PURCHASE & SALE AGREEMENT
THIS AGREEMENT made this 10th day of November 2005 amends and supersedes any and
all prior written and oral agreement between the parties hereto regarding the
subject matter contained here within.
Between: Carlant Holdings Limited (BVI)
("Carlant")
And: Graphite Lake Resources Ltd.
("GLRL")
And: Graphite Technology Group, Inc.
("GTG")
(the "Parties")
WHEREAS the Parties did previously agree to perform certain things required to
be performed, which included GTG purchasing certain priority security lien
interests secured by 100% of the assets of International Graphite Inc. ("IGI") a
Canadian private company, from secured creditors of IGI, and which specifically
included the obligation of GTG to purchase priority security lien interests of
creditors of IGI over mining equipment, mineral claims and mineral leases, AND,
conditional upon GTG accomplishing the aforementioned, for Carlant, to form and
solely own GLRL, AND for Carlant to acquire 100% of the issued and outstanding
capital stock of IGI, AND for Carlant to transfer all of the assets of IGI to
GLRL.
AND WHEREAS those things required to be performed by the Parties has been
performed or will be performed on or before March 15, 2006.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants contained herein, the Parties hereto agree as follows:
ARTICLE I
DEFINED TERMS AND INTERPRETATION
1.1 DEFINITIONS. Whenever used in this Agreement, unless there is something in
the subject matter or context inconsistent therewith, the following words
and terms shall have the following meanings, respectively:
A. "GLRL" means Graphite Lake Resources Ltd., an Ontario company formed to
own and operate the mineral claims and leases constituting +/-3000 acres
near ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, partly comprising the former producing
"▇▇▇▇▇▇▇ Graphite Mine".
B. "GTG" means Graphite Technology Group, Inc., a Delaware corporation.
C. "CARLANT" means Carlant Holdings Limited, a British Virgin Islands
corporation.
D. "IGI" means International Graphite Inc.
E. "CLOSING" means March 15, 2006 or any other date when mutually agreed
by the parties.
F. "CONSENTS" means consents, approvals, authorizations, and any form of
agreement necessary to give valid affect to this agreement of the Parties.
G. "CONSIDERATION" means payment and form of payment of the Purchase Price
paid by GTG for purchase of 100% of the issued and outstanding capital
stock of GLRL.
H. "CONTRACTUAL OR OTHER RIGHT OR OBLIGATION" means any form of agreement,
contract, instrument, license, permit, registration, judgement, order,
decree, indenture, lease, engagement, or commitment.
I. "EFFECTIVE DATE" means the date first written above.
J. "ENCUMBRANCE" means any form of agreement, option, understanding,
commitment, equity, covenant, mortgage, charge, security interest, lien,
adverse claim, pledge, demand, action, restriction, order, judgement,
decree, encumbrance or right or privilege affecting or capable of
affecting title or rights of GLRL to carry on mining activities or
otherwise make use of the Property in compliance with law and in
compliance with applicable regulation affecting ownership and use of the
Property.
K. "ISSUER" means Graphite Technology Group, Inc.
L. "ISSUER SECURITIES" means equity shares, notes, debentures, other
securities issued to Parties as Consideration of the Purchase Price; and,
when issued, form part of the capital of the Issuer.
M. "PARTIES" means the parties to this Agreement; Graphite Lake Resources
Ltd., Graphite Technology Group, Inc., Carlant Holdings Limited; and
"PARTY" means any of them.
N. "PERMITTED ENCUMBRANCES" means defects or irregularities in title which
are of a minor nature and do not, in the aggregate, adversely affect the
interest of the Parties.
O. "PROPERTY" shall have the meaning ascribed to right, title and interest
in and to land, rights and permitted uses pursuant to mineral leases and
mineral claims partly comprising the former known ▇▇▇▇▇▇▇ Graphite Mine.
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P. "PURCHASE PRICE" means payment of $2,250,000 US DOLLARS, paid by GTG to
Carlant, or such party or parties as Carlant may direct. Payment of the
Purchase Price amount is to be paid by cancellation of the priority
security lien interest held by GTG in the amount of $1,250,000, payment of
approximately CDN $600,000 to a party not a party to this Agreement, and
the balance remaining paid in common shares issued by GTG issued at the
then prevailing market price for those shares, or in the instance of no
discernible market price, at the price determined by a business valuator
acceptable to the Parties. In the instance that GTG chooses not to rely on
the valuation of a business valuator for the pricing of the common shares,
GTG shall have the right to make such equivalent payment in cash.
Q. "TAXES" means any municipal taxes or real estate taxes or other taxes,
assessments, levies, imposts or charges payable to or exigible by any
governmental agency, authority or instrumentality upon the Property.
R. "THIS AGREEMENT", "HEREIN", "HERETO", "HEREBY", "HEREUNDER", "HEREOF"
and similar expressions refer to this Agreement, also this "Purchase &
Sale Agreement", and not to any particular clause, sub-clause, section,
subsection or paragraph, or other portion hereof, and include amendments
hereto, any agreement which is supplementary to or in amendment or
confirmation of this Agreement and any schedules hereto or thereto;
1.2 GENDER AND NUMBER. Any reference in this Agreement to gender shall include
all genders and words used herein importing the singular number shall include
the plural and vice versa.
1.3 HEADINGS, ETC. The division of this Agreement into Articles, Sections,
Subsections and other subdivisions and the insertion of headings are for
convenience of reference only, and shall not affect or be utilized in the
construction or interpretation hereof.
1.4 GOVERNING LAW. This Agreement shall be construed and interpreted in
accordance with the laws of Ontario and the federal laws of Canada applicable
therein. The Parties irrevocably submit to the jurisdiction of the courts of the
Province of Ontario.
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ARTICLE II
PROPERTY SUBJECT TO PURCHASE AND SALE
2.1 PROPERTY: all right, title, and interest, in and to mineral leases and
mineral claims as more particularly described in Schedule "A" attached hereto,
owned by GLRL, and by reference here made part of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CARLANT AND GLRL
3.1 REPRESENTATIONS AND WARRANTIES OF CARLANT AND GLRL. Carlant and GLRL
represent and warrant to GTG as follows and acknowledge GTG is relying upon such
representations and warranties in connection with the entering into of this
Agreement and the consummation of the transactions contemplated hereby:
3.1.1 SUBSISTENCE. Carlant and GLRL, acting together, have the necessary power
and authority to enter into this Agreement and to convey 100% of the capital
stock of GLRL.
3.1.2 CONSENTS. Consents or filings required to be obtained or made by Carlant
and GLRL in order to complete the transactions contemplated by this Agreement,
can and will be made, and Carlant and GLRL is not aware of any consents required
to be obtained other than consents as is disclosed in writing to GTG, or listed
herein, or by their nature, inferred or implied to have been obtained, or will
be obtained by Carlant and GLRL.
3.1.3 TRANSFER OF ASSETS. GLRL and Carlant have entered into binding agreements
with International Graphite Inc., the sufficiency of which is adequate for GLRL
to acquire all of the assets of International Graphite Inc.
3.1.4 LITIGATION. There is no action, suit, or proceeding, at law or in equity;
no claim or demand by any person or entity, or any investigation, arbitration or
any administrative or other proceeding pending, or, to the best of the knowledge
of Carlant and GLRL, threatened against or affecting Carlant and GLRL's ability
to perform the obligations of this Agreement other than actions as have been
made known to GTG in writing, the remedy for which can be obtained by Carlant
and GLRL or is otherwise satisfied by this agreement.
3.1.5 RESTRICTIVE DOCUMENTS. Carlant and GLRL are not subject to, or party to,
any charter or by-law restriction, encumbrance, contractual or other right or
obligation, law, rule, ordinance, regulation, or any other restriction of any
kind or character preventing the consummation of the transactions contemplated
by this Agreement.
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3.1.6 COMPLIANCE WITH LAWS. Carlant and GLRL, with respect to all matters
contained here within, are acting in compliance with all applicable laws, rules
and regulations of each jurisdiction in which Carlant and GLRL are bound; and
with all applicable orders, judgements and decrees by which Carlant and GLRL are
bound and not in breach of any such laws, rules, regulations, orders, judgements
and decrees.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GTG
4.1 REPRESENTATIONS AND WARRANTIES OF GTG. GTG represents and warrants to
Carlant and GLRL as follows and acknowledges Carlant and GLRL are relying upon
such representations and warranties in connection with the entering into of this
Agreement and the consummation of the transactions contemplated hereby:
4.1.1 DUE INCORPORATION AND SUBSISTENCE OF GTG. GTG is duly incorporated,
organized and validly subsisting and in good standing under the laws of the
State of Delaware, the United States.
4.1.2 CONSENTS. There are no Consents or filings required to be obtained or made
by GTG in order to complete the transactions contemplated by this Agreement.
4.1.3 RESTRICTIVE DOCUMENTS. GTG is not subject to or party to any charter or
by-law restriction, encumbrance, contractual or other right or obligation, law,
rule, ordinance, regulation, or any other restriction of any kind or character
preventing consummation of the transaction contemplated by this Agreement or
compliance by GTG with the terms, conditions and provisions hereof.
4.1.4 FILINGS. GTG is up-to-date in all filings with all requisite regulatory
agencies and is in good standing with respect to all requisite filings.
4.1.5 LITIGATION. There is no action, suit, proceeding, at law or in equity,
claim or demand by any person or entity, or any investigation, arbitration or
any administrative or other proceeding by or before, or to the best knowledge of
GTG, threatened against or affecting GTG to perform its obligations in respect
of this Agreement.
4.1.6 COMPLIANCE WITH LAWS. GTG, with respect to all matters contained here
within, is acting in compliance with all applicable laws, rules and regulations
of each jurisdiction in which GTG is bound; and with all applicable orders,
judgements and decrees by which GTG is bound and not in breach of any such laws,
rules, regulations, orders, judgements and decrees.
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ARTICLE V
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
5.1 SURVIVAL. All covenants, representations and warranties made herein or in
any agreement, certificate or other document delivered or given pursuant to this
Agreement, other than those which are expressly waived in writing as part of the
Closing shall survive the execution and delivery of this Agreement.
ARTICLE VI
CLOSING
6.1 CLOSING. Closing will occur on or before March 15, 2006 at the time
mutually agreed and place decided by the Parties.
6.2 DELIVERABLES BY Carlant. At the time of Closing, Carlant will deliver 100%
of the issued and outstanding capital stock of GLRL in good and marketable form
for transfer to GTG.
6.3 DELIVERABLES BY GTG. At the time of Closing, GTG will deliver to Carlant
the amount of cash in good funds, promissory notes, the cancelled priority lien
security interest of GTG over the assets of International Graphite Inc., and the
number of fully paid non-assessable common shares in the capital of GTG as
determined by then existing prices.
ARTICLE VII
MISCELLANEOUS
7.1 FURTHER ASSURANCES. To the extent reasonable and practicable or permitted
by law, each of the Parties upon the request of the other, shall execute,
acknowledge and deliver or cause to be done, all such further acts, deeds,
documents, assignments, transfers, conveyances and assurances as may be
reasonably necessary or desirable to effect complete consummation of the
transactions contemplated by this Agreement.
7.2 SUCCESSORS IN INTEREST. This Agreement and the provisions hereof shall be
for the benefit of and be binding upon the Parties and their respective heirs,
executors, personal representatives, successors and permitted assigns, as the
case may be.
7.3 NOTICES. Any notice, document or other communication required or permitted
by this Agreement to be given by a party hereto shall be in writing and is
sufficiently given if delivered personally, or if sent by prepaid ordinary mail,
or if transmitted by any form of telecommunication to either party to this
Agreement as listed below:
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Graphite Technology Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Carlant Holdings Limited
Graphite Lake Resources, Ltd.
▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
7.4 ASSIGNMENT. This Agreement may not be assigned by either party to this
Agreement without prior written consent of each other party.
7.5 EXECUTION IN COUNTERPARTS. This Agreement may be executed by the Parties
in separate counterparts or duplicates, each of which when so executed and
delivered, shall be an original, but all such counterparts or duplicates shall
together constitute one and the same instrument.
7.6 ENTIRE AGREEMENT. This Agreement, the Schedules attached hereto forming
part, together with any other agreements or documents to be delivered pursuant
to this Agreement, sets forth the entire agreement among the Parties pertaining
to the specific subject matter hereof and does replace and supersede all prior
agreements, understandings, negotiations and discussions, whether oral or
written. There are no warranties, representations or other agreements, whether
oral or written, expressed or implied, statutory or otherwise, between the
Parties in connection with the subject matter hereof except as specifically set
forth herein.
7.7 AMENDMENTS. No supplement, modification, waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to be bound
thereby.
7.8 WAIVER. No delay or failure of any party in exercising any right or remedy
hereunder and no partial exercise of any such right or remedy shall be deemed to
constitute a waiver of such right or remedy or any other rights or remedies of
such party hereunder. No waiver of any provision of this Agreement shall
constitute a waiver of any other provisions, whether or not similar, nor shall
such waiver constitute a continuing waiver unless otherwise expressly provided.
Any consent by a party to or any waiver by a Party of any breach of any
provision of this Agreement shall not constitute consent, or waiver of any
subsequent or other breach of the provisions of this Agreement.
7.9 SEVERABILITY. Each of the provisions of this Agreement (and each part of
each such provision) is severable from every other provision hereof and every
other part thereof. In the event that any provision, or part thereof contained
in this Agreement or the application thereof to any circumstance shall be
invalid, illegal or unenforceable, in whole or in part, in any jurisdiction and
to any extent: (a) the validity, legality or enforceability of such provision,
or such part thereof in any other jurisdiction and of the remaining provisions
contained in this Agreement,(or the remaining parts of such provision, as the
case may be, shall not in any way be affected or impaired thereby; (b) the
application of such provision or such part thereof to circumstances other than
those as to which it is held invalid, illegal or unenforceable shall not in any
way be affected or impaired thereby; (c) such provision or such part thereof
shall be severed from this Agreement and ineffective to the extent of such
invalidity, illegality or unenforceability in such jurisdiction and in such
circumstances;
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7.10 SCHEDULES. Schedules attached herewith form part of this Agreement.
ARTICLE IX
CONDITIONS PRECEDENT
8.1 CONDITIONS PRECEDENT. The Parties have or will have performed all things
required to be performed by each and all of the Parties set out hereunder, or
referred to during the period prior to Closing.
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IN WITNESS WHEREOF the Parties have executed this Agreement as of the date first
above written.
GRAPHITE TECHNOLOGY GROUP, INC.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------
Authorized Signatory
GRAPHITE LAKE RESOURCES LTD.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------
Authorized Signatory
CARLANT HOLDINGS LIMITED
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------
Authorized Signatory
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SCHEDULE A
DESCRIPTION OF PROPERTY: MINERAL CLAIMS & LEASES:
Registered: Southern Ontario - Division 90
Claim No.:
----------
SO 1156393
SO 1191252
SO 1191253
SO 1191254
SO 1191255
SO 1191256
SO 1191257
SO 1191258
SO 1191259
SO 884617
SO 884618
SO 884624
SO 884677
SO 884678
SO 884679
SO 894893
SO 894894
SO 943282
SO 943283
SO 943284
SO 943285
SO 943286
Lease Claims:
Lease: 105009: Claims: 808727, 808728, 808731, 831526, 831527, 808729, 808730
Lease: 106691: Claims: 884619, 884622, 884623, 884675, 884676, 831520, 831525,
1017211, 1017212
Lease: 106692: Claims: 884615, 884616, 884620, 884621, 831519, 1017210
Lease: 106812: Claims: 819214
Lease: 106813: Claims: 819215
Lease: 106814: Claims: 898531
Lease: 106815: Claims: 898532
