EXHIBIT 10.2
SHARE PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 30th day of September, 2003.
A M O N G:
3323455 CANADA INC.
(hereinafter called the "Purchaser")
OF THE FIRST PART
- AND -
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
3563405 CANADA Inc. and 3563456 Canada Inc.,
(hereinafter called the "Shareholders")
OF THE SECOND PART
- AND -
KISCHI KONSULTING INC
(hereinafter called "Kischi")
OF THE THIRD PART
- AND -
2906694 CANADA INC. AND 3054276 CANADA INC.
(hereinafter collectively called the "Holdings")
OF THE FOURTH PART
WHEREAS the Listed Company is acquiring all of the outstanding shares of the
Purchaser and the Purchaser will be acquiring all of the outstanding shares of
Kischi, and the Holdings as part of a comprehensive transaction (the "
Comprehensive Transaction"); and
WHEREAS the Shareholders desire to sell to the Purchaser, and the Purchaser
desires to purchase from the Shareholders, all of the issued and outstanding
capital stock of the Holdings owned by the Shareholders, pursuant to the terms
and conditions hereof; and
WHEREAS the Holdings own all of the issued and outstanding capital stock of
Kischi;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH THAT in consideration of the mutual
promises and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby covenant and agree as follows:
ARTICLE 1 -
INTERPRETATION
1.1 DEFINITIONS
In this Agreement and in all amendments hereto the following words, whenever
used in this Agreement, unless there is something in the subject matter or
context inconsistent therewith, shall have the following meanings:
"AFFILIATES" shall include the Shareholders, members of the
family of the Shareholders, and any Person other than the Shareholders that is
under common control of the Shareholders.
"AGREEMENT" shall mean this Share Purchase Agreement as
amended from time to time and all schedules attached herewith which form an
integral part of this agreement.
"BUDGET" shall mean the July 1st 2003 to June 30th 2004 Kischi
and 2906694 Canada Inc. pro-forma income statements including a break down of
monthly expenses prepared by the Shareholders and, in accordance with GAAP
applied on a consistent basis for the past two years, attached herewith in
Schedule 1.1 Budget
"CLAIMS, PROCEEDINGS OR RESTRICTIONS" shall mean any claims,
legal, administrative or other proceedings, suits, investigations, complaints,
notices of violation or similar process, judgements, injunctions, orders,
decrees or directives against, relating to or directly or indirectly affecting
(a) any Corporation, its assets, business or its ability to acquire property or
conduct business in any area, or (b) the officers or directors, agents,
employees or consultants of any Corporation, which as to all matters described
in (a) or (b) above if determined adversely to any of the above (or if adopted
in the case of proposed governmental restriction), might individually or in the
aggregate, either adversely affect the condition (financial or otherwise),
operations, business or prospects of the Corporations, or challenge the validity
or propriety of the transactions contemplated by the Agreement, or the ability
of the parties to consummate such transactions in accordance with the terms of
the Agreement.
"CLOSING" shall mean the consummation of the transactions
described in Section 2.2 hereof pursuant to the terms hereof.
"CLOSING CASH" shall mean that as at Closing, the cash
position of Kischi and each of the respective holdings shall be $1.00CAD .The
cash position will be the result of the following calculation, all items are as
at Closing :(good standing accounts receivable + Receivables worked but not yet
invoiced + Cash) - (Accounts Payable + Expenses incurred but not yet invoiced +
any amounts required to pay all loans and advances from financial institutions,
clients, Shareholders and Holdings and all Fiduciary Deductions, Taxes and Tax
Provisions due as at Closing calculated on a pro-rata basis up to Closing in
accordance with GAAP applied on a consistent basis for the past two years).
(Schedule 1.1 Closing Cash).
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"CLOSING DATE" shall mean October 31, 2003 or such earlier or
later date as the Parties may agree.
"CONSULTING AGREEMENTS" shall mean a consulting agreement
between Kischi and each of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ provided as Schedule
1.1 Consulting Agreement. Said agreements shall contain, amongst others, duties,
roles & responsibilities, administrative reporting structure, fee arrangements,
services to be provided, deliverables, termination clauses and confidentiality,
proprietary information definitions, non-compete and non-circumvent clauses.
"CORPORATIONS" shall mean Kischi and the Holdings,
collectively.
"EFFECTIVE DATE" shall mean September 30, 2003, the date which
this agreement becomes effective and binding upon the Shareholders, the
Holdings, Kischi, and the Purchaser.
"FIDUCIARY DEDUCTIONS" shall mean all Federal and Provincial
income taxes, Federal and Provincial capital taxes, Federal and Provincial
deductions at source, general sales taxes, Provincial sales taxes and all other
Taxes.
"FINANCIAL STATEMENTS" shall mean the:
o Kischi Annual Audited Financial Statements as at June
30th, 2001, 2002 and 2003 and the Kischi nine month
Audited Financial Statements as at March 31st 2003.
o 2906694 Canada Inc. Annual Audited Financial
Statements as at March 31st, 2001, 2002 and 2003. and
the interim unaudited financial statement as at June
30, 2003.
o 3054276 Canada Inc. Annual Audited Financial
Statements as at June 30th, 2001, 2002 and 2003.
"GAAP" shall mean generally accepted accounting principles in
Canada as in effect from time to time.
"HYPOTHECS" shall mean the registered hypothecs in 3563456
Canada Inc. and in 3054276 Canada Inc. in favor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the
registered hypothecs in 3563405 Canada Inc. and in 2906694 Canada Inc. in favor
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and the registered hypotecs in Kischi in favor of 3563456
Canada Inc and of 3054276 Canada inc. and of 3563405 Canada Inc. and of 2906694
Canada Inc. (Schedule 1.1 Hypothecs)
"LAURENTIEN BANK" shall mean the Laurentien Bank of Canada
which provides Kischi with a 250,000 CAD operating credit facility.
"LIFE INSURANCE POLICIES" shall mean the existing and still in
force life insurance policies of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ to which
Kischi is the owner and the beneficiary. (Schedule 1.1 Life Insurance Policies)
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"LISTED COMPANY" shall mean the company which common shares
are listed and are traded on the OTCBB identified by the Purchaser in its sole
discretion, which will acquire all of the Purchaser's outstanding common shares
and become the parent company of the Purchaser as at the Closing Date. (Schedule
1.1 Listed Company)
"LISTED SHARES" shall mean the Purchaser Shares owned by the
Shareholders which will be exchanged on a one for one basis for treasury common
shares of the Listed Company as at the Closing Date.
(Schedule 1.1 Listed Shares)
"LISTED SHARES SHAREHOLDERS" shall mean ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or companies controlled by them individually
or jointly which the Listed Shares have been issued to in relation to the
Closing.
"MANAGEMENT" shall mean the three management positions of
Kischi, as at the Closing Date, namely ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President and ▇▇▇▇▇
▇▇▇▇▇▇▇ Vice-President Finance and administration.
"PARTIES" shall mean the Shareholders, the Holdings, Kischi
and the Purchaser.
"PERFORMANCE GUARANTEE" shall mean the commitments of ▇▇▇▇
▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇▇ to perform to the best of their capabilities, in a
manner consistent with the last two years, their duties, roles and
responsibilities as defined in their respective Consulting Agreements for a
minimum period of twelve months from the Closing Date.
"PERSONAL BANKING GUARANTEES" shall mean the personal
guarantees of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ given to Laurentien Bank in
relation to the 250,000 CAD operating credit facility accorded to Kischi.
(Schedule 1.1 Personal Banking Guarantees)
"PURCHASE PRICE" shall mean the aggregate consideration of
2,500,000 CAD comprised as follows:
o an amount of 1,500,000 CAD;
o the Purchaser Shares.
"PURCHASED SHARES" shall mean the definition described in
Section 2.2 herein.
"PURCHASER SHARES" shall mean an amount of 1,000,000 CAD
payable by the issuance of 4,000,000 fully paid and non-assessable common shares
of the Purchaser. (Schedule 1.1 Purchaser Shares)
"SHAREHOLDERS AGREEMENT" shall mean the Memorandum of
Unanimous Agreement of shareholders entered into at the City of Montreal,
Province of Quebec, on the seventh day of June 2000 among 3054276 Canada Inc.,
2906694 Canada Inc., 3563456 Canada Inc., 3563405 Canada Inc. and Kischi
Konsulting Inc. (Schedule 1.1 Shareholders Agreement)
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"STOCK OPTIONS" shall mean, 150,000 stock options of the
Listed Company to be issued to each of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, on the
same terms and conditions as of the Purchaser's Principals stock options, to be
deposited with the Trust Agent prior to Closing. (Schedule 1.1 Stock Options)
"SUBSIDIARY" shall mean, with respect to any Person, any
corporation of which an aggregate of more than 50% of the outstanding capital
stock having ordinary voting power to elect a majority of the board of directors
of such corporation (irrespective of whether, at the time, stock of any other
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time, directly or
indirectly, owned legally or beneficially by such Person and/or one or more
Subsidiaries of such Person.
"TAXES" shall mean all Canadian, foreign, state, provincial,
county and local income, ad valorem, excise, sales, use, real estate, transfer,
withholding, unemployment, social security, taxes on dividends and other taxes,
and assessments of or payable by the Corporations or otherwise chargeable
against their assets or property (including but not limited to any such taxes
resulting from the recharacterization of agents, consultants, management,
salespersons and sub-subcontractors of the Corporations as "employees").
(Schedule 1.1 Taxes)
"TAX PROVISIONS" shall mean all Taxes payable as accounted for
in the Financial Statements of Kischi and the Holdings and all Taxes accruals
calculated on a pro-rata basis as at the Closing Date for Kischi and the
Holdings in accordance with GAAP applied on a consistent basis for the past two
years. (Schedule 1.1 Taxes Provisions)
"TRUST AGENT" shall mean the law firm chosen by the
Shareholders, Holdings, and the Purchaser that will act as the closing agent for
the Closing contemplated by this Agreement to which all documents, monies,
shares certificates and all other Closing documents will be remitted or
deposited in trust for the purpose of the Closing. (Schedule 1.1 Trust Agent)
1.2 INTERPRETATION
Any accounting term used in this Agreement shall have, unless otherwise
specifically provided herein, the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be
computed, unless otherwise specifically provided herein, in accordance with GAAP
consistently applied. That certain terms or computations are explicitly modified
by the phrase "in accordance with GAAP" shall in no way be construed to limit
the foregoing. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole, including the Schedules
hereto, as the same may from time to time be amended, modified or supplemented
and not to any particular section, subsection or clause contained in this
Agreement.
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter.
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1.3 PREAMBLES AND SCHEDULES
The preamble and, the Schedules referred to in this Agreement which are attached
to this Agreement, form an integral part of this Agreement.
ARTICLE 2 - PURCHASE AND SALE
2.1 COMPREHENSIVE TRANSACTION
This Agreement is conditional upon the execution of the Comprehensive
Transaction. If the Comprehensive Transaction does not close, this Agreement
shall be terminated and become null and void, and the Parties will have no
further recourses against each other.
2.2 PURCHASE AND SALE OF PURCHASED SHARES
Subject to the terms and conditions herein contained, at the Closing, the
Shareholders shall sell, transfer, assign and deliver to the Purchaser, and the
Purchaser shall purchase from the Shareholders, the number of shares (the
"Purchased Shares") of the Holdings and the Kischi outstanding shares owned by
3563405 Canada Inc. and 3563456 Canada Inc. set forth in Schedule 2.2 hereto,
constituting all of the issued and outstanding shares of capital stock of the
Corporations.
2.3 GUARANTEE OF CLOSING CASH
The Shareholders and the Holdings will cause and guarantee Kischi and the
Holdings to have the Closing Cash as at Closing.
ARTICLE 3 - PURCHASE PRICE AND TERMS
3.1 PURCHASE PRICE
Subject to the terms and conditions herein contained, at Closing, the Purchaser
will cause the Trust Agent, to remit to the Shareholders the Purchase Price in
accordance with the Purchase Price delivery instructions ( Schedule 3.1).
3.2 CONSULTING AGREEMENTS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ will each sign Consulting Agreements prior to
Closing on terms and conditions acceptable to the Parties.
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3.3 PERSONAL BANKING GUARANTEES
The Purchaser, prior to Closing, will cause Laurentien Bank to cancel the
Personal Banking Guarantees.
3.4 TRANSFER OF HYPOTHECS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, 3563456 Canada Inc., 3054276 Canada Inc., 3563405
Canada Inc. and 2906694 Canada Inc. will sell, transfer and assign to the
Purchaser and will subrogate the Purchaser in all of the Hypothecs.
3.5 BOARD OF DIRECTORS ELECTIONS
3.5.1 The Purchaser, at closing, shall cause two representatives of Kischi to be
elected to the Board of Directors of Kischi and one representative of Kischi to
be elected to the Board of Directors of the Listed Company.
3.5.2 If, as of the date of termination of the Consulting Agreement, and
regardless of the reason for termination, the Service Provider is a director or
officer of the Listed Company, Kischi or any affiliated companies, the Service
Provider agrees and commits to immediately tender his resignation as a director
and/or officer.
3.6 LIFE INSURANCE POLICIES
The Shareholders shall keep in force and shall continue to cause Kischi to pay
the premiums and other charges payable with respect to or in connection with the
Life Insurance Policies of which Kischi is the owner, (Schedule 3.8) as they
become due and give proof of payment to the Purchaser and the Agent (as defined
in the Shareholders Agreement), within 30 days after the due date thereof.
After Closing, the Purchaser will cause Kischi to continue to keep in force the
Life Insurance Policies and to pay the premiums and other charges payable with
respect to or in connection with the Life Insurance Policies of which Kischi is
the owner, as they become due and give proof of payment to the Purchaser and the
Agent (as defined in the Shareholders Agreement), within 30 days after the due
date thereof.
3.7 SHAREHOLDERS AGREEMENT
At Closing, the Shareholders shall cause 3054276 Canada Inc., 2906694 Canada
Inc., 3563456 Canada Inc., 3563405 Canada Inc. and Kischi to terminate, null and
void the Shareholders Agreement
3.8 TAX ELECTIONS
The Parties agree to file elections under section 85 of the Income Tax Act
(Canada) so that the Purchased Shares be deemed to have been acquired by the
Purchaser and disposed of by the Shareholders at their adjusted cost base to the
Shareholders.
3.9 DEPOSIT BY THE PARTIES TO THE TRUST AGENT
Three business days prior to Closing:
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3.9.1 the Purchaser will deposit with the Trust Agent the Purchase Price,
the Listed Shares and the Stock Options certificates.
3.9.2 the Shareholders will deposit with the Trust Agent the delivery
instructions for the Purchase Price or such other instructions to the
Trust Agent acceptable to all Parties. ( Schedule 3.1).
3.10 EXERCISE OF STOCK OPTIONS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ will be able to commence exercising their
respective Stock Options the day following the 12 month anniversary of their
Consulting Agreement and only if it is still in force.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES RELATING TO THE CORPORATIONS
The Shareholders represent and warrant as of the date of this Agreement and
again as of the date of Closing to the Purchaser as follows:
4.1 ORGANIZATION, POWER AND QUALIFICATION
Each of the Corporations is a corporation duly organized, validly subsisting
under the laws of its incorporation, and has or had all requisite corporate
power and authority to own or hold under lease its properties and assets and to
carry on its business as now conducted.
4.2 CAPITALIZATION
The authorized capital stock of the Corporations consists and their issued and
outstanding shares are as indicated in Schedule 2.2 hereto. The shares of the
Holdings are owned of record and beneficially by the Shareholders as indicated
in Schedule 2.2 hereto. The shares of Kischi are owned of record and
beneficially by the Holdings as indicated in Schedule 2.2 hereto. All of the
currently issued and outstanding shares of the capital stock of the Corporations
are duly authorized, validly issued and outstanding, fully paid and
non-assessable and have not been issued in violation of any shareholder rights
under applicable law, or of the certificate or articles of amalgamation or by
laws or the terms of any agreement to which the Corporations are a party or by
which the Corporations are bound. The Corporations have no outstanding
subscriptions, options, warrants, rights or other agreements granting to any
person, firm or corporation any interest in or right to acquire from the
Corporations at any time, or upon the happening of any stated event, any shares
of the capital stock of the Corporation, or any interest therein.
4.3 NO VIOLATION
Except as disclosed in Schedule 4.3, neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby will
constitute a violation of, or be in conflict with, or result in a cancellation
of, or constitute a default under, or create (or cause the acceleration of the
maturity of) any debt, obligation or liability affecting, or result in the
creation or imposition of any security interest, lien, or other encumbrance upon
any of the assets owned or used by, or any of the capital stock of the
Corporations under:
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(a) any term or provision of the certificate or articles of
incorporation or by laws of the Corporations;
(b) any contract, agreement, indenture, lease or other commitment to
which the Corporations or the Shareholders are a party or by which the
Corporations or the Shareholders are bound);
(c) any judgment, decree, order, regulation or rule of any court or
governmental authority; or
(d) any statute, law, rule or regulation of any governmental body.
Except as disclosed in Schedule 4.3, no consent of, or notice to, any federal,
provincial, or local authority, or any private person or entity, is required to
be obtained or given by the Shareholders or the Corporations in connection with
the execution, delivery or performance of this Agreement or any other agreement
or document to be executed, delivered or performed hereunder by the Shareholders
or the Corporations.
4.4 FINANCIAL STATEMENTS
(a) Attached to Schedule 4.4 are true and complete copies of the
Corporations' Financial Statements including audited Balance Sheets, related
Statements of Income, Retained Earnings and changes in financial position for
the periods then ended (collectively, the "Annual Financial Statements").
(b) Attached to Schedule 4.4 are true and complete copies of the
Corporations' most recent unaudited interim Statement of Income of the
Corporations together with notes thereto (collectively, the "Interim Financial
Statements").
(c) Except as set forth on Schedule 4.4, the Financial Statements have
been prepared in accordance with GAAP consistently applied and fairly present
the financial condition, assets and liabilities (whether accrued, absolute,
contingent or otherwise) of the Corporations as of the respective dates thereof.
All such Financial Statements have been prepared in accordance with GAAP
consistently applied and fairly present the results of operations and changes in
financial position of the Corporations for the periods covered thereby.
4.5 LIABILITIES AND OBLIGATIONS
Accept as set fourth on Schedule 4.5, the Corporations do not have any
liabilities or obligations (direct or indirect, contingent or absolute, matured
or unmatured) of any nature whatsoever which are not reflected in the Financial
Statements except:
(a) liabilities and obligations which are specifically disclosed in
Schedule 4.5; or
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(b) liabilities and obligations incurred in the ordinary course of
business since the dates of the Annual Financial Statements and the Interim
Financial Statements, respectively, and which are of the same nature as those
set forth on the Annual Financial Statements and the Interim Financial
Statements
There is no basis for assertion against the Corporations of any liabilities or
obligations not adequately reflected, reserved against or given effect to in the
Annual Financial Statements or Interim Financial Statements or in Schedule 4.5
except for liabilities and obligations described in this Section 4.5.
4.6 TAX RETURNS AND REPORTS
All federal, province, local and foreign income, excise, property, sales, use,
information, payroll and other tax returns and reports required to be filed by
the Corporations and the Shareholders (collectively the "Tax Returns") have been
filed with the appropriate governmental agencies in a timely manner in all
jurisdictions in which such returns and reports are required to be filed, and
all such returns and reports properly reflect the taxes of the Corporations for
the periods covered thereby. Except as set forth in Schedule 4.6, all Taxes
which are called for as due by the Tax Returns, or which are claimed to be due,
or which are otherwise due to any taxing authority from the Corporations have
been properly accrued or paid. Except as disclosed in Schedule 4.6, no Tax will
become due and payable by the Corporations as a result of the consummation of
the transactions contemplated hereby. Neither the Shareholders nor the
Corporations have received any notice of assessment or proposed assessment by
either Canada Customs and Revenue Agency or the corresponding provincial
authority (collectively, "CCRA") or any other taxing authority in connection
with any Tax Returns and there are no pending tax examinations of or tax claims
asserted against the Corporations or their properties. There has been no
disregard, in any Material respect, of any statute, regulation, rule or revenue
ruling in the preparation of any tax return applicable to the Corporations.
Except as disclosed in Schedule 4.6, there are no tax liens on any of the
properties or assets of the Corporations and the Shareholders except for liens
for current taxes not yet due and payable. Except as disclosed in Schedule 4.6,
there is no basis for any additional assessment of any Taxes, penalties or
interest with respect to the Corporations and the Shareholders. Neither the
Shareholders nor the Corporations have waived any law or regulation fixing, or
consented to the extension of, any period of time for assessment of any Taxes
which waiver or consent is currently in effect.
4.7 TITLE TO AND CONDITION OF ASSETS
The Corporations are the owner of and has good and marketable title to all of
their properties and assets, including those assets and properties reflected in
the Annual Financial Statements and the Interim Financial Statements in the
amounts and categories reflected therein, and to all properties and assets
acquired by the Corporations after the respective dates thereof, free and clear
of all mortgages, liens, pledges, charges, security interests, encumbrances or
other third party interests of any nature whatsoever, except for: (a) the lien
of current taxes not yet due and payable, and (b) other title exceptions
disclosed and described in Schedule 4.7 hereto. Except as disclosed in Schedule
4.7, the properties and assets of the Corporations utilized in the operation of
their business (including all buildings) are in good operating condition and
repair, ordinary wear and tear excepted, are usable in the ordinary course of
its business and, except as disclosed in Schedule 4.7, conform in all material
respects to all applicable statutes, ordinances and regulations relating to
their construction, use and operation.
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4.8 LEASES
There is disclosed in Schedule 4.8 a description of all real estate (including
buildings and improvements) leased by the Corporations (the "Real Estate")
according to the character of the property and the location thereof. Each of
such leases and agreements is in full force and effect and constitutes a legal,
valid and binding obligation of the respective parties hereto. Neither the
Corporations nor, to the knowledge of the Shareholders, is any other party
thereto in default in any Material respect under any such lease or agreement nor
has any event occurred which with the passage of time or giving of notice or
both would constitute such a default. The continuation, validity and
effectiveness of all such leases and material terms thereof will in no way be
affected by the consummation of this Agreement, or, if any would be affected,
the Shareholder shall use all necessary and reasonable means at their disposal
to cause an appropriate consent to be delivered to the Purchaser prior to the
Closing Date.
4.9 CONTRACTS
Schedule 4.9 contains a list of all oral and written contracts, agreements,
commitments or understandings to which the Corporations are a party which
require payments in excess of $50,000 per annum or are not subject to
termination in 60 days or less. Except as set forth in Schedule 4.9, the
Corporations are not a party to, or bound by, any oral or written contracts,
agreements, commitments or understandings ("Contracts"):
(a) for the employment of any officer or employee;
(b) for the purchase or sale of capital stock or interests in or
convertible to capital stock;
(c) for the borrowing of money (including any mortgage, indenture or
other instrument) or the guaranty of any obligation for the borrowing of money;
(d) for leasing personal property (including, without limitation,
leases for machinery and office equipment, furniture, fixtures, vehicles, tools
and dies);
(e) for vendor supply contracts or customer "blanket" purchase orders;
(f) providing for the services of dealers, distributors, sales
representatives or similar representatives;
(g) for the purchase of equipment (including, without limitation,
machinery, office equipment and fixtures); or
(h) relating to the ownership, use or licensing of any patents,
trademarks, trade names, brand names, copyrights, inventions, processes, know
how, formulae, trade secrets or other proprietary rights. All of the Contracts
constitute legal, valid and binding obligations of the Corporations, are in full
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force and effect, and neither the Corporations, nor, to the knowledge of the
Shareholders, any other party thereto has violated any Material provision of, or
committed or failed to perform any material act which with notice, lapse of time
or both would constitute a default under the provisions of any Contract, the
termination of which could have a Material adverse effect upon the properties,
assets, liabilities, financial condition, results of operations or business
prospects of the Corporations. Correct and complete copies of all written
Contracts disclosed on Schedule 4.9 have been made available to the Purchaser.
4.10 NO DEFAULT, VIOLATION OR LITIGATION
Except as disclosed in Schedule 4.10, the Corporations are not in violation of
any law, regulation or order of any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
(including, without limitation, laws, regulations, orders, restrictions and
compliance schedules applicable to environmental standards and controls, wages
and hours, civil rights and occupational health and safety), except where the
failure to so comply would not have a Material adverse effect on the
Corporations and neither the Shareholders nor the Corporations have received any
written notice of claimed non-compliance. Except as disclosed in Schedule 4.10,
there are no lawsuits, proceedings, claims or governmental investigations
pending or, to the knowledge of the Shareholders, threatened against, or
involving, the Corporations or against its property or business. Except as set
forth in Schedule 4.10, there is no basis known to the Shareholders for any such
action which could have a Material adverse effect upon the properties, assets,
liabilities, financial condition, results of operations or business prospects of
the Corporations or its right to conduct its business as presently conducted.
Except as set forth in Schedule 4.10, there are no judgements, consents,
decrees, injunctions, or any other judicial or administrative mandates
outstanding against the Corporations which Materially and adversely affect the
properties, assets, liabilities, financial condition, results of operations or
business prospects of the Corporations or their respective right to conduct its
business as presently conducted.
4.11 APPROVALS
The Corporations possess or have applied for all material governmental and other
permits, licenses, consents, certificates, orders, authorizations and approvals
(the "Approvals") to own or hold under lease and operate their property and
assets and to carry on their business as now conducted. Neither the Shareholders
nor the Corporations have received any notice of proceedings relating to the
revocation or modification of any such Approvals which, singly or in the
aggregate, if the subject of an unfavourable ruling or finding, could Materially
adversely affect the properties, assets, financial condition, results of
operation or business prospects of the Corporations. The Approvals are
identified in Schedule 4.11. The Corporations are operating in compliance with
the provisions, terms and conditions of the Approvals.
4.12 TRANSACTIONS WITH AFFILIATES
Except as set forth in Schedule 4.12 or in the Financial Statements, no amounts
have been paid (or deemed for accounting purposes to have been paid) by the
Corporations to or received by the Corporations from the Shareholders or any of
their Affiliates since August 1, 2003 for products or services (including
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amounts paid for administrative, purchasing, financial, or other services),
other than in the normal course of business. All related transactions and inter
company debts between the Shareholders and the Corporations shall be satisfied
and eliminated prior to Closing.
4.13 CORPORATE RECORDS
All of the minute books and stock record books of the Corporations have been
made available to the Purchaser and its agents for inspection, are accurate and
correct in all Material respects, and contain all of the corporate minutes and
stock records of the Corporations from inception to the date hereof. Such
minutes and records for the period from this date to the Closing Date will be
made available to the Purchaser on or before Closing. All accounts, books,
ledgers, financial and other records of whatsoever kind of the Corporations have
been fully, properly and accurately maintained in all Material respects and all
transactions of the Corporations that are reflected therein are truly and
accurately reflected in all Material respects. (Schedule 4.13)
4.14 OTHER MATERIAL ADVERSE INFORMATION
Except as expressly set forth in this Agreement and the Schedules or in the
Financial Statements, or in the certificates or other documents delivered
pursuant hereto, or matters which affect the economy generally or the industry
generally of which the Corporations are a part, the Shareholders have no
knowledge of any facts which will or may reasonably be expected to have any
Material adverse effect on the value of the business or goodwill of the
Corporations or upon their prospects or earning power.
4.15 DISCLOSURE
No representation or warranty of the Shareholders made hereunder or in the
Schedules or in any certificate, statement or other document delivered by or on
behalf of the Shareholders hereunder contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading. Copies of all documents referred to
herein or in the Schedules have been delivered or made available to the
Purchaser, are true, correct and complete copies thereof, and include all
amendments, supplements or modifications thereto or waivers thereunder.
4.16 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, warranties and covenants set forth herein and in any
document, certificate or other instrument delivered by or on behalf of the
Shareholders pursuant hereto shall survive the date hereof and the Closing of
the transactions contemplated herein, notwithstanding any investigation made by
the Purchaser, or on its behalf, prior hereto.
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ARTICLE 5 - ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders represent and warrant to the Purchaser as follows:
5.1 AUTHORIZATION
The Shareholders have full power and authority to execute and deliver this
Agreement and all other agreements and documents to be executed and delivered by
the Shareholders pursuant hereto, and to consummate the transactions
contemplated hereby and thereby. This Agreement and all other agreements and
documents to be executed and delivered by the Shareholders pursuant hereto,
constitute the valid and binding agreements of the Shareholders, enforceable in
accordance with their respective terms.
5.2 NO VIOLATION
Neither the execution and delivery of this Agreement by the Shareholders, nor of
any other agreement or document to be executed and delivered by the Shareholders
pursuant hereto, nor the consummation by the Shareholders of the transactions
contemplated hereby or thereby will constitute a violation of, or be in conflict
with, or result in a cancellation of or constitute a default under, or create
(or cause the acceleration of the maturity of) any debt, obligation or liability
affecting the Purchased Shares owned by the Shareholders pursuant to, or result
in the creation or imposition of any security interest, lien, or other
encumbrance upon the Purchased Shares owned by the Shareholders under:
(a) any contract, agreement, lease or other commitment to which the
Shareholders are a party or by which the Shareholders are bound;
(b) any judgement, decree, order, regulation or rule of any court or
governmental authority; or
(c) any statute or law.
Except as set forth in Schedule 5.2, no consent of, or notice to, any federal,
state or local authority, or any private person or entity is required to be
obtained or given by the Shareholder in connection with the execution, delivery
and performance of this Agreement and the other agreements and documents to be
executed, delivered and performed by the Shareholders pursuant hereto.
5.3 STOCK OWNERSHIP
The Shareholders are the lawful owner of record and beneficially of the
Purchased Shares set forth in Schedule 2.2 hereto, free and clear of all
mortgages, liens, pledges, charges, security interests, encumbrances or other
third party interests of any nature whatsoever, including, without limitation,
subscriptions, options, warrants, rights or other agreements granting to any
person, firm or corporation any interest in or right to acquire from the
Shareholders at any time, or upon the happening of any stated event, any shares
(or interests therein) of the Purchased Shares owned by the Shareholders.
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ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Shareholders as follows:
6.1 ORGANIZATION AND GOOD STANDING
The Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of its province of incorporation, and has all requisite
corporate power and authority to own or hold under lease its properties and
assets and to carry on its business as now conducted. The Purchaser is duly
qualified to do business and is in good standing in every jurisdiction in which
a failure to so qualify could have a material adverse effect upon its
properties, assets, financial condition, results of operation or business
prospects.
6.2 AUTHORIZATION
The Purchaser has all requisite power and authority to execute and deliver this
Agreement and all other agreements and documents to be executed and delivered by
the Purchaser pursuant hereto and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and all other agreements
and documents to be executed and delivered by the Purchaser pursuant hereto, and
the consummation of the transactions contemplated hereby and thereby have been
duly authorized by all necessary action on the Purchaser's part and this
Agreement and all other agreements and documents to be executed and delivered by
the Purchaser pursuant hereto constitute the valid and binding agreements of the
Purchaser enforceable against the Purchaser in accordance with their respective
terms (subject, as to the enforcement of remedies, to general principles of
equity and to bankruptcy, insolvency and similar laws affecting creditors'
rights generally). No consent of, or notice to, any federal, state or local
authority, or any other person or entity is required to be obtained or made by
the Purchaser in connection with the execution, delivery and performance of this
Agreement and the other agreements and documents to be executed, delivered and
performed by the Purchaser pursuant hereto.
6.3 NO VIOLATION
Neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated hereby will constitute a violation of, or be in
conflict with, or result in a cancellation of, or constitute a default under, or
create (or cause the acceleration of the maturity of) any debt, obligation or
liability affecting, or result in the creation or imposition of any security
interest, lien, or other encumbrance upon any of the assets owned or used by, or
any of the capital stock of the Purchaser under:
(a) any term or provision of the certificate of incorporation or by
laws (or other organic document) of the Purchaser;
(b) any contract, agreement, indenture, lease or other commitment to
which the Purchaser is party or by which the Purchaser is bound;
(c) any judgment, decree, order, regulation or rule of any court or
governmental authority; or
(d) any statute or law.
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Except as otherwise provided for herein, no consent of, or notice to, any
federal, state, or local authority, or any private person or entity, is required
to be obtained or given by the Purchaser in connection with the execution,
delivery or performance of this Agreement or any other agreement or document to
be executed, delivered or performed hereunder by the Purchaser.
6.4 PURCHASER ISSUED AND AUTHORIZED CAPITAL.
The authorized capital of Purchaser consists of an unlimited number of common
shares without par value. The issued share capital of Purchaser consists of no
more than 20,000,000 common shares and, except for the Purchaser Shares to be
issued in connection with the transactions contemplated hereby, no other
securities of Purchaser are issued and outstanding. no person has any agreement
or option or any right or privilege (whether by law, pre-emptive right, contract
or otherwise) capable of becoming an agreement, option or right for the
purchase, subscription, allotment or issuance of any unissued securities of
Purchaser.
6.5 ISSUANCE OF PURCHASER SHARES.
The issuance of the Purchaser Shares has been duly authorized and when issued in
accordance with the terms and conditions of this Agreement, the Purchaser Shares
will be validly issued, fully-paid and non-assessable and will not be subject
to, nor will they be issued in violation of, any pre-emptive rights.
ARTICLE 7 - COVENANTS OF THE SHAREHOLDERS
The Shareholders covenant and agree with the Purchaser that from the date hereof
until the Closing or other termination of this Agreement, without the prior
written consent of the Purchaser:
7.1 OPERATIONS
Except as otherwise expressly permitted by the terms hereof or as otherwise
agreed to in writing by the Purchaser:
(a) Each of the Corporations shall operate and conduct its business and
operate its assets in the normal course of business and in substantial
compliance with all applicable laws, rules and regulations;
(b) Each of the Corporations shall maintain its tangible assets in as
good a state of operating condition and repair as they are on the date hereof,
except for ordinary depreciation and wear and tear;
(c) The Shareholders shall not sell, pledge, lease, mortgage, encumber
or otherwise dispose of any of the Purchased Shares and the Corporations shall
not sell, pledge, lease, mortgage, encumber or otherwise dispose of any of its
assets other than sales of inventory in the ordinary course of business;
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(d) The Corporations shall not accelerate the payment of any mortgage
or any other obligation or commitment of theirs or relating to any of their
assets except to the extent of that portion which is due and payable prior to
the Closing Date in the ordinary course of business;
(e) The Corporations shall preserve intact the organizations and
personnel of the Corporations and keep available the services of all of their
employees, agents, brokers, independent contractors and consultants,
commensurate with their business requirements;
(f) The Corporations shall preserve intact their customer relationships
and the goodwill of all customers and others, in accordance with the ordinary
course of business;
(g) The Corporations shall keep in force all policies of insurance
covering their business and assets.
(h) The Corporations shall not enter into any contracts or commitments
for the purchase or lease of equipment, for other capital expenditures, or
become obligated upon any other contracts not in the ordinary course of
business, involving in the aggregate, in excess of $10,000, without the prior
written approval of the Purchaser, unless the approval or amount is waived or
modified in writing by the Purchaser;
(i) Except with the prior consent of the Purchaser, which shall not be
unreasonably withheld, the Corporations will not declare or pay any dividend or
make any other distribution to any shareholder with respect to the capital stock
of the Corporations, will not purchase or redeem any of their shares of capital
stock, will not issue rights or options to purchase or subscribe to any shares
of their capital stock, issue or sell any shares of their capital stock or alter
their equity interests, will not pay any fees to the Shareholders or any of
their Affiliates outside the normal course of business;
(j) The Corporations shall not acquire or agree to acquire (through
redemption or otherwise) any of their outstanding securities, incur or agree to
incur any obligations to issue securities nor issue, sell or dispose of any of
the securities or options or rights convertible into securities of the
Corporations, except as otherwise expressly approved in advance and in writing
by the Purchaser; and
(k) The Corporations shall not take, agree to take, or knowingly permit
to be taken any action or do or knowingly permit to be done anything in the
conduct of their business, or otherwise, which would be contrary to or in breach
of any of the terms or provisions of this Agreement, or (except as expressly
contemplated by this Agreement) which would cause any of the representations,
warranties or covenants of the Shareholders contained herein to be or become
untrue.
7.2 NO SOLICITATION
Neither the Shareholders nor any officers, directors, employees, trustees or
agents of the Corporations will prior to the Closing Date or other termination
of this Agreement in accordance with its terms, whichever is earlier, solicit,
negotiate, act upon or entertain in any way an offer from any other person or
entity to purchase any of the Purchased Shares or the capital stock of the
17
Corporations or any asset of the Corporations (other than sales of inventory or
services in the ordinary course of business). The Shareholders agree to promptly
notify the Purchaser upon the receipt by any of them of an unsolicited competing
offer in respect of such a purchase, and of the proposed terms thereof.
7.3 NOTIFICATION
The Shareholders agree to promptly notify the Purchaser in writing upon becoming
aware of:
(a) any Claims, Proceedings or Restrictions which could materially and
adversely affect the assets, financial condition or prospects of the
Corporations or its assets or the ability of the Shareholders to perform their
obligations under this Agreement; and
(b) any event or matter arising between the date hereof and the Closing
that would render untrue or be inconsistent with any of the Shareholders'
representations, warranties or covenants herein. Promptly after the date hereof,
the Shareholders shall advise those managers of the Corporations who have not
previously been so advised to advise the Corporations and the Shareholders
promptly of any such matters of which the managers may become aware.
7.4 ADDITIONAL INFORMATION
The Shareholders will make available to the Purchaser and its authorized agents
and accountants for inspection, at reasonable times and under reasonable
circumstances, assets, business and financial records, management reports, all
tax returns and working papers of the Corporations, files and memoranda of their
public accountants and outside legal counsel and relevant materials relating to
the Corporations, their assets or business for the purpose of making such
accounting review, legal and audit investigation or examination deemed desirable
by the Purchaser. The Shareholders will cause the officers, employees, public
accountants and outside legal counsel of the Corporations to cooperate fully
with such examination and to make a full and complete disclosure to the
Purchaser of information requested by the Purchaser regarding the financial
condition and business operations of the Corporations.
7.5 CONDITIONS
The Shareholders shall use commercially reasonable efforts to cause all of the
conditions in Article 9 and elsewhere herein over which he has control to occur
in time for the Closing and take all other actions and do, or cause to be done
all things necessary, proper or advisable on the part of the Shareholders to
consummate and make effective the transactions contemplated by this Agreement.
7.6 INTERIM OR ANNUAL FINANCIAL STATEMENTS
The Shareholders shall promptly provide the Purchaser with any interim or annual
monthly and/or quarterly and/or annual financial statements with respect to any
of the assets or operations of the Corporations prepared in the ordinary course
of business or otherwise available to the Shareholders or to management of the
Corporations together with any management reports so prepared regarding the
Corporations.
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7.7 GUARANTEES
The Shareholders shall have caused any guarantee by the Corporations of the
debts or obligations of any third party to be terminated or released.
ARTICLE 8 - ADDITIONAL COVENANTS TO THE PURCHASER
The Purchaser covenants with the Shareholders that, from and after the date
hereof and until the Closing Date, it will:
8.1 NOTIFICATION
Promptly notify the Shareholders in writing of any lawsuits, claims,
proceedings, or investigations of which the Purchaser may become aware that may
be threatened, brought, asserted or commenced by or against the Purchaser which
could Materially and adversely affect the Purchaser or the Purchaser's ability
to perform its obligations under this Agreement.
8.2 CONDITIONS
Use commercially reasonable efforts to cause all of the conditions in Article 9
over which they have control to occur in time for the Closing, including,
without limitation, the execution and delivery of the Consulting Agreement and
take all other actions and do, or cause to be done, all things necessary, proper
or advisable on the part of the Purchaser to consummate and make effective the
transactions contemplated by this Agreement.
ARTICLE 9 - CONDITIONS TO CLOSING
9.1 MUTUAL CONDITIONS
The respective obligations of each party to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment at or prior
to Closing of each of the following conditions:
(a) No suit, action or other proceeding or investigation shall to the
knowledge of any party hereto be threatened or pending before or by any
governmental agency or by any third party questioning the legality of this
Agreement or the consummation of the transactions contemplated hereby in whole
or in part.
(b) All the directors and shareholders of the Shareholders shall have
approved of the transaction contemplated by this Agreement.
9.2 CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The obligations of the Purchaser to consummate the transactions contemplated by
this Agreement shall be subject to the fulfillment at or prior to Closing of
each of the following conditions:
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(a) All representations and warranties made by the Shareholders
contained in this Agreement shall be true and correct on the date hereof and as
of the Closing Date as though such representations and warranties were made as
of the Closing Date, and the Shareholders shall have duly performed or complied
with all of the obligations to be performed or complied with by them under the
terms of this Agreement on or prior to Closing.
(b) The Shareholders shall have complied with and performed all
agreements, covenants and conditions in this Agreement required to be performed
and complied with by them on or before the Closing Date, and that all requisite
action (corporate and other) in order to consummate this Agreement shall have
been properly taken by the Shareholders.
(c) No Material adverse change shall have occurred in the condition
(financial or otherwise) of the Corporations, their assets or business
considered as a whole.
(d) The Purchaser shall have received from, counsel to the
Shareholders, an opinion of such counsel, dated the Closing Date, in
substantially the form attached hereto as Schedule 9.2(d).
(e) All material authorizations, consents, waivers, approvals or other
action required in connection with the execution, delivery and performance of
this Agreement by the Shareholders and the consummation by the Shareholders of
the transactions contemplated hereby, shall have been obtained, and the
Corporations or the Shareholders shall have obtained any authorizations,
consents, waivers, approvals or other action required in connection with the
execution, delivery and performance of this Agreement to prevent a material
breach or default by the Corporations or the Shareholders under any contract to
which the Corporations or the Shareholders are a party or for the continuation
of any agreement to which the Corporations are a party and which relates and is
material to the business of the Corporations.
(f) The Shareholders shall have delivered to the Purchaser all
instruments of assignment, transfer and conveyance of the Purchase Shares,
including, without limitation, properly executed stock powers (assignments
separate from certificate) and such other closing documents as shall have been
reasonably requested by the Purchaser, all in form and substance reasonably
acceptable to the Purchaser's counsel.
(g) At the Purchaser's option, the Purchaser shall have received
resignations of the directors and officers of the Corporations from their
positions as such, together with releases of the Corporations by the
Shareholders, directors and officers of any further liabilities or obligations
which the Corporations may have to the Shareholders due to such relationship all
in form and substance reasonably acceptable to the Purchaser's counsel.
(h) The Corporations shall have kept in effect all existing policies of
insurance covering their business, property and assets.
(i) All amounts due the Corporations from any Affiliates, officers or
employees shall have been paid in full. All Taxes, to the extent due and
payable, have been paid and brought current.
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(j) The Purchaser shall have satisfactorily completed its due diligence
review and audit of the Corporations' books and records and operations. The
Purchaser shall be deemed to have waived this condition precedent unless the
Purchaser notifies the Shareholders to the contrary before the Closing Date.
9.3 CONDITIONS TO THE SHAREHOLDERS' OBLIGATIONS
(a) The obligations of the Shareholders to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment at or prior
to the Closing of each of the following conditions:
(b) The representations and warranties of the Purchaser contained in
this Agreement shall be true and correct on the date hereof and as of the
Closing Date as though such representations and warranties were made as of the
Closing Date, and the Purchaser shall have duly performed or complied with all
of the obligations to be performed or complied with by it under the terms of
this Agreement on or prior to Closing.
(c) All Material authorizations, consents, waivers, approvals or other
action required in connection with the execution, delivery and performance of
this Agreement by the Purchaser, and the consummation by the Purchaser of the
transactions contemplated hereby, shall have been obtained.
(d) The Purchaser shall have delivered to the Shareholders all other
closing documents as shall have been reasonably requested by the Shareholders,
in form and substance reasonably acceptable to the Shareholders' counsel.
(e) The Purchaser shall have complied with and performed all
agreements, covenants and conditions in this Agreement required to be performed
and complied with by it on or before the Closing Date, and that all requisite
action (corporate and other) in order to consummate this Agreement shall have
been properly taken by the Purchaser
(f) The Purchaser shall have caused the Shareholders to be discharged
of all the personal guarantees for debts of Kischi, as set out in Schedule
9.3(f).
(g) The Purchaser and the Listed Company shall have obtained all
required regulatory approvals for the Closing of this Comprehensive Transaction
as set out in Schedule 9.3(g).
ARTICLE 10 - TERMINATION
10.1 TERMINATION OF AGREEMENT
This Agreement and the transactions contemplated hereby may be terminated at any
time prior to Closing, as follows:
(a) By mutual consent of the Parties hereto.
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(b) By the Purchaser on the one hand or by the Shareholders on the
other hand by reason of the breach by the other in any Material respect of any
of its or their representations, warranties, covenants or agreements contained
in this Agreement which is not cured within five days from or date of written
notice of such breach.
(c) By the Purchaser on the one hand or by the Shareholders on the
other hand if the conditions precedent to their respective obligations contained
in Sections 9.2 or 9.3 hereof have not been met in all material respects on or
prior to Closing.
(d) By the Purchaser on the one hand or by the Corporations and the
Shareholders on the other hand if any of the conditions described in Section 9.1
shall not have been fulfilled on or prior to Closing.
(e) In the event of termination of this Agreement by reason of a
material breach by any Party, then the non-offending Party shall have full
recourse for any and all loss, costs, damages or liability suffered or incurred
by them as a result of the breach.
(f) Termination of this Agreement shall not relieve any Party from any
obligations which are intended to be of a continuing nature.
10.2 TERMINATION OF AGREEMENT AND NON-RECOURSE
Provided that, as of the date of signature of the present Agreement, the
Shareholders fully consent and cooperate and cause Kischi and the Holdings to
fully consent and cooperate fully consents and cooperates with the Purchaser and
its legal counsel and the Listed Company and its legal counsel by posing all
acts, deeds, signatures, remittances required for the Closing in a complete and
timely manner, this Agreement, if not extended by the Parties in writing prior
to the Closing Date shall terminate, become null and void and the Parties will
have no further recourses against each other.
ARTICLE 11 - GENERAL PROVISIONS
The Shareholders and the Purchaser further covenant and agree as follows:
11.1 WAIVER OF TERMS
Any of the terms or conditions of this Agreement may be waived at any time by
the party or parties entitled to the benefit thereof but only by a written
notice signed by the party or parties waiving such terms or conditions.
11.2 AMENDMENT OF AGREEMENT
This Agreement may be amended, supplemented or interpreted at any time only by
written instrument duly executed by each of the Shareholders and the Purchaser.
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11.3 PAYMENT OF EXPENSES
The Corporations and the Purchaser shall each pay their own expenses, including,
without limitation, the expenses of counsel, investment bankers and accountants,
incurred in connection with the preparation, execution and delivery of this
Agreement and the other agreements and documents referred to herein and the
consummation of the transactions contemplated hereby and thereby. In any action
brought by either the Shareholders or the Purchaser to enforce any of the
provisions of this Agreement and the other agreements and documents referred to
herein, all expenses incurred by the prevailing party in connection with such
actions, including reasonable attorneys' fees, shall be borne by the non
prevailing party in such action.
11.4 CONTENTS OF AGREEMENT, PARTIES IN INTEREST, ASSIGNMENT
This Agreement and the other agreements and documents referred to herein set
forth the entire understanding of the parties with respect to the subject matter
hereof. Any previous agreements or understandings between the parties regarding
the subject matter hereof are merged into and superseded by this Agreement. All
representations, warranties, covenants, terms and conditions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, legal representatives, successors and permitted assigns of the
parties hereto.
11.5 NOTICES
All notices, requests, demands and other communications required or permitted to
be given hereunder shall be by hand delivery, certified or registered mail,
return receipt requested; telex, telecopier, or next day air courier to the
parties set forth below. Such notices shall be deemed given: at the time
personally delivered, if delivered by hand; three days after deposit in the
Canadian mail, if sent registered mail; when answered back, if telexed; upon
delivery, with receipt acknowledged, if telecopied; and the next business day
after timely delivery to the courier, if sent by air courier.
If to the Purchaser: 3323455 Canada Inc
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇-▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Ouest
Bureau 1400
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Shareholders: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Any party hereto may change its notice address by proper notice to the other
parties.
11.6 BROKERS
The Purchaser, on the one hand, and the Shareholders, on the other hand,
represent and warrant that none of them has retained or used the services of any
individual, firm or corporation in such manner as to entitle such individual,
firm or corporation to any compensation for brokers' or finders' fees with
respect to the transactions contemplated hereby for which the other may be
liable or for which the Corporations may be liable.
11.7 SEVERABILITY
In the event that any one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions of this Agreement shall not be in any
way impaired.
11.8 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
11.9 HEADINGS
The headings of the Sections and the subsections of this Agreement are inserted
for convenience of reference only and shall not constitute a part hereof.
11.10 GOVERNING LAW; JURISDICTION
This Agreement shall be governed, construed and enforced in accordance with the
internal laws of the Province of Quebec and the parties hereto attorn to the
jurisdiction of the courts thereof, excluding any choice of law rules which may
direct the application of the laws of another jurisdiction.
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11.11 INSTRUMENTS OF FURTHER ASSURANCE
Each of the parties hereto agrees, upon the request of any of the other parties
hereto, from time to time to execute and deliver to such other party or parties
all such instruments and documents of further assurance or otherwise as shall be
reasonable under the circumstances, and to do any and all such acts and things
as may reasonably be required to carry out the obligations of such requested
party hereunder.
11.12 NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement is intended nor shall it be construed to give any
person, firm, corporation or other entity, other than the parties hereto and
their respective successors and permitted assigns, any right, remedy or claim
under or in respect of this Agreement or any provisions hereof.
11.13 CURRENCY
All monetary amounts expressed in this Agreement and all payments required by
this Agreement are and shall be in Canadian dollars.
11.14 LANGUAGE
The parties hereto state their express wish that this Agreement as well as all
documentation contemplated hereby, pertaining hereto or to be executed in
connection herewith be drawn up in the English language only; Les parties aux
presentes expriment leur ▇▇▇▇▇ explicite a l'effet que cette entente, de meme
que tous documents envisages par les presentes, y ayant trait ou qui seront
signes relativement aux presentes soient rediges en anglais seulement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
on the day and year first above written.
3323455 CANADA INC. 3563405 CANADA INC.
Per: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
3563456 CANADA INC.
Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
3054276 CANADA INC. 2906694 CANADA INC.
Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
KISCHI KONSULTING INC.
Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
26
