
Common Stock of the Buyer listed in Section 1(e) hereof that will continue to be
outstanding and held by the undersigned subsequent to the Closing Date.
The undersigned hereby irrevocably covenants to refrain from, directly
or indirectly, asserting any claim or demand, or commencing, instituting or
causing to be commenced, any proceeding of any kind against any Releasees, based
upon any matter purported to be released hereby.
3. MISCELLANEOUS. If any provision of this Omnibus Agreement and
Release is held invalid or unenforceable by any court of competent jurisdiction,
the other provisions of this Omnibus Agreement and Release will remain in full
force and effect. Any provision of this Omnibus Agreement and Release held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
This Omnibus Agreement and Release may not be changed except in a
writing signed by the person(s) against whose interest such change shall
operate. This Release shall be governed by and construed under the laws of the
State of Delaware without regard to principles of conflicts of law.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered
this Omnibus Agreement and Release as of this _______ day of March, 2003.
------------------------------------
Xxxxx Xxxxxx
Accepted and Agreed:
Xxxxx000.xxx, Inc.
By
-------------------------------
Duly Authorized
67
EXHIBIT VII
Business Plan of the Company
----------------------------
The Company intends to engage in the business of exploring for,
developing and producing oil and natural gas from reserves in various parts of
the world initially concentrating on India and adjacent offshore areas.
68
EXHIBIT VIII
DATED MARCH _____, 2003
GEOGLOBAL RESOURCES (INDIA) INC.
XXX GROUP (MAURITIUS) INC.
--------------------------------------------------------------------------------
PARTICIPATING INTEREST AGREEMENT
REGARDING AN INTEREST IN
THE BLOCK KG-OSN-2001/3 PRODUCTION SHARING CONTRACT
--------------------------------------------------------------------------------
69
PARTICIPATING INTEREST AGREEMENT
This Agreement is made on February 4, 2003.
BETWEEN:
GEOGLOBAL RESOURCES (INDIA) INC., a company incorporated in the
Province of Alberta, Canada, and having an office at 200, 000 - 0xx
Xxxxxx X.X., Xxxxxxx, Xxxxxxx, X0X 0X0, Xxxxxx ("GGR INDIA"); and
XXX GROUP (MAURITIUS) INC., a company incorporated under the laws of
the Republic of Mauritius having a registered office at x/x
Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxx, 0xx Xxxxx, Xxx Xxxxxxxx,
Xxxxx Xxxxxx Street, Port Louis, Mauritius ("RGM").
WHEREAS:
(A) GGR India holds a 10% undivided interest under the Production Sharing
Contract ("PSC-KG") and is a party to the Carried Interest Agreement
("CIA");
(B) Xxxx Xxxx Xxx ("JPR") of Guatemala owns all the common shares of GGR
India and of RGM and accordingly JPR controls GGR India and RGM;
(C) JPR and the Parties wish to provide for the participation by RGM in
respect of the Production Sharing Contract and in furtherance of that
goal GGR India agrees to assign and transfer and RGM agrees to accept
the Participating Interest on the terms and conditions hereinafter
provided.
NOW THEREFORE in consideration of representations and the mutual covenants and
understandings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
1. INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the
following meanings:
"AFFILIATE" has the same meaning as the definition as "Affiliate" in
the PSC-KG.
"AGREEMENT" means this Agreement.
"CARRIED INTEREST AGREEMENT" or "CIA" means the Carried Interest
Agreement dated August 27th, 2002, between Gujarat State Petroleum
Corporation Limited and GGR India.
"EFFECTIVE DATE" has the same meaning as the definition of "Effective
Date" in the PSC-KG.
70
"GOVERNMENT" means Directorate General of Hydrocarbons under the
Ministry of Petroleum & Natural Gas of India.
"GOVERNMENT PERMISSION" has the meaning ascribed to it in Clause 2.2.
"JOINT VENTURE PARTNERS" means the joint venture partners under the
PSC-KG, which, at the present date are Gujarat State Petroleum
Corporation Limited, GGR India and Jubilant Enpro Limited.
"PARTY" means GGR India or RGM and "PARTIES" means both of them.
"PARTICIPATING INTEREST" means fifty per cent (50%) of GGR India's
undivided interest in and under the PSC-KG and the CIA together with
any other documents supplemental or ancillary thereto and its rights,
interests and obligations relating thereto and all assets, joint
property, rights and interests relating thereto.
"PRODUCTION SHARING CONTRACT" or "PSC-KG" means the production sharing
contract dated February 4th, 2003, among the Government, Gujarat State
Petroleum Corporation Limited, Jubilant Enpro Limited and GGR India
with respect to the contract area identified as Block-KG-OSN-2001/3.
2. ASSIGNMENT OF PARTICIPATING INTEREST
2.1 (a) Subject to the terms of this Agreement, GGR India hereby
agrees to assign and transfer to RGM and RGM hereby agrees to
accept, the Participating Interest.
(b) Subject to the terms of this Agreement, the assignment and
transfer referred to in Clause 2.1(a) shall, as between the
Parties, be deemed for all purposes to be made with effect on
and from the Effective Date.
2.2 The Parties acknowledge the assignment and transfer in Clause 2.1(a) is
conditional upon the receipt of consent and/or permission from the
Government pursuant to Article 28 of the PSC-KG (the "GOVERNMENT
PERMISSION").
2.3 From the date hereof until all actions contemplated in Clause 2.5 are
completed, as between the Parties, GGR India shall retain the exclusive
right to deal with the other parties to the PSC-KG and the CIA and
shall be entitled to make all decisions regarding the Participating
Interest in its sole discretion as it determines is appropriate on
behalf of itself and RGM.
2.4 From the date hereof until all actions contemplated in Clause 2.5 are
completed, RGM hereby agrees to be bound by and responsible for any and
all actions taken by, obligations undertaken by and costs incurred by
GGR India in regard to the Participating Interest and acknowledges that
it will be responsible and liable to GGR India for its share of all
costs, interests, liabilities and obligations arising out of or in
relation to the Participating Interest, including the payment of all
income, withholding or transfer taxes, or any interest or penalties
relating thereto imposed
71
on or arising in respect of the Participating Interest. RGM further
undertakes and agrees to fully indemnify GGR India in respect of any
and all costs, expenses, losses, damages or liabilities occasioned by
RGM's failure to pay the same.
2.5 The Parties acknowledge a shared belief that the Government Permission
is forthcoming and agree that each Party shall use all reasonable
endeavours and provide all reasonable assistance to the other Party in
obtaining the Government Permission. Upon receiving the Government
Permission, the assignment and transfer shall be effective as between
the Parties in accordance with Clause 2.1(b) and the Parties shall
arrange for the execution of assignment and novation agreements in
respect of the PSC-KG and the CIA, as well as any joint operating
agreement which may have been entered into among GGR India and the
other Joint Venture Partners, in order to formally recognize the
assignment and transfer of the Participating Interest to RGM.
2.6 Subject to all actions contemplated in Clause 2.5 being completed:
(a) RGM undertakes to indemnify GGR India and keep GGR India
indemnified from all costs, claims, liabilities and expenses
in respect of the Participating Interest arising out of or in
connection with any event, incident, act or omission occurring
on or after the Effective Date.
(b) RGM shall be entitled to all income, receipts, credits,
reimbursements, monies receivable, rebates and other benefits
in respect of the Participating Interest which relate to the
period on or after the Effective Date.
(c) GGR India shall have the right to off-set any sums owing to
RGM pursuant to paragraph 2.6(b) against sums owing to GGR
India pursuant to paragraph 2.6(a) hereof.
3. REPRESENTATIONS AND WARRANTIES
3.1 Each Party represents and warrants to the other Party that this
Agreement and all other documents executed and delivered by and on
behalf of a Party pursuant to this Agreement have been or will be duly
authorized, executed and delivered by such Party and constitute or will
constitute valid and binding obligations of such Party and such Party
has taken all actions necessary to authorize and complete the
transactions contemplated herein.
3.2 RGM acknowledges and agrees that it has relied on its own
investigations and due diligence with respect to the Participating
Interest, and that it is fully aware of the terms and conditions of the
PSC-KG and the CIA.
4. FURTHER ASSURANCE
4.1 Each Party undertakes to the other Party that it will do all such acts
and things and execute all such deeds and documents as may be necessary
or desirable to carry
72
into effect or to give legal effect to the provisions of this Agreement
and the transactions hereby contemplated.
5. RIGHT TO ASSIGN, SELL OR DISPOSE
5.1 From the date hereof until August 4, 2009, RGM agrees that it shall
not:
(a) dispose of any of any interest in this Agreement or any
Participating Interest, whether by assignment, sale, trade,
lease, sublease, farmout or otherwise; or
(b) assign or transfer shares of RGM to any third party;
without first complying with the provisions of Clause 5.2, provided
that it may assign, transfer or dispose such an interest to an
individual member of JPR's family, a corporate body controlled by JPR
or a member of his family, or an Affiliate of RGM, without any
requirement to comply with the provisions of this Clause 5, provided
such transferee agrees in writing to be bound by all the terms of this
agreement. In any event, RGM shall give five (5) days prior written
notice to GGR India of all transfers in reliance upon the proviso set
forth in the foregoing sentence.
5.2 If RGM wishes to make an assignment, transfer or disposition
contemplated in Clause 5.1, it shall, by notice, advise GGR India of
its intention to make such assignment, transfer or disposition,
including in such notice a description of the Participating Interest or
other interest proposed to be disposed, the identity of the proposed
assignee, the price or other consideration for which the RGM is
prepared to make such disposition and all other material terms of the
proposed transaction, the proposed effective date and closing date of
the transaction and any other information material to the exercise of
GGR India's rights hereunder. GGR India shall have a right of first
refusal to purchase the interest described in such notice.
5.3 Within twenty (20) days from receipt of notice in Clause 5.2 GGR India
may give notice to RGM that it elects to purchase the Participating
Interest or other interest described in the disposition notice for the
applicable price or comparable consideration. Such notice of acceptance
shall create a binding contractual obligation upon RGM to sell, and
upon GGR India to purchase, for the applicable consideration, all of
the Participating Interest or other interest included in such
disposition notice on the terms and conditions set forth in the
disposition notice.
5.4 If GGR India does not elect to exercise its right of first refusal, the
assignment, transfer or disposition to the original proposed assignee
may proceed, subject to the consent of GGR India, such consent not to
be unreasonably withheld.
73
6. GENERAL
6.1 The rights and remedies herein provided are cumulative and not
exclusive of any rights and remedies provided by law.
6.2 No provision of this Agreement may be amended, modified, waived,
discharged or terminated, otherwise than by the express written
agreement of the parties hereto nor may any breach of any provision of
this Agreement be waived or discharged except with the express written
consent of the Party not in breach.
6.3 The Parties agree that if the Government Permission is materially
delayed or such Government Permission is declined such that a Party is
deprived of economic benefit it would otherwise be entitled to receive
under the Agreement, the Parties agree to amend the Agreement or take
such other reasonable steps to ensure that an equitable result for both
Parties is achieved consistent with their intentions as set out herein
or contemplated hereby, and in particular, the Parties agree to ensure
that RGM is provided an economic benefit equivalent to that originally
contemplated by the Parties herein In the event Government Permission
is declined, neither Party shall be entitled to assert any claim
against the other Party, except in accordance with their rights as
specifically set forth herein.
7. NOTICES
7.1 Any notice or other communication given or made under this Agreement
shall be in writing and may be delivered to the relevant Party or sent
by prepaid letter, telex or facsimile transmission to the address of
that Party specified in this Agreement or to that Party's telex or
facsimile transmission number thereat or such other address or number
as may be notified hereunder by that Party from time to time for this
purpose and shall be effectual notwithstanding any change of address
not so notified.
7.2 Unless the contrary shall be proved, each such notice or communication
shall be deemed to have been given or made and delivered, if by letter
72 hours after posting, if by delivery, when left at the relevant
address and, if by telex or facsimile transmission, when transmitted.
7.3 The respective addresses for service are:
(a) GGR India
GeoGlobal Resources (India) Inc.
200, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0, Xxxxxx
Facsimile No. (000) 000-0000
Attention: Xxxxx X. Xxxx
74
(b) RGM
Xxx Group (Mauritius) Inc.
c/o International Financial Services Limited
0xx Xxxxx, Xxx Xxxxxxxx, Xxxxx Xxxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxxxxxx
Facsimile No. (000) 000-0000
Attention: Dev Joory
8. GOVERNING LAW
8.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of Alberta and the Parties agree to submit to
the non-exclusive jurisdiction of the Courts in Alberta as regards any
claim or matter arising in relation to this Agreement.
AS WITNESS the hands of the duly authorised representatives of the Parties the
day and year first above written.
For and on behalf of:
GEOGLOBAL RESOURCES (INDIA) INC.
Per:
------------------------------
Per:
------------------------------
For and on behalf of:
XXX GROUP (MAURITIUS) INC.
Per:
------------------------------
Per:
------------------------------
75
EXHIBIT IX
OPTION GRANT AND WARRANT TABLE
76
EXHIBIT X
CONSULTING AGREEMENT
BETWEEN
XXXX XXXX XXX
AND
XXXXX000.XXX, INC.
AND
GEOGLOBAL RESOURCES (INDIA) INC.
MADE AS OF
_________, 2003
TABLE OF CONTENTS
ARTICLE 1 - CONSULTING SERVICES...............................................3
1.01 Duties............................................................3
1.02 Term of Contract for Services.....................................3
1.03 Place of Work.....................................................4
1.04 Outside Interests.................................................4
ARTICLE 2 - REMUNERATION......................................................4
2.01 Fees..............................................................4
2.02 Benefits..........................................................4
2.03 Vacation..........................................................4
2.04 Expenses..........................................................4
2.05 Deductions........................................................4
ARTICLE 3 - CONSULTANT'S COVENANTS............................................5
3.01 Service...........................................................5
3.02 Duties and Responsibilities.......................................5
3.03 Rules and Regulations.............................................5
3.04 Non-Disclosure....................................................5
ARTICLE 4 - TERMINATION.......................................................5
4.01 Termination by Company for Cause..................................5
4.02 Termination by Consultant on Notice...............................6
4.03 Change of Control.................................................6
4.04 Termination by Company on Notice..................................6
4.05 Fair and Reasonable...............................................7
4.06 Return of Property................................................7
4.07 Provisions which Operate Following Termination....................7
4.08 Definition in "Change in Control".................................8
4.09 Termination on Death..............................................8
ARTICLE 5 - RENEWAL OF AGREEMENT..............................................8
5.01 Automatic Renewal.................................................8
ARTICLE 6 - GUARANTEE of GGR INDIA............................................8
6.01 Guarantee.........................................................8
ii
ARTICLE 7 - GENERAL...........................................................8
7.01 Sections and Headings.............................................8
7.02 Number............................................................9
7.03 Schedules.........................................................9
7.04 Benefit of Agreement..............................................9
7.05 Entire Agreement..................................................9
7.06 Amendments and Waivers............................................9
7.07 Severability......................................................9
7.08 Notices..........................................................10
7.09 Governing Law....................................................10
7.10 Attornment.......................................................10
7.11 Counterpart Execution............................................11
7.12 Copy of Agreement................................................11
SCHEDULE "A" - OUTSIDE INTERESTS.............................................10
CONSULTING AGREEMENT
THIS AGREEMENT made as of _____, 2003;
BETWEEN:
XXXX XXXX XXX, of Guatemala (hereinafter referred to as the
"Consultant"),
OF THE FIRST PART,
-and-
XXXXX000.XXX, INC., a corporation incorporated under the laws
of Delaware (hereinafter referred to as the "Company"),
OF THE SECOND PART,
- and-
GEOGLOBAL RESOURCES (INDIA) INC., a corporation incorporated
under the laws of the Province of Alberta, (hereinafter
referred to "GGR India" or the "Guarantor")
THIS AGREEMENT WITNESSES that in consideration of the
covenants and agreements herein contained the parties hereto agree as follows:
ARTICLE 1 - CONSULTING SERVICES
1.01 DUTIES
Subject to the terms and conditions herein contained, the
Consultant shall be contracted to the Company to act in the capacity as
President, reporting to the Board of Directors of the Company, and shall perform
such duties and exercise such powers related thereto as may from time to time be
assigned to him by the Company. The Consultant agrees to act as a director of
the Company and GGR India and Chairman of the Board and to carry such
responsibilities during the currency of and extensions to this Agreement.
1.02 TERM OF CONTRACT FOR SERVICES
The term shall commence on April 1, 2003 and shall be for a
period of three years subject to renewal in accordance with the terms of this
Agreement.
4
1.03 PLACE OF WORK
The Consultant shall perform his work and services for the
Company and GGR India from time to time in India, Guatemala and Canada.
1.04 OUTSIDE INTERESTS
The Consultant hereby declares that he has existing outside
interests as identified on Schedule "A", which shall not be deemed to be in
conflict with this Agreement.
ARTICLE 2 - REMUNERATION
2.01 FEES
The Company shall pay the Consultant during the term of this
Agreement a gross annual net consulting fee of two hundred and fifty thousand
($250,000.00) US dollars payable in equal monthly instalments in arrears. Such
fee shall be reviewed by the parties prior to any renewal of this Agreement and
any changes in such fee shall be agreed upon in writing between the parties.
2.02 BENEFITS
The Consultant will be entitled to participate in all of the
Company's individual and family benefit plans relating to health care, including
all medical, disability and dental plans and coverage for medical services
world-wide with SOS and its affiliates. The Consultant shall also be entitled to
participate in the Company's plans relating to general and professional
liability, together with any bonus and stock option plans offered by the
Company.
2.03 VACATION
During the term of this Agreement, the Consultant shall be
entitled to six (6) weeks vacation per annum. Such vacation shall be taken at a
time or times acceptable to the Company having regard to its operations.
2.04 EXPENSES
The Consultant shall be reimbursed for all authorized
traveling and other reasonable out-of-pocket expenses actually and properly
incurred and documented by him in connection with his duties hereunder. For all
such expenses the Consultant shall furnish to the Company statements and
vouchers on a monthly basis.
2.05 DEDUCTIONS
It is the intention of the Parties that the Company will not
make any deduction or withholding from amounts due to the Consultant under
Article 2. If the
5
Company becomes required under applicable law to make any deduction or
withholding, it shall advise the Consultant accordingly and the Parties shall
cooperate in an effort to minimize the effect of such deduction or withholding
or, if possible, avoid it altogether.
ARTICLE 3 - CONSULTANT'S COVENANTS
3.01 SERVICE
Except as set forth in Schedule "A" hereto and as may
otherwise may be agreed to in writing by the Company, the Consultant shall
devote the whole of his time, attention and ability to the business of the
Company or to the business of any other person as authorized and directed by the
Company and shall well and faithfully serve the Company and shall use his best
efforts to promote the interests of the Company and bring other opportunities to
the Company.
3.02 DUTIES AND RESPONSIBILITIES
The Consultant shall duly and diligently perform all of the
duties assigned to him while contracted to the Company, and shall truly and
faithfully account for and deliver to the Company all business opportunities
during the term of this Agreement and any money, securities and things of value
belonging to the Company which the Consultant may from time to time receive for,
from or on account of the Company.
3.03 RULES AND REGULATIONS
The Consultant shall be bound by and shall faithfully observe
and abide by all the rules and regulations of the Company from time to time in
force which are brought to his notice or of which he should reasonably be aware.
3.04 NON-DISCLOSURE
The Consultant shall not, during the term of this Agreement or
at any time thereafter, disclose any information relating to the private or
confidential affairs of the Company or relating to any secrets of the Company,
to any person other than for the Company's purposes and, without limiting the
generality of the foregoing, the Consultant shall not use for his own purposes
or for any purposes other than those of the Company, any such information or
secrets he may obtain, develop or acquire during the term of this Agreement, in
relation to the business of oil and gas exploration, development and production.
ARTICLE 4 - TERMINATION
4.01 TERMINATION BY COMPANY FOR CAUSE
The Company may terminate this Agreement, immediately upon
written notice, at any time for cause, without liability or payment of any
additional compensation,
6
either by way of anticipated earnings or damages of any kind. If there is a
termination for cause, the Consultant shall be paid within seven (7) days of
termination all accrued compensation.
4.02 TERMINATION BY CONSULTANT ON NOTICE
The Consultant may terminate this Agreement upon the giving of
thirty (30) days prior written notice to the Company without payment by the
Company of any compensation either by way of anticipate earnings or damages of
any kind, arising after the date of such notice.
4.03 CHANGE OF CONTROL
Notwithstanding section 4.02 hereof, in the event:
(a) is a change in control as defined in Section 4.08 hereof; and
(b) the Consultant, within 120 days following the change in
control, voluntarily terminates his services with the Company
or is otherwise terminated by the Company without cause;
the Consultant agrees to accept at the effective date of such termination, in
addition to any amounts payable to the Consultant at the date of termination for
accrued but unpaid amounts or other related payments, those amounts that would
otherwise be payable to the Consultant as if he were terminated by the Company
pursuant to Section 4.04 hereof.
4.04 TERMINATION BY COMPANY ON NOTICE
The Company may terminate this Agreement upon the giving of
ninety 90 days written notice to the Consultant.
Upon termination of this Agreement by the Company:
(a) the Company shall pay to the Consultant an amount equal to two
(2) years consulting fees and any earned bonus (bonus amount
to be calculated based on the current year's bonus or, if not
yet determined, the prior year's bonus, if any);
(b) the Company shall pay to the Consultant the cash equivalent of
the value of the Consultant's stock options that are
outstanding at the date of termination pursuant to the Black
Scholes option pricing model based on the following factors:
(i) 50% stock volatility;
7
(ii) dividend rate deemed to be 0%;
(iii) a market price equal to the 20 day weighted trading
average immediately prior to termination (in the
absence of a public market, then the fair market
value of the shares shall be used, based on the most
recent independent engineering appraisal); and
(iv) the risk free rate of interest equaling the bank
borrowing rate of the Company at the date of
termination
as though all such stock options were fully vested;
(c) the Company shall maintain the Consultant's participation for
3 months in all benefit plans provided to the Consultant by
the Company immediately prior to the termination of this
agreement; and
(d) any such payments under this Section are to be paid in a lump
sum forthwith or, at the direction of the Consultant, in
installments at the Company's cost of borrowing.
The Consultant agrees that the Company may deduct from any
payment of the Consultant's benefit plan contributions (if any) which were made
during the term of this Agreement in accordance with terms of all benefit plans
to be maintained hereunder for the minimum period prescribed by law.
4.05 FAIR AND REASONABLE
The parties confirm that the notice, pay in lieu of notice and
settlement provisions contained in Section 4.04 are fair and reasonable and the
parties agree that upon any termination of this Agreement by the Company in
compliance with Sections 4.01 or 4.04 or upon any termination of this Agreement
by the Consultant, the Consultant shall have no action, cause of action, claims
or demand against the Company and GGR India or any other person as a consequence
of such termination.
4.06 RETURN OF PROPERTY
Upon any termination of this Agreement the Consultant shall at
once deliver or cause to be delivered to the Company all books, documents,
effects, money securities or other property belonging to the Company or for
which the Company is liable to others, which are in the possession, charge,
control or custody of the Consultant.
4.07 PROVISIONS WHICH OPERATE FOLLOWING TERMINATION
Notwithstanding any termination of this Agreement for any
reason whatsoever and with or without cause, the provisions of Sections 3.04 and
4.06 of this Agreement and any other provisions of this Agreement necessary to
give efficacy thereto shall continue in full force and effect following such
termination.
8
4.08 DEFINITION IN "CHANGE IN CONTROL"
For purposes of this Agreement, the expression "change in
control" of the Company shall be deemed to take effect on the direct or indirect
acquisition by any person, or group of associated persons acting in concert, who
are not currently shareholders of the Company and who are not affiliates of
current shareholders of the Company, of any aggregate of more than 60% of the
outstanding voting shares, including securities which on conversion to voting
shares would be more than 60% of the outstanding voting shares. Notwithstanding
the foregoing, a change of control shall not include an initial merger with, or
takeover by, a public company.
4.09 TERMINATION ON DEATH
This Agreement shall terminate upon death of the Consultant or
in his obligation to perform the services required of him in which case no
compensation is thereafter payable.
ARTICLE 5 - RENEWAL OF AGREEMENT
5.01 AUTOMATIC RENEWAL
This Agreement shall continue for successive periods of one
year's duration on the same terms and conditions unless otherwise agreed upon in
writing between parties, provided that the Consultant or Company has given at
least 30 days written notice to the other that this Agreement is to terminate at
the end of the initial term or at the end of any successive period of one year.
ARTICLE 6 - GUARANTEE OF GGR INDIA
6.01 GUARANTEE
GGR India agrees to guarantee the financial obligations of the
Company contained in Articles 2, 4.01, 4.03, 4.04 during the terms of this
Agreement and extensions thereof.
ARTICLE 7 - GENERAL
7.01 SECTIONS AND HEADINGS
The division of this Agreement into Articles and Sections and
the insertion of headings are for the convenience of reference only and shall
not affect the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any agreement or instrument supplemental on ancillary hereto. Unless
something in the subject matter or contact is inconsistent
9
therewith, references herein to Articles and Sections are to Articles and
Sections of this Agreement.
7.02 NUMBER
In this Agreement, words importing the singular number only
shall include the plural and vice versa and words importing the masculine gender
shall include the feminine and neuter genders and vice versa and words importing
persons shall include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations and vice versa.
7.03 SCHEDULES
The following Schedule is annexed hereto and incorporated by
reference and deemed to be part hereof:
Schedule A - Outside Interests
7.04 BENEFIT OF AGREEMENT
This Agreement shall enure to the benefit of and be binding
upon the heirs, executors, administrators and legal personal representatives of
the Consultant and the successors and permitted assigns of the Company
respectively.
7.05 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and cancels and supersedes any
prior understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, forms, conditions,
undertakings or collateral agreements, express, implied or statutory between the
parties other than as expressly set forth in this Agreement.
7.06 AMENDMENTS AND WAIVERS
No amendment to this Agreement shall be valid or binding
unless set forth in writing and duly executed by both of the parties hereto. No
waiver of any breach of any provision of this Agreement shall be effective or
binding unless made in writing and signed by the party purporting to give the
same and, unless otherwise provided in the written waiver, shall be limited to
the specific breach waived.
7.07 SEVERABILITY
If any provision of this Agreement is determined to be invalid
or unenforceable in whole or in part, such invalidity or unenforceability shall
attach only to such provision or part thereof and the remaining part of such
provision and all other provisions hereof shall continue in full force and
effect.
10
7.08 NOTICES
Any demand, notice or other communication (hereinafter in this
Section 6.08 referred to as a "Communication") to be given in connection with
this Agreement shall be given in writing and may be given by personal delivery
or by registered mail addressed to the recipient as follows:
To the Consultant:
Xxxx Xxxx Xxx and
c/o Xxxxxxx X. Xxxxxx, Lawyer
200, 630 - 4th Avenue SW 0X Xxxxx 0-00 Xxxx 7 Col. Xxxxxxxx
Calgary, Alberta Xxxxxxxxx Xxxx, Xxxxxxxxx
X0X 0X0
Fax: (000) 000-0000
To the Company: To GGR India:
Suite 000.xxx Inc. 200, 000 - 0xx Xxxxxx X.X.
200, 630 - 4th Avenue SW Calgary, Alberta
Xxxxxxx, Xxxxxxx X0X 0X0
X0X 0X0
Fax: (000) 000-0000 Fax: (000) 000-0000
or such other address or individual as may be designated by notice by either
party to the other. Any Communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof
and, if made or given by registered mail, on the third (3rd) day, other than a
Saturday, Sunday or statutory holiday in Alberta, following the deposit thereof
in the mail. If the party giving any Communications knows or ought reasonably to
know of any difficulties with the postal system which might affect the delivery
of mail, any such Communication shall not be mailed but shall be given by
personal delivery.
7.09 GOVERNING LAW
This Agreement shall be governed by and constructed in
accordance with the laws of the Province of Alberta and the laws of Canada
applicable therein.
7.10 ATTORNMENT
For the purpose of all legal proceedings, this Agreement shall
be deemed to have been performed in the Province of Alberta and the courts of
the Province of Alberta shall have jurisdiction to entertain any action arising
under this Agreement. The
11
Company and the Consultant each hereby attorns to the jurisdiction of the courts
of the Province of Alberta provided that nothing herein contained shall prevent
the Company from proceeding at its election against the Consultant in the courts
of any other province or country.
7.11 COUNTERPART EXECUTION
This Agreement may be executed in counterpart and the parties
may rely on a faxed executed copy of the counterpart, for all purposes.
7.12 COPY OF AGREEMENT
The Consultant hereby acknowledges receipt of this Agreement
duly signed by the Company.
IN WITNESS WHEREOF the parties have executed this Agreement.
---------------------------- ----------------------------------
Witness Xxxx Xxxx Xxx
SUITE 000.XXX, INC.
Per:
-----------------------------
Xxxxx X. Xxxx, Director
Executive VP & CFO
Per:
-----------------------------
Xxxxx Xxxxxx, Director
GEOGLOBAL RESOURCES (INDIA) INC.
Per:
-----------------------------
Xxxxx X. Xxxx, Director
Executive VP & CFO
12
SCHEDULE "A" - OUTSIDE INTERESTS
XXX GROUP (MAURITIUS) INC. ("RGM")
Xxxx Xxx is the sole shareholder of RGM which holds a Participating Interest
Agreement with GGR India.
NIKO RESOURCES INC.
Xxxx Xxx and members of his family may from time to time own shares of Niko
Resources Inc., the public company.
XXX GROUP (BARBADOS) INC. ("RGB")
Xxxx Xxx is the joint shareholder of RGB which holds security and cash.
DISCLOSURE SCHEDULE
Section 3.1
Company Certificate of Incorporation and By-Laws
Section 3.3
Required Consents and Approvals
The parties understand and agree that under the terms of the PSC-KG,
the consent of the Government of India is required to conduct the Closing under
this Agreement. As of April 4, 2003, Seller and the Company have not obtained
the consent of the Government of India. The consent of the Government of India
will be obtained prior to and be a condition to the Closing of this Agreement.
Section 3.4
No Conflicts
None
Section 3.6
Financial Statements of the Company
14
Section 3.7
Liabilities of the Company
None
Section 3.8
Certain Changes or Events
The Company is engaged in negotiating the terms of a Joint Operating Agreement
with the parties to the PSC-KG. That agreement will contain terms usual and
customary in the industry for such agreements.
Section 3.9
Title to Properties
None
Section 3.10
Company Contracts
None
Section 3.12
Taxes
None
15
Section 3.13
Compliance With Laws
None
Section 3.14
Employee Agreements
None
Section 3.15
Company Material Permits
See Section 3.3
Section 3.16
Bonding; Security Arrangements
None
16
Section 3.17
Interest in Affiliates, Vendors, Suppliers, Consultants
None
Section 3.18
Company Employees
None
Section 4.2
Buyer Certificate of Incorporation and By-Laws
Section 4.3
Outstanding Options, Etc.
See Exhibit IX
17
Section 4.7
Subsidiaries of Buyer
Name Jurisdiction
----- -------------
i5ive Communications Inc. British Columbia
Endovascular, Inc. California (inactive)
Section 4.8
Buyer's SEC Documents
1) Annual Report on Form 10-KSB for the fiscal year ended December 31, 2002
2) Quarterly Report on Form 10-QSB for the quarter and nine months ended
September 30, 2002
3) Quarterly Report on Form 10-QSB for the quarter and six months ended June
30, 2002
4) Quarterly Report on Form 10-QSB for the quarter ended March 31, 2002
5) Current Report on Form 8-K for January 22, 2003
6) Current Report on Form 8-K for March 4, 2003
7) Current Report on Form 8-K for May 15, 2002
8) Current Report on Form 8-K for May 21, 2002
9) Current Report on Form 8-K for July 17, 2002
18
Section 4.9
Liabilities of Buyer
Accounts payable accrued through the Closing.
Section 4.10
Certain Changes or Events
None
Section 4.11
Title to Properties
None
Section 4.12
Buyer Contracts
Indemnification Agreements dated February 25, 2002 with each of Xxxxxxxx X.
Xxxxxxxx, Xxxxxxx X. Loblaw, Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, and Xxxx
Xxxxxxxx.
Omnibus Agreements and Releases with Xxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Loblaw,
Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx and Xxxx Xxxxxxxx.
Agreement of Purchase and Sale dated June 1, 2002 between Marketeam and i5ive.
Common Stock Purchase Warrants to purchase an aggregate of 625,000 shares of
Buyer's Common Stock at $0.52 per share. Reference is made to Exhibit IX.
19
Option Agreements under the Buyer's Stock Incentive Plan. Reference is made to
Exhibit IX.
The Buyer is obligated under the terms of an agreement to make monthly payments
of $1,426 until April 2003 for the hosting of its former server.
Section 4.14
Taxes
The tax return for 2002 has not been filed.
Section 4.15
Compliance With Laws
None
Section 4.16
Employee Agreements
Indemnification Agreements dated February 25, 2002 with each of Xxxxxxxx X.
Xxxxxxxx, Xxxxxxx X. Loblaw, Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx and Xxxx Xxxxxxxx
Contract with Xxxx Xxxxxxxx on a month to month basis at $1,000 per month
20
Section 4.18
Buyer Material Permits
None
Section 4.19
Buyer Employees
None
Section 5.1
Company Conduct of Business
1. Execution of Participating Interest Agreement
2. The Company will become incorporated under the laws of Barbados subsequent to
the Closing.
Section 5.1
Buyer Conduct of Business
None
