EXHIBIT 10.12
SHARE PURCHASE AGREEMENT
THIS AGREEMENT made as of the 1st day of May, 2000.
BETWEEN:
XXXXXXX XXXX ("Xxxx"), of
19344 - 000X Xxxxxx
Xxxx Xxxxxxx, Xxxxxxx Xxxxxxxx
OF THE FIRST PART
XXXXXX XXXXX ("Xxxxx"), of
00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx Xxxxxxxx
OF THE SECOND PART
XXXXX XXXXXX ("Xxxxxx"), of
000 Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx Xxxxxxxx
OF THE THIRD PART
XXXXX XXXXXX ("Xxxxxx"), of
00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx Xxxxxxxx and
OF THE FOURTH PART
XXXXXXX XXXX ("Xxxxxxx"), of
19344 - 000X Xxxxxx
Xxxx Xxxxxxx, Xxxxxxx Xxxxxxxx
OF THE FIFTH PART
XXXXXXX XXXXXX ("Xxx"), of
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
OF THE SIXTH PART
XXXX XXXXXXXXXXX ("Xxxx"), of
0000 Xxxxxx Xxxxx Xxx
Xxxxxx, Xxxxxxx Xxxxxxxx
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OF THE SEVENTH PART
XXX XXXXXX ("Xxx"), of
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
OF THE EIGHTH PART
REGULAR EXPRESSIONS INC. ("Regular"), of
Suite 1104 - 000 Xxxx Xxxxx
Xxxx Xxxxxxxxx XX X0X 0X0
OF THE NINTH PART
FIREPLUG COMPUTERS INC. (the "Company"),
Suite 1104 - 000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxxxxxx XX X0X 0X0
OF THE TENTH PART
(herein collectively called the "Vendors")
AND:
LINEO, INC.
000 Xxxxx 000 Xxxx
Xxxxxx, Xxxx 00000
X.X.X.
(herein called the "Purchaser")
OF THE ELEVENTH PART
WHEREAS:
A. Pitt, Balden, Xxxxxx, Xxxxx, Xxxxxx, Van den Akker, Powell, Regular
Expressions and Xxxxxxx are hereinafter referred to as the "Vendors";
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B. The Vendors are the beneficial owners of all the issued and outstanding
shares in the capital of Fireplug Computers Inc. (herein called the "Company"),
being the following quantities and types:
Xxxxxxx Pit t 100 Class "A" Voting with no par value;
Xxxxxx Xxxxx 100 Class "A" Voting with no par value;
Xxxxx Xxxxxx 100 Class "A" Voting with no par value;
Xxxxx Xxxxxx 56 Class "A" Voting with no par value;
Xxxxxxx Xxxx 56 Class "A" Voting with no par value;
Xxxxxxx Xxxxxx 19 Class "A" Voting with no par value;
Xxxx XxxXxxXxxxx 17 Class "A" Voting with no par value;
Xxx Xxxxxx 7 Class "A" Voting with no par value; and
Regular Expressions Inc. 8 Class "A" Voting with no par value.
C. The Vendors have provided to the Purchaser and the Purchaser has relied upon
the following financial information:
(i) unaudited financial statements of the Company as at December 31,
1999, attached hereto as Schedule "A".
D. The Vendors have agreed to sell and the Purchaser has agreed to purchase 100%
of the issued and outstanding shares in the capital of the Company being 463
shares with no par value (herein called the "Shares");
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NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises,
the covenants, agreements and warranties hereinafter set forth, it is hereby
agreed as follows
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 "Agreement" shall mean this Share Purchase Agreement, together
with the Schedules, as the same may be updated or amended from
time to time as provided herein.
1.2 "Unaudited Financial Statements" shall mean the unaudited
balance sheet of the Company at December 31, 1999, and the
related unaudited statements of operations, changes in
shareholders' equity and cash flows for the years then ended,
including related footnotes, in each case which Unaudited
Financial Statements are annexed as Schedule "A" to this
Agreement.
1.3 "Business" shall mean the Linux design and programming
business of Fireplug Computers Inc.
1.4 "Business Day" shall mean any day that is not a Saturday, a
Sunday or other day on which banks are required or authorized
by law to be closed in the State of Delaware, USA.
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1.5 "Buyer" shall have the same meaning as that set forth for
"Purchaser"
1.6 "Closing" shall have the meaning set forth in Section 8.1.
1.7 "Closing Date" shall mean the date and effective time at which
the Closing occurs.
1.8 "Code" shall mean the United States of America Internal
Revenue Code of 1986, as amended, together with the
regulations promulgated thereunder.
1.9 "Company Affiliate" shall mean any affiliate of the Company
other than the Vendors.
1.10 "Company Shares" means all of the issued and outstanding
shares of Fireplug Computers Inc.
1.11 "Contract" shall mean any contract, agreement, indenture,
note, bond, loan agreement, letter of credit agreement, line
of credit agreement, instrument, lien, conditional sales
contract, mortgage, franchise, commitment, obligation or other
arrangement or agreement, but shall exclude leases of real or
personal property and insurance policies.
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1.12 "Encumbrances" shall mean any security interest, pledge,
mortgage, lien, charge, adverse claim of ownership or other
encumbrance of any kind.
1.13 "Environmental Laws" shall mean all applicable provincial,
national and local statutes, regulations, rules, ordinances,
codes, licenses, permits, orders, approvals, plans,
authorizations, concessions, franchises, and similar items of
all authorities, and all applicable judicial, administrative
and regulatory decrees, judgments and orders, any of which
relate to the protection of human health or the environment
from the effects of hazardous substances, including but not
limited to those pertaining to reporting, licensing,
permitting, investigating, and remediating emissions,
discharges, releases or threatened releases of Hazardous
Substances into the air, surface water, groundwater or land,
or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of
Hazardous Substances.
1.14 "Family Member" shall mean with respect to a particular
individual, such individual's spouse, parents, children,
siblings, mothers- and fathers-in-law, sons- and
daughters-in-law, and brothers- and sisters-in-law.
1.15 "Financial Statements" shall mean the Unaudited Financial
Statements and the Interim Financial Statements of the
Company.
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1.16 "GAAP" shall mean generally accepted accounting principles (as
such term is used in the applicable country's professional
accounting standards) from time to time in effect.
1.17 "Hazardous Substance" shall mean any substance or waste which
is listed as hazardous, regulated or toxic, or is a
contaminant, pollutant or hazardous or toxic substance or
waste under any Environmental Laws, or any substance or waste
which has been determined at any time by regulation, ruling or
otherwise by any Authority to be a contaminant, pollutant or
hazardous or toxic substance and which shall include, without
limitation, hazardous waste, any medical waste, biohazardous
waste, industrial waste and special waste.
1.18 "Intellectual Property" means each and every and any and all
patents and patent rights, trademarks and trademark rights,
trade names and trade name rights, service marks and service
xxxx rights, service names and service name rights, brand
names, inventions, procedures, formulae, copyrights and
copyright rights, trade dress, business and product names,
logos, slogans, trade secrets, processes, designs,
methodologies, computer programs (including all source codes)
and related documentation, Linux embedded platforms and
related documentation, technical information, know-how and all
pending applications for and registrations of patents,
trademarks, service marks and copyrights.
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1.19 "Knowledge" shall mean (i) in the case of any Vendor,
knowledge of such Vendor, and if such Vendor is an entity,
knowledge of any officer or director of such entity, (ii) in
the case of the Buyer, knowledge of any officer or director of
the Buyer, and (iii) in the case of the Company or any
Subsidiary, knowledge of any officer or director of the
Company. An individual will be deemed to have "Knowledge" of a
particular fact or other matter if (a) such individual is
actually aware of such fact or other matter; or (b) with
respect to Sections 3.26 and 6.11 only, such individual would
likely discover or otherwise become aware of such fact or
other matter by exercising the care an ordinarily prudent
person in a like position would exercise under similar
circumstances.
1.20 "Lineo Shares and Options" shall have the meaning set forth in
Sections 3.1.2 and 3.1.3.
1.21 "Material Adverse Effect" shall mean a material adverse effect
on the business, operations, properties, assets (including
intangible assets), liabilities (contingent or otherwise),
financial condition or results of operations of the Company,
taken as a whole.
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1.22 "Permits" shall mean all permits, licenses and other
approvals, certificates of need, accreditations, participation
agreements, consents, authorizations, certificates of
authority and orders.
1.23 "Person" shall mean an individual, firm, trust, association,
corporation, limited liability company, partnership, limited
partnership, limited liability partnership, Authority or other
entity.
1.24 "Purchase Price" shall have the meaning set forth in Section
3.
1.25 "Subsidiary" shall mean a corporation, partnership or other
entity of which the Company (i) has the power to elect more
than fifty percent (50%) of the board of directors or other
governing authority either directly or indirectly or (ii) owns
or controls more than fifty percent (50%) of the outstanding
equity securities or equity interests either directly or
through an unbroken chain of entities as to each of which
fifty percent (50%) or more of the outstanding equity
securities or equity interests is owned directly or indirectly
by its parent.
1.26 "Tax" or "Taxes" shall mean all taxes, levies, imposts,
duties, excises, licenses and resignation fees, and charges of
any kind or nature whatsoever including, without limitation,
income tax withholding, unemployment and social welfare taxes,
sales and use taxes and property taxes, and interest,
penalties and additions to tax with respect to any of the
above.
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1.27 "Tax Return" shall mean any return, declaration, report, claim
for refund, or information return or statement relating to
Taxes, including any schedule or attachment to such documents
and any amendment of such documents.
1.28 "U.S. Person" shall mean: (i) any natural person resident in
the United States; (ii) any partnership or corporation
organized or incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a
U.S. person; (iv) any trust of which any trustee is a U.S.
person; (v) any agency or branch of a foreign entity located
in the United States; (vi) any non-discretionary account or
similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S.
person; (vii) any discretionary account or similar account
(other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated, or (if an individual)
resident in the United States; and (viii) any partnership or
corporation if: (a) organized or incorporated under the laws
of any foreign jurisdiction; and (b) 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 Rule 501(a)) who are not natural persons, estates or
trusts.
1.29 "Undisclosed Liability" shall mean an obligation, indebtedness
or liability of any nature (each of which, for purposes of
this definition, is assumed to be
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material), which is not reserved against or disclosed on the
Balance Sheet, or in the notes to the Balance Sheet or to the
Interim Financial Statements, and which is not so reflected,
reserved against or otherwise disclosed in this Agreement.
1.30 "Vendor" and "Vendors" are identified in Section of the
Preamble to this Agreement.
1.31 "1934 Act" shall mean the U.S. Securities Exchange Act of
1934, as amended.
1.32 Other Defined Terms. The terms defined in the first paragraph
and in the whereas clauses shall have the meanings given to
such terms in such paragraph and whereas clauses.
2 SALE AND PURCHASE
2.1 The Vendor hereby agrees to sell and the Purchaser hereby
agrees to buy the Shares on the terms and conditions herein
contained.
PURCHASE PRICE
2.2 The total consideration, being the Purchase Price shall be the
sum of $1,200,000.00 (One Million Two Hundred Thousand
Dollars) in the currency of the United States of America,
which Purchase Price shall be paid as follows:
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2.2.1 on the date of closing the sum of $500,000.00 (Five Hundred
Thousand Dollars) in lawful currency of the United States of
America by delivery of a bank draft payable to the designated
solicitor for the Vendors, Xxxxx X. Xxxxxxx, "In Trust";
2.2.2 allotment and issuance of 70, 000 Series D Preference Shares
of the Purchaser with a current value of $420,000.00 (Four
Hundred Twenty Thousand Dollars) in the currency of the United
States of America, such shares to be convertible to the common
shares of the Purchaser, at closing, to be issued in
accordance with Schedule "E";
2.2.3 Options to acquire 62,220 (Sixty-Two Thousand Two Hundred
Twenty) common shares of the Purchaser currently valued at
$6.00 (Six Dollars) per share in the currency of the United
States of America with a strike price of $1.50 (One Dollar and
Fifty Cents) in the currency of the United States of America,
to be distributed pursuant to Schedule "E".
3 REPRESENTATIONS AND WARRANTIES OF THE DIRECTORS OF FIREPLUG COMPUTERS
INC.
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In order to induce the Purchaser to enter into and consummate this Agreement,
the following representations and warranties are made to the Purchaser by the
Directors of Fireplug Computers Inc.:
3.1 The authorized capital of the Company is 6,000,000 (Six
Million) shares as follows: 2,000,000 Class "A" Voting Shares
with no par value;
3.1.1 2,000,000 Class "B" Non-Voting Shares with no par
value; and
3.1.2 2,000,000 Class "C" Non-Voting Redeemable Preferred
Shares with a par value of $1.00 each.
3.2 The issued and outstanding shares in the capital of the
Company are set forth in paragraph B of the preamble to this
Agreement.
3.3 The only Directors of the Company are Xxxxxx Xxxxx and Xxxxxxx
Xxxx.
3.4 The Company carries on business in the Province of British
Columbia and does not carry on business in any other Province
or Territory of Canada nor in any other country.
3.5 There will be no restriction by the Company on the Vendors
transferring of the legal and beneficial title and ownership
of the Shares to the Purchaser at the time of closing.
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3.6 The Company has the corporate power to own the property owned
by it and to carry on the business carried on by it and is
duly qualified to carry on business in the Provinces of
British Columbia.
3.7 The Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate or other power
and authority:
3.7.1 to conduct its business as it is now conducted and to
own or lease all of the properties owned or leased by
it, and
3.7.2 in the case of the Company, to enter into and perform
its obligations under this Agreement and to undertake
the transactions contemplated hereby.
3.8 True, correct and complete copies of the Memorandum of
Association and Articles of Incorporation and Bylaws of the
Company (or other constituting documents) as of the date of
this Agreement have been previously delivered or made
available to the Buyer.
3.9 The corporate records and minute books of the Company contain
complete, comprehensive and accurate minutes of all meetings
and other corporate actions of the incorporators, directors,
committees of directors and shareholders of the Company held,
in the case of the Company, since its date of incorporation
and the share certificate books and register of shareholders
of the Company are
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complete and accurate, reflecting all transactions in the
equity securities of the Company .
3.10 The Company's share transfer records reflect fully all
issuances, transfers and redemptions of the Company Shares
since the date of incorporation.
3.11 The Company is duly qualified to do business as a foreign
corporation, and is in good standing, in all jurisdictions in
which the ownership or lease of property by it or the conduct
of its business makes such qualification necessary.,
3.12 The execution, delivery and performance of this Agreement and
the consummation of the transactions provided for herein have
been duly authorized by all requisite corporate action on the
part of the Company, and this Agreement has been duly executed
and delivered by the Company.
3.13 Assuming due execution and delivery by the other parties, this
Agreement constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other laws
affecting creditors' rights and remedies generally.
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3.14 All outstanding capital shares of the Company have been duly
authorized and validly issued, are fully paid and
non-assessable, and have in no case been issued in violation
of any preemptive rights granted by the Company.
3.15 All outstanding capital shares of the Company were authorized,
offered, issued and sold in accordance with applicable law.
The Company has capital shares in its treasury, but none have
been repurchased pursuant to a promissory note that is not yet
fully paid.
3.16 There is no existing subscription, option, warrant, call,
right, commitment or other agreement (whether statutory or
contractual) to which the Company is a party requiring, and
there are no convertible securities of the Company outstanding
which upon conversion would require, directly or indirectly,
the issuance of any additional capital shares of the Company
or other securities convertible into or exercisable or
exchangeable for capital shares of the Company or any other
equity security of the Company, and there are no obligations
(contingent or otherwise) of the Company
3.16.1 to repurchase, redeem or otherwise acquire any
outstanding capital shares of the Company or
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3.16.2 except for guarantees of obligations of, or loans and
advances to, the Company provide funds to, or make
investments in, or provide any guarantee with respect
to the obligations of, any other Person.
3.17 There are no bonds, debentures, notes, lines of credit,
letters of credit, or other indebtedness issued and
outstanding having the right to vote on any matters on which
the Company's shareholders may vote.
3.18 The Company Shares to be sold pursuant to this Agreement
constitute all of the issued and outstanding capital shares of
the Company.
3.19 The Company has granted no Person any registration rights in
respect of capital shares of the corporation or securities
convertible into or exercisable or exchangeable for capital
shares of the Company.
3.20 Each Vendor is the sole record owner of the shares of the
Company listed beside such Vendor's name in Section B of the
preamble to this Agreement.
3.21 Except as provided herein, the execution and delivery of this
Agreement, the compliance with and performance of the terms
and provisions of this Agreement, and the consummation of the
transactions contemplated herein by the Company will not
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3.21.1 conflict with or result in the contravention or
breach of the terms, conditions or provisions of,
3.21.2 constitute a default (or an event which, with notice,
lapse of time, or both, would constitute a default)
under,
3.21.3 result in any violation of,
3.21.4 require the obtaining of any consent or approval of,
the taking of any action of, the making of any filing
with, or the giving of any notice to, any Person
(except such consents, approvals, actions, filings
and notices that will have been obtained, taken,
made, given or effectively waived prior to the
Closing, as a result of or under the terms of,
3.21.5 result in or give to any Person any right of
termination, cancellation, acceleration,
modification, or increased or accelerated rights,
entitlements or payments under, or
3.21.6 result in the creation or imposition of any
Encumbrance upon the Company or any of their
respective assets or the Company Shares under:
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the Charter of the Company or any resolutions adopted
by the shareholders or the Board of Directors or any
committee of the Board of Directors of the Company;
any order, judgment, decree, license, permit,
statute, law, rule, or regulation to which the
Company or any of its respective assets is subject;
or any provision of any Contract to which the Company
is party or by which the Company or any of their
respective assets is bound except, in the case of
clauses 4.19.6B and Schedule "C", for any such
violations, breaches, defaults, terminations,
cancellations or accelerations which in the aggregate
would not be reasonably likely to have a Material
Adverse Effect or a material adverse effect on the
ability of the Company to consummate the transactions
contemplated by this Agreement.
3.22 No Permit by or from, or declaration, filing or registration
with, or notification to, any Authority is required to be made
or obtained by the Company in connection with the execution,
delivery and performance of this Agreement, or the
consummation of the transactions contemplated hereby except
where the failure to obtain the Permit, or make the
declaration, filing, registration, or notification would not
have a Material Adverse Effect or a material adverse
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effect on the parties' ability to consummate the transactions
contemplated by this Agreement.
3.23 Except as set forth in this Agreement there is no action,
suit, proceeding or investigation in progress or pending or,
to the Knowledge of the Company, threatened or contemplated,
at law or in equity, in any court or before or by any
Authority against or relating to the Company or any of their
respective properties, or the conduct of the Company's
business as currently operated or contemplated to be operated,
which in any case would be reasonably likely to have a
Material Adverse Effect or a material adverse effect on the
parties' ability to consummate the transactions contemplated
by this Agreement.
3.24 There is not currently outstanding against the Company any
judgment, decree, injunction, ruling or order of any Authority
which, insofar as it can be reasonably foreseen, individually
or in the aggregate, would have a Material Adverse Effect.
3.25 Schedule "A" identifies the Financial Statements that have
been furnished to the Buyer. The Financial Statements:
3.25.1 have been prepared based upon, and are consistent
with, the books and records of the Company (which
books and records are correct and complete in all
material respects), and
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3.25.2 fairly present the financial position, results of
operations, changes in shareholders' equity and cash
flows of the Company as of the dates and for the
periods set forth in such Financial Statements, in
accordance with applicable country GAAP applied
consistently throughout the periods involved, except
normal year-end audit adjustments with respect to the
Interim Financial Statements.
3.26 The balance sheets included in the Financial Statements
accurately reflect all properties and assets of the Company,
whether real, personal or mixed, which are required to be
reflected on such balance sheets in accordance with applicable
country GAAP, consistently applied.
3.27 The Company has no Undisclosed Liabilities outstanding on the
date of this Agreement, whether due or to become due, which
individually or in the aggregate would be reasonably likely to
have a Material Adverse Effect.
3.28 The Company has complied with, and are not in violation of,
and have not received any notices of violation with respect
to, any national, provincial or local statute, law, regulation
or ordinance with respect to the conduct of their business, or
the ownership or operation of their business, except for
failures to comply or violations that would not be reasonably
likely to have a Material Adverse Effect.
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3.29 Since the date of the Financial Statements, except as
contemplated by this Agreement, there has not been, occurred
or arisen:
3.29.1 any change, destruction or loss not covered by
insurance with respect to the Company having a
Material Adverse Effect;
3.29.2 any material change by the Company in its accounting
methods, principles or practices;
3.29.3 any material revaluation of any of the assets of the
Company, including, without limitation, writing down
the value of inventory; or
3.29.4 any other event that resulted in a Material Adverse
Effect.
3.30 Except as set forth in Schedule "F", to the Knowledge of the
Company,
3.30.1 No Vendor, and no Family Member, Affiliate or
Associate of any Vendor (other than the Company),
3.30.2 No Officer, director or other Affiliate of the
Company ("Company Affiliate"), and
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3.30.3 No Associate or Family Member of any Company
Affiliate ("Related Party") directly or indirectly
3.31 sells to or purchases from the Company any products or
services in any material amount,
3.32 has any interest in any corporation, partnership, limited
liability company, proprietorship or other entity which sells
to or purchases from the Company any products or services in
any material amount,
3.33 has any cause of action or claim against the Company in any
material amount; or
3.34 has a beneficial interest in any Contract to which the Company
is a party or which binds it or its assets.
3.35 The Company is not indebted, either directly or indirectly, to
any Related Party in any amount other than current obligations
for payments of salaries, bonuses and other fringe benefits
for past services rendered and recorded on the books of the
Company; except as set forth in Schedule "A" and as follows:
3.35.1 Loan from Regular Expressions Ltd. $27,100.00; and
3.35.2 Loan from Xxxxxx Xxxxx $35,623.85.
3.36 The Company is not indebted to any Vendor in any amount for
any management or other fees.
3.37 The liabilities, contingent or otherwise, of the Company which
are not disclosed or reflected in Schedule "A" do not exceed
$50,000.00 in Canadian funds.
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3.38 The Company has not guaranteed, or agreed to guarantee, any
debt, liability or other obligation of any person, firm, or
corporation.
3.39 There are monies owing to Xxxxxxx which will be offset against
his indebtedness to the Company.
3.40 No dividends or other distribution on any shares in the
capital of the Company have been made, declared or authorized
since December 1, 1999.
3.41 Other than as provided on Schedule "A", no payments of any
kind have been made or authorized since December 31, 1999 to
or on behalf of the Vendors or to or on behalf of officers,
directors, shareholders or employees of the Company or under
any management agreements with the Company save and except in
the ordinary course of business and at the regular rates of
salary or management fees payable to them.
3.42 The Company has no leases of equipment or property.
3.43 The Company is not a citizen or resident of the United States
of America nor has a permanent establishment therein in the
last five years.
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3.44 The Company does not maintain and has never maintained a
Permanent Establishment, as defined in the Code, in the United
States of America and the Company has never filed or is
required to file a tax return with the IRS.
3.45 The Company is not a party to any oral or written:
3.45.1 union or collective bargaining agreement,
3.45.2 agreement with any officer or other key employee of
the Company, the benefits of which are contingent, or
the terms of which are materially altered, upon the
occurrence of a change in control of the Company or
other transaction involving the Company of the nature
contemplated by this Agreement,
3.45.3 agreement with any officer of the Company providing
any term of employment or compensation guarantee,
3.45.4 agreement or plan, including any stock option plan,
stock appreciation right plan, restricted stock plan
or stock purchase plan, any of the benefits of which
will be increased, or the vesting of the benefits of
which will be accelerated, by the occurrence of any
of the transactions contemplated by this Agreement
or the value of any of the benefits of which will be
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calculated on the basis of any of the transactions
contemplated by this Agreement; or
3.45.5 agreement or commitment to provide health care, life
insurance or other benefits after termination of
employment.
3.46 The Company has:
3.46.1 filed when due (after taking into account applicable
extensions) with the appropriate agencies all Tax
Returns, with the exception of Income Tax Returns
required to be filed by them, and
3.46.2 paid when due and payable all Taxes owed by them or,
to the extent of Taxes not yet due and payable, have
accrued or otherwise adequately reserved on the
Financial Statements in material compliance with
applicable country GAAP for the payment of such Taxes
not yet due and payable.
3.47 All such Tax Returns are correct and complete in all material
respects.
3.48 Complete and, subject to the filing of the Income Tax Returns,
accurate copies of such Tax Returns due or filed for the past
three years have been furnished or made available to the
Buyer.
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3.49
3.50 Under the provisions of the INCOME TAX ACTS of Canada and
British Columbia the Company has always been a
Canadian-controlled private corporation.
3.51 The Company has not prior to the date hereto:
3.51.1 made any election under Section 85 of the INCOME TAX
ACT (Canada) with respect to the acquisition or
disposition of any property;
3.51.2 made any election under Sections 83 of the INCOME TAX
ACT (Canada);
3.51.3 acquired any property from a person with whom it was
not dealing at arm's length; or
3.51.4 disposed of anything to a person with whom the
Company was not dealing at arm's length for proceeds
less than the fair market value thereof.
3.52 The Company has made all elections required to be made under
the INCOME TAX ACT of Canada in connection with any
distributions by the Company and all such elections were true
and correct.
3.53 Subject to the filing of the Income Tax Returns, there are no
Taxes assessed or, to the Knowledge of the Company, asserted
in respect of any Tax Returns filed
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by the Company or claimed to be due by any taxing authority or
otherwise that are not accrued or adequately reserved for on
the Financial Statements in accordance with GAAP.
3.54 The Company is not a party to any action or proceeding, and to
the Company's Knowledge, no action or proceeding is threatened
or contemplated, for the assessment or collection of any
Taxes, and the Company has received no deficiency notices or
reports in respect of any Tax.
3.55 To the Knowledge of the Company, no Tax Return of the Company
is currently being audited or is scheduled for future audit by
any Authority.
3.56 Schedule "C" to this Agreement sets forth each of the
following Contracts to which the Company is a party:
3.56.1 any Contract for borrowed money or deferred portion
of purchase price;
3.56.2 any loan agreement, credit agreement, promissory
note, guarantee, indenture,
3.56.3 subordination agreement, letter of credit, use of
credit, interest rate or foreign
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3.56.4 currency protection agreement or any other similar
type of Contract;
3.56.5 any consulting or other Contract with attorneys,
accountants, actuaries, appraisers, investment
bankers, lobbyists, government relations' persons or
other professional advisers providing for total
payments equal to or in excess of Twenty Five
Thousand Dollars (USD $25,000) and that cannot be
terminated by the Company without penalty on 30 days
or less notice;
3.56.6 any Contract (except for Contracts with customers)
which, in whole or in part,
3.56.7 presently restricts or precludes the Company or any
present or future Subsidiary or Affiliate of the
Company from conducting any business anywhere in the
world, or
3.56.8 upon the occurrence of any event, the giving of
notice or the passage of time, by its terms would
have such an effect;
3.56.9 any Contract that involves aggregate payments by or
to the Company in excess of Twenty Five Thousand
Dollars (USD $25,000) and that cannot be terminated
by the Company without penalty on 30 days or less
notice; and
-30-
3.56.10 any indemnification agreement (except those entered
into in the ordinary course of business), guaranty or
power of attorney granted to any Person (other than
the Company).
3.57 The Company has delivered or otherwise made available to the
Buyer true, correct and complete copies of the Contracts set
forth in Schedule "C" of this Agreement, and all other
contracts, together with all amendments, waivers,
modifications, supplements or side letters affecting the
obligations of any party under such Contracts.
3.58 Except as set forth opposite or otherwise as part of the
description of such Contract:
3.58.1 No party to any Contract listed in Schedule "C" has
given to the Company notice of any breach or default
under any such Contract by the Company, which has not
been cured or waived;
3.58.2 The Company is not in violation or breach of or
default of any material term under any Contract
listed in Schedule "C" in any respect or, with notice
or lapse of time or both, would be in violation or
breach of or default under any such Contract;
-31-
3.58.3 To the Knowledge of the Company no other party to any
such Contract is in violation or breach of or default
under any such Contract or, with notice or lapse of
time or both, would be in violation or breach of or
default under any such Contract; and
3.58.4 No consent by or of any party to any Contract listed
in Schedule "C" is required in order to consummate
the transactions contemplated by this Agreement
without causing a breach or violation of or a default
under such Contract.
3.59 The Company either has all right, title and interest in (free
and clear of all Encumbrances), or a valid and binding license
to use, all of the Intellectual Property used by the Company
in the conduct of their respective businesses, except to the
extent that the failure to have such rights have not had and
would not be reasonably likely to have a Material Adverse
Effect.
3.60 Except as disclosed herein,
3.60.1 all registrations with and applications to
Authorities in respect of such Intellectual Property
are valid and in full force and effect,
3.60.2 the Company has and the Subsidiaries have taken
reasonable security measures to protect the secrecy,
confidentiality and value of their
-32-
respective trade secrets which Company or the
Subsidiary considers to be material, and
3.60.3 the Company is not, and the Company has not received
any notice that it is in violation or breach of or
default under (or with the giving of notice or lapse
of time or both, would be in violation or breach of
or default under) any license to use such
Intellectual Property, except to the extent that the
failure to have such rights has not had and would not
be reasonably likely to have a Material Adverse
Effect.
3.61 The Company has not, and no Subsidiary has, received notice
that the Company is infringing any Intellectual Property of
any other Person.
3.62 No claim is pending or, to the Knowledge of the Company, has
been made to such effect that has not been resolved.
3.63 To the Knowledge of the Company , the Company is not
infringing any Intellectual Property rights of any other
Person, which infringement would be reasonably likely to have
a Material Adverse Effect.
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3.64 The Company has received letters of breach of intellectual
property rights from several sources regarding their operation
of an ISP, and all offending material has been removed from
the ISP.
3.65 Except where any such matters or violations would,
individually or in the aggregate, not be reasonably expected
to have a Material Adverse Effect:
3.65.1 the Company has not generated, used, manufactured,
processed, distributed, handled, transported,
treated, stored, released or disposed of, and has not
suffered or permitted anyone else to generate, use,
manufacture, process, distribute, handle, transport,
treat, store, release or dispose of, any Hazardous
Substance in violation of any Environmental Laws;
3.65.2 there has not been any generation, use, manufacture,
processing, distribution, handling, transportation,
treatment, storage, release or disposal of any
Hazardous Substance in connection with the conduct of
the Business or the use of any property or facility
leased or owned by the Company , or to the Knowledge
of the Company , any nearby or adjacent properties or
facilities, which has created or might reasonably be
expected to create any liability under any
Environmental Laws or which would require reporting
to or notification of any Authority;
-34-
3.65.3 to the Knowledge of the Company, no friable asbestos
or polychlorinated biphenyl, and no underground
storage tank, is contained in or located at any
property or facility of the Company ;
3.65.4 any Hazardous Substance handled or dealt with in any
way in connection with the Business has been and is
being handled or dealt with in compliance with any
Environmental Laws;
3.65.5 there are no investigations, proceedings, actions,
orders, claims or notices that are pending,
anticipated or, to the Knowledge of the Company
threatened or contemplated against the Company or
involving the Business and relating to Environmental
Laws; and
3.65.6 the Company has not received, and no Subsidiary has
received, any notice of, and the Company does not
have Knowledge of, and no Subsidiary has Knowledge
of, any facts which relate to the ownership or
operation of the Business or any of the properties or
facilities of the Company and that might constitute a
violation of any Environmental Laws.
3.66 No broker, agent, finder, consultant or other Person has been
retained by, or has acted on behalf of the Company (other than
legal and accounting advisors) or is entitled to be paid based
upon any agreements or understandings made by such parties in
connection with the transactions contemplated by this
-35-
Agreement, and neither the Buyer nor the Company shall have
any liability for any broker's fee, finder's fee, consultant's
fee or similar third party remuneration payable by reason of
any action of the Company.
3.67 The accounting books, minute books, share transfer records,
and other records of the Company, all of which have been made
available to the Buyer, are complete and correct in all
material respects and to the Knowledge of the Company, have
been maintained in accordance with sound business practices
and the requirements of Section 13(b)(2) of the 1934 Act
(regardless of whether or not the Company is subject to that
Section), including the maintenance of an adequate system of
internal controls.
3.68 At the Closing, all such books and records will be in the
possession of the Company.
3.69 There is no real property owned by the Company .
3.70 The Company owns all the properties and assets (whether
tangible or intangible) that it purports to own located in the
facilities operated by the Company or reflected as owned in
the books and records of the Company or such Subsidiary,
including all of the properties and assets reflected in the
Balance Sheet and the Interim Financial Statements (except for
assets held under capitalized leases disclosed or not required
to be disclosed and personal
-36-
property sold since the date of the Balance Sheet and the
Financial Statements, as the case may be, in the ordinary
course of business), and all of the properties and assets
purchased or otherwise acquired by the Company since the date
of the Balance Sheet (except for personal property acquired
and sold since the date of the Balance Sheet in the ordinary
course of business and consistent with past practice).
3.71 All of the assets related to the business of the Company shall
remain the property of the Company, with the exception of
those set forth in schedule "D"..
3.72 To the Knowledge of the Company, the equipment of the Company
is in good operating condition and repair, and are adequate
for the uses to which they are being put.
3.73 All accounts receivable of the Company that are reflected on
the Balance Sheet (collectively, the "Accounts Receivable")
represent or will represent valid obligations arising from
sales actually made or services actually performed in the
ordinary course of business.
3.74 Unless paid before the Closing Date, the Accounts Receivable
are or will be as of the Closing Date collectible net of the
respective reserves shown on the
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Balance Sheet or the Interim Financial Statements, except as
disclosed in Schedule "C" to this Agreement.
3.75 The Company does not maintain inventory in the odinary course
of its business and has no inventory at the Closing Date.
3.76 The Company does not maintain insurance.
3.77 Except as disclosed in this Agreement, the Company has not,
and no director, officer, agent or employee of the Company, or
any other Person associated with or acting for or on behalf of
the Company has, directly or indirectly:
3.77.1 made any bribe, rebate, payoff, influence payment,
kickback, or other payment to any Person, private or
public, regardless of form, whether in money,
property, or services
3.77.2 to obtain favourable treatment in securing business,
3.77.3 to pay for favourable treatment for business secured,
3.77.4 to obtain special concessions or for special
concessions already obtained, for or in respect of
the Company or any Affiliate, or
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3.77.5 in violation of any legal requirement, or
3.77.6 established or maintained any fund or asset that has
not been recorded in the books and records of the
Company.
3.78 No representation or warranties of the Company fail to state a
material fact necessary to make the statements herein or
therein, in light of the circumstances in which they were
made, not misleading.
3.79 There is no fact known to the Company that has specific
application to the Company (other than general economic or
industry conditions) and that materially adversely affects the
assets, business, prospects, financial condition, or results
of operations of the Company (on a consolidated basis) that
has not been set forth in this Agreement.
4 REPRESENTATIONS AND WARRANTIES OF THE INDIVIDUAL VENDORS
4.1 Each individual Vendor represents and warrants for himself
that he has the full power and capacity necessary to enter
into and perform its obligations under this Agreement and to
consummate the transactions contemplated herein.
4.2 This Agreement has been duly executed and delivered by each
individual Vendor and, assuming due execution and delivery by
the other parties, constitutes the legal, valid and binding
obligation of such Vendor, enforceable
-39-
against such Vendor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other laws affecting creditors' rights and
remedies generally.
4.3 Each individual Vendor warrants, for himself, that there is no
existing subscription, option, warrant, call, right,
commitment or other agreement (whether preemptive or
contractual) to which such Vendor is a party requiring, and
there are no convertible securities of the Company owned or
held by such Vendor which upon conversion would require,
directly or indirectly, the issuance of any additional capital
shares of the Company or other securities convertible into or
exercisable or exchangeable for capital shares of the Company
or any other equity security of the Company, and there are no
obligations (contingent or otherwise) of such Vendor to
purchase or otherwise acquire any outstanding capital shares
of the Company.
4.4 The Company Shares to be sold by such Vendor pursuant to this
Agreement will be delivered to the Buyer free and clear of all
Encumbrances (except Encumbrances arising out of, under or in
connection with this Agreement), and such delivery will not be
in violation of any preemptive rights.
4.5 Each individual Vendor is the sole beneficial owner of the
Company Shares listed beside such Vendor's name on Exhibit A,
and has the full legal right and
-40-
power to sell, convey, transfer, and assign such Company
Shares to the Buyer pursuant to this Agreement.
4.6 Each individual Vendor is not a party to any shareholder
agreement, voting agreement, voting trust, proxy or other
agreement with respect to the voting or transfer of the
Company Shares.
4.7 Each individual Vendor warrants for himself that no Person
(other than the Buyer as provided in this Agreement) has any
agreement or option or any right or privilege (whether
preemptive or contractual) capable of becoming an agreement or
option for the purchase from such Vendor of any of the Company
Shares being transferred by such Vendor to the Buyer pursuant
to this Agreement.
4.8 Each individual Vendor warrants for himself that he has no
knowledge of any action, suit, proceeding or investigation in
progress or pending to the Knowledge of such Vendor which
affects the Vendor's ability to transfer to the Buyer the
Corporate Shares to be sold by such Vendor, free and clear of
all claims or encumbrances whatsoever.
4.9 Each individual Vendor warrants for himself that no broker,
agent, finder, consultant or other Person has been retained
by, or has acted on behalf of such
-41-
Vendor (other than legal and accounting advisors) or is
entitled to be paid based upon any agreements or
understandings made by such parties in connection with the
transactions contemplated by this Agreement. Neither the Buyer
nor the individual Vendor or the Company shall have any
liability for any broker's fee, finder's fee, consultant's fee
or similar third party remuneration payable by reason of any
action of such Vendor.
4.10 Each individual Vendor warrants that he is not a U.S. Person.
5 INDIVIDUAL VENDOR'S REPRESENTATIONS AND WARRANTIES
5.1 Each individual Vendor purports and warrants that neither he,
nor his spouse, nor any Company controlled by him or his
spouse, owns any property or assets which are used by the
Company or are necessary or useful in the conduct of its
business.
5.2 The representations, warranties, covenants and agreements by
the individual Vendors contained in this Agreement or any
certificates or documents delivered pursuant to the provisions
hereof or in connection with the transaction contemplated
hereby shall be true at and as of the time of closing as
though such representations and warranties were made at and as
of such time.
-42-
Notwithstanding any investigations or enquiries made by the
Purchaser prior to closing or the waiver of any condition by
the Purchaser, the representations, warranties, covenants and
agreements of the individual Vendors shall survive the closing
date and notwithstanding the closing of the purchase and sale
herein provided for, shall continue in full force and effect.
In the event that any of the said representations and
warranties are found to be incorrect or there is a breach of
any covenants or agreement of the individual Vendors, which
incorrectness or breach shall result in any loss or damage
sustained directly or indirectly by the Purchaser then the
individual Vendor concerned in such incorrectness or breach
shall pay the amount of such loss or damage to the Purchaser
within 30 days of receiving notice thereof provided that the
Purchaser shall not be entitled to make any claim unless the
loss or damage suffered shall exceed the amount of $1,000.00
(One Thousand Dollars) in Canadian funds.
5.3 Each individual Vendor warrants for himself that he is a
resident of Canada within the meaning of the Income Tax Act.
6 PURCHASER'S REPRESENTATIONS AND WARRANTIES
In order to induce the Vendors to enter into and consummate this Agreement, the
Purchaser represents and warrants to and covenants with the Vendors as follows:
-43-
6.1 The Purchaser is a company duly incorporated under the laws of
the State of Delaware, is not a reporting company, is a valid
and subsisting company, and will be in good standing in the
Office of the Registrar of Companies of the State of Delaware;
6.2 The Company carries on business in the State of Utah and the
United States of America and does not carry on business in any
Province or Territory of Canada;
6.3 The Purchaser has due and sufficient right and authority to
enter into this Agreement on the terms and conditions herein
set forth and to transfer the legal and beneficial title and
ownership of the Shares and Options to the Vendors as set
forth in Paragraph 2 of this agreement;
6.4 No person, firm or corporation has any agreement or option or
a right capable of becoming an agreement for the purchase of
the Lineo Shares and Options;
6.5 The Purchaser shall transfer the Lineo Shares and Options to
the Vendors in accordance with Schedule "E" and such Shares
and Options shall be registered on the books of the Purchaser
in the names of the Vendors at the time of closing;
-44-
6.6 The representations and warranties of the Purchaser set forth
in this Agreement shall be true and correct as of the date of
the Agreement and shall be true and correct as of the date of
closing as if made by the Purchaser on the closing date;
6.7 The Purchaser or its nominees shall issue at the time of
closing the Lineo Shares and Options forming part of the
Purchase Price as set forth in PARAGRAPHS 2 .1.2, 2.1.3 and
Schedule "E" herein. of this agreement;
6.8 The representations, warranties, covenants and agreements by
the Purchaser contained in this Agreement or any certificates
or documents delivered pursuant to the provisions hereof or in
connection with the transaction contemplated hereby shall be
true at and as of the time of closing as though such
representations and warranties were made at and as of such
time. Notwithstanding any investigations or enquiries made by
the Vendors prior to closing or the waiver of any condition by
the Vendors, the representations, warranties, covenant and
agreement of the Purchasers shall survive the closing date and
notwithstanding the closing of the purchase and sale herein
provided for, shall continue in full force and effect. In the
event that any of the said representations and warranties are
found to be incorrect or there is a breach of any covenants or
agreement of the Purchaser, which incorrectness or breach
shall result in any loss or damage sustained directly or
indirectly by the Vendors then the Purchaser shall pay the
amount of such loss or damage to the Vendors within 30 days of
receiving notice thereof, provided that the Vendors shall not
-45-
be entitled to make any claim unless the loss or damage
suffered shall exceed the amount of $1,000.00 (One Thousand
Dollars) in Canadian funds.
7 CONDITIONS PRECEDENT FOR PURCHASER
All obligations of the Purchaser under this Agreement are subject to the
fulfilment, prior to closing, of each of the following conditions:
7.1 Xxxxxxx Xxxx, Xxxxxx Xxxxx and Xxxxx Xxxxxx shall have been
offered employment contracts with the Purchaser.
7.2 The Vendors shall transfer the Shares to the Purchaser and
such Shares shall be registered on the books of the Company in
the name of the Purchaser at the time of closing.
7.3 The representations and warranties of the Vendors set forth in
this Agreement shall be true and correct as of the date of the
Agreement and shall be true and correct as of the date of
closing as if made by the Vendors on the closing date.
7.4 The foregoing conditions in this section are inserted for the
exclusive benefit of the Purchaser and may be waived by it in
whole or in part at any time.
-46-
8 CONDITIONS PRECEDENT FOR VENDORS
8.1 The representations and warranties of the Purchaser set forth
in this Agreement shall be true and correct as of the date of
closing as if made by the Purchaser on the date of closing.
8.2 The following persons shall have been offered and shall have
accepted Contracts of Employment with the Purchaser:
Xxxxxx Xxxxx;
Xxxxxxx Xxxx; and
Xxxxx Xxxxxx.
8.3 The Vendors shall acquire at the time of closing that portion
of the Purchase Price consisting of the Lineo Shares and
Options in the capital of the Purchaser pursuant to PARAGRAPH
2.1, such Shares and Options to be allotted and issued from
treasury and allocated as set forth on Schedule "E".
8.4 The cash portion of the Purchase Price shall be paid in
accordance with Section 2 of this Agreement.
8.5 The Purchaser shall pay the Vendor's closing costs, including
legal costs.
-47-
8.6 The foregoing conditions in this section are inserted for the
exclusive benefit of the Vendors and may be waived by them in
whole or in part at any time.
9 CLOSING
9.1 The sale and purchase of the Shares and the other transactions
contemplated by this Agreement shall be closed at the offices
of Xxxxx X. Xxxxxxx. Barrister and Solicitor, Suite 1104 - 100
Park Royal South, West Vancouver, British Columbia X0X 0X0,
Xxxxxx at 11:00 a.m. (Pacific Daylight Time) on May 1, 2000 or
on such other date or at such other place as may be agreed
upon, which date is referred to herein as the "date of
closing" and "closing date" and which time is referred to
herein as "closing" and "time of closing".
9.2 The Vendors shall have caused to be delivered to the Purchaser
an opinion of the solicitors for the Company in form and
substance satisfactory to the Purchaser's solicitors, dated
the closing date to the effect that:
9.2.1 the Company is duly organized and validly existing
under the laws of the Province of British Columbia,
is in good standing in the Office of the Registrar of
Companies of British Columbia;
-48-
9.2.2 all necessary steps and corporate proceedings have
been taken to permit the Shares to be duly and
validly transferred to and registered in the name of
the Purchaser;
9.2.3 the number of authorized and issued shares in the
capital of the Company are as warranted by the Vendor
and all issued shares are duly authorized, validly
issued and outstanding as fully paid and
non-assessable; and
9.2.4 based on knowledge and belief, such solicitors know
of no claims, judgment, actions, suits, litigation,
proceedings or investigations, actual, pending or
threatened against the Company which might materially
affect any business, properties, assets, prospects of
conditions, financial or otherwise of the Company or
which could result in any material liability to the
Company.
9.3 The Purchaser shall transfer or provide the share certificates
and options as required to the Vendors in accordance with
Schedule "E", and such compensation shall be registered on the
books of the Purchaser in the names of the Vendors as set
forth on Schedule "E".
9.4 At the Closing, the Vendors shall deliver or cause to be
delivered to the Purchaser:
-49-
9.4.1 all deeds of conveyance, transfer of the Shares, and
Share Certificates properly endorsed on the reverse,
in form and content satisfactory to the Purchaser's
counsel, appropriate to effectively vest a good and
marketable title to the Shares in the Purchaser to
the extent contemplated by this Agreement;
9.4.2 all consents or approvals required to be obtained by
the Vendors for the purpose of validly transferring
the Shares and the Company;
9.4.3 new share certificates in the name of the Purchaser
representing the Shares transferred;
9.4.4 the opinion of the solicitor for the Company;
9.4.5 duly executed releases of, or evidence to the
reasonable satisfaction of the Purchaser as to the
discharge of any and all liabilities to Shareholders
which the Purchaser has not agreed to assume; and
9.4.6 certified copies of such resolutions of the
Shareholders and directors of the Company as are
required to be passed to authorize the execution,
delivery and implementation of this Agreement and of
all documents to be delivered by the Vendors hereto.
-50-
9.5 At the time of Closing, the Purchaser shall deliver or cause
to be delivered to the Vendors:
9.5.1 a Banker's Draft payable to Xxxxx X. Xxxxxxx In Trust
for that portion of the Purchase Price payable in
cash;
9.5.2 all documents required to convey the Lineo Shares and
Options to the Vendors; and
9.5.3 the legal opinion as required.
9.6 The parties will sign and deliver such further documentation
as may be required to fulfil their obligations pursuant to the
terms of this Agreement.
10 NOTICES
10.1 All notices, requested, demands and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, faxed or mailed postage
prepaid addressed as follows:
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To the Vendors: At the addresses set forth on page 1 of this
Agreement;
To the Purchaser: At 000 Xxxxx 000 Xxxx, Xxxxxx, Xxxx 00000,
X.X.X. Facsimile number (000) 000-0000
or to such other address as may be given in writing by the
Vendors or the Purchaser, and shall be deemed to have been
received, if delivered, on the date of delivery and if mailed
as aforesaid at Vancouver, British Columbia then on the next
business day following the posting thereof.
11 PARTIES IN INTEREST
11.1 This Agreement shall enure to the benefit of and shall be
binding upon the Vendors, their heirs, executors,
administrators and assigns and the Purchaser and its
successors and assigns.
12 GENERAL
12.1 Time shall be of the essence of this Agreement.
12.2 The waiver by any party of any breach of any term of this
Agreement shall not prevent the subsequent enforcement of that
term and shall not be deemed a waiver of any subsequent breach
unless in writing and signed by and on behalf of the parties
hereto.
-52-
12.3 This Agreement embodies the entire understanding between the
parties hereto and there are no promises, terms, conditions or
obligations, oral or written, express or implied, other than
those contained herein.
12.4 Any dispute between the parties to this Agreement may be
referred to a single arbitrator in accordance with the
provisions of the Commercial Arbitration Act, R.S.B.C. 1996,
as amended.
12.5 In this Agreement, wherever the masculine is used, such use
shall include the feminine.
12.6 Any part of this Agreement that is found to be invalid or
unenforceable for any reason shall, wherever possible, be
severable from the Agreement and shall not in any way
prejudice the validity or enforceability of the remainder.
12.7 This Agreement shall be construed and governed in all respects
by the laws of the State of Delaware, and the forum of
conveyance shall be British Columbia.
13 SCHEDULES
The following schedules are annexed to, and form part of, this Agreement:
Schedule "A" Financial Statements of Fireplug Computers Inc. dated
December 31, 1999;
-53-
Schedule "B" Liens, Mortgages and Other Encumbrances to the Assets of Fireplug
Computers Inc.
Schedule "C" Particulars of Accounts Receivable from DVD Technologies, Inc. and
Sierra;
Schedule "D" Assets presently owned by Fireplug Computers Inc. which do not form
part of the Assets subject to this sale;
Schedule "E" Distribution of Shares and Options Among Vendors.
Schedule "F" List of Current Suppliers
IN WITNESS WHEREOF the Vendors and the Purchaser have duly executed
this Agreement this 1st day of May, 2000.
SIGNED, SEALED AND DELIVERED )
by XXXXXXX XXXX in the )
presence of: ) _________________________
) XXXXXXX XXXX
______________________________ )
)
SIGNED, SEALED AND DELIVERED )
by XXXXXX XXXXX in the )
presence of: ) _________________________
) XXXXXX XXXXX
______________________________ )
SIGNED, SEALED AND DELIVERED )
by XXXXX XXXXXX in the )
presence of: ) _________________________
) XXXXX XXXXXX
______________________________ )
-54-
SIGNED, SEALED AND DELIVERED )
by XXXXX XXXXXX in the )
presence of: ) _________________________
) XXXXX XXXXXX
______________________________ )
SIGNED, SEALED AND DELIVERED )
by XXXXXXX XXXX in the )
presence of: ) _________________________
) XXXXXXX XXXX
______________________________ )
SIGNED, SEALED AND DELIVERED )
by XXXXXXX XXXXXX in the )
presence of: ) _________________________
) XXXXXXX XXXXXX
______________________________ )
SIGNED, SEALED AND DELIVERED )
by XXXX XXXXXXXXXXX in the )
presence of: ) _________________________
) XXXX XXXXXXXXXXX
______________________________ )
SIGNED, SEALED AND DELIVERED )
by XXX XXXXXX in the )
presence of: ) _________________________
) XXX XXXXXX
______________________________ )
SIGNED, SEALED AND DELIVERED ) REGULAR EXPRESSIONS INC.
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On behalf of REGULAR EXPRESSIONS INC. ) per:
In the presence of: )
)
)
______________________________ ) _________________________
Authorized Signatory
SIGNED, SEALED AND DELIVERED ) FIREPLUG COMPUTERS INC.
On behalf of FIREPLUG COMPUTERS INC. ) per:
In the presence of: )
)
)
______________________________ ) _________________________
Authorized Signatory
SIGNED, SEALED AND DELIVERED ) LINEO, INC.
On behalf of LINEO, INC. ) per:
In the presence of: )
)
)
______________________________ ) _________________________
Authorized Signatory
