STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made effective as of the 23rd day of November, 2001.
AMONG:
ADVANCED TECHNOLOGIES DEVELOPMENT CO. LIMITED
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POB 472 and 504
50 Town Range, Gibraltar
ROCASOPRANE LTD.
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Calle 00 Xx Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx of Panama
AXIOM S.A.
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00 Xxxx Xxxxxxx Xxxx XX 0000 Xxxxxx
Xxxxxxxxxxx
(hereinafter called the "Selling Shareholders")
OF THE FIRST PART
AND:
TECHNOCALL SA,
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a corporation incorporated pursuant to the laws
of Switzerland
(hereinafter called "Technocall")
OF THE SECOND PART
AND:
BURRARD TECHNOLOGIES, INC.,
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a Nevada corporation
(hereinafter called "Burrard")
OF THE THIRD PART
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WHEREAS:
A. The Selling Shareholders own all of the issued and outstanding shares of
the common stock of Technocall.
B. Burrard has offered to purchase all of the issued and outstanding shares
of the common stock of Technocall.
C. The Selling Shareholders have agreed to sell all of the issued and
outstanding shares of the common stock of Technocall to Burrard on the terms and
conditions set forth herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the foregoing
and of the sum of $10.00 paid by Burrard to each of the Selling Shareholders and
to Technocall, the receipt of which is hereby acknowledged, the parties hereto
agree each with the other as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions. The following terms will have the following meanings
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for all purposes of this Agreement.
(a) "Burrard Shares" means 7,600,000 shares of the common stock of Burrard
to be issued to the Selling Shareholders by Burrard on the Closing Date.
(b) "Agreement" shall mean this Agreement, and all the exhibits, schedules
and other documents attached to or referred to in the Agreement, and all
amendments and supplements, if any, to this Agreement.
(c) "Business" means the business in which Technocall is engaged as
disclosed in Business Plan and the Technocall Financial Statements;
(d) "Business Plan" means the business plan of Technocall prepared by
Technocall, a copy of which is attached hereto as Appendix A;
(e) "Closing" shall mean the closing of the Transaction.
(f) "Closing Date" shall mean December 11, 2001 or such other date as
agreed in writing to by the parties on which the Closing occurs.
(g) "Closing Documents" shall mean the papers, instruments and documents
required to be executed and delivered at the Closing pursuant to this Agreement.
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(h) "Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended.
(i) "GAAP" shall mean United States generally accepted accounting
principles applied in a manner consistent with prior periods.
(j) "SEC" shall mean the United States Securities and Exchange Commission.
(k) "Securities Act" shall mean the United States Securities Act of 1933,
as amended.
(l) "Selling Shareholders" shall mean the selling shareholders named in the
preamble to this agreement.
(m) "Technocall Shares" means the 1,000 shares of the common stock of
Technocall held by the Selling Shareholders, being all of the issued and
outstanding shares of the common stock of Technocall;
(n) "Transaction" shall mean the purchase of the Technocall Shares by
Burrard from the Selling Shareholders in consideration for the issuance of the
Burrard Shares.
1.2 Schedules. The following appendices and schedules are attached to
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and form part of this Agreement:
APPENDICES
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Description
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Appendix A Business Plan
SCHEDULES
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Description
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Disclosure Schedule 3.4 - Title to Technocall Stock
Disclosure Schedule 3.6 - Technocall Financial Statements
Disclosure Schedule 3.9 - Fixed Assets/ Tangible Assets
Disclosure Schedule 3.11- Intellectual Property
Disclosure Schedule 3.13- Material Contracts
1.3 Currency. All dollar amounts referred to in this agreement are in
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United States funds, unless expressly stated otherwise.
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ARTICLE 2.
PURCHASE AND SALE OF SHARES
2.1 Purchase and Sale of Shares. Subject to the terms and conditions of
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this Agreement, the Selling Shareholders hereby covenant and agree to sell,
assign and transfer to Burrard, and Burrard covenants and agrees to purchase
from the Selling Shareholders all of Technocall Shares held by the Selling
Shareholders.
2.2 Consideration. As consideration for the sale of Technocall Shares,
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Burrard shall allot and issue the Burrard Shares to the Selling Shareholders.
The Burrard Shares shall be issued to the Selling Shareholders pro rata in
accordance to the number of the Technocall Shares transferred by each Selling
Shareholder to Burrard on closing. The Selling Shareholders acknowledge and
agree that the Burrard Shares are being issued pursuant to available exemptions
from the prospectus and registration requirements of the United States
Securities Act of 1933. The Selling Shareholders agree to abide by all
applicable resale restrictions and hold periods imposed by all applicable
securities legislation. All shares certificates representing the Burrard Shares
will be endorsed with the following legend pursuant to the United States
Securities Act of 1933:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT"), AND HAVE BEEN ISSUED IN RELIANCE UPON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT. SUCH SECURITIES MAY
NOT BE REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED UNLESS THEY ARE
REGISTERED UNDER THE APPLICABLE PROVISIONS OF THE ACT OR ARE EXEMPT FROM SUCH
REGISTRATION. HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE ACT.
2.3 Closing Date. The closing of the Transaction (the "Closing") will take
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place, subject to the terms and conditions of this Agreement, on the Closing
Date.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF TECHNOCALL AND
THE SELLING STOCKHOLDERS
Technocall and the Selling Stockholders each jointly and severally
represent and warrant to Burrard and acknowledge that Burrard is relying upon
such representations and warranties in connection with the execution, delivery
and performance of this Agreement, notwithstanding any investigation made by or
on behalf of Burrard:
3.1 Organization and Good Standing. Technocall is a corporation duly
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organized, validly existing and in good standing under the laws of the country
of Switzerland and has all requisite corporate power and authority to own, lease
and to carry on its business as now being
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conducted. Technocall is duly qualified to do business and is in good standing
as a foreign corporation in each of the jurisdictions in which it owns property,
leases property, does business, or is otherwise required to do so, where the
failure to be so qualified would have a material adverse effect on the business
of Technocall taken as a whole.
3.2 Authority. Technocall has all requisite corporate power and
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authority to execute and deliver this Agreement, and to perform its obligations
as required by this Agreement. The execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement have been
duly authorized by Technocall's board of directors and no other corporate or
shareholder proceedings on the part of Technocall is necessary to authorize this
Agreement or to consummate the transactions contemplated by this Agreement.
This Agreement has been duly executed and delivered by Technocall.
3.3 Capitalization of Technocall. The entire authorized capital stock
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and other equity securities of Technocall consist of 1,000 shares of Technocall
common stock (the "Technocall Stock") all of which shares are issued and
outstanding. All of the issued and outstanding shares of Technocall Stock have
been duly authorized, are validly issued, are fully paid and nonassessable, are
not subject to preemptive rights and were issued in full compliance with all
federal, state, and local laws, rules and regulations, including all applicable
securities laws. There are no outstanding options, warrants, subscriptions,
conversion rights, or other rights, agreements, or commitments obligating
Technocall to issue any additional shares of Technocall Stock, or any other
securities convertible into, exchangeable for, or evidencing the right to
subscribe for or acquire from Technocall any shares of Technocall Stock. There
are no agreements purporting to restrict the transfer of the Technocall Stock,
no voting agreements, voting trusts, or other arrangements restricting or
affecting the voting of the Technocall Stock.
3.4 Title to Technocall Stock. Disclosure Schedule 3.4 contains a true
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and complete list of the holders of all issued and outstanding shares of
Technocall Stock (the "Technocall Stockholders") including each holder's name,
address, number of shares held and date of issuance.
3.5 Subsidiaries. Technocall does not have any subsidiaries or agreements
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of any nature to acquire any subsidiary or to acquire or lease any other
business operations and will not prior to the Closing Date acquire, or agree to
acquire, any subsidiary or business without the prior written consent of
Burrard.
3.6 Financial Representations. Attached to this Agreement as
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Disclosure Schedule 3.6 are true, correct, and complete copies of an unaudited
balance sheet and income statement of Technocall dated as of September 30, 2001
(collectively, the "Financial Statements"). The Financial Statements (a) are in
accordance with the books and records of Technocall and (b) present fairly the
financial condition of Technocall as of the respective dates indicated and the
results of operations for such periods. The books, records, and accounts of
Technocall accurately and fairly reflect, in reasonable detail, the
transactions, assets, and liabilities of Technocall. Technocall has not engaged
in any transaction, maintained any bank account, or used any funds of
Technocall, except for transactions, bank accounts, and funds which have been
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and are reflected in the normally maintained books and records of Technocall.
The books, records, accounts and financial statements of Technocall are such
that audited financial statements for Technocall can be prepared and delivered
within 45 days of the Closing Date in accordance with US GAAP and in the form
and with the content required to enable Burrard to comply with its filing
obligations under the Exchange Act arising from the acquisition of Technocall.
3.7 Absence of Undisclosed Liabilities. Technocall has no liabilities
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or obligations either direct or indirect., matured or unmatured, absolute,
contingent or otherwise, which:
(a) are not set forth in the Financial Statements or have not
heretofore been paid or discharged;
(b) did not arise in the regular and ordinary course of business under
any agreement, contract, commitment, lease or plan specifically disclosed (or
are not required to be disclosed in accordance with GAAP); or
(c) have not been incurred in amounts and pursuant to practices
consistent with past business practice, in or as a result of the regular and
ordinary course of its business since the date of the last Financial Statements.
For purposes of this Agreement, the term "liabilities" includes, any direct
or indirect indebtedness, guaranty, endorsement, claim, loss, damage,
deficiency, cost, expense, obligation or responsibility, fixed or unfixed, known
or unknown, asserted xxxxxx or inchoate, liquidated or unliquidated, secured or
unsecured.
3.8 Absence of Changes. Since September 30, 2001, there has not been
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(a) a material adverse effect to the business, operations or financial
conditions of Technocall, or (b) any significant change by Technocall in its
accounting methods, principles or practices.
3.9 Fixed Assets/ Tangible Assets. Disclosure Schedule 3.9 contains a
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list of all material equipment, furniture, fixtures and other tangible personal
property and assets owned by Technocall. Technocall possesses all property and
items necessary for the continued operation of the business of Technocall as
disclosed in the Technocall Financial Statements and in accordance with its
Business Plan. All of such items are in good operating condition (normal wear
and tear excepted), and are reasonably fit for the purposes for which such item
is presently used. All such personal property is owned by Technocall free and
clear of all liens, security interests, charges and encumbrances.
3.10 Employees and Consultants. Technocall has not entered into any
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written contracts of employment or consulting agreements other than as listed on
Disclosure Schedule 3.13.
3.11 Intellectual Property. Technocall owns or possesses or has the
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right to use all patents, trademarks, trade secrets, service marks, trade names,
copyrights, inventions, products
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and processes under development, databases, drawings, designs, proprietary
know-how or information, other confidential information, or other rights with
respect thereto (collectively referred to as "Proprietary Rights"), used or
currently proposed to be used in the business of the Technocall as disclosed in
the Technocall Financial Statements and the Business Plan. Without limitation,
Technocall owns all Proprietary Rights in connection with the program concerning
"Electronic and Computer Intelligence Applied to Water Treatment", as described
in Disclosure Schedule 3.11. Disclosure Schedule 3.11 sets forth a complete and
accurate list of all patents and applications for patents, trademarks, trade
names, service marks, and copyrights, and applications therefor, owned or used
by Technocall or in which it has any rights or licenses. All such intellectual
property assets are owned by Technocall free and clear of all liens, security
interests, charges and encumbrances.
3.12 Real Property. Technocall does not own real property. Any leases
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are to which Technocall is a party are disclosed in Disclosure Schedule 3.13.
3.13 Material Contracts and Transactions. Disclosure Schedule 3.13
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contains a list of all material contracts, agreements, licenses, permits,
arrangements, commitments, instruments, understandings or contracts, whether
written or oral, express or implied, contingent, fixed or otherwise, to which
Technocall is a party (collectively, the "Contracts").
(a) Except as listed on Disclosure Schedule 3.13, neither Technocall
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nor any of its Subsidiaries is a party to any written or oral:
(1) agreement for the purchase, sale or lease of any capital assets,
or continuing contracts for the purchase or lease of any materials,
supplies, equipment, real property or services;
(2) agreement regarding, sales agency, distributorship, or the payment
of commissions;
(3) agreement for the employment or consultancy of any person or
entity;
(4) note, debenture, bond, trust agreement, letter of credit agreement
loan agreement, or other contract or commitment for the borrowing or
lending of money, or agreement or arrangement for a line of credit or
guarantee, pledge, or undertaking of the indebtedness of any other person;
(5) agreement, contract, or commitment for any charitable or political
contribution;
(6) agreement, contract, or commitment limiting or restraining
Technocall, their business or any successor thereto from engaging or
competing in any manner or in any business or from hiring any employees,
nor is any employee of Technocall subject to any such agreement, contract,
or commitment;
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(7) material agreement, contract, or commitment not made in the
ordinary course of business;
(8) agreement establishing or providing for any joint venture,
partnership, or similar arrangement with any other person or entity;
(9) agreement, contract or understanding containing a "change in
control," or similar provision; or
(10) power of attorney or similar authority to act.
(b) Each Contract is in full force and effect, and there exists no
material breach or violation of or default by Technocall under any Contract nor
by any other party to a Contract, or any event that with notice or the lapse of
time, or both, will create a material breach or violation thereof or default
under any Contract by Technocall or by any other party to a Contract. The
continuation, validity, and effectiveness of each Contract will in no way be
affected by the consummation of the transactions contemplated by this Agreement.
Except as listed on Disclosure Schedule 3.13, there exists no actual or
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threatened termination, cancellation, or limitation of, or any amendment,
modification, or change to any Contract. A true, correct and complete copy (and
if oral, a description of material terms) of each Contract, as amended to date,
has been furnished to Burrard.
3.14 Noncontravention. Neither the execution, delivery and performance
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of this Agreement, nor the completion of the Transaction, will:
(1) Conflict with, result in a violation of, cause a default under
(with or without notice, lapse of time or both) or give rise to a right of
termination under any agreement to which Technocall is a party;
(2) Violate any provision of the certificate of incorporation or
by-laws of Technocall; or
(3) Violate any order, writ, injunction, decree, statute, rule, or
regulation of any court or governmental or regulatory authority applicable
to Technocall or any of its respective property or assets.
3.15 Actions and Proceedings. There is no claim, charge, arbitration,
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grievance, action, suit, investigation or proceeding by or before any court,
arbiter, administrative agency or other governmental authority now pending or,
to the best knowledge of Technocall, threatened against Technocall or which
involves any of the business, or the properties or assets of Technocall that, if
adversely resolved or determined, would have a material adverse effect on the
business, operations, assets, properties, prospects, or conditions of Technocall
taken as a whole ("Technocall Material Adverse Effect"). There is no reasonable
basis for any claim or action that, based upon the likelihood of its being
asserted and its success if asserted, would have such a Technocall Material
Adverse Effect.
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3.16 Compliance. Technocall has operated in material compliance with
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all laws, rules, statutes, ordinances, orders and regulations applicable to its
business.
3.17 Filings, Consents and Approvals. No filing or registration with,
--------------------------------
no notice to and no permit, authorization, consent, or approval of any public or
governmental body or authority or other person or entity is necessary for the
consummation by Technocall of the transactions contemplated by this Agreement or
to enable Burrard to continue to conduct Technocall's business after the Closing
Date in a manner which is consistent with that in which it is presently
conducted.
3.18 No Brokers. Technocall has not incurred any obligation or
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liability to any party for any brokerage fees, agent's commissions, or finder's
fees in connection with the transactions contemplated by this Agreement for
which Technocall or Burrard would be responsible.
3.19 Minute Books. The minute books of Technocall and its Subsidiaries
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provided to Burrard contain a complete summary of all meetings of directors and
shareholders since the time of incorporation of such entity and reflect all
transactions referred to in such minutes accurately in all material respects.
3.20 Completeness of Disclosure. There is no fact material to the
----------------------------
assets, businesses, liabilities or prospects of Technocall as a whole which has
not been set forth or described in this Agreement or in the Exhibits hereto and
which is material to the conduct, prospects, operations or financial condition
of Technocall. No representation or warranty by Technocall in this Agreement
nor any certificate, schedule, statement, document or instrument furnished or to
be furnished to Burrard pursuant hereto, including Technocall's Business Plan,
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact required to be stated herein or therein or
necessary to make any statement herein or therein not materially misleading.
ARTICLE 4.
COVENANTS, REPRESENTATIONS AND WARRANTIES
OF THE SELLING SHAREHOLDERS
The Selling Shareholders each covenant with and represent and warrant to Burrard
as follows, and acknowledge that Burrard is relying upon such covenants,
representations and warranties in connection with the purchase by Burrard of the
Technocall Shares:
4.01 The Technocall Shares owned by the Selling Shareholders are owned by
them as the recorded owners with a good and marketable title thereto, free and
clear of all mortgages, liens, charges, security interests, adverse claims,
pledges, encumbrances and demands whatsoever and the Selling Shareholders have
all necessary power and authority to deal with Technocall shares in accordance
with this Agreement.
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4.02 No person, firm or corporation has any agreement or option or any right
or privilege (whether by law, pre-emptive or contractual) capable of becoming an
agreement or option for the purchase from the Selling Shareholders of any of
Technocall Shares held by them.
4.03 This agreement has been duly authorized, validly executed and delivered
by each Selling Shareholder.
4.04 The Selling Shareholder is acquiring the Burrard Shares for investment
solely for his own account and not with a present view to any distribution,
transfer or resale to others, including any "distribution" within the meaning of
the Securities Act.
4.05 The Selling Shareholder is financially able to bear the economic risks
of an investment in Burrard and has no need for liquidity in this investment.
4.06 The Selling Shareholder has such knowledge and experience in financial
and business matters in general and with respect to investments of a nature
similar to that evidenced by the Burrard Shares so as to be capable, by reason
of such knowledge and experience, of evaluating the merits and risks of, and
making an informed business decision with regard to, and protecting his own
interests in connection with, the acquisition of the Burrard Shares.
4.07 The Selling Shareholder is not a "U.S. Person" as defined by Regulation
S of the Securities Act and is not acquiring the Shares for the account or
benefit of a U.S. Person.
A "U.S. Person" is defined by Regulation S of the Act to be any person
who is:
(a) any natural person resident in the United States;
(b) any partnership or corporation organized or incorporated under
the laws of the United States;
(c) any estate of which any executor or administrator is a U.S.
person;
(d) any trust of which any trustee is a U.S. person;
(e) any agency or branch of a foreign entity located in the United
States;
(f) any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized,
incorporate, or (if an individual) resident in the United States;
and
(g) any partnership or corporation if:
(i) organized or incorporated under the laws of any foreign
jurisdiction; and
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(ii) formed by a U.S. person principally for the purpose of
investing in securities not registered under the Act, unless
it is organized or incorporated, and owned, by accredited
investors [as defined in Section 230.501(a) of the Act] who
are not natural persons, estates or trusts.
4.08 The Selling Shareholder agrees to resell the Burrard Shares only in
accordance with the pursuant to registration under the Securities Act or
pursuant to an available exemption from the registration requirements of the
Act. The Selling Shareholder agrees not to engage in hedging transactions with
regard to the Burrard Shares unless in compliance with the Securities Act.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF
BURRARD
Burrard represents and warrants to Technocall and the Selling Shareholders
and acknowledges that Technocall and the Selling Shareholders are relying upon
such representations and warranties in connection with the execution, delivery
and performance of this Agreement, notwithstanding any investigation made by or
on behalf of Technocall.
5.1 Organization and Good Standing. Burrard is duly organized, validly
------------------------------
existing and in good standing under the laws of Nevada and has all requisite
corporate power and authority to own, lease and to carry on its business as now
being conducted. Burrard is duly qualified to do business and is in good
standing as a foreign corporation in each of the jurisdictions in which it owns
property, leases property, does business, or is otherwise required to do so,
where the failure to be so qualified would have a material adverse effect on the
businesses, operations, or financial condition of Burrard .
5.2 Authority. Burrard has all requisite corporate power and authority
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to execute and deliver this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
Burrard and the consummation by Burrard of the transactions contemplated by this
Agreement have been duly authorized by its board of directors and no other
corporate or shareholder proceedings on the part of Burrard are necessary to
authorize such documents or to consummate the transactions contemplated thereby.
This Agreement has been duly executed and delivered by Burrard.
5.3 Capitalization of Burrard. The entire authorized capital stock and
--------------------------
other equity securities of Burrard ("Burrard Stock") consists of 25,000,000
shares of common stock, par value $0.001 ("Burrard Common Stock"). There are
17,187,000 shares of Burrard Stock currently issued and outstanding. All of the
issued and outstanding shares of Burrard Stock have been duly authorized, are
validly issued, are fully paid and nonassessable, are not subject to preemptive
rights and were issued in full compliance with all federal, state, and local
laws, rules and regulations. There are no outstanding options, warrants,
subscriptions, conversion rights, or other rights, agreements, or commitments
obligating Burrard to issue any additional shares of Burrard Stock, or
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any other securities convertible into, exchangeable for, or evidencing the right
to subscribe for or acquire from Burrard any shares of Burrard Stock.
5.4 Validity of Burrard Common Stock Issuable Upon the Closing. The
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shares of Burrard Common Stock to be issued to the Selling Shareholders upon
consummation of the Transaction in accordance with this Agreement will, upon
issuance, have been duly and validly authorized and, when so issued in
accordance with the terms of this Agreement, will be duly and validly issued,
fully paid and nonassessable.
5.5 Actions and Proceedings. There is no claim, charge, arbitration,
-------------------------
grievance, action, suit, investigation or proceeding by or before any court,
arbiter, administrative agency or other governmental authority now pending or,
to the best knowledge of Burrard, threatened against Burrard which involves any
of the business, or the properties or assets of Burrard that, if adversely
resolved or determined, would have a material adverse effect on the business,
operations, assets, properties, prospects or conditions of Burrard taken as a
whole. There is no reasonable basis for any claim or action that, based upon
the likelihood of its being asserted and its success if asserted, would have
such a material adverse effect.
5.6 SEC Filings. Burrard has furnished or made available to Technocall
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and the Selling Shareholders a true and complete copy of each report, schedule,
registration statement and proxy statement filed by Burrard with the SEC since
the inception of Burrard (as such documents have since the time of their filing
been amended, the "Burrard SEC Documents"). Burrard has timely filed with the
---------------------
SEC all documents required to have been filed pursuant to the Securities Act and
the Exchange Act. As of their respective dates, Burrard SEC Documents complied
in all material respects with the requirements of the Securities Act, or the
Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Burrard SEC Documents, and none of Burrard SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
5.7 Financial Representations. The financial statements for Burrard
--------------------------
included in Burrard's SEC Documents (the "Burrard Financial Statements") (a) are
in accordance with the books and records of Burrard and (b) present fairly the
financial condition of Burrard as of the respective dates indicated and the
results of operations for such periods, except that any unaudited interim
financial statements were or will be subject to normal and recurring year-end
adjustments. The books, records, and accounts of Burrard accurately and fairly
reflect, in reasonable detail, the transactions, assets, and liabilities of
Burrard. Burrard has not engaged in any transaction, maintained any bank
account, or used any funds of Burrard, except for transactions, bank accounts,
and funds which have been and are reflected in the normally maintained books and
records of Burrard.
5.8 Absence of Certain Changes or Events. Since September 30, 2001
----------------------------------------
there has not been (a) a material adverse effect to the business, operations or
financial conditions of Burrard, or (b) any significant change by Burrard in its
accounting methods, principles or practices.
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5.9 Filings, Consents and Approvals. No filing or registration with,
---------------------------------
no notice to and no permit, authorization, consent, or approval of any public or
governmental body or authority or other person or entity is necessary for the
consummation by Burrard of the transactions contemplated by this Agreement.
5.10 Fixed Assets/ Tangible Assets. There are no material
--------------------------------
equipment, furniture, fixtures and other tangible personal property and assets
owned or leased by Burrard, except as disclosed in the Burrard Financial
Statements.
5.11 Employees and Consultants. Burrard does not have any employees
----------------------------
or consultants, except as disclosed in the Burrard SEC Documents.
5.12 Material Contracts and Transactions. There are no material
--------------------------------------
contracts, agreements, licenses, permits, arrangements, commitments,
instruments, understandings or contracts, whether written or oral, express or
implied, contingent, fixed or otherwise, to which Burrard is a party other then
retainer agreements with legal counsel and accountants and except as disclosed
in the Burrard SEC Documents.
5.13 Minute Books. The minute books of Burrard contain a complete
-------------
summary of all meetings of directors and shareholders since the time of
incorporation of such entity and reflect all transactions referred to in such
minutes accurately in all material respects.
5.14 Completeness of Disclosure. No representation or warranty by
----------------------------
Burrard in this Agreement nor any certificate, schedule, statement, document or
instrument furnished or to be furnished to Technocall pursuant hereto contains
or will contain any untrue statement of a material fact or omits or will omit to
state a material fact required to be stated herein or therein or necessary to
make any statement herein or therein not materially misleading.
ARTICLE 6
CLOSING CONDITIONS
6.1 Conditions Precedent to Closing by Burrard. The obligation of
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Burrard to consummate the Transaction is subject to the satisfaction of the
conditions set forth below, unless any such condition is waived by Burrard at
the Closing. The Closing of the transactions contemplated by this Agreement
will be deemed to mean a waiver of all conditions to Closing.
(a) Representations and Warranties. The representations and warranties
------------------------------
of Technocall and the Selling Shareholders set forth in this Agreement will be
true, correct and complete in all respects as of the Closing Date, as though
made on and as of the Closing Date.
(b) Performance. All of the covenants and obligations that Technocall
-----------
and the Selling Shareholders required to perform or to comply with pursuant to
this Agreement at or prior to the Closing must have been performed and complied
with in all material respects.
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(c) Transaction Documents. This Agreement and all other transaction
----------------------
documents necessary or reasonably required to consummate the Transaction, all in
form and substance reasonably satisfactory to Burrard, will have been executed
and delivered to Burrard.
(d) Opinion of Technocall's Counsel. Technocall will furnish Burrard
---------------------------------
with an opinion, dated as of the Closing Date, of legal counsel for Technocall,
which opinion will be in form and substance reasonably satisfactory to Burrard
and its counsel and will express the opinion of legal counsel that:
(i) this Agreement and all documents executed by Technocall in
connection with the Transaction have been duly authorized by and
validly executed by Technocall;
(ii) the transfer of the Technocall Shares by the Selling Shareholders
to Burrard has been approved by all required corporate
proceedings of Technocall, including any and all approvals
required by Technocall's directors and shareholders;
(iii) upon issuance of the Burrard Shares to the Selling Shareholders,
Burrard will be the owner of all of the issued and outstanding
shares in the capital of Technocall;
(iv) Technocall is the owner of all personal property assets listed in
Disclosure Schedule 3.9 and all intellectual property assets
listed in Disclosure Schedule 3.11 free and clear of all liens,
charges, security interests and encumbrances.
(e) No Material Adverse Change. No Technocall Material Adverse Effect
---------------------------
will have occurred since the date of this Agreement.
6.2 Conditions Precedent to Closing by Technocall and the Selling
-------------------------------------------------------------------
Shareholders. The obligations of Technocall and the Selling Shareholders to
------------
consummate the Transaction is subject to the satisfaction of the conditions set
forth below, unless such condition is waived by Technocall at the Closing. The
Closing of the Transaction will be deemed to mean a waiver of all conditions to
Closing.
(a) Representations and Warranties. The representations and warranties
------------------------------
of Burrard set forth in this Agreement will be true, correct and complete in all
respects as of the Closing Date, as though made on and as of the Closing Date.
(b) Performance. All of' the covenants and obligations that Burrard
-----------
are required to perform or to comply with pursuant to this Agreement at or prior
to the Closing must have been performed and complied with in all material
respects.
15
(c) Transaction Documents. This Agreement and all other transaction
----------------------
documents necessary or reasonably required to consummate the Transaction, all in
form and substance reasonably satisfactory to Technocall, will have been
executed and delivered by Burrard, as applicable.
(d) No Material Adverse. No event will have occurred since the date
-------------------
of this Agreement that has had a material adverse effect on the business,
operations, assets, properties, prospects or conditions of Burrard taken as a
whole.
ARTICLE 7
ADDITIONAL COVENANTS OF THE PARTIES
7.1 Financial Statements. The Selling Shareholders and Technocall will
--------------------
use their best efforts to: (a) prepare the audited financial statements for
Technocall for the past two fiscal years and unaudited financial statements to
September 30, 2001, each in accordance with US GAAP and in the form and with the
content required to enable Burrard to comply with the financial statement filing
requirements of the Exchange Act arising from the acquisition of Technocall; and
(b) to deliver such financial statements to Burrard not later than 45 days
following the Closing.
7.2 Access and Investigation. Between the date of this Agreement and
--------------------------
the Closing Date, Technocall, on the one hand, and Burrard, on the other hand,
will, and will cause each of their respective representatives to, (a) afford the
other and its representatives full and free access to its personnel, properties,
contracts, books and records, and other documents and data, (b) furnish the
other and its representatives with copies of all such contracts, books and
records, and other existing documents and data as required by this Agreement and
as the other may otherwise reasonably request, and (c) furnish the other and its
representatives with such additional financial, operating, and other data and
information as the other may reasonably request.
7.3 Exclusivity. Until such time, if any, as this Agreement is
-----------
terminated pursuant to this Agreement, Technocall will not, directly or
indirectly solicit, initiate, entertain or accept any inquiries or proposals
from, discuss or negotiate with, provide any nonpublic information to, or
consider the merits of any unsolicited inquiries or proposals from, any person
or entity (other than Burrard) relating to any transaction involving the sale of
the business or assets (other than in the ordinary course of business), or any
of the capital stock of Technocall, or any merger, consolidation, business
combination, or similar transaction. Technocall will promptly notify Burrard if
it receive an unsolicited offer for such a transaction, or obtains information
that such an offer is likely to be made, which notice will include the identity
of the prospective offeror and the price and terms of the proposed offer.
7.4 Conduct of Technocall Business Prior to Closing. From the date of
------------------------------------------------
this Agreement to the Closing Date, and except to the extent that Burrard
otherwise consents in writing, Technocall will operate its business
substantially as presently operated and only in the ordinary course and in
compliance with all applicable laws, and use its best efforts to preserve
16
intact its good reputation and present business organization and to preserve its
relationships with persons having business dealings with it.
7.5 Public Announcements. Burrard and Technocall each agree that they
---------------------
will not release or issue any reports or statements or make any public
announcements relating to this Agreement or the transactions contemplated herein
without the prior written consent of the other party, except as may be required
upon written advice of counsel to comply with applicable laws or regulatory
requirements after consulting with the other party hereto and seeking their
consent to such announcement.
7.6 Burrard Board of Directors. Immediately upon the Closing, the
-----------------------------
current directors of Burrard will adopt resolutions appointing a new board of
directors for Burrard consisting of members selected by Technocall. Technocall
will advise Burrard of the new directors forthwith upon execution of this
Agreement. Burrard will undertake to file with the SEC an Information Statement
on Schedule 14F (the "Schedule 14F") disclosing the anticipated resignation of
------------
the current directors of Burrard and appointment of the Technocall directors, in
a form that will satisfy the requirements of Rule 14f-1 of the Exchange Act, and
will promptly cause the Schedule 14F to be delivered to the stockholders of
Burrard. The parties shall use their best efforts to cause the Schedule 14F to
be filed with the SEC and mailed to the stockholders of Commodore on or before
November 30, 2001. The parties agree to cooperate in the preparation and filing
of such report or any other filings to be filed with the SEC.
7.7 Burrard Name Change. Burrard agrees that it will undertake to
---------------------
change its corporate name to "Blue Industries, Inc." subsequent to the Closing
Date, provided that the completion of this name change will not be a condition
of Closing.
ARTICLE 8.
CLOSING
8.1 Closing. The Closing shall take place on the Closing Date at the
-------
offices of the lawyers for Burrard or at such other location as agreed to by the
parties. Notwithstanding the location of the Closing, each party agrees that
the Closing may completed by the exchange of undertakings between the respective
legal counsel for Technocall, the Selling Shareholders and Burrard, provided
such undertakings are satisfactory to each party's respective legal counsel.
8.2 Closing Deliveries of Technocall and the Selling Shareholders. At
--------------------------------------------------------------
Closing, Technocall and the Selling Shareholders will deliver or cause to be
delivered the following, fully executed and in form and substance reasonably
satisfactory to Burrard:
(a) copies of all resolutions and/or consent actions adopted by or on
behalf of the boards of directors of Technocall evidencing approval of
this Agreement and approving the transfer of the Technocall Shares to
Burrard;
17
(b) a certificate of each Selling Shareholder, dated as of Closing,
certifying that (i) each covenant and obligation of the Selling
Shareholder has been complied with, and (ii) each representation,
warranty and covenant of the Selling Shareholder is true and correct
at the Closing as if made on and as of the Closing
(c) a certificate of an officer of Technocall, dated as of Closing,
certifying that (i) each covenant and obligation of Technocall has
been complied with, and (ii) each representation, warranty and
covenant of Technocall is true and correct at the Closing as if made
on and as of the Closing;
(d) certificates representing all Technocall Shares duly endorsed in blank
for transfer or with a stock power of attorney (in either case with
the signature guaranteed by the appropriate official) with all
eligible security transfer taxes paid;
(e) the legal opinion required by Section 6.1(d) of this Agreement;
(f) the minute books of Technocall and all books and records of
Technocall.
8.3 Closing Deliveries of Burrard. At Closing, Burrard will deliver or
-----------------------------
cause to be delivered the following, fully executed and in form and substance
reasonably satisfactory to Technocall:
(a) copies of all resolutions and/or consent actions adopted by or on
behalf of the boards of directors of Burrard evidencing approval of
this Agreement and the Transaction.
(b) a certificate of an officer of Burrard, dated as of Closing,
certifying that (i) each covenant and obligation of Burrard has been
complied with, and (ii) each representation, warranty and covenant of
Burrard is true and correct at the Closing as if made on and as of the
Closing;
(c) share certificates representing Burrard Shares duly endorsed with
legends, in the form required by this Agreement, respecting
restrictions on transfer as required by or necessary under the
applicable securities legislation of the United States, as
contemplated by this Agreement.
ARTICLE 9
TERMINATION
9.1 Termination. This Agreement may be terminated at any time prior to
-----------
the Closing Date contemplated hereby by:
(a) Mutual agreement of Burrard and Technocall;
(b) Burrard, if there has been a breach by Technocall of any material
18
representation, warranty, covenant or agreement set forth in this Agreement on
the part of Technocall that is not cured, to the reasonable satisfaction of
Burrard, within ten business days after notice of such breach is given by
Burrard (except that no cure period will be provided for a breach by Technocall
that by its nature cannot be cured);
(c) Technocall, if there has been a breach by Burrard of any material
representation, warranty, covenant or agreement set forth in this Agreement on
the part of Burrard that is not cured by the breaching party, to the reasonable
satisfaction of Technocall, within ten business days after notice of such breach
is given by Technocall (except that no cure period will be provided for a breach
by Burrard that by its nature cannot be cured.
9.2 Effect of Termination. In the event of the termination of this
-----------------------
Agreement as provided in Section 9.1, this Agreement will be of no further force
or effect, provided, however, that no termination of this Agreement will relieve
any party of liability for any breaches of this Agreement that are based on a
wrongful refusal or failure to perform any obligations.
ARTICLE 10
INDEMNIFICATION; REMEDIES; SURVIVAL
10.1 Certain Definitions. For the purposes of this Section 10, the
--------------------
terms "Loss" and "Losses" means any and all demands, claims, actions or causes
of action, assessments, losses, damages. liabilities, costs, and expenses,
including without limitation, interest, penalties, fines and reasonable
attorneys, accountants and other professional fees and expenses, but excluding
any indirect, consequential or punitive damages suffered by Burrard or
Technocall including damages for lost profits or lost business opportunities.
10.2 Agreement of Technocall to Indemnify. Technocall will indemnify,
-------------------------------------
defend, and hold harmless Burrard, its respective officers, directors,
shareholders, employees and affiliates from, against, and in respect of any and
all Losses asserted against, relating to, imposed upon, or incurred by Burrard
by reason of, resulting from, based upon or arising out of:
(a) the breach by Technocall of any representation or warranty of
Technocall contained in or made pursuant to this Agreement, any Closing Document
or certificate or instrument delivered pursuant to this Agreement; and
(b) the breach or partial breach by Technocall of any covenant or agreement
of Technocall made in or pursuant to this Agreement.
10.3 Agreement of Selling Shareholders to Indemnify. The Selling
---------------------------------------------------
Shareholders will indemnify, defend, and hold harmless Burrard, its respective
officers, directors, shareholders, employees and affiliates from, against, and
in respect of any and all Losses asserted against, relating to, imposed upon, or
incurred by Burrard by reason of, resulting from, based upon or arising out of:
19
(a) the breach by a Selling Shareholder of any representation or warranty
of the Selling Shareholder contained in or made pursuant to this Agreement, any
Closing Document or certificate or instrument delivered pursuant to this
Agreement; and
(b) the breach or partial breach by the Selling Shareholder of any covenant
or agreement of the Selling Shareholder made in or pursuant to this Agreement.
10.4 Agreement of Burrard to Indemnify. Burrard will indemnify,
-------------------------------------
defend, and hold harmless Technocall and the Selling Shareholders from, against,
for, and in respect of any and all Losses asserted against, relating to, imposed
upon, or incurred by Technocall and the Selling Shareholders by reason of,
resulting from, based upon or arising out of:
(a) the breach by Burrard of any representation or warranty of Burrard
contained in or made pursuant to this Agreement, any Closing Document or
certificate or instrument delivered pursuant to this Agreement; and
(b) the breach or partial breach by Burrard of any covenant or agreement of
Burrard made in or pursuant to this Agreement, or any Burrard Document or other
certificate or instrument delivered pursuant to this Agreement.
10.5 Limitations of Liability. No claims for indemnification under
--------------------------
this Article 10 will be made after the second anniversary of the Closing Date.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Effectiveness of Representations; Survival. Each party is
---------------------------------------------
entitled to rely on the representations, warranties and agreements of each of
the other parties and all such representation, warranties and agreement will be
effective regardless of any investigation that any party has undertaken or
failed to undertake. The representation, warranties and agreements will survive
the Closing Date and continue in full force and effect until the second
anniversary of the Closing Date; provided that the representations and
warranties regarding Taxes will survive until the expiration of any applicable
statute of limitations
11.2 Further Assurances. Each of the parties hereto will cooperate
-------------------
with the others and execute and deliver to the other parties hereto such other
instruments and documents and take such other actions as may be reasonably
requested from time to time by any other party hereto as necessary to carry out,
evidence, and confirm the intended purposes of this Agreement.
11.3 Amendment. This Agreement may not be amended except by an
---------
instrument in writing signed by each of the parties.
11.4 Expenses. Each party to this Agreement will bear its respective
--------
expenses incurred in connection with the preparation, execution, and performance
of this Agreement and the
20
transactions contemplated hereby, including all fees
and expenses of agents, representatives, counsel, and accountants.
11.5 Entire Agreement. This Agreement, the exhibits, schedules
-----------------
attached hereto and the other Burrard Documents contain the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior arrangements and understandings, both written and oral, expressed or
implied, with respect thereto. Any preceding correspondence or offers are
expressly superseded and terminated by this Agreement.
11.6 Severability. It is the desire and intent of the parties that the
------------
provisions of the Burrard Documents be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any provision of the Burrard
Documents will for any reason be held or adjudged to be invalid, illegal, or
unenforceable by any court of competent jurisdiction, such paragraph or part
thereof so adjudicated invalid, illegal, or unenforceable will be deemed
separate, distinct, and independent, and the remainder of the Burrard Documents
will remain in full force and effect and will not be affected by such holding or
adjudication.
11.7 Notices. All notices and other communications required or
-------
permitted under to this Agreement must be in writing and will be deemed given if
sent by personal delivery, faxed with electronic confirmation of delivery,
internationally-recognized express courier or registered or certified mail
(return receipt requested), postage prepaid, to the parties at the following
addresses (or at such other address for a party as will be specified by like
notice):
If to Technocall and the Selling Shareholders:
TECHNOCALL SA
0, xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx
Attention: Xxxxxxx LeLoroux
Telephone: [@]
Fax: [@]
With a copy (which will not constitute notice) to:
[NAME OF TECHNOCALL LEGAL COUNSEL]
[ADDRESS OF TECHNOCALL LEGAL COUNSEL]
Attention: [NAME OF TECHNOCALL LEGAL COUNSEL]
Telephone: [@]
Fax: [@]
21
If to Burrard:
BURRARD TECHNOLOGIES, INC.
Suite 501, 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Attention: Xx. Xxxxxxx Xxxxxxxxx
Facsimile: 000-000-0000
With a copy (which will not constitute notice) to:
Xxxxxxx X. Xxxxxx Xxxxxxx X. Cane
X'Xxxxx & Company Cane & Company, LLC
Xxxxx 0000, Xxxxx Xxxxxx Xxxxx 000, Xxx 00
0000 Xxxx Xxxxxxx St., Box 11122 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx Las Vegas, Nevada
Canada V6E 3P3 USA 89102
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
All such notices and other communications will be deemed to have been received
(a) in the case of personal delivery, on the date of such delivery, (b) in the
case of a fax, when the party sending such fax has received electronic
confirmation of its delivery, (c) in the case of delivery by
internationally-recognized express courier, on the business day following
dispatch and (d) in the case of mailing, on the fifth business day following
mailing.
11.8 Headings. The headings contained in this Agreement are for
--------
convenience purposes only and will not affect in any way the meaning or
interpretation of this Agree-ment.
11.9 Benefits. This Agreement is and will only be construed as for the
--------
benefit of or enforceable by those persons party to this Agreement.
11.10 Assignment. This Agreement may not be assigned (except by
----------
operation of law) by any party without the consent of the other parties.
11.11 Governing Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of Nevada applicable to contracts made
and to be performed therein. The parties hereby (i) submit to personal
jurisdiction in the Courts of the State of Nevada for the enforcement of this
Agreement, and if federal jurisdiction attaches to the United States District
Court of the District of Nevada, and (ii) waive any and all rights under the
laws of any state to object to jurisdiction within the State of Nevada for the
purposes of litigation to enforce this Agreement
22
11.12 Construction. The language used in this Agreement will be deemed
------------
to be the language chosen by the parties to express their mutual intent, and no
rule of strict construction will be applied against any party.
11.13 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
11.14 Fax Execution. This Agreement may be executed by delivery of
--------------
executed signature pages by fax and such fax execution will be effective for all
purposes.
11.15 Schedules and Exhibits. The schedules and exhibits are attached
-----------------------
to this Agreement and incorporated herein.
23
11.16 Independent Legal Advice. Each of Technocall and the Selling
--------------------------
Shareholders acknowledges that X'Xxxxx & Company have acted solely for Burrard
in the negotiation and execution of this Agreement and X'Xxxxx & Company have
advised each of Technocall and the Selling Shareholders to obtain the advice of
their independent legal counsel.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the day
and year first above written.
BURRARD TECHNOLOGIES, INC.
a Nevada corporation by its
authorized signatory:
/s/ Xxxxxxx Xxxxxxxxx
_____________________________
Signature of Authorized Signatory
_____________________________
Name of Authorized Signatory
____________________________
Position of Authorized Signatory
TECHNOCALL, SA
a Swiss corporation by its
authorized signatory:
/s/ Xxxxxxx Leloroux
_____________________________
Signature of Authorized Signatory
Leloroux
_____________________________
Name of Authorized Signatory
President
____________________________
Position of Authorized Signatory
TECHNOCALL SA
CH 1204 GENEVE
24
SELLING SHAREHOLDERS
---------------------
ADVANCED TECHNOLOGIES DEVELOPMENT CO. LIMITED
by its authorized signatory:
/s/ Xxxxx Xxxxxxx
_____________________________
Signature of Authorized Signatory
XXXXX XXXXXXX
_____________________________
Name of Authorized Signatory
Director
____________________________
Position of Authorized Signatory
ROCASPRANE LTD.
by its authorized signatory:
/s/ XXXXXXXXXX GIOVANETII
_____________________________
Signature of Authorized Signatory
XXXXXXXXXX GIOVANNETII
_____________________________
Name of Authorized Signatory
P.O.A.
____________________________
Position of Authorized Signatory
AXIOM S.A.
by its authorized signatory:
/s/ Xxxxxxx Leloroux
_____________________________
Signature of Authorized Signatory
LELOROUX
_____________________________
Name of Authorized Signatory
Director
____________________________
Position of Authorized Signatory
APPENDIX "A"
------------
to that Stock Purchase Agreement dated as of the 23rd day of November, 2001
BUSINESS PLAN OF TECHNOCALL, SA
DISCLOSURESCHEDULE 3.4
----------------------
to that Stock Purchase Agreement dated as of the 23rd day of November, 2001
TITLE TO TECHNOCALL STOCK
NAME OF STOCKHOLDER NUMBER OF SHARES
Advanced Technologies Development Co. Limited 500 Shares
Rocasoprane Ltd. 334 Shares
Axiom S.A. 166 Shares
Total 1,000 Shares
DISCLOSURESCHEDULE 3.6
----------------------
to that Stock Purchase Agreement dated as of the 23rd day of November, 2001
FINANCIAL STATEMENTS OF TECHNOCALL, SA
SEPTEMBER 30, 2001 FINANCIAL STATEMENTS OF TECHNOCALL ARE ATTACHED HERETO
DISCLOSURESCHEDULE 3.9
----------------------
to that Stock Purchase Agreement dated as of the 23rd day of November, 2001
FIXED ASSETS/ TANGIBLE ASSETS OF TECHNOCALL SA
LIST OF ASSETS OF TECHNOCALL IS ATTACHED HERETO.
DISCLOSURESCHEDULE 3.11
-----------------------
to that Stock Purchase Agreement dated as of the 23rd day of November, 2001
INTELLECTUAL PROPERTY OF TECHNOCALL, SA
Attached is the description of program referred to as the "Electronic and
Computer Intelligence Applied to Water Treatment".
1. Patents
Patents and any patentable inventions connected with the development and
manufacture of electronics smart-cards for water apparatuses used by Cartis Inc.
in its proprietary water treatment process.
2. Trademarks and Trade Names
The trade name "Blue Industries".
DISCLOSURESCHEDULE 3.13
------------------------
to that Stock Purchase Agreement dated as of the 23rd day of November, 2001
MATERIAL CONTRACTS OF TECHNOCALL, SA
A. Agreement between Advance Technologies Development Co. Limited and
Technocall dated September 25, 2001; and
B. Agreement between Technocall and Cartis Inc. dated September 28, 2001,
including the Annex to this Agreement dated September 28, 2001.
