EXHIBIT 10.4
SHARE PURCHASE AGREEMENT
DATED FOR REFERENCE THE 9th DAY OF JULY 1999 (the "Reference Date"),
BETWEEN: DEXTON TECHNOLOGIES CORPORATION, a corporation incorporated
under the laws of the Province of British Columbia having a
place of business at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
(the "Shareholder");
AND: ABLE AUCTIONS (1991) LTD., a corporation incorporated under
the laws of the Province of British Columbia having a place of
business at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
("Able Auctions");
AND: XXXXXXXXXXXX.XXX, INC. (formerly X.X. FINANCIAL SERVICES, INC.),
a company incorporated under the laws of the State of Florida
having a place of business at 688 - 6 Ishikawa, Kanagawa,
Japan, 252 0815
(the "Purchaser");
WHEREAS:
A. The authorized share capital of Able Auctions consists of 10,000 shares
without par value divided into 5,000 Class "A" shares and 5,000 class "B"
shares, of which only 100 Class "A" shares (the "Able Auctions Shares") are
issued and outstanding;
B. The Shareholder is the registered and beneficial owner of all the Able
Auctions Shares;
C. Able Auctions owes the Shareholder a total of CDN$1,304,843 comprised of a
shareholder loan of CDN$741,000 (the "Shareholder Loan") and indebtedness of
CDN$563,843 (the "Indebtedness"); and
D. The Shareholder has agreed to sell the Able Auctions Shares and the
Shareholder Loan to the Purchaser and the Purchaser has agreed to purchase the
Able Auctions Shares and the Shareholder Loan from the Shareholder in exchange
for cash and voting common shares of the Purchaser, on the following terms and
conditions;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the covenants
and agreements herein contained, the parties hereto do covenant and agree (the
"Agreement") as follows:
1. SHARE PURCHASE
1.1 Subject to the terms and conditions of this Agreement, the Shareholder
agrees to sell to the Purchaser and the Purchaser agrees to purchase from the
Shareholder, all of the Able Auctions Shares and the Shareholder Loan, for a
total purchase price (the "Purchase Price") of CDN$1,562,900 (determined as of
the Reference Date, using an agreed exchange rate of CDN$1.46 = US$1.00),
comprised of CDN$1,541,000 (the "Cash Portion") and 1,500,000 voting common
shares of the
Purchaser (the "JBF Shares") with an aggregate value of US$15,000 (at the deemed
price of US$0.01 per JBF Share).
1.2 The Purchase Price shall be allocated as follows:
(a) CDN$821,900 to the Able Auctions Shares, comprised of the value of the
JBF Shares plus CDN$800,000 of the Cash Portion; and
(b) CDN$741,000 to the Shareholder Loan, comprised of the balance of the
Cash Portion.
1.3 The issuance of the JBF Shares has not been approved or disapproved by the
United States Securities and Exchange Commission, any state securities agency,
or any foreign securities agency, and the Purchaser is not registered under the
United States Securities Exchange Act of 1934.
1.4 The transactions contemplated under this Agreement (the "Transactions")
shall be completed (the "Completion") at the offices of the Purchaser's
solicitors, Messrs. Xxxxxxx & Xxxxxx, 2100 - 1111 West Georgia Street,
Vancouver, British Columbia, or at such other place as may be agreed between the
parties, at 11:00 o'clock a.m. local time in Vancouver, B.C., or at such other
time as may be agreed between the parties, (the "Time of Closing") on 10 August
1999, or on such other date as may be agreed between the parties, (the "Closing
Date").
1.5 The Purchaser has paid to the Shareholder's solicitors, Page Fraser &
Associates, in trust, a deposit of US$50,000 (the "Deposit"), which shall be
handled as follows:
(a) the Deposit shall be held in trust in U.S. currency until disbursed as
described below, and any interest earned on the Deposit shall be paid
to the Law Society of British Columbia;
(b) if the Transactions complete as contemplated herein, then the Deposit
shall be converted into Canadian currency on the Closing Date and paid
in accordance with Article 6 of this Agreement on Completion on
account of the Cash Portion;
(c) if the Shareholder removes or waives all of the conditions for its
benefit, but any of the Transactions do not complete due to default or
breach of the Purchaser, then CDN$25,000 of the Deposit shall be
converted into Canadian currency and paid to the Shareholder as
liquidated damages in full and final satisfaction of any claim the
Shareholder may have, and the balance of the Deposit shall be repaid
to the Purchaser in U.S. currency;
(d) if either the Shareholder or the Purchaser does not remove or waive a
condition for its benefit, then the Deposit shall be repaid to the
Purchaser in U.S. currency and the parties shall have no further
obligations to each other;
(e) if the Purchaser removes or waives all of the conditions for its
benefit, but any of the Transactions do not complete due to default or
breach of the Shareholder or Able Auctions, then the Deposit shall be
repaid to the Purchaser in U.S. currency without prejudice to any
other claim the Purchaser may have; or
(f) as may otherwise be directed by the parties jointly in writing or by
order of a Court of competent jurisdiction.
-2-
2. CONDITIONS PRECEDENT
2.1 The Purchaser's obligation to carry out the terms of this Agreement and to
complete its transactions contemplated under this Agreement is subject to the
fulfilment to the satisfaction of the Purchaser of each of the following
conditions that:
(a) on or before 30 July 1999 (the "Subject Removal Date"), the Purchaser
shall have been able to complete the Purchaser's Investigation
(defined below) with results to its reasonable satisfaction;
(b) on or before the Subject Removal Date, the Purchaser shall have
restructured or otherwise altered its share capital so that the
Purchaser's authorized capital is sufficient to permit issuance of the
JBF Shares, and so that immediately after issuance of the JBF Shares
and completion of the Financing (defined below), the number of the JBF
Shares shall be equal to at least 10% of the total number of shares of
the Purchaser issued and outstanding (the "Outstanding Shares");
(c) on or before the Closing Date, the Purchaser shall have arranged a
financing (the "Financing") to raise at least US$3,000,000 but not
more than US$3,600,000, to complete at the Time of Closing,
immediately after issuance of the JBF Shares, to be used to pay the
Cash Portion and otherwise for the Purchaser's working capital
purposes, through issuance of shares and share purchase warrants
expected to be priced at US$3.00 per unit, with each unit expected to
be comprised of one share of the Purchaser and one-half of a warrant
to purchase one further share of the Purchaser for US$3.00 in the
first year following the issuance of the units, or US$3.50 per share
in the second year following issuance of the units;
(d) on or before the Subject Removal Date, the directors and, if required,
the shareholders of the Purchaser shall have approved this Agreement
and all the transactions of the Purchaser contemplated hereunder;
(e) at the Time of Closing, the solicitors for the Shareholder shall
provide an opinion dated as of the Closing Date, substantially in the
form of Schedule A to this Agreement (the "Able Auctions Solicitor
Opinion");
(f) at the Time of Closing, the Shareholder shall provide originally
executed written confirmation from Canadian Imperial Bank of Commerce
("CIBC") that, upon receipt of the Cash Portion, CIBC will release the
security registered at the British Columbia Personal Property Security
Registry (the "PPSR") under base registration no.s 7862078 and 7921207
(the "CIBC Security") and all other claims against and security
granted by Able Auctions;
(g) as of the Time of Closing, the Shareholder and Able Auctions shall
have complied with all of their respective covenants and agreements
contained in this Agreement; and
(h) as of the Time of Closing, the representations and warranties of the
Shareholder contained in this Agreement or contained in any
certificates or documents delivered by the Shareholder pursuant to
this Agreement shall be completely true as if such representations and
warranties had been made as of the Time of Closing.
-3-
The conditions set forth above are for the exclusive benefit of the Purchaser
and may be waived by the Purchaser in whole or in part at any time at or before
the Time of Closing.
2.2 The Shareholder's obligations to carry out the terms of this Agreement and
to complete its transactions contemplated under this Agreement are subject to
the fulfilment to its satisfaction of each of the following conditions that:
(a) on or before the Subject Removal Date, the Shareholder shall have been
able to complete the Shareholder's Investigation (defined below) with
results to its reasonable satisfaction;
(b) on or before the Subject Removal Date, the Purchaser shall have
restructured or otherwise altered its share capital so that the
Purchaser's authorized capital is sufficient to permit issuance of the
JBF Shares, and so that immediately after issuance of the JBF Shares
and completion of the Financing, the number of the JBF Shares shall be
equal to at least 10% of the Outstanding Shares;
(c) on or before the Closing Date, the Purchaser shall have arranged the
Financing to complete immediately after the issuance of the JBF
Shares;
(d) at the Time of Closing, the solicitors for the Purchaser shall provide
an opinion dated as of the Closing Date, substantially in the form of
Schedule B to this Agreement (the "JBF Solicitor Opinion");
(e) on or before the Subject Removal Date, the directors and, if required,
the shareholders of the Shareholder shall have approved this Agreement
and all the transactions of the Shareholder contemplated hereunder;
(f) as of the Time of Closing, the Purchaser shall have complied with all
of its covenants and agreements contained in this Agreement; and
(g) at the Time of Closing, the representations and warranties of the
Purchaser contained in this Agreement or contained in any certificates
or documents delivered by it pursuant to this Agreement shall be
completely true as if such representations and warranties had been
made by the Purchaser as of the Time of Closing.
The conditions set forth above are for the exclusive benefit of the Shareholder
and may be waived by it in whole or in part at or before the Time of Closing.
2.3 The parties acknowledge and agree each with the other that this Agreement
and all of the Transactions are subject to receipt of any regulatory approvals
that may be required under applicable laws, including the approval of the
Vancouver Stock Exchange. If any such approvals are required but are not
obtained by the Subject Removal Date, then this Agreement shall terminate and be
of no further force and effect.
3. COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS
3.1 The Shareholder and Able Auctions jointly and severally covenant and agree
with the Purchaser that each of the Shareholder and Able Auctions shall:
-4-
(a) from and including the Reference Date through to and including the
Time of Closing, permit the Purchaser, through its directors,
officers, employees and authorized agents and representatives, at the
Purchaser's own cost, full access to Able Auctions' books, records and
property including, without limitation, all of the assets, contracts
and minute books of Able Auctions, so as to permit the Purchaser to
make such investigation (the "Purchaser's Investigation") of Able
Auctions as the Purchaser considers advisable;
(b) use its reasonable best efforts to obtain any regulatory approvals for
this Agreement and the transactions contemplated hereunder required by
applicable laws on or before the Closing Date;
(c) provide to the Purchaser all such further documents, instruments and
materials and do all such acts and things as may be required by the
Purchaser to obtain any regulatory approvals that may be required
under applicable laws;
(d) from and including the Reference Date through to and including the
Time of Closing, do all such acts and things that may be necessary to
ensure that all of the representations and warranties of the
Shareholder, Able Auctions or either of them contained in this
Agreement or any certificates or documents delivered by them or either
of them pursuant to this Agreement remain true and correct;
(e) from and including the Reference Date through to and including the
Time of Closing, preserve and protect all of the goodwill, assets,
business and undertaking of Able Auctions and, without limiting the
generality of the foregoing, carry on the business of Able Auctions in
a reasonable and prudent manner;
(f) from and including the Reference Date through to and including the
Time of Closing, keep confidential all discussions and communications
(including all information communicated therein) between the parties,
and all written and printed materials of any kind whatsoever exchanged
by the parties, except only any information or material that:
(i) was in the public domain at the time of disclosure to a
party (the "Recipient");
(ii) was already in the possession of the Recipient prior to
disclosure, as demonstrated by the Recipient through
tangible evidence;
(iii) subsequently enters the public domain through no fault of
the Recipient or any officer, director, employee or agent of
the Recipient; or
(iv) is required to be disclosed by law or by a court or
regulatory authority of competent jurisdiction;
and, if so requested by the Purchaser, the Shareholder and Able
Auctions shall arrange for any director, officer, employee, authorized
agent or representative of the Shareholder or Able Auctions to enter
into, and the Shareholder and Able Auctions themselves shall enter
into, a non-disclosure agreement with the Purchaser in a form
acceptable to the Purchaser acting reasonably; and
(g) prior to the Closing Date, Able Auctions shall repay the Indebtedness
to the Shareholder in full.
-5-
3.2 The Shareholder and Able Auctions jointly and severally covenant and agree
with the Purchaser that, from and including the Reference Date through to and
including the Time of Closing, the Shareholder and Able Auctions shall:
(a) not do any act or thing that would render any representation or
warranty of the Shareholder, Able Auctions or either of them contained
in this Agreement or any certificates or documents delivered by them
or either of them pursuant to this Agreement untrue or incorrect; and
(b) not sell, encumber or dispose of, or negotiate with any other person
in respect of a sale, encumbrance or disposition of, any of the Able
Auctions Shares or any goodwill, assets, business or undertaking of
Able Auctions, other than a sale of part of the assets of Able
Auctions in the ordinary course of Able Auctions' business.
3.3 The Shareholder and Able Auctions jointly and severally acknowledge to and
agree with the Purchaser that the Purchaser's Investigation shall in no way
limit or otherwise adversely affect the rights of the Purchaser as provided for
hereunder in respect of the representations and warranties of the Shareholder
and Able Auctions or either of them contained in this Agreement or in any
certificates or documents delivered by them or either of them pursuant to this
Agreement.
3.4 The Purchaser covenants and agrees with the Shareholder and with Able
Auctions that the Purchaser shall:
(a) permit the Shareholder, through its directors, officers, employees and
authorized agents and representatives, at the Shareholder's own cost,
full access to the Purchaser's books, records and property so as to
permit the Shareholder to make such investigation (the "Shareholder's
Investigation") of the Purchaser as the Shareholder considers
advisable;
(b) use its reasonable best efforts to obtain any regulatory approvals for
this Agreement and the transactions contemplated hereunder required by
applicable laws on or before the Closing Date;
(c) provide to the Shareholder all such further documents, instruments and
materials and do all such acts and things as may be required by the
Shareholder to obtain any regulatory approvals that may be required
under applicable laws;
(d) from and including the Reference Date through to and including the
Time of Closing, do all such acts and things that may be necessary to
ensure that all of the representations and warranties of the Purchaser
contained in this Agreement or in any certificates or documents
delivered by it pursuant to this Agreement remain true and correct;
and
(e) from and including the Reference Date through to and including the
Time of Closing, subject to its legal reporting obligations, keep
confidential all discussions and communications (including all
information communicated therein) between the parties, and all written
and printed materials of any kind whatsoever exchanged by the parties,
except only any information or material that:
(i) was in the public domain at the time of disclosure to a
party (the "Recipient");
-6-
(ii) was already in the possession of the Recipient prior to
disclosure, as demonstrated by the Recipient through
tangible evidence;
(iii) subsequently enters the public domain through no fault of
the Recipient or any officer, director, employee or agent of
the Recipient; or
(iv) is required to be disclosed by law or by a court or
regulatory authority of competent jurisdiction;
and, if so requested by the Shareholder or by Able Auctions, the
Purchaser shall arrange for any director, officer, employee,
authorized agent or representative of the Purchaser to enter into, and
the Purchaser itself shall enter into, a non-disclosure agreement with
the Shareholder and Able Auctions in a form acceptable to the
Shareholder and Able Auctions acting reasonably; and
(e) cause Able Auctions to hire the Shareholder, commencing on the Closing
Date, to provide Able Auctions with consulting services for a one year
period through such senior employees or officers of the Shareholder
and at such times and on such terms as the Purchaser may reasonably
require, in consideration of the Purchaser paying the Shareholder
consulting fees totalling US$240,000, payable as to US$120,000 on the
Closing Date and the balance of US$120,000 on April 1, 2000, subject
to such approvals and conditions as may be required by any regulatory
authority having jurisdiction.
3.5 The Purchaser covenants and agrees with the Shareholder and with Able
Auctions that, from and including the Reference Date through to and including
the Time of Closing, the Purchaser shall not do any act or thing that would
render any representation or warranty of the Purchaser contained in this
Agreement or any certificates or documents delivered by it pursuant to this
Agreement untrue or incorrect.
3.6 The Purchaser acknowledges to and agrees with the Shareholder that the
Shareholder's Investigation shall in no way limit or otherwise adversely affect
the rights of the Shareholder as provided for hereunder in respect of the
representations and warranties of the Purchaser contained in this Agreement or
in any certificates or documents delivered by the Purchaser pursuant to this
Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 In order to induce the Purchaser to enter into this Agreement and complete
its transactions contemplated hereunder, the Shareholder and Able Auctions
jointly and severally represent and warrant to the Purchaser that:
(a) Able Auctions was and remains duly incorporated and validly existing
under the laws of the British Columbia and Able Auctions:
(i) is not subject to the reporting requirements of the British
Columbia Securities Act (the "B.C. Act");
(ii) has the power, authority and capacity to enter into this
Agreement and carry out its terms; and
-7-
(iii) is in good standing with respect to the filing of annual
reports required under the laws of British Columbia;
(b) the authorized and issued share capital of Able Auctions is as set
forth in paragraph A of the recitals to this Agreement;
(c) the Able Auctions Shares are and will on the Closing Date immediately
prior to Completion be validly issued and outstanding fully paid and
non-assessable common shares of Able Auctions registered in the name
of, and legally and beneficially owned by, the Shareholder, free and
clear of all voting restrictions, other than restrictions in the
articles of Able Auctions, liens, charges or encumbrances of any kind
whatsoever, the transfer of the Able Auctions Shares to the Purchaser
will be exempt from registration and prospectus requirements under
applicable securities laws, and the Purchaser will not be subject to
any hold periods in respect of the Able Auctions Shares;
(d) except for the Able Auctions Shares, there are no documents,
instruments or other writings of any kind whatsoever which constitute
a "security" of Able Auctions as that term is defined in the B.C. Act
and, except as is provided for by operation of this Agreement, there
are no options, agreements or rights of any kind whatsoever to acquire
all or any part of the Able Auctions Shares or any interest in them
from the Shareholder, or to acquire any other shares of Able Auctions
from Able Auctions;
(e) the constating documents of Able Auctions have not been altered since
the incorporation of Able Auctions;
(f) all of the material transactions of Able Auctions have been promptly
and properly recorded or filed in or with the books or records of Able
Auctions and the minute books of Able Auctions contain all records of
the meetings and proceedings of Able Auctions' Shareholder and
directors since its incorporation;
(g) Able Auctions holds all licences and permits that are required for
carrying on its business in the manner in which such business has been
carried on;
(h) Able Auctions is the registered and beneficial owner of all of the
properties and assets used by Able Auctions and which are necessary or
useful in the conduct of its business (collectively the "Assets"),
including without limitation the domain name "Xxxxxxxxxxxx.xxx" (the
"Domain Name") and the other assets listed on Schedule C to this
Agreement;
(i) Able Auctions has the corporate power to own the Assets and to carry
on the business carried on by it, and Able Auctions is duly qualified
to carry on business in all jurisdictions in which it carries on
business;
(j) on the Closing Date, Able Auctions will have good and marketable
exclusive title to the Assets free and clear of all liens, charges and
encumbrances of any kind whatsoever, and in particular:
(i) Able Auctions is the sole and exclusive legal and beneficial
owner of the Domain Name, free and clear of all encumbrances
whatsoever, and is not a party to or bound by any contract
or any other obligation whatsoever that limits or
-8-
impairs its ability to sell, transfer, assign or convey, or
that otherwise affects, the Domain Name;
(ii) Able Auctions is the registered owner of the Domain Name,
and all fees or other costs associated with maintaining the
registration of the Domain Name have been paid for the 1999
calendar year and the registration of the Domain Name is in
good standing with Network Solutions, Inc.;
(iii) no other person has been granted any interest in or right to
use all or any portion of the Domain Name;
(iv) the Shareholder shall cause the security granted by Able
Auctions to Royal Bank of Canada and registered at the PPSR
under base registration no. 7675103 (the "Royal Bank
Security") to be completely paid out prior to the Closing
Date, and shall without delay obtain and file a release at
the PPSR and report the discharge registration particulars
to the Purchaser; and
(v) the Shareholder shall cause the CIBC security to be
completely paid out on the Closing Date, and shall without
delay obtain and file a release and report the discharge
registration particulars to the Purchaser;
(k) to the best of the Shareholder's knowledge, and to the best of Able
Auctions' knowledge, the use of the Assets, including without
limitation the Domain Name, by Able Auctions does not infringe upon or
induce or contribute to the infringement of any intellectual property
rights, domestic or foreign, of any other person;
(l) each item of machinery and equipment of any kind whatsoever comprised
in the Assets is in reasonable operating condition and in a state of
reasonable maintenance and repair taking into account its age and use;
(m) all of the bank accounts and safety deposit boxes of Able Auctions are
listed on Schedule C to this Agreement;
(n) the books and records of Able Auctions (collectively the "Able
Auctions Records"), full access to which has been or will be prior to
the Subject Removal Date provided by Able Auctions to the Purchaser,
are true and correct in every material respect and present fairly and
accurately the financial position and results of the operations of
Able Auctions for the periods indicated, and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis;
(o) the Able Auctions Records disclose all material financial transactions
of Able Auctions since Able Auctions' incorporation and such
transactions have been fairly and accurately recorded;
(p) except as disclosed in the Able Auctions Records:
(i) no dividends or other distributions of any kind whatsoever
on any shares in the capital of Able Auctions have been
made, declared or authorized;
-9-
(ii) neither the Shareholder nor any other officer, director or
employee of Able Auctions is indebted or under obligation to
Able Auctions on any account whatsoever; and
(iii) Able Auctions has not guaranteed or agreed to guarantee any
debt, liability or other obligation of any kind whatsoever
of any person, firm or corporation of any kind whatsoever;
(q) there are no material liabilities of Able Auctions, whether direct,
indirect, absolute, contingent or otherwise, which are not disclosed
or reflected in the Able Auctions Records;
(r) Able Auctions is indebted to the Shareholder in the amounts of the
Shareholder Loan and the Indebtedness, each of which represents funds
actually advanced by the Shareholder to Able Auctions and/or the fair
market value of assets transferred by Shareholder to Able Auctions
free and clear of all encumbrances, and:
(i) the Shareholder is the owner of the Shareholder Loan free
and clear of all liens, charges and encumbrances of any kind
whatsoever;
(ii) the Shareholder has good and sufficient right and authority
to transfer the ownership of the Shareholder Loan to the
Purchaser free and clear of all liens, charges and
encumbrances of any kind whatsoever;
(iii) the amount of the Shareholder Loan is $741,000 and the
amount of the Indebtedness is $563,843, and each is payable
by Able Auctions to the Shareholder on demand, without
interest;
(iv) there are no agreements which restrict the right of the
Shareholder, or which will restrict the right of the
Purchaser, to make demand for payment of the Shareholder
Loan or which restrict the disposition of the Shareholder
Loan by the Shareholder to the Purchaser as contemplated by
this Agreement or which document the terms and conditions of
the Shareholder Loan, there are no terms and conditions of
the Shareholder Loan whether in writing, verbal or by
conduct, which are not specified in this paragraph, and
there is no promissory note or other note evidencing the
Shareholder Loan;
(v) each of the Shareholder Loan and the Indebtedness is a
legal, valid and binding obligation of Able Auctions, which
obligation remains in full force and effect and has not been
amended, and the obligation of Able Auctions to make payment
on demand has not been waived; and
(vi) there are no claims or rights which have been advanced by
Able Auctions against the Shareholder or which might in the
future or with the passage of the time or upon the
occurrence of any event be advanced by Able Auctions against
the Shareholder as a claim of setoff or which would in any
way reduce the amount to which the Shareholder is entitled
to be paid in respect of the Indebtedness or the Shareholder
Loan or, after assignment of the Shareholder Loan, the
Purchaser is entitled to be paid in respect of the
Shareholder Loan;
-10-
(s) any accounts receivable of Able Auctions shown in the Able Auctions
Records are bona fide, good and collectible without setoff or
counterclaim;
(t) except as disclosed in the Able Auctions Records:
(i) there has not been any material adverse change of any kind
whatsoever in the financial position or condition of Able
Auctions or any damage, loss or other change of any kind
whatsoever in circumstances materially affecting the
business or Assets of Able Auctions or the right or capacity
of Able Auctions to carry on its business;
(ii) Able Auctions has not waived or surrendered any right of any
kind whatsoever of material value;
(iii) except as permitted under this Agreement, Able Auctions has
not discharged, satisfied or paid any lien, charge or
encumbrance of any kind whatsoever or obligation or
liability of any kind whatsoever other than current
liabilities in the ordinary course of its business;
(iv) the business of Able Auctions has been carried on in the
ordinary course; and
(v) no new machinery or equipment of any kind whatsoever has
been ordered by, or installed or assembled on the premises
of, Able Auctions;
(u) the directors, officers, key employees and independent contractors and
consultants of Able Auctions and all of their compensation
arrangements with Able Auctions, whether as directors, officers or
employees of, or as independent contractors or consultants to, Able
Auctions, are as listed on Schedule D to this Agreement;
(v) no payments of any kind whatsoever have been made or authorized by
Able Auctions to or on behalf of the Shareholder or to or on behalf of
any of the directors, officers, key employees, independent contractors
or consultants of Able Auctions except in accordance with those
compensation arrangements specified on Schedule D to this Agreement or
except as contemplated by this Agreement;
(w) there are no pensions, profit sharing, group insurance or similar
plans or other deferred compensation plans of any kind whatsoever
affecting Able Auctions other than those specified on Schedule D to
this Agreement;
(x) Able Auctions is not now, and has never been, a party to any
collective agreement with any labour union or other association of
employees of any kind whatsoever, no collective bargaining agent has
been certified in respect of Able Auctions and there is no application
pending for certification of a collective bargaining agent in respect
of Able Auctions;
(y) the contracts and agreements included on Schedule D to this Agreement
and those additional contracts and agreements specified on Schedule E
to this Agreement (collectively the "Material Contracts") constitute
all of the material contracts and agreements of Able Auctions;
-11-
(z) except as is noted on the appropriate Schedule to this Agreement, the
Material Contracts are in good standing in all material respects and
not in default in any material respect;
(aa) Able Auctions has not licensed, leased, transferred, disposed of or
encumbered any of the Assets in any way (except by the Permitted
Encumbrances), or permitted any third party access to any of the
Assets the value of which may be compromised by such access, including
in particular the source code to any computer software or any trade
secret information included in the Assets, except only in accordance
with the terms of the Material Contracts;
(bb) all tax returns and reports of Able Auctions required by law to have
been filed have been filed and are substantially true, complete and
correct and all taxes and other government charges of any kind
whatsoever of Able Auctions have been paid or accrued in the Able
Auctions Records;
(cc) Able Auctions has not:
(i) made any election under any applicable tax legislation with
respect to the acquisition or disposition of any property at
other than fair market value;
(ii) acquired any property from a person with whom Able Auctions
was not dealing with at arm's length for proceeds greater
than the fair market value thereof; or
(iii) disposed of anything to a person with whom Able Auctions was
not dealing with at arm's length for proceeds less than the
fair market value thereof;
(dd) Able Auctions has made all elections required to have been made under
any applicable tax legislation in connection with any distributions
made by it and all such elections were true and correct and filed in
the prescribed form and within the prescribed time period;
(ee) adequate provision has been made for taxes payable by Able Auctions
for the current period for which tax returns are not yet required to
be filed and there are no agreements, waivers or other arrangements of
any kind whatsoever providing for an extension of time with respect to
the filing of any tax return by, or payment of, any tax or
governmental charge of any kind whatsoever by Able Auctions;
(ff) Able Auctions does not have any contingent tax liabilities of any kind
whatsoever, and there are no grounds which would prompt a reassessment
of Able Auctions, including for aggressive treatment of income or
expenses in earlier tax returns filed;
(gg) there are no amounts outstanding and unpaid for which Able Auctions
has previously claimed a deduction under any applicable tax
legislation;
(hh) Able Auctions has made all collections, deductions, remittances and
payments of any kind whatsoever and filed all reports and returns
required by it to be made or filed under the provisions of all
applicable statutes requiring the making of collections, deductions,
remittances or payments of any kind whatsoever in those jurisdictions
in which Able Auctions carries on business;
-12-
(ii) there are no actions, suits, judgements, investigations or proceedings
of any kind whatsoever outstanding, pending or threatened against or
affecting the Shareholder or Able Auctions at law or in equity or
before or by any federal, provincial, state, municipal or other
governmental department, commission, board, bureau or agency of any
kind whatsoever (collectively, "Actions"), except only a total of four
claims by Sangat X. Xxxxx, Xxxxxxxx X. Xxxxx, Xxxxxx Xxxxxxx and Xxxxx
Panasara, each in the amount of CDN$10,000 and not yet set down for
trial, for alleged conversion of personal property by Able Auctions,
and there is no basis for those claims or for any other Actions;
(jj) to the best of their knowledge, Able Auctions is not in breach of any
law, ordinance, statute, regulation, by-law, order or decree of any
kind whatsoever;
(kk) each of the Shareholder and Able Auctions have good and sufficient
power, authority and capacity to enter into this Agreement and
complete their respective transactions contemplated under this
Agreement on the terms and conditions set forth herein;
(ll) the Shareholder is not a "U.S. Person", the definition of which
includes, but is not limited to, an individual resident in the United
States and an estate or trust of which any executor or administrator
or trustee, respectively, is a U.S. Person, any partnership or
corporation organized or incorporated under the laws of the United
States, and any partnership or corporation organized or incorporated
under the laws of any foreign jurisdiction by a U.S. Person
principally for the purposes of investing in securities not registered
under the United States Securities Act of 1933 (the "1933 Act");
(mm) the Shareholder was outside the United States at the time of execution
and delivery of this Agreement;
(nn) no offers to sell the JBF Shares were made by any person to the
Shareholder while the Shareholder was in the United States;
(oo) the JBF Shares are not being acquired, directly or indirectly, for the
account or benefit of a U.S. person or a person in the United States;
(pp) the Shareholder acknowledges that the JBF Shares have not been
registered under the 1933 Act and that the Purchaser has no obligation
or present intention of filing a registration statement under the 1933
Act in respect of the JBF Shares, and the Shareholder undertakes and
agrees that it will not offer or sell the JBF Shares unless the JBF
Shares are sold in accordance with Regulation S under the 1933 Act,
the JBF Shares are registered under the 1933 Act and the securities
laws of all applicable states of the United States, or the JBF Shares
are sold pursuant to an available exemption for such registration
requirements;
(qq) the execution and delivery of this Agreement, the performance of their
respective obligations under this Agreement and the Completion will
not:
(i) conflict with, or result in the breach of or the acceleration of
any indebtedness under, or constitute default under, any of the
constating documents of Able Auctions or any of the terms of any
indenture, mortgage, agreement, lease, licence or other
instrument of any kind whatsoever to which Able Auctions, the
Shareholder or either of them is a party or by which either of
them is bound, or
-13-
any judgement or order of any kind whatsoever of any court or
administrative body of any kind whatsoever by which either of
them is bound; nor
(ii) result in the violation of any law or regulation of any kind
whatsoever by either the Shareholder or by Able Auctions;
(rr) neither Able Auctions nor the Shareholder has incurred any liability
for agency, brokerage, referral or finder's fees, commissions or
compensation of any kind whatsoever with respect to this Agreement or
any transaction contemplated under this Agreement; and
(ss) the representations and warranties of the Shareholder and Able
Auctions contained in this Agreement disclose all material facts
specifically relating to the transactions involving the Shareholder
and Able Auctions contemplated under this Agreement which materially
and adversely affect, or in the future may materially and adversely
affect, their respective abilities to perform their respective
obligations under this Agreement or the value of the Able Auctions
Shares or the Assets as of the Reference Date.
4.2 The certificates representing the JBF Shares will bear a legend stating that
such shares have not been registered under the 1933 Act or the securities laws
of any state of the United States and may not be offered for sale or sold unless
registered under the 1933 Act and the securities laws of all applicable states
of the United States or an exemption from such registration requirements is
available.
4.3 The Shareholder understands and agrees that there may be material tax
consequences to a shareholder in respect of an acquisition or disposition of the
JBF Shares, and that the Purchaser gives no opinion and makes no representation
with respect to the tax consequences to the Shareholder under United States,
state, local or foreign tax law in respect of the Shareholder's acquisition or
disposition of the JBF Shares.
4.4 The Shareholder consents to the Purchaser making a notation on its records
or giving instructions to any transfer agent of the Purchaser in order to
implement the restrictions on transfer set forth and described herein.
4.5 The representations and warranties of the Shareholder and Able Auctions
contained in this Agreement shall be true at the Time of Closing as though they
were made at the Time of Closing and they shall survive the Completion and
remain in full force and effect thereafter for the benefit of the Purchaser.
4.6 In order to induce the Shareholder to enter into this Agreement and complete
its transactions contemplated hereunder, the Purchaser represents and warrants
to the Shareholder that:
(a) the Purchaser was and remains duly incorporated and validly existing
under the laws of the State of Florida, and the Purchaser is in good
standing with respect to the filing of annual reports required under
the laws of Florida and all filings required under applicable
securities laws;
(b) as of the Reference Date, the authorized share capital of the
Purchaser consisted of 50,000,000 common shares having a par value of
US$0.001 each, and there were 10,450,000 Outstanding shares;
-14-
(c) the common shares of the Purchaser are quoted for trading on the
National Association of Securities Dealers Over-the-Counter Bulletin
Board;
(d) other than the cancellation of 8,000,000 of the Outstanding Shares, a
5:1 split of the remaining Outstanding Shares to increase the total
number of Outstanding Shares to 12,250,000, and the issuance of up to
1,200,000 common shares in the course of the Financing, there are no
commitments, plans or arrangements of any kind whatsoever to issue
shares of the Purchaser, nor are there any outstanding options,
warrants, convertible securities or other rights of any kind
whatsoever calling for the issuance of any of the unissued shares or
other securities of the Purchaser;
(e) the JBF Shares to be issued on Completion will be, when issued,
validly issued as fully paid and non-assessable, will be issued
pursuant to exemptions from registration and prospectus requirements
available under applicable securities laws, and will be subject to a
hold period of not more than one year;
(f) the Purchaser has good and sufficient power, authority and capacity to
enter into this Agreement and complete its transactions contemplated
under this Agreement on the terms and conditions set forth herein; and
(g) the execution and delivery of this Agreement, the performance of its
obligations under this Agreement and the Completion will not:
(i) conflict with, or result in the breach of or the
acceleration of any indebtedness under, or constitute
default under, the constating documents of the Purchaser or
the terms of any indenture, mortgage, agreement, lease,
licence or other instrument of any kind whatsoever to which
the Purchaser is a party or by which it is bound, or any
judgment or order of any kind whatsoever of any Court or
administrative body of any kind whatsoever by which the
Purchaser is bound; nor
(ii) result in the violation of any law or regulation of any kind
whatsoever by the Purchaser.
(h) the Articles of Incorporation of the Purchaser were filed on 30
September 1996 with the Secretary of State of Florida Articles of
Amendment were filed on 2 September 1998, and there are no other
documents amending such Articles which have been filed or
contemplated, except Articles of Amendment to change the name of the
Purchaser before the Closing Date;
(i) all of the material transactions of the Purchaser have been promptly
and properly recorded or filed in or with the books or records of the
Purchaser and the minute books of the Purchaser contain all records of
the meetings and proceedings of the Purchaser's Shareholder and
directors since its incorporation;
(j) the Purchaser holds all licences and permits that are required for
carrying on its business in the manner in which such business has been
carried on; and
(k) the Purchaser owns no material assets other than cash and carries on
no active business.
-15-
4.7 The representations and warranties of the Purchaser contained in this
Agreement, except for the number of Outstanding Shares set forth in subparagraph
4.6(b) of this Agreement, shall be true at the Time of Closing as though they
were made at the Time of Closing, and they shall survive the Completion and
remain in full force and effect thereafter for the benefit of the Shareholder.
5. INDEMNITIES
5.1 Notwithstanding the Completion of the transactions contemplated under this
Agreement or the Purchaser's Investigation, the representations, warranties and
acknowledgements of the Shareholder, Able Auctions or either of them contained
in this Agreement or any certificates or documents delivered by them or either
of them pursuant to this Agreement shall survive the Completion and shall
continue in full force and effect thereafter for one year for the benefit of the
Purchaser. If any of the Actions result in settlement or judgement against Able
Auctions, or if any of the representations, warranties or acknowledgements given
by the Shareholder, Able Auctions or either of them is found to be untrue or
there is a breach of any covenant or agreement in this Agreement on the part of
the Shareholder, Able Auctions or either of them, then the Shareholder and Able
Auctions shall jointly and severally indemnify and save harmless the Purchaser
from and against any and all liability, claims, debts, demands, suits, actions,
penalties, fines, losses, costs (including legal fees, disbursements and taxes
as charged on a lawyer and own client basis), damages and expenses of any kind
whatsoever which may be brought or made against the Purchaser by any person,
firm or corporation of any kind whatsoever or which may be suffered or incurred
by the Purchaser, directly or indirectly, arising out of or as a consequence of
any of the Actions or any such misrepresentation or breach of warranty,
acknowledgement, covenant or agreement. Without in any way limiting the
generality of the foregoing, this shall include any loss of any kind whatsoever
which may be suffered or incurred by the Purchaser, directly or indirectly,
arising out of any material assessment or reassessment levied upon Able Auctions
for tax, interest and/or penalties relating to any period of business operations
up to and including the Closing Date and all claims, demands, costs (including
legal fees, disbursements and taxes as charged on a lawyer and own client basis)
and expenses of any kind whatsoever in respect of the foregoing.
6. CLOSING
6.1 At the Time of Closing, the Shareholder shall deliver to the solicitors for
the Purchaser:
(a) a certified true copy of the resolutions of the directors of Able
Auctions evidencing that the directors of the Able Auctions have
approved this Agreement and all of the transactions of Able Auctions
contemplated hereunder, specifically referring to:
(i) the assignment of the Shareholder Loan and the exchange and
transfer of the Able Auctions Shares from the Shareholder to
the Purchaser as provided for in this Agreement;
(ii) the cancellation of the share certificates (the "Old Share
Certificates") representing the Able Auctions Shares held as
set forth in paragraph B of the recitals to this Agreement;
and
(iii) the issuance of a new share certificate (the "New Share
Certificate") representing the Able Auctions Shares
registered in the name of the Purchaser;
(b) the Old Share Certificates;
-16-
(c) the New Share Certificate;
(d) the Able Auctions Solicitor Opinion;
(e) an assignment of the Shareholder Loan duly executed by the Shareholder
in favour of the Purchaser;
(f) a general release of all claims whatsoever against or in respect of
Able Auctions, including the Indebtedness but excluding the
Shareholder Loan;
(g) a certificate of confirmation from the Shareholder substantially in
the form of Schedule F to this Agreement;
(h) consent of Xxxxx Xxxxx to act as a director and President of the
Purchaser;
(i) a certified true copy of resolutions of the directors of Able Auctions
appointing Xxxxxx Xxxx as Vice-President, Operations of Able Auctions;
(j) a management consulting agreement between the Shareholder and Able
Auctions in the form of Schedule H to this Agreement, duly executed by
the Shareholder; and
(k) any other materials that are, in the opinion of the solicitors for the
Purchaser, reasonably required to complete the transactions
contemplated under this Agreement.
6.2 At the Time of Closing, the Purchaser shall deliver to the solicitors for
the Shareholder:
(a) certified true copies of the resolutions of the directors and, if
shareholder approval is required, of the Shareholder of the Purchaser,
evidencing that the directors and, as applicable, the Shareholder, of
the Purchaser have approved this Agreement and all of the transactions
of the Purchaser contemplated hereunder;
(b) either the original share certificates representing the JBF Shares, or
written confirmation from the Purchaser's transfer agent that the JBF
Shares have been issued and registered in the name of the Shareholder
and will be delivered to the Shareholder as soon as is reasonably
practicable;
(c) a direction for Page Fraser & Associates to release the Deposit to
CIBC in trust for the Shareholder;
(d) the balance of the Cash Portion, calculated after deduction of the
Deposit converted from U.S. funds to Canadian funds on the Closing
Date, by way of wire transfer, bank draft, certified cheque or
solicitor's trust cheque, payable to CIBC in trust for the
Shareholder;
(e) the JBF Solicitor Opinion;
(f) a certificate of confirmation signed by a director or officer of the
Purchaser substantially in the form of Schedule G to this Agreement;
(g) resignation of Xxxx XxXxxx as President of the Purchaser;
-17-
(h) a certified true copy of resolutions of the directors of the Purchaser
appointing Xxxxx Xxxxx as a director and President of the Purchaser;
and
(i) a management consulting agreement between the Shareholder and Able
Auctions in the form of Schedule H to this Agreement, duly executed by
Able Auctions.
7. GENERAL
7.1 Time and each of the terms and conditions of this Agreement shall be of the
essence of this Agreement and any waiver by the parties of this paragraph 7.1 or
any failure by them to exercise any of their rights under this Agreement shall
be limited to the particular instance and shall not extend to any other instance
or matter in this Agreement or otherwise affect any of their rights or remedies
under this Agreement.
7.2 The Schedules to this Agreement incorporated by reference and the recitals
to this Agreement constitute a part of this Agreement.
7.3 This Agreement constitutes the entire Agreement between the parties hereto
in respect of the matters referred to herein and there are no representations,
warranties, covenants or agreements, expressed or implied, collateral hereto
other than as expressly set forth or referred to herein.
7.4 The headings in this Agreement are for reference only and do not constitute
terms of the Agreement.
7.5 The provisions contained in this Agreement which, by their terms, require
performance by a party to this Agreement subsequent to the Closing Date of this
Agreement, shall survive the Closing Date of this Agreement.
7.6 No alteration, amendment, modification or interpretation of this Agreement
or any provision of this Agreement shall be valid and binding upon the parties
hereto unless such alteration, amendment, modification or interpretation is in
written form executed by the parties directly affected by such alteration,
amendment, modification or interpretation.
7.7 Whenever the singular or masculine is used in this Agreement the same shall
be deemed to include the plural or the feminine or the body corporate as the
context may require.
7.8 The parties hereto shall execute and deliver all such further documents and
instruments and do all such acts and things as any party may, either before or
after the Closing Date, reasonably require in order to carry out the full intent
and meaning of this Agreement.
7.9 Any notice, request, demand and other communication to be given under this
Agreement shall be in writing and shall be delivered by prepaid registered mail,
by e-mail or by telecopy to the appropriate party at the address as first set
out above or to such other addresses or by such other means as may be designated
in writing by the parties hereto in the manner provided for in this paragraph,
and if mailed as aforesaid shall be deemed to have been received on the date
that is five business days after such mailing, or if delivered by e-mail or
telecopy, then on the date transmission completes.
7.10 This Agreement shall be subject to, governed by, and construed in
accordance with the laws of the Province of British Columbia and the laws of
Canada applicable therein.
-18-
7.11 This Agreement may be signed by the parties in as many counterparts as may
be deemed necessary, each of which so signed shall be deemed to be an original,
and all such counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals as of the
Reference Date:
THE CORPORATE SEAL of )
DEXTON TECHNOLOGIES CORPORATION )
was hereunto affixed in the presence )
of its authorized signatory(ies): )
) c/s
/s/ Xxxxx Xxxxx )
------------------------------------------- )
Name: Xxxxx Xxxxx )
------------------------------------- )
Title: President )
------------------------------------ )
THE CORPORATE SEAL of )
ABLE AUCTIONS (1991) LTD. )
was hereunto affixed in the presence )
of its authorized signatory(ies): )
) c/s
/s/ Xxxxx Xxxxx )
------------------------------------------- )
Name: Xxxxx Xxxxx )
------------------------------------- )
Title: President )
------------------------------------ )
THE CORPORATE SEAL of )
XXXXXXXXXXXX.XXX, INC. (formerly )
X.X. FINANCIAL SERVICES, INC.) )
was hereunto affixed in the presence )
of its authorized signatory(ies): ) c/s
)
/s/ Xxxx XxXxxx )
------------------------------------------- )
Name: Xxxx XxXxxx )
------------------------------------- )
Title: President )
------------------------------------ )
-19-
SCHEDULE A
Able Auctions Solicitor Opinion
-------------------------------
(letterhead of solicitors for the Shareholder and Able Auctions)
*, 199*
-------------------------
x/x Xxxxxxx & Xxxxxx
Xxxxxxxxxx xxx Xxxxxxxxxx
X.X. Xxx 00000
0000-0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: *
Dear Sirs:
Re: Share Purchase Agreement (the "Agreement") dated for reference the
9th day of July, 1999 between Dexton Technologies Corporation
(the "Shareholder"), Able Auctions (1991) Ltd. ("Able Auctions") and
XXXXXXXXXXXX.XXX, INC. (formerly X.X. Financial Services, Inc.)
(the "Purchaser")
We are the solicitors for the Shareholder and for Able Auctions. We provide this
opinion pursuant to subparagraphs * and * of the Agreement. We have also acted
as counsel for Able Auctions and the Shareholder in connection with the
negotiation, execution and completion of the Agreement.
We have considered such questions of law and examined such statutes and
regulations, corporate records, certificates and other documents and have made
such other examinations, searches and investigations as we have considered
necessary for the purpose of the opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified or as
photocopies.
Based on and subject to the foregoing, we are of the opinion that:
1. Able Auctions is a company duly incorporated and validly existing under the
laws of the Province of British Columbia. Able Auctions is in good standing
with respect to the filing of annual reports with the Registrar of
Companies for the Province of British Columbia.
2. To the best of our knowledge, Able Auctions has all requisite corporate
power and authority to conduct the business now carried on by it, and to
own its property and assets as described in the Agreement and Able Auctions
has all requisite corporate power and authority to enter into and to
perform its obligations under the Agreement.
3. All necessary steps and corporate action and proceedings have been taken to
authorize the execution and delivery of the Agreement by Able Auctions.
4. To the best of our knowledge, neither the execution and delivery of, nor
the performance of its obligations under the Agreement by Able Auctions
will conflict with or constitute a breach or default under the constating
documents of Able Auctions or any commitment, agreement or other instrument
to which Able Auctions is a party or by which it is bound.
5. To the best of our knowledge, there are no claims, judgement, actions,
suits, litigation, proceedings or investigations, actual, pending or
threatened against Able Auctions which might materially affect any
business, properties, assets, prospects or conditions, financial or
otherwise, of Able Auctions or which could result in any material liability
to Able Auctions, other than a total of four claims by Sangat X. Xxxxx,
Xxxxxxxx X. Xxxxx, Xxxxxx Xxxxxxx and Xxxxx Panasara, each in the amount of
CDN$10,000 and not yet set down for trial, for alleged conversion of
personal property by Able Auctions.
6. The authorized capital of Able Auctions consists of 10,000 shares without
par value divided into 5,000 Class "A" shares and 5,000 Class "B" shares of
which only 100 Class "A" shares (the "Able Auctions Shares") are validly
authorized, created, allotted, issued and outstanding, and, to the best of
our knowledge, are fully paid for and non-assessable, as at the date
hereof.
7. All necessary steps and corporate action and proceedings have been taken to
effect the valid transfer of the Able Auctions Shares to the Purchaser as
contemplated under the Agreement. The Purchaser is the registered owner of
the Able Auctions Shares on the books and records of Able Auctions.
The opinion expressed is subject to the qualification that enforceability of the
Agreement may be limited by applicable bankruptcy, insolvency or other laws
affecting creditors' rights generally, and that equitable remedies such as the
remedies of specific performance or injunction are in the discretion of the
court from which they are sought.
Yours truly,
*
Per:
*
-2-
SCHEDULE B
JBF Solicitor Opinion
---------------------
(letterhead of solicitors for the Purchaser)
*, 199*
*
c/o *
Attorneys at Law
*
Attention: *
Dear Sirs:
Re: Share Purchase Agreement (the "Agreement") dated for reference the
9 day of July, 1999 between Dexton Technologies Corporation
(the "Shareholder"), Able Auctions (1991) Ltd. ("Able Auctions") and
XXXXXXXXXXXX.XXX, INC. (formerly X.X. Financial Services, Inc.)
(the "Purchaser")
We are the solicitors the Purchaser. We provide this opinion pursuant to
subparagraphs * and * of the Agreement. We have acted as counsel for the
Purchaser in connection with the * of the Agreement.
We have considered * such questions of law and examined such statutes and
regulations, corporate records, certificates and other documents and have made
such other examinations, searches and investigations as we have considered
necessary for the purpose of the opinion hereinafter expressed. In such
examination, we have * assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified or as
photocopies.
*
Based on and subject to the foregoing, we are of the opinion that:
1. The Purchaser is a company duly incorporated and validly existing under the
laws of the State of Florida. The Purchaser is in good standing with
respect to the filing of annual reports with the Registrar of Companies for
the State of Florida.
2. The Purchaser has all requisite corporate power and authority to enter into
and to perform its obligations under the Agreement.
3. All necessary steps and corporate action and proceedings have been taken to
authorize the execution and delivery of the Agreement by the Purchaser.
4. To the best of our knowledge, neither the execution and delivery of, nor
the performance of its obligations under the Agreement by the Purchaser
will conflict with or constitute a breach of or default under the
constating documents of the Purchaser or any commitment, agreement or other
instrument to which the Purchaser is a party or by which it is bound.
5. As at the Closing Date of the Agreement, the authorized capital of the
Purchaser consisted of 50,000,000 common shares with a par value of
U.S.$0.001 per share, of which * shares are validly authorized, created,
allotted, issued and outstanding, and, to the best of our knowledge, fully
paid for and non-assessable.
6. All necessary steps and corporate action and proceedings have been taken to
effect the valid issuance of the JBF Shares to the Shareholder as
contemplated under the Agreement and, upon issuance, delivery and receipt
of the consideration described in the Agreement, will be validly issued,
fully paid and non-assessable.
The opinion expressed is subject to * the qualification that enforceability of
the Agreement may be limited by applicable bankruptcy, insolvency or other laws
affecting creditors' rights generally, and that equitable remedies such as the
remedies of specific performance or injunction are in the discretion of the
court from which they are sought.
Yours truly,
*
Per:
*
-2-
SCHEDULE C
Able Auctions Assets
--------------------
All rights, title and interest in and to all tangible and intangible property
associated with the business (the "Business") carried on at, through or in
association with the internet domain name "Xxxxxxxxxxxx.xxx" (the "Domain
Name"), and all related internet website development (collectively, the
"Website"), including without limitation:
(i) the contractual right to maintain registration of the Domain Name
with Internic (Network Solutions Inc.);
(ii) all URL's associated with the Domain Name or the Website;
(iii) all databases, books and records relating to the Business
including, without limitation, all recorded information relating
to customers of the Business, and advertisers on and visitors to
the Website;
(iv) copyright in all graphics and text displayed at the Website;
(v) copyright in all customized (non-retail) software relating to the
Website or used in the Business;
(vi) all trade-xxxx and trade name rights that the Shareholder may
have anywhere in the world in respect of the Business, the
Website or the Domain Name;
(vii) all goodwill associated with the Business, the Website or the
Domain Name;
(viii) one DEC Alpha server;
(ix) one IBM video server;
(x) Cold Fusion, JAVA and HTML source code for auction software;
(xi) all incidental furniture and fixtures used in the Business; and
(xii) all inventory and equipment associated with the Business.
Permitted Encumbrances
----------------------
NIL.
SCHEDULE D
Able Auctions Directors, Officers, Employees, Contractors and Consultants
Name Relationship Details Compensation Arrangement
---- ------------ ------- ------------------------
Xxxxxx Xxxx Officer President $ 75.000.00 per year, plus 10% net profit
Xxxxx Xxxxxxxx Employee Accountant $ 20.000.00 per year
Xxxx Xxxxxxxx Employee Administrative Assistant $ 18,720.00 per year
Xxx XxXxxxxx Employee Sales Manager $ 36,000.00 per year, plus 1% store sales
over $750.000
Xxxx XxXxxxxx Employee Sales Person $ 19,200.00 per year
Xxxx Xxxxxxx Employee Auction Set-up $14.00 per hour
Xxxxxx Xxxx Employee Labourer $10-00 per hour
Xxxxx Xxxxxx Employee Labourer $10.00 per hour
Xxxxx Xxxxxxx Employee Labourer $10-00 per hour
Xxxx Xxxxxxx Employee Labourer $10-00 per hour
Xxxxx Xxxx-Xxxxxx Consultant Purchaser $3,000.00 per month, plus $250/auction
as a caller
Xxxxx Xxxxxxxx
-Focus Transport Contractor Mover $23.00 per hour
SCHEDULE E
Able Auctions Material Contracts
--------------------------------
1. A month-to-month lease of the Able Auctions Lougheed Highway business
premises at a rental rate of CDN$8,000 per month.
-2-
SCHEDULE F
Certificate of Confirmation
---------------------------
Pursuant to subparagraph 6.1(e) of the Share Exchange Agreement dated for
reference the 9th day of July, 1999 (the "Agreement") between Dexton
Technologies Corporation (the "Shareholder"), Able Auctions (1991) Ltd. and
XXXXXXXXXXXX.XXX, INC. (formerly X.X. Financial Services, Inc.) (the
"Purchaser"), the undersigned Shareholder hereby confirms to the Purchaser that
the representations and warranties of the Shareholder contained in the Agreement
or contained in any certificates or documents delivered by the Shareholder
pursuant to the Agreement are true and correct in every respect as of the Time
of Closing of the Agreement being 11:00 o'clock a.m. local time in Vancouver,
B.C. on the *, 1999.
Dated at *, this *, 1999.
------------------------------------
*
SCHEDULE G
Certificate of Confirmation
---------------------------
Pursuant to subparagraph 6.2(d) of the Share Purchase Agreement dated for
reference the 9 day of July, 1999 (the "Agreement") between Dexton Technologies
Corporation (the "Shareholder"), Able Auctions (1991) Ltd., and
XXXXXXXXXXXX.XXX, INC. (formerly X.X. Financial Services, Inc.) (the
"Purchaser"), the Purchaser confirms to the Shareholder that:
(a) the representations and warranties of the Purchaser contained in the
Agreement or contained in any certificates or documents delivered by
it pursuant to the Agreement are true and correct in every respect as
of the Time of Closing of the Agreement, being 11:00 o'clock a.m.
local time in Vancouver, B.C. on the * 1999; and
(b) the Purchaser has arranged an equity financing of * securities to
raise gross proceeds of at least U.S.$3,000,000 immediately after the
transfer of the JBF Shares to the Shareholder.
Dated at Vancouver, British Columbia, this * 1999.
XXXXXXXXXXXX.XXX, INC.
(formerly X.X. Financial Services, Inc.)
Per:
---------------------------------
*, Director
SCHEDULE H
CONSULTING AGREEMENT
--------------------
THIS AGREEMENT made with effect from the __ day of ______, 1999 (the "Effective
Date")
BETWEEN: Able Auctions (1991) Ltd., of
0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0;
(the "Company")
AND: Dexton Technologies Corporation, of
0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0;
(the "Consultant")
WHEREAS:
A. The Consultant was formerly the sole shareholder of the Company, and is now
a shareholder of the sole corporate shareholder of the Company;
B. The Consultant has experience in the auction business and in electronic
commerce and has expressed a desire to continue to be involved in the
affairs of the Company;
C. The Company wishes to utilize the Consultant's experience to facilitate the
Company's business; and
D. The Company has agreed to retain the services of the Consultant to provide
the consulting services described in Schedule "A" attached hereto (the
"Services") and the Consultant has agreed to provide the Services to the
Company, in accordance with the terms and conditions contained herein;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
of the covenants and agreements herein contained the parties hereto covenant and
agree (the "Agreement") as follows:
1. DEFINITIONS AND INTERPRETATION
1.01 Definitions
In this Agreement, including the recitals and the schedule, the following words
and expressions have the following meanings unless the context otherwise
requires:
(a) "Confidential Information" means all information or data which may,
before or after the date of this Agreement, be delivered or made
available to the Consultant by the Company or by any affiliate of the
Company, all information or data
-31-
regarding programs, products, services, costs, equipment, operations,
suppliers, employees, contractors, distribution, marketing or
customers relating to the products, all technical information,
procedures, processes, diagrams, specifications, improvements,
formulations, plans and data relating to the business of the Company
or any affiliate of the Company.
(b) "Services" means all services which the Consultant may provide from
time to time for the Company, including, without limitation, those
provided in Schedule "A" hereto.
1.02 Entire Agreement
This Agreement and any documents and agreements to be delivered pursuant to this
Agreement supersede all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition or
collateral agreement affecting this Agreement, other than as expressed in
writing in this Agreement. No trade terms or trade usages are to be incorporated
by reference implicitly or otherwise into this Agreement, unless expressly
referred to in this Agreement.
1.03 Amendments
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to this Agreement.
1.04 Invalidity of Particular Provision
It is intended that all of the provisions of this Agreement will be fully
binding and effective between the parties. If any particular provision or
provisions or a part of one or more is found to be void, voidable or
unenforceable for any reason whatsoever, then the particular provision or
provisions or part of the provision will be deemed severed from the remainder of
this Agreement. The other provisions of this Agreement will not be affected by
the severance and will remain in full force and effect.
1.05 Governing Law
This Agreement will be governed by and construed in accordance with the laws of
the Province of British Columbia and the laws of Canada applicable in such
Province.
2. APPOINTMENT AND AUTHORITY
2.01 Appointment of Consultant
The Company appoints the Consultant as a consultant to the Company to provide
the Services for the benefit of the Company and the Company authorizes the
Consultant to exercise the powers provided under this Agreement. The Consultant
accepts this appointment on the terms and conditions herein set forth.
-32-
2.02 Consultant's Employees Not Employees of the Company
The parties agree that none of the employees of the Consultant shall be
considered an employee of the Company.
2.03 No Partnership
This Agreement will not be construed as creating a partnership, joint venture or
agency relationship between the parties or any other form of legal association
which would impose liability upon one party for any act or failure to act by the
other party.
3. GENERAL OBLIGATIONS OF THE CONSULTANT
3.01 Limitations
The Consultant shall not be entitled to enter into any commitment, contractual
or otherwise binding upon, or pledge the credit of, the Company without the
express prior written consent of the directors of the Company.
3.02 The Company's Ownership Rights
The Consultant acknowledges and agrees that nothing contained in this Agreement
shall be construed as an assignment to the Consultant of any right, title or
interest in the Confidential Information or in any other tangible or intangible
property of the Company, in respect of which all right, title and interest is
expressly reserved by the Company.
4. COMPENSATION
4.01 Compensation
In full and complete consideration for the performance of the Services by the
Consultant, the Company shall pay the Consultant consulting fees totalling
US$240,000, payable as to US$120,000 on the Effective Date and the balance of
US$120,000 on April 1, 2000, subject to such approvals and conditions as may be
required by any regulatory authority having jurisdiction. 5. TErm
5.01 TERM
This Agreement will take effect on the Effective Date and will continue in full
force and effect for one year unless earlier terminated by one of the parties in
accordance with this Agreement.
5.02 Termination With Notice
Notwithstanding any other provision of this Agreement, the Company may, in its
absolute discretion, at any time upon 48 hour's advance written notice by the
Company to the Consultant, terminate this Agreement without cause and on the
expiration of the 48 hour notice period this
-33-
Agreement and the Option granted hereunder shall be terminated. Such notice may
expire on any day of the month, but shall not affect the Consultant's
entitlement to payment of all consulting fees payable under section 4.01 hereof,
and any consulting fees which have not yet been paid or which have not yet
become due will be paid on the date of termination.
5.03 Termination Without Notice
The Company may terminate this Agreement immediately and without advance written
notice to the Consultant if:
(a) the Consultant has materially breached its duties under this Agreement
and such breach has not been cured within 7 days after receipt of
notice thereof; or
(b) the Consultant has committed a crime or wrongful act which relates
directly to the performance of this Agreement.
6. GENERAL
6.01 Notices
Any notice, direction, request or other communication required or contemplated
by any provision of this agreement shall be given in writing and shall be given
by delivering or faxing same to the Company or the Consultant, as the case may
be, at the address for that party first set out above. Any such notice,
direction, request or other communication shall be deemed to have been given or
made on the date on which it was delivered or, in the case of fax, on the next
business day after receipt of transmission. Either party may change its fax
number or address for service from time to time by notice in accordance with the
foregoing.
6.02 Assignment
This Agreement is not assignable in whole or in part by the Consultant. Any
attempt to assign any of the rights, or to delegate any of the duties or
obligations of this Agreement is void. Any assignment occurring by operation of
law such as on a bankruptcy or amalgamation will be deemed an event of default
under this Agreement.
6.03 Waiver
No failure or delay of any party in exercising any power or right under this
Agreement will operate as a waiver of such power or right, nor will any single
or partial exercise of any such right or power preclude any further or other
exercise of such right or power under this Agreement. No modification or waiver
of any provision of this Agreement and no consent to any departure by any party
from any provision of this Agreement will be effective unless it is in writing.
Any such waiver or consent will be effective only in the specific instance and
for the specific purpose for which it was given. No notice to or demand on any
party in any circumstances will entitle such party to any other or further
notice or demand in similar or other circumstances.
-34-
6.04 Enurement
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will enure to the benefit of and be binding on the parties and their
respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
above written.
THE CORPORATE SEAL of )
Able Auctions (1991) Ltd. was hereunto )
affixed in the presence of: )
) c/s
)
---------------------------------------- )
Name: )
Title: )
THE CORPORATE SEAL of )
Dexton Technologies Corporation was )
hereunto affixed in the presence of: )
) c/s
)
---------------------------------------- )
Name: )
Title: )
-35-
SCHEDULE "A"
THE SERVICES
------------
The Consultant covenants and agrees with the Company to provide advisory
services to the Company with respect to:
1. the operation of an auction business;
2. the operation of an electronic commerce business;
3. marketing;
4. negotiation of banner advertising, URL link arrangements and other
value-added relationships;
5. identifying potential strategic partnerships and other arrangements; and
6. other related corporate advisory services.
-36-
ADDENDUM TO SHARE PURCHASE AGREEMENT
DATED FOR REFERENCE THE 16th DAY OF AUGUST 1999 (the "Amendment Date"),
BETWEEN: DEXTON TECHNOLOGIES CORPORATION, a corporation incorporated
under the laws of the Province of British Columbia having a
place of business at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
(the "Shareholder");
AND: ABLE AUCTIONS (1991) LTD., a corporation incorporated under
the laws of the Province of British Columbia having a place of
business at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
("Able Auctions");
AND: XXXXXXXXXXXX.XXX, INC. (formerly X.X. FINANCIAL SERVICES, INC.),
a company incorporated under the laws of the State of Florida
having a place of business at 688 - 6 Ishikawa, Kanagawa,
Japan, 252 0815
(the "Purchaser");
WHEREAS:
A. The Shareholder, Able Auctions and the Purchaser entered into a Share
Purchase Agreement dated for reference 9 July 1999 (the "Agreement"), pursuant
to which the Purchaser agreed to purchase from the Shareholder and the
Shareholder agreed to sell to the Purchaser 100 Class "A" shares of Able
Auctions (the "Able Auctions Shares") and a shareholder loan of CDN$741,000 (the
"Shareholder Loan"); and
B. The parties have agreed to amend the Closing Date defined in the Agreement,
and the consideration to be paid by the Purchaser to the Shareholder for the
Able Auctions Shares and the Shareholder Loan, and other terms and conditions of
the Agreement as specified in this Addendum;
NOW THEREFORE THIS ADDENDUM (this "Addendum") WITNESSES that in consideration of
the covenants and agreements herein contained, the parties hereto do covenant
and agree as follows:
1. SHARE PURCHASE
1.1 Paragraph 1.1 of the Agreement is hereby amended to provide that the
Shareholder shall transfer all of the Able Auctions Shares to the
Purchaser, and the Purchaser agrees to acquire all of the Able
Auctions Shares, for a total purchase price (the "Purchase Price") of
CDN$1,648,657.11 (determined as of the Reference Date, using an agreed
exchange rate of CDN$1.46 = US$1.00), comprised of CDN$1,541,000 (the
"Cash Portion") and 7,373,775 voting common shares of the Purchaser
(the "JBF Shares") with an aggregate value of US$73,737.75 (at the
deemed price of US$0.01 per JBF Share).
1.2 Paragraph1.2 of the Agreement is hereby amended to provide that the
Purchase Price shall be allocated as follows:
(a) CDN$907,657.11 to the Able Auctions Shares, comprised of the
value of the JBF Shares plus CDN$800,000 of the Cash Portion; and
(b) CDN$741,000 to the Shareholder Loan, comprised of the balance of
the Cash Portion.
1.3 Paragraph 1.4 of the Agreement is hereby amended to provide that the
Closing Date shall be 24 August 1999, or on such other date as may be
agreed between the parties.
2. CONDITIONS PRECEDENT
2.1 Subparagraph 2.1(a) of the Agreement is hereby amended to provide that
the Subject Removal Date shall be 20 August 1999, or such other date
as may be agreed between the parties.
2.2 Subparagraph 2.1(c) of the Agreement is hereby replaced by the
following:
on or before the Closing Date, the Purchaser shall have arranged a
financing (the "Financing") to raise at least US$3,000,000 but not
more than US$3,600,000, to complete at the Time of Closing,
immediately after issuance of the JBF Shares, to be used to pay the
Cash Portion and otherwise for the Purchaser's working capital
purposes, through issuance of shares and share purchase warrants
expected to be priced at US$0.80 per unit, with each unit expected to
be comprised of one share of the Purchaser and one-half of a warrant
to purchase one further share of the Purchaser for US$0.80 in the
first year following the issuance of the units, or US$1.00 per share
in the second year following issuance of the units.
3. COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS
3.1 Subparagraph 3.4 of the Agreement is hereby amended by adding the
following:
(g) if the Completion does not occur on the Closing Date for any
reason whatsoever then, unless the parties have agreed to extend
the Closing Date, the Purchaser will change its name as soon as
possible from "Xxxxxxxxxxxx.xxx, Inc." to another name which does
not include "Ableauctions" or any variation thereof.
4. REPRESENTATIONS AND WARRANTIES
4.1 Subparagraph 4.6(d) of the Agreement is hereby replaced by the
following:
other than the cancellation of 8,000,000 of the Outstanding Shares,
two consecutive 5:1 splits of the remaining Outstanding Shares (each
by 4:1 share dividend) to increase the total number of Outstanding
Shares to 61,250,000, and the issuance of up to 4,500,000 common
shares in the course of the Financing, there are no commitments, plans
or arrangements of any kind whatsoever to issue shares of the
Purchaser, nor are there any outstanding options, warrants,
convertible securities or other rights of any kind
-2-
whatsoever calling for the issuance of any of the unissued shares or
other securities of the Purchaser
5. CLOSING
5.1 Subparagraph 6.1(h) of the Agreement is hereby replaced by the
following:
consent of Xxxxx Xxxxx to act as a director and President of the
Purchaser, and consent of Xxxxxxx Xxxxxxx to act as a director of the
Purchaser;
5.2 Subparagraph 6.2(h) of the Agreement is hereby replaced by the
following:
a certified true copy of resolutions of the directors of the Purchaser
appointing Xxxxx Xxxxx as a director and President of the Purchaser
and Xxxxxxx Xxxxxxx as a director of the Purchaser;
6. GENERAL
6.1 Schedules A, B, G and H to this Addendum are hereby substituted for
Schedules A, B, G and H to the Agreement, respectively.
6.2 All terms of the Agreement not specifically amended by this Addendum
or by incorporation of terms the definitions of which have been
changed by this Addendum shall continue in full force and effect,
unamended, subject to any further agreement in writing between the
parties.
6.3 This Addendum may be signed by the parties in as many counterparts as
may be deemed necessary, each of which so signed shall be deemed to be
an original, and all such counterparts together shall constitute one
and the same instrument.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals as of the
Amendment Date:
THE CORPORATE SEAL of )
DEXTON TECHNOLOGIES CORPORATION )
was hereunto affixed in the presence )
of its authorized signatory(ies): )
) c/s
/s/ Xxxxx Xxxxx )
----------------------------------------- )
Name: Xxxxx Xxxxx )
----------------------------------- )
Title: President )
---------------------------------- )
THE CORPORATE SEAL of )
ABLE AUCTIONS (1991) LTD. )
was hereunto affixed in the presence )
of its authorized signatory(ies): )
) c/s
/s/ Xxxxx Xxxxx )
----------------------------------------- )
Name: Xxxxx Xxxxx )
----------------------------------- )
Title: President )
---------------------------------- )
-3-
THE CORPORATE SEAL of )
XXXXXXXXXXXX.XXX, INC. (formerly )
X.X. FINANCIAL SERVICES, INC.) )
was hereunto affixed in the presence )
of its authorized signatory(ies): ) c/s
)
/s/ Xxxxxxx XxXxxx )
----------------------------------------- )
Name: Xxxxxxx XxXxxx )
----------------------------------- )
Title: President )
---------------------------------- )
-4-
SCHEDULE A
Able Auctions Solicitor Opinion
-------------------------------
(letterhead of solicitors for the Shareholder and Able Auctions)
*, 199*
-------------------------
x/x Xxxxxxx & Xxxxxx
Xxxxxxxxxx xxx Xxxxxxxxxx
X.X. Xxx 00000
0000-0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: *
Dear Sirs:
Re: Share Purchase Agreement (the "Agreement") dated for reference the
9th day of July, 1999 between Dexton Technologies Corporation
(the "Shareholder"), Able Auctions (1991) Ltd. ("Able Auctions") and
XXXXXXXXXXXX.XXX, INC. (formerly X.X. Financial Services, Inc.)
(the "Purchaser"), as amended by Addendum dated for reference the
12th day of August, 1999 ( the "Addendum")
We are the solicitors for the Shareholder and for Able Auctions. We provide this
opinion pursuant to subparagraphs * and * of the Agreement, as amended by the
Addendum. We have also acted as counsel for Able Auctions and the Shareholder in
connection with the negotiation, execution and completion of the Agreement and
the Addendum.
We have considered such questions of law and examined such statutes and
regulations, corporate records, certificates and other documents and have made
such other examinations, searches and investigations as we have considered
necessary for the purpose of the opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified or as
photocopies.
Based on and subject to the foregoing, we are of the opinion that:
1. Able Auctions is a company duly incorporated and validly existing under the
laws of the Province of British Columbia. Able Auctions is in good standing
with respect to the filing of annual reports with the Registrar of
Companies for the Province of British Columbia.
2. To the best of our knowledge, Able Auctions has all requisite corporate
power and authority to conduct the business now carried on by it, and to
own its property and assets as described in the Agreement and Able Auctions
has all requisite corporate power and authority to enter into and to
perform its obligations under the Agreement.
3. All necessary steps and corporate action and proceedings have been taken to
authorize the execution and delivery of the Agreement and the Addendum by
Able Auctions.
4. To the best of our knowledge, neither the execution and delivery of, nor
the performance of its obligations under the Agreement, as amended by the
Addendum, by Able Auctions will conflict with or constitute a breach or
default under the constating documents of Able Auctions or any commitment,
agreement or other instrument to which Able Auctions is a party or by which
it is bound.
5. To the best of our knowledge, there are no claims, judgement, actions,
suits, litigation, proceedings or investigations, actual, pending or
threatened against Able Auctions which might materially affect any
business, properties, assets, prospects or conditions, financial or
otherwise, of Able Auctions or which could result in any material liability
to Able Auctions, other than a total of four claims by Sangat X. Xxxxx,
Xxxxxxxx X. Xxxxx, Xxxxxx Xxxxxxx and Xxxxx Panasara, each in the amount of
CDN$10,000 and not yet set down for trial, for alleged conversion of
personal property by Able Auctions.
6. The authorized capital of Able Auctions consists of 10,000 shares without
par value divided into 5,000 Class "A" shares and 5,000 Class "B" shares of
which only 100 Class "A" shares (the "Able Auctions Shares") are validly
authorized, created, allotted, issued and outstanding, and, to the best of
our knowledge, are fully paid for and non-assessable, as at the date
hereof.
7. All necessary steps and corporate action and proceedings have been taken to
effect the valid transfer of the Able Auctions Shares to the Purchaser as
contemplated under the Agreement as amended by the Addendum. The Purchaser
is the registered owner of the Able Auctions Shares on the books and
records of Able Auctions.
The opinion expressed is subject to the qualification that enforceability of the
Agreement as amended by the Addendum may be limited by applicable bankruptcy,
insolvency or other laws affecting creditors' rights generally, and that
equitable remedies such as the remedies of specific performance or injunction
are in the discretion of the court from which they are sought.
Yours truly,
*
Per:
*
-2-
SCHEDULE B
JBF Solicitor Opinion
---------------------
(letterhead of solicitors for the Purchaser)
*, 199*
*
c/o *
Attorneys at Law
*
Attention: *
Dear Sirs:
Re: Share Purchase Agreement (the "Agreement") dated for reference the
9th day of July, 1999 between Dexton Technologies Corporation
(the "Shareholder"), Able Auctions (1991) Ltd. ("Able Auctions") and
XXXXXXXXXXXX.XXX, INC. (formerly X.X. Financial Services, Inc.)
(the "Purchaser"), as amended by Addendum dated for reference the
12th day of August, 1999 ( the "Addendum")
We are the solicitors the Purchaser. We provide this opinion pursuant to
subparagraphs * and * of the Agreement as amended by the Addendum. We have acted
as counsel for the Purchaser in connection with the o of the Agreement and the
Addendum.
We have considered * such questions of law and examined such statutes and
regulations, corporate records, certificates and other documents and have made
such other examinations, searches and investigations as we have considered
necessary for the purpose of the opinion hereinafter expressed. In such
examination, we have * assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified or as
photocopies.
*
Based on and subject to the foregoing, we are of the opinion that:
1. The Purchaser is a company duly incorporated and validly existing under the
laws of the State of Florida. The Purchaser is in good standing with
respect to the filing of annual reports with the Registrar of Companies for
the State of Florida.
2. The Purchaser has all requisite corporate power and authority to enter into
and to perform its obligations under the Agreement as amended by the
Addendum.
3. All necessary steps and corporate action and proceedings have been taken to
authorize the execution and delivery of the Agreement and the Addendum by
the Purchaser.
4. To the best of our knowledge, neither the execution and delivery of, nor
the performance of its obligations under the Agreement as amended by the
Addendum by the Purchaser will conflict with or constitute a breach of or
default under the constating documents of the Purchaser or any commitment,
agreement or other instrument to which the Purchaser is a party or by which
it is bound.
5. As at the Closing Date of the Agreement, the authorized capital of the
Purchaser consisted of 250,000,000 common shares with a par value of
U.S.$0.001 per share, of which * shares are validly authorized, created,
allotted, issued and outstanding, and, to the best of our knowledge, fully
paid for and non-assessable, based wholly upon and assuming the accuracy of
the attached * from *.
6. All necessary steps and corporate action and proceedings have been taken to
effect the valid issuance of the JBF Shares to the Shareholder as
contemplated under the Agreement as amended by the Addendum and, upon
issuance, delivery and receipt of the consideration described in the
Agreement as amended by the Addendum, will be validly issued, fully paid
and non-assessable.
The opinion expressed is subject to * the qualification that enforceability of
the Agreement as amended by the Addendum may be limited by applicable
bankruptcy, insolvency or other laws affecting creditors' rights generally, and
that equitable remedies such as the remedies of specific performance or
injunction are in the discretion of the court from which they are sought.
Yours truly,
*
Per:
*
-2-
SCHEDULE F
Certificate of Confirmation
---------------------------
Pursuant to subparagraph 6.1(e) of the Share Exchange Agreement dated for
reference the 9th day of July, 1999 (the "Agreement") between Dexton
Technologies Corporation (the "Shareholder"), Able Auctions (1991) Ltd. and
XXXXXXXXXXXX.XXX, INC. (formerly X.X. Financial Services, Inc.) (the
"Purchaser"), as amended by Addendum dated for reference the 12th day of August,
1999 ( the "Addendum"), the undersigned Shareholder hereby confirms to the
Purchaser that the representations and warranties of the Shareholder contained
in the Agreement, as amended by the Addendum, or contained in any certificates
or documents delivered by the Shareholder pursuant to the Agreement, as amended
by the Addendum, are true and correct in every respect as of the Time of Closing
of the Agreement being 11:00 o'clock a.m. local time in Vancouver, B.C. on the
*, 1999.
Dated at *, this *, 1999.
------------------------------------
*
SCHEDULE G
Certificate of Confirmation
---------------------------
Pursuant to subparagraph 6.2(d) of the Share Purchase Agreement dated for
reference the 9th day of July, 1999 (the "Agreement") between Dexton
Technologies Corporation (the "Shareholder"), Able Auctions (1991) Ltd., and
XXXXXXXXXXXX.XXX, INC. (formerly X.X. Financial Services, Inc.) (the
"Purchaser"), as amended by Addendum dated for reference the 12th day of August
1999 (the "Addendum") the Purchaser confirms to the Shareholder that:
(a) the representations and warranties of the Purchaser contained in the
Agreement, as amended by the Addendum, or contained in any
certificates or documents delivered by it pursuant to the Agreement,
as amended by the Addendum, are true and correct in every respect as
of the Time of Closing of the Agreement, being 11:00 o'clock a.m.
local time in Vancouver, B.C. on the * 1999; and
(b) the Purchaser has arranged an equity financing of its * securities to
raise gross proceeds of at least U.S.$3,000,000 immediately after the
transfer of the JBF Shares to the Shareholder.
Dated at Vancouver, British Columbia, this * 1999.
XXXXXXXXXXXX.XXX, INC.
(formerly X.X. Financial Services, Inc.)
Per:
---------------------------------
*, Director
