SHARE PURCHASE AGREEMENT
MADE AND ENTERED INTO ON THE 15TH DAY OF SEPTEMBER 1999.
BETWEEN:
IVISION GROUP LTD., a corporation duly incorporated under the laws
of Nevada, U.S.A., and having its head office at 0000 Xxxx Xxxxxxxx Xxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxx, X.X.X. 00000, acting and represented hereby by
Xxxxx Xxxxxx, duly authorized as he so declares,
(hereinafter referred to as the "Purchaser");
AND:
XXXXXXXX XXXXXXX, a businessman, domiciled and residing at 0000,
Xxxxxxx xxxxxx, Xxxxxxxxxxxxx, Xxxxxx, X0X 0X0;
(hereinafter referred to as "Xxxxxxx")
AND:
SCHLAGALACK INC., a company duly incorporated under the laws of Quebec
and having its head office at 0000, xxx Xxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxx,
X0X 0X0, acting and represented hereby by Xxxx ois Xxxxxxx, its president, duly
authorized as he so declares;
(hereinafter referred to as "Schlagalack")
(collectively referred to as the "Vendor" on a joint and several basis
hereinafter);
AND:
IXIEM! PRODUCTIONS INC., a corporation duly incorporated under the Laws
of Canada and having its head office at 0000, Xxx-Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxx, X0X 0X0, acting and represented hereby by Xxxx ois Xxxxxxx, its
President, duly authorized as he so declares;
(hereinafter referred to as "Ixiem" or the "Acquired Corporation");
WHEREAS the Purchaser is a publicly traded company listed on the OTC
Bulletin Board, involved in web commerce interactive marketing and related
matters;
WHEREAS Ixiem, a company duly incorporated under the laws of Quebec, having
its head office and principal place of business at 0000, Xxxxx-Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxx, X0X 0X0 (hereinafter referred to as "Ixiem"), is a web project
management consulting corporation;
WHEREAS all the issued and outstanding shares in the share capital of Ixiem are
owned under the Laws of Quebec, by the Vendor; and
WHEREAS the Purchaser wishes to purchase and the Vendor wishes to sell to
the Purchaser all of the issued and outstanding shares in the share capital of
Ixiem.
NOW THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants hereinafter provided, the parties agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
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1.1 DEFINITIONS - Whenever used in this Agreement, unless there is something
-----------
inconsistent in the subject matter or context, the following words and terms
shall have the meanings set out below:
1.1.1 ACCOUNTS RECEIVABLE means any and all accounts receivable, bills
receivable and book debts of the Acquired Corporation as the case may be, prior
to the Closing Date;
1.1.2 ACCRUED LIABILITIES means any and all accrued liabilities of the
Acquired Corporation incurred in the ordinary course of business, including
accruals for vacation pay, customer rebates and allowances for product returns;
1.1.3 ACQUIRED CORPORATION means Ixiem;
1.1.4 AGREEMENT means this Share Purchase Agreement, including all
schedules, and all instruments supplementing or amending or confirming this
Agreement and references to Article or Section mean and refer to the
specified Article or Section of this Agreement;
1.1.5 ARM'S LENGTH means arm's length as defined in the Income Tax Act
(Canada);
1.1.6 BALANCE SHEETS means the balance sheet of Ixiem as at May 31st, 1999
copy of which are attached is Schedule 1.1.16;
1.1.7 BOOKS AND RECORDS means all books and records of the Acquired
Corporation, including financial, corporate, operation and sales books, records,
books of account, sales and purchase records, lists of suppliers and customers,
business reports, plans and projections and all other documents, files, records,
correspondence, and other data and information, financial or otherwise,
including without limitation, all data and information stored on
computer-related media;
1.1.8 CLAIMS means any claim, demand, action, cause of action, damage,
loss, costs, liability or expense, including, without limitation, reasonable
professional fees and all costs incurred in pursuing any of the foregoing;
1.1.9 CLOSING means the completion of the sale to and purchase by the
Purchaser of the Purchased Shares under this Agreement and all ancillary
transactions contemplated hereof;
1.1.10 CLOSING DATE means the 15th day of September 1999, or such other
date as the parties may agree in writing as the date upon which the Closing
shall take place;
1.1.11 CLOSING TIME means 5:30 P.M., Montreal time, on the Closing Date or
such other time on such date as the parties may agree in writing as the time at
which the Closing shall take place;
1.1.12 CONTRACTS means all contracts, licences, leases, agreements,
commitments, entitlements and engagements of the Acquired Corporation whether
written or oral and includes all quotations, orders or tenders for contracts
which remain open for acceptance and any supplier's warranty, guarantee or
commitment (express or implied);
1.1.13 ENCUMBRANCE means any pledge, lien, charge, hypothec, security
agreement, lease, title retention agreement, mortgage, encumbrance or option;
1.1.14 EQUIPMENT CONTRACTS means all leases, equipment leases, conditional
sales contracts, leasings, installment sales, title retention agreements and
other similar agreements relating to equipment;
1.1.15 EXCHANGED SHARES means collectively all shares of Common Stock in
the share capital of the Purchaser issued to the Vendor pursuant to section 3 of
this Agreement;
1.1.16 FINANCIAL STATEMENTS means the unaudited financial statements for
the fiscal year ended December 31st 1998, copy of which is attached as Schedule
1.1.16;
1.1.17 GOVERNMENTAL AUTHORITY means any government, regulatory authority,
governmental department, agency, commission, board, tribunal, crown corporation,
or court or other law, rule or regulation-making entity having or purporting to
have jurisdiction on each of the Acquired Corporation, as the case may be;
1.1.18 GOVERNMENTAL AUTHORIZATION means all authorizations, approvals,
licences or permits issued, granted, given, or otherwise made available by or
under the authority of any Governmental Authority as required pursuant to Laws;
1.1.19 INDEBTEDNESS means the indebtedness of the Acquired Corporation for
borrowed money including principal and accrued interest and the cost of
repayment of any indebtedness of the Acquired Corporation for borrowed money;
1.1.20 INTELLECTUAL PROPERTY means all copyrights, trademarks, trade
names, proprietary informations, trade secrets and all other intellectual
property owned by, licensed to or used by the Acquired Corporation (including
applications and registrations for any of the foregoing and renewals, divisions,
extensions and reissues, where applicable, pertaining thereto) as described in
Schedule 1.1.20;
1.1.21 INVENTORIES means all inventories of every kind and nature and
wheresoever situate, owned by the Acquired Corporation including, without
limitation, all work-in-progress;
1.1.22 LAWS means all applicable laws, by-laws, rules, regulations,
orders, ordinances and judgements or other requirements of any Governmental
Authority;
1.1.23 LOSSES means any damage, liability, loss, cost, expense (including
all reasonable attorney's), deficiency, interest, penalty, impositions,
assessments or fines;
1.1.24 MATERIAL CONTRACTS means (a) the Equipment Contracts, Real Property
Leases; (b) any other Contract involving aggregate annual payments to or by any
Acquired Corporation in excess of $1,000.00; (c) any commitment to or by the
Acquired Corporation that may reasonably extend beyond three (3) months from the
Closing Date; and (d) any Contract which is outside the ordinary course of
business;
1.1.25 PERSON means any individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate, Governmental Authority, and a natural
person in such person's capacity as trustee, executor, administrator or other
legal representative;
1.1.26 PURCHASED SHARES means all of the issued and outstanding shares in
the share capital of Ixiem, as described in Schedule 2.1;
1.1.27 REAL PROPERTY LEASES means those leases, subleases, agreements to
lease, tenancy agreement, rights of occupation, licences and other agreements
relating to real property used or occupied by the Acquired Corporation;
1.1.28 TAX RETURNS includes, without limitation, all returns, reports,
declarations, elections, notices, filings, information returns and statements
filed in respect with Taxes; and
1.1.29 TAXES includes, without limitation, all taxes, duties, fees,
premiums, assessments, imposts, levies and other charges of any kind whatsoever
imposed by any Governmental Authority, together with all interest, penalties,
fines, additions to tax or other additional amounts imposed in respect thereof,
including, without limitation, those levied on, or measured by, or referred to
as income, gross receipts, profits, capital, transfer, land transfer, sales,
goods and services, use, value-added, excise, stamp, withholding, business,
franchising, property, payroll, employment, health, social services, education
and social security taxes, all surtaxes, all customs duties and import and
export taxes, all license, franchise and registration fees and all employment
insurance, health insurance and Canada, Quebec and other government pension plan
premiums.
1.1.30 VENDOR means Xxxxxxx and Schlagalack on a joint and several basis.
1.2 CERTAIN RULES OF INTERPRETATION - In this Agreement and the Schedules:
---------------------------------
(a) TIME - time is of the essence in the performance of the parties'
----
respective obligations;
(b) CURRENCY - unless otherwise specified, all references to money amounts
--------
are to Canadian currency;
(c) HEADINGS - the descriptive headings of Articles and Sections are
--------
inserted solely for convenience of reference and are not intended as complete or
accurate descriptions of the content of such Articles or Sections;
(d) SINGULAR, ETC. - the use of words in the singular or plural, or with a
---------------
particular gender, shall not limit the scope or exclude the application of any
provision of this Agreement to such person or persons or circumstances as the
context otherwise permits;
(e) CALCULATION OF TIME - unless otherwise specified, time periods within or
-------------------
following which any payment is to be made or act is to be done shall be
calculated by excluding the day on which the period commences and including the
day on which the period ends and by extending the period to the next business
day following if the last day of the period is not a business day;
1.3 ENTIRE AGREEMENT - This Agreement together with the agreements and other
----------------
documents to be delivered pursuant to this Agreement, constitute the entire
agreement between the parties pertaining to the subject matter of this Agreement
and supercede all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties, and there are no
warranties, representations or other agreements between the parties in
connection with the subject matter of this Agreement except as specifically set
forth in this Agreement and any document delivered pursuant to this Agreement.
No supplement, modification or waiver or termination of this Agreement shall be
binding unless executed in writing by the parties to be bound thereby.
1.4 APPLICABLE LAW - This Agreement shall be construed in accordance with
---------------
the laws of the Province of Quebec and the laws of Canada applicable therein and
shall be treated, in all respects, as a Quebec contract.
1.5 ACCOUNTING PRINCIPLES - All reference to generally accepted accounting
----------------------
principles means to principles recommended, from time to time, in the Handbook
of the Canadian Institute of Chartered Accountants and all accounting terms not
otherwise defined in this Agreement have the meanings assigned to them in
accordance with Canadian generally accepted accounting principles.
1.6 SCHEDULES - The schedules to this Agreement, as listed below, are an
---------
integral part of this Agreement:
Schedule Description
-------- -----------
1.1.16 Financial Statements
1.1.20 Intellectual Property
2.1 Shareholding and Authorized Share Capital of Ixiem
4.2.4 List of Equipment
4.2.22 Insurance Policy
4.2.23 a) Material Contracts
4.2.24 Protectron xxxx
ARTICLE 2
ACQUISITION TRANSACTIONS
------------------------
2.1 PURCHASE AND SALE OF THE PURCHASED SHARES - Subject to the terms and
---------------------------------------------
conditions herein, the parties shall effect the following transactions:
(a) at the Closing Time, the Vendor shall sell, transfer and assign to the
Purchaser and the Purchaser shall purchase and accept the assignment of all the
Purchased Shares, as listed in Schedule 2.1;
(b) the Purchaser shall pay and satisfy the purchase price for the Purchased
Shares as provided in Section 3;
(c) at the Closing Time, the Vendor shall transfer and deliver to the
Purchaser share certificates representing the Purchased Shares duly endorsed in
blank for transfer;
(d) the parties shall effect all transactions contemplated in Section 11.
2.2 ACTIONS/DELIVERIES BY THE PARTIES - At or before the Closing Time, the
-----------------------------------
Vendor and the Purchaser shall take and cause to be taken all necessary and
desirable actions, steps and corporate and legal proceedings to approve and
authorize the transactions contemplated by this Agreement.
2.3 PLACE OF CLOSING - The Closing shall take place at the Closing Time at
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the offices of Xxxxx X. Xxxxxx, located at 0, Xxxxxxxxx Xxxxxx, 00xx xxxxx,
Xxxxxxxxx (Xxxxxx), X0X 0X0, or at such other place as may be agreed upon by the
Vendor and the Purchaser.
ARTICLE 3
PURCHASE PRICE
--------------
3.1 PURCHASE PRICE - The total purchase price ("Purchase Price") for the
---------------
Purchased Shares is equal to the following considerations:
TWO HUNDRED THOUSAND (200,000) shares of Common Stock of Purchaser
(collectively referred to as "Exchanged Shares"), payable subject to the terms
and conditions and in the manner described in Section 3.2 hereinafter;
ONE DOLLAR (1.00$) payable subject to the terms and conditions and in the manner
described in Section 3.2 hereinafter
It is being understood between the parties that said Exchanged Shares and the
amount of ONE DOLLAR (1.00$) shall constitute the entire and sole consideration
payable by the Purchaser to Vendor.
3.2 SATISFACTION OF PURCHASE PRICE
---------------------------------
The share consideration payable to the Vendor shall be paid by the
issuance, of the Exchanged Shares in favor of the Vendor as follows:
(a) i) the issuance in favor of Xxxxxxx of 100,000 of the Exchanged
Shares which shall be released to Xxxxxxx no later then six (6) months following
the Closing Date, subject to the terms and conditions herein;
ii) the issuance of these shares is also subject to the condition that
Xxxxxxx works as a part time employee of the Purchaser or an affiliated company
of the latter for one (1) year starting on the Closing Date. It being
understood that, in the event that Xxxxxxx stops working for the Purchaser or an
affiliated company, the Vendor will have to remit all the Exchange Shares to the
Purchaser;
(b) i) six (6) months after the anniversary of the Closing Date, the
issuance in favor of Xxxxxxx of 100,000 of the Exchanged Shares, subject to the
terms and conditions herein;
ii) the issuance of these shares is also subject to the condition that
Xxxxxxx works as a part time employee of the Purchaser or an affiliated company
of the latter for an additional one (1) year starting on the anniversary of the
Closing Date. It being understood that, in the event that Xxxxxxx stops working
for the Purchaser or an affiliated company, the Vendor will have to remit
100,000 of the Exchange Shares to the Purchaser;
(c) In the event that Xxxxxxx is dismissed without cause or laid off by the
Purchaser or an affiliated company of the latter, subject to the other terms and
conditions herein, all the Exchanged Shares shall be issued as if Xxxxxxx was
still an employee of the Purchaser or an affiliated company.
The monetary consideration payable to the Vendor shall be paid as follows:
the payment of ONE DOLLAR (1.00$) by the Purchaser to Schlagalack at the Closing
Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
------------------------------
4.1 REPRESENTATIONS AND WARRANTIES CONCERNING THE VENDOR - The Vendor
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represents and warrants to the Purchaser as follows, and acknowledges that the
Purchaser is relying on said representations and warranties in entering into
this Agreement:
(A) RIGHT TO SELL - The Vendor is the sole registered and beneficial owner,
--------------
with good and marketable title thereto, of the Purchased Shares, the whole as
set out in Schedule 2.1 hereto, free and clear of all Encumbrances and prior
claim, hypothecs and pledges. The Vendor has the exclusive right to sell,
transfer and assign the Purchased Shares as provided in this Agreement and such
disposition will not violate, contravene, breach or offend against or result in
any default under any indenture, mortgage, lease, agreement, obligation,
instrument, charter or by-law provision, statute, regulation, order, judgment
decree, licence, permit or law to which the Vendor and the Acquired Corporation
is a party or subject or by which either of them are bound or affected.
(B) ENFORCEABILITY OF OBLIGATIONS - This Agreement has been duly authorized,
-----------------------------
executed and delivered by the Vendor and constitutes a valid and binding
obligation enforceable against him in accordance with its terms.
(C) ABSENCE OF CONFLICTING AGREEMENTS - The Vendor is not a party to, bound
----------------------------------
or affected by or subject to any indenture, mortgage, lease, agreement,
obligation, instrument, charter or by-law provision, statute, regulation, order,
judgment, decree, licence, permit or law which would be violated, contravened,
breached by, or under which default would occur or an Encumbrance would be
created as a result of the execution and delivery of this Agreement or any other
agreement to be entered into under the terms of this Agreement, or the
performance by the Vendor or the Acquired Corporation of any of their respective
obligations provided for under this Agreement or any other agreement
contemplated herein.
(D) NON-ARM'S LENGTH TRANSACTIONS - Neither the Vendor nor any Person not
-------------------------------
dealing at arm's length with him:
(a) owns, directly or indirectly, any interest in or is an employee,
consultant to or agent of, an entity which is a competitor, lessor, lessee,
customer or supplier of the Acquired Corporation;
(b) owns, directly or indirectly, any interest in any property or asset of
the Acquired Corporation;
(c) is a party to any Contract with any Acquired Corporation; or
(d) has any Indebtedness, liability or obligation to the Acquired
Corporation.
The Acquired Corporation is not indebted or otherwise obligated to the
Vendor or any Person not dealing at arm's length with any of them.
(E) RESIDENCE OF THE VENDOR - The Vendor is not a non-resident of Canada for
-----------------------
the purposes of the Income Tax Act (Canada).
(F) NO LITIGATION - There are no outstanding claims, actions, suits,
--------------
litigation or arbitrations, investigations or proceedings at law or before any
Governmental Authority pending or, to the knowledge of the Vendor, proposed or
threatened, which would prevent the Vendor from completing the transactions
required to be completed pursuant to this Agreement.
(G) BROKERS - The Vendor has not entered into any agreement that would
-------
entitle any Person to any claim against the Purchaser or the Acquired
Corporation for any broker's commission, finder's fee, agent's fee, fee for
financial intermediary services or any like payment in respect of the
transactions contemplated by this Agreement. To the knowledge of the Vendor, the
Acquired Corporation has not made or agreed to make any payment to any broker,
agent or professional advisor for or in connection with the transactions
contemplated in this Agreement.
4.2 REPRESENTATIONS AND WARRANTIES CONCERNING THE ACQUIRED CORPORATION -
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The Vendor represents and warrants to the Purchaser as follows, and acknowledges
that the purchaser is relying on said representations and warranties in entering
into this agreement:
4.2.1 INCORPORATION AND REGISTRATION - The Acquired Corporation is duly
--------------------------------
incorporated and validly existing under the laws of Quebec and has all necessary
corporate power, authority and capacity to own its properties and assets and to
carry on its business as presently conducted.
4.2.2 SUBSIDIARIES - Ixiem does not own, or have any interest in any
------------
securities of any other corporation.
4.2.3 CAPITALIZATION - The authorized and issued share capital of the
--------------
Acquired Corporation is as set forth in Schedule 2.1. All of the shares in the
capital of the Acquired Corporation have been duly authorized and validly issued
and are outstanding as fully paid and non-assessable shares of the Acquired
Corporation. No options, warrants or other rights to purchase shares or other
securities of the Acquired Corporation and no securities or obligations
convertible into or exchangeable for shares or other securities of the Acquired
Corporation have been authorized or agreed to be issued or are outstanding.
4.2.4 TITLE TO ASSETS - The Acquired Corporation is the sole beneficial and
----------------
sole owner of all of its respective assets and interests in assets, real and
personal, with good and valid title, free and clear of any Encumbrances.
Without limiting the foregoing, Ixiem is and remain at the Closing Date, the
sole owner, without any Encumbrances, of all electronic equipment listed in
Schedule 4.2.4.
4.2.5 ABSENCE OF CONFLICTING AGREEMENTS - The Acquired Corporation is not
------------------------------------
party to, bound or affected by or subject to any indenture, mortgage, lease,
agreement, obligation, instrument, charter or by-law provision, statute,
regulation, order, judgement, decree, licence, permit or law which would be
violated, contravened, breached by, or under which default would occur or an
Encumbrance would be created as a result of the execution and delivery of this
Agreement or any other agreement to be entered into under the terms of this
Agreement, or the performance by the Vendor or the Acquired Corporation of any
of their respective obligations provided for under this Agreement or any other
agreement contemplated herein.
4.2.6 REGULATORY APPROVALS - No governmental or regulatory authorization,
---------------------
approval, order, consent, or filing (save and except filing of declarations
under the Act Respecting the Legal Publicity of Sole Proprietorship,
Partnerships and Legal Persons (Quebec) and filing of appropriate forms to
Industry Canada) is required on the part of the Vendor or the Acquired
Corporation, in connection with the execution, delivery and performance of this
Agreement or any other documents and agreements to be delivered under this
Agreement or the performance of the Vendor's obligations under this Agreement or
any other documents and agreements to be delivered under this Agreement.
4.2.7 FINANCIAL STATEMENTS - The Financial Statements have been prepared in
---------------------
accordance with generally accepted accounting principles applied on a basis
consistent with that of the preceding period and present fairly:
(a) all of the assets, liabilities and financial position of the Acquired
Corporation as at the dates indicated; and
(b) the sales, earnings, results of operation and changes in financial
position of the Acquired Corporation for all of the dates and periods indicated.
4.2.8 ABSENCE OF LIABILITIES OF IXIEM - On the Closing Date, Ixiem has no
--------------------------------
liabilities or any obligation (whether accrued, absolute, contingent or
otherwise) outstanding.
4.2.9 ABSENCE OF CHANGES OR UNUSUAL TRANSACTIONS - Since the date of the
----------------------------------------------
Balance Sheet, Ixiem has carried on its business and conducted its operations
and affairs in the ordinary and normal course of business consistent with past
practice and there has not been:
(a) any material change in the financial condition or operations of Ixiem
other than changes in the ordinary and normal course of business, none of which
has been materially adverse;
(b) any damage, destruction, loss, labour trouble or other event,
development or condition of any character (whether or not covered by insurance)
materially and adversely affecting the business, assets or properties of Ixiem;
(c) any assumption of any obligation or liability (fixed or contingent),
except unsecured current obligations and liabilities incurred in the ordinary
and normal course of business;
(d) any discharge or satisfaction of any lien or encumbrance, or payment of
any obligation or liability (fixed or contingent) other than liabilities
included in the Balance Sheet and liabilities incurred since the date of the
Balance Sheet in the ordinary and normal course of business;
(e) any operating loss or any extraordinary loss, waiver or omission to take
any action in respect of any rights of substantial value, or entering into any
commitment or transaction not in the ordinary and normal course of business
where such loss, rights, commitment or transaction is or would be material in
relation to Ixiem;
(f) any mortgage, pledge, lien, grant of a security interest in or other
Encumbrance of any of its assets or property, whether tangible or intangible;
(g) directly or indirectly, any declaration or payment of any dividends or
declaration or making of any other payments or distributions on or in respect of
any of its shares or, directly or indirectly, the purchase or other acquisition
of any of its shares or any other capital outlays or expenditures by Ixiem or
withdrawals of capital from Ixiem; or
(h) the authorization, agreement or other commitment to do any of the
foregoing.
4.2.10 OPERATIONS- It is understood that Ixiem can terminate its Real
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Property Lease at its convenience, and that it has already moved its assets and
personnel to iVision Integral's premises situated at 0, Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxx, and since that time, has concentrated its operations and
resources for the benefit of iVision Integral Inc. and accordingly has changed
its normal cause of business.
4.2.11 RESERVES AND ACCRUALS - The reserves and Accrued Liabilities
-----------------------
disclosed on or reflected in the Financial Statements and the Books and Records
are sufficient in all respects to provide for the liabilities in respect of
which they have been established and have been established in accordance with
generally accepted accounting principles. In particular, Ixiem has made adequate
provisions in its Books and Records for any write-downs required for
uncollectible Accounts Receivable, obsolete or unusable Inventories.
4.2.12 NO JOINT VENTURE INTERESTS, ETC. - The Acquired Corporation is not a
---------------------------------
partner, beneficiary, trustee, co-tenancy, joint venture or otherwise a
participant in any partnership, trust, joint venture, co-tenancy or other
similar jointly owned business undertaking and the Acquired Corporation has no
other significant investment interests in any business owned or controlled by
any third party.
4.2.13 ABSENCE OF GUARANTEES - The Acquired Corporation has not given or
-----------------------
agreed to give, or is a party or bound by, any guarantee or indemnity in respect
of indebtedness, or other obligations, of any Person, or any other commitment by
which the Acquired Corporation is responsible for such indebtedness or other
obligations.
4.2.14 ABSENCE OF ACCOUNTS RECEIVABLE - On the Closing Date, there is no
---------------------------------
Account Receivable outstanding.
4.2.15 BUSINESS IN COMPLIANCE WITH LAW - In all material respects, the
-----------------------------------
operations of Ixiem have been and are now conducted in compliance with all
applicable Laws of each jurisdiction in which Ixiem carries on or has carried on
business and Ixiem has not received any notice of any alleged breach of any such
Laws. The Governmental Authorizations are all such authorizations required by
Ixiem to enable it to carry on its business in compliance with applicable Laws.
Such Governmental Authorizations are in full force and effect in accordance with
their terms, and there have been no violations thereof and no proceedings are
pending or, to the knowledge of the Vendor, threatened, which could result in
their revocation or limitation.
4.2.16 RESTRICTIVE COVENANTS - Ixiem is not a party to or bound or affected
----------------------
by any commitment, agreement or document containing any covenant expressly
limiting the freedom of Ixiem to compete in any line of business, transfer or
move any of its assets or operations or which materially or adversely affects
the business practices, operations or conditions of Ixiem or the continued
operation of its business after the Closing on substantially the same basis as
its business is presently carried on.
4.2.17 INTELLECTUAL PROPERTY -
----------------------
(a) The only Intellectual property of the Acquired Corporation is limited to
that as described in Schedule 1.1.20.
(b) The Vendor has no knowledge of any claim of adverse ownership,
invalidity or other opposition with any of the Intellectual Property nor of any
pending or threatened suit, proceeding, claim, demand, action or investigation
of any nature or kind against any of the Acquired Corporation.
4.2.18 EQUIPMENT CONTRACTS - The Acquired Corporation is not party or
--------------------
otherwise bound by any Equipment Contracts.
4.2.19 REAL PROPERTY LEASES -
----------------------
(a) Ixiem is not party to any Real Property Leases other than the Real
Property lease entered with the Vendor (hereinafter "Lease");
(b) All payments required to be made by Ixiem pursuant to the Lease have
been duly paid and Ixiem is not otherwise in default in meeting its obligations
under the Lease.
(c) Ixiem may, at its entire discretion, unilaterally terminate the Lease
simply upon giving a five (5) days written notice to that effect. Ixiem
declares that it can terminate the Lease, without penalty, charges or other
rental payments at its convenience.
4.2.20 EMPLOYMENT MATTERS -
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(a) At the Closing Date, there will not be any employee working for Ixiem.
(b) There were no employment policies, practices or plans, including
policies, practices or plans regarding incentive compensation, stock options,
severance pay or other terms or conditions of employment which were binding upon
Ixiem.
(c) Ixiem has been operating in full compliance with all Laws relating to
employees, including labour standards, occupational health and safety,
industrial accidents and occupational diseases, human rights, pay equity and
employment equity. To the best of Vendor's knowledge, there have been no
complaints under such Laws against Ixiem.
(e) All amounts owing in respect of salary, wages, bonus or benefits
including any vacation pay, severance pay, termination pay or indemnity in lieu
of notice, have been paid.
(f) No employee has a claim for overtime or time off in lieu of overtime or
for a leave of absence with or without pay, which has not been paid.
(g) Ixiem has no agreement, written or verbal, with any independent persons,
consultants or other independent contractors which was not terminated before the
Closing Date.
(h) No dependent or independent contractors or sub-contractors are in
default of complying with any legal obligations that could bind Ixiem.
4.2.21 COLLECTIVE AGREEMENTS - Ixiem is not and was never a party, either
----------------------
directly or by operation of law, to any Collective Agreement which would have
covered any of its employees or any dependent contractors of Ixiem.
4.2.22 INSURANCE - The only insurance policy that Ixiem maintains is
---------
attached herewith in Schedule 4.2.22.
4.2.23 CONTRACTS -
---------
(a) Except for the Material Contracts attached in Schedule 4.2.23(a), Ixiem
is not a party to or bound by any Material Contract. The Material Contracts
listed in Schedule 4.2.23(a) are all in full force and effect, unamended, and no
default exists under such Material Contracts on the part of any of the parties
to such Contracts. None of the Material Contracts include provisions requiring
consent to a change of control of the Company.
(b) There are no current or pending negotiations with respect to the
renewal, repudiation or amendment of any such Material Contract.
4.2.24 LITIGATION - Except for the Protectron xxxx attached in Schedule
----------
4.2.24, there is no suit, action, litigation, investigation, claim, complaint,
grievance or proceeding, including appeals and applications for review, in
progress, or, to the knowledge of the Vendor, pending or threatened against or
relating to Acquired Corporation before any court, Governmental Authority,
commission, board, bureau, agency or arbitration panel. The Vendor has no
knowledge of any existing ground on which any such action, suit, litigation or
proceeding might be commenced with any reasonable likelihood of success. There
is not presently outstanding against Acquired Corporation any judgment, decree,
injunction, rule or order of any court, Governmental Authority, commission,
board, bureau, agency or arbitrator.
4.2.25 TAX MATTERS -
------------
(a) The Acquired Corporation has duly and timely filed their its Tax Returns
with the appropriate Governmental Authority and has duly, completely and
correctly reported all income and all other amounts and information required to
be reported thereon.
(b) The Acquired Corporation has duly and timely paid all Taxes, including
all installments on account of Taxes for the current year that are due and
payable and the Acquired Corporation has established reserves that are
reflected on the Balance Sheet that are adequate for the payment of all Taxes
that are not yet due and payable (and that will not be due and payable by the
Closing Date) and that relate to periods ending on or prior to Closing Date.
(c) The Acquired Corporation has not requested, or entered into any
agreement or other arrangement or executed any waiver providing for, any
extension of time within which (i) to file any Tax Return covering any Taxes for
which the Acquired Corporation is or may be liable; (ii) to file any elections,
designations or similar things relating to Taxes for which the Acquired
Corporation is or may be liable; (iii) the Acquired Corporation is required to
pay or remit any Taxes or amounts on account of Taxes; or (iv) any Governmental
Authority may assess or collect Taxes for which the Acquired Corporation is or
may be liable.
(d) The Canadian federal and provincial income and capital tax liabilities
of the Acquired Corporation have been assessed by the relevant taxing
authorities and notices of assessment have been issued to the Acquired
Corporation by the relevant taxing authorities for all taxation years prior to
and including the taxation year ended December 31st 1998.
(e) There are no actions, suits, proceedings, investigations, audits or
claims now pending or, to the knowledge of the Vendor, threatened, against the
Acquired Corporation in respect of any Taxes and there are no matters under
discussion, audit or appeal with any Governmental Authority relating to Taxes.
The Vendor hereby jointly and severally agree to forthwith pay the full amount
of any reassessment against Ixiem arising out of events which occurred before
the Closing Date.
(f) The Acquired Corporation has duly and timely withheld from any amount
paid or credited by it to or for the account or benefit of any Person,
including, without limitation, any of its employees, officers and directors and
any non-resident Person, the amount of all Taxes and other deductions required
by any applicable Law, to be withheld from any such amount and has duly and
timely remitted the same to the appropriate Governmental Authority.
(g) The Acquired Corporation has not acquired property from or disposed of
property to a Person with whom it does not deal at arm's length for purposes of
the Income Tax Act (Canada) for proceeds of disposition which are greater or
less than the fair market value of the property acquired or disposed.
4.2.26 BOOKS AND RECORDS - All Books and Records of the Acquired Corporation
-----------------
have been delivered or made available to the Purchaser. Such Books and Records
fairly and correctly set out and disclose in all material respects the financial
position of the Acquired Corporation and all financial transactions of the
Acquired Corporation have been accurately recorded in such Books and Records.
4.2.27 CORPORATE RECORDS AND MINUTE BOOKS - The corporate records and minute
----------------------------------
books of the Acquired Corporation have been delivered or made available to the
Purchaser. The articles and by-laws are in full force and effect and no
amendments have been made to the same. The minute books, including the articles
and by-laws of the Acquired Corporation, include complete and accurate minutes
of all meetings of the directors or shareholders of the Acquired Corporation, as
applicable, held to date or resolutions passed by the directors or shareholders
on consent, since the date of incorporation of the Acquired Corporation. The
share certificates book, register of shareholders, register of transfers and
register of directors of the Acquired Corporation, are complete and accurate.
4.2.28 BANK ACCOUNTS, ETC. - On the Closing Date, Ixiem has no bank account
--------------------
or credit line or any loan, whatsoever.
4.2.29 NO ASSOCIATED/RELATED COMPANIES - Except for Schlagalack, no
---------------------------------
companies are or have been "associated" with or "related" to the Acquired
Corporation for purposes of the Income Tax Act (Canada) or corresponding
provincial tax legislation.
4.2.30 NON-ARM'S LENGTH TRANSACTIONS -
-------------------------------
(a) The Acquired Corporation has not, since the date of the Balance Sheets,
made any payment or loan to, or borrowed any moneys from or is otherwise
indebted to, any officer, director, employee, shareholder or any other person
not dealing at arm's length of the Acquired Corporation, except in the ordinary
and normal course of business;
(b) The Acquired Corporation is not a party to any Contract with any
officer, director, employee, shareholder or any other person not dealing at
arm's length with the Acquired Corporation;
(c) No officer, director or shareholder of the Acquired Corporation and no
entity which is an affiliate or associate of one or more of such individuals:
(i) owns, directly or indirectly, any interest in (except for shares
representing less than one percent of the outstanding shares of any class or
series of any publicly traded company), or is an officer, director, employee or
consultant of, any person which is, or is engaged in business as, a competitor
of Ixiem or a lessee, supplier, distributor, sales agent or customer of Ixiem;
(ii) owns, directly or indirectly, in whole or in part, any property that Ixiem
uses in the operation of its business; or (iii) has any cause of action or other
claim whatsoever against, or owes any amount to, the Acquired Corporation,
except for any liabilities reflected in the Interim Financial Statements and
claims in the ordinary and normal course of business such as for accrued
vacation pay and accrued benefits for employees.
4.2.31 FULL DISCLOSURE - All information, which has been provided to the
----------------
Purchaser is true and correct in all material respects and no material fact or
facts have been omitted therefrom which would make such information misleading.
4.3 REPRESENTATIONS AND WARRANTIES CONCERNING SCHLAGALACK - Xxxxxxx
---------------------------------------------------------
represents and warrants to the Purchaser as follows:
4.3.1 INCORPORATION - Schlagalack is a company duly incorporated and validly
-------------
existing under the laws of Quebec, Canada
4.3.2 ENFORCEABILITY OF OBLIGATIONS - This Agreement has been duly
-------------------------------
authorized and executed by Schlagalack and constitutes a valid and binding
obligation for Schlagalack enforceable against it in accordance with its terms.
4.3.3 ABSENCE OF CONFLICTING AGREEMENTS - Schlagalack is not a party to,
------------------------------------
bound or affected by or subject to any indenture, mortgage, lease, agreement,
obligation, instrument, charter or bylaw provision, statute, regulation, order,
judgement, decree, license, permit or law which would be violated, contravened
or breached by, or under which any default would occur or a lien, claim,
restriction or encumbrance would be created as a result of the execution and
delivery by it of this Agreement or the performance by it of any of the terms of
this Agreement.
4.3.4 SHAREHOLDER - Xxxxxxx is the sole registered and beneficial owner with
-----------
good and marketable title of all the shares of Schlagalack.
4.3.5 NO AGREEMENTS, OPTIONS, ETC - No person, partnership, association,
------------------------------
firm, corporation or other entity has any written or oral agreement, option,
understanding or commitment for the purchase of any of the Purchased Shares.
4.3.6 NO SUBSCRIPTION RIGHTS - No person, partnership, association, firm,
-----------------------
corporation or other entity has any written or oral agreement, option,
understanding or commitment, including without limitations convertible
securities, warrants or convertible obligations of any nature, for the purchase,
subscription, allotment or issuance of any of the Purchased Shares.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
-----------------------------------------------
The Purchaser hereby represents and warrants to the Vendor the matters
set out below.
5.1 INCORPORATION - The Purchaser is a corporation duly incorporated and
-------------
validly existing under the laws of Nevada, U.S.A.
5.2 ENFORCEABILITY OF OBLIGATIONS - This Agreement has been duly authorized,
-----------------------------
executed and delivered by the Purchaser and constitutes a valid and binding
obligation of the Purchaser enforceable against it in accordance with its terms.
5.3 ABSENCE OF CONFLICTING AGREEMENTS - The Purchaser is not a party to,
------------------------------------
bound or affected by or subject to any indenture, mortgage, lease, agreement,
obligation, instrument, charter or bylaw provision, statute, regulation, order,
judgement, decree, license, permit or law which would be violated, contravened
or breached by, or under which any default would occur or a lien, claim,
restriction or encumbrance would be created as a result of the execution and
delivery by it of this Agreement or the performance by it of any of the terms of
this Agreement.
5.4 LITIGATION - There is no suit, action, litigation, investigation, claim,
----------
complaint or proceeding before any Governmental Authority in progress or, to the
knowledge of the Purchaser, pending or threatened against or relating to the
Purchaser, which, if determined adversely to the Purchaser, would, prevent the
Purchaser from fulfilling any of its obligations set out in, arising from or in
connection with this Agreement, and the Purchaser has no knowledge of any
existing ground on which any such action, suit, litigation or proceeding might
be commenced with any reasonable likelihood of success.
5.5 NO AGREEMENTS, OPTIONS, ETC - No person, partnership, association, firm,
---------------------------
corporation or other entity has any written or oral agreement, option,
understanding or commitment for the purchase of any of the Exchanged Shares.
5.6 NO SUBSCRIPTION RIGHTS - No person, partnership, association, firm,
------------------------
corporation or other entity has any written or oral agreement, option,
understanding or commitment, including without limitations convertible
securities, warrants or convertible obligations of any nature, for the purchase,
subscription, allotment or issuance of any of the Exchanged Shares.
5.7 REGISTRATION AND DISPOSITION OF EXCHANGED SHARES - The Exchanged
-----------------------------------------------------
Shares to be issued pursuant to Section 3 of this Agreement have not been
registered under the U.S. Securities Act of 1933, as amended (the "Act"), and
may not be offered, sold or otherwise transferred unless such securities are
included in an effective registration statement under the Act or an opinion of
U.S. counsel concurred in by counsel to the Purchaser has been delivered to the
effect that registration of such securities is not required based upon
applicable exemption from registration. Such an exemption, by way of example
only, may be available under rule 144 of the Act, which requires, among other
things, that the securities be owned and fully paid for a minimum of one (1)
year prior to the sale, that such sales be effected through a registered
broker/dealer and that there be current public information, regarding the issued
shares, available to the public. This is a summary of the requirements of that
rule and is not intended to be a complete statement of its requirements.
5.8 TAXES - The Purchaser has duly filed all tax returns required to be
-----
filed by it and has paid all taxes which are due and payable, including but not
limited to income taxes, goods and services taxes, provincial or state sales
taxes, payroll taxes, xxxxxxx'x compensation and all deductions required at
source, and has paid all assessments and reassessments, and all other Taxes,
dues, governmental charges, penalties, interest and fines due and payable by it.
5.9 RESIDENCY - The Purchaser is not a resident of Canada within the
---------
meaning of the Income Tax Act (Canada) and the Taxation Act (Quebec).
5.10 NON-VIOLATION - The entering into of this Agreement and the
-------------
performance by the Purchaser of the transactions contemplated under and pursuant
to this Agreement does not and will not i) conflict with, result in a breach of
the terms, conditions, or provisions of, or constitute a default under the
articles or by-laws of the Purchaser or any agreement, written or oral, to which
the Purchaser of any of its affiliates are subject, or ii) violate any laws or
regulations applicable to the Purchaser including the Securities Act (Quebec),
or iii) require any consent or other action by any administrative or
governmental body, including, without limiting the foregoing, the Commission des
valeurs mobili res du Qu bec or any securities exchange commission.
ARTICLE 6
NON-WAIVER; SURVIVAL
--------------------
6.1 NON-WAIVER - No investigations made by or on behalf of the Purchaser at
----------
any time shall have the effect of waiving, diminishing the scope of or otherwise
affecting any representation or warranty made by the Vendor in or pursuant to
this Agreement. No waiver of any condition or other provision, in whole or in
part, shall constitute a waiver of any other condition or provision (whether or
not similar) nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
6.2 NATURE AND SURVIVAL - All representations, warranties and covenants
---------------------
contained in this Agreement on the part of each of the parties shall survive the
Closing, the execution and delivery under this Agreement of any share or
security transfer instruments or other documents of title to any of the
Purchased Shares, except that:
(a) any claim for intentional misrepresentation or fraud may be brought at
any time;
(b) the representations and warranties set out in Section 4 shall survive
and continue in full force and effect without limitation of time;
(c) representations and warranties concerning Tax matters shall survive for
a period of ninety days after the relevant authorities shall no longer be
entitled to assess liability for Tax against the Acquired Corporation or the
Purchaser as the case may be for any particular taxation year ended on or prior
to the Closing Date; and
(d) all other representations and warranties shall survive for a period of
three (3) years from the Closing Date.
ARTICLE 7
PURCHASER'S CONDITIONS PRECEDENT
--------------------------------
The obligation of the Purchaser to complete the purchase of the
Purchased Shares under this Agreement shall be subject to the satisfaction of,
or compliance with, at or before the Closing Time, each of the following
conditions precedent (each of which is acknowledged to be inserted for the
exclusive benefit of the Purchaser and may be waived, in writing or verbally, by
the Purchaser in whole or in part):
7.1 TRUTH AND ACCURACY OF REPRESENTATIONS CONCERNING THE VENDOR AND THE
------------------------------------------------------------------------
ACQUIRED CORPORATION AT THE CLOSING TIME - All of the representations and
-----------------------------------------
warranties concerning the Vendor and the Acquired Corporation made in or
--
pursuant to this Agreement shall be true and correct as at the Closing Time and
--
with the same effect as if made at and as of the Closing Time.
7.2 PERFORMANCE OF OBLIGATIONS - The Vendor shall have performed or complied
--------------------------
with, in all respects, their respective obligations, covenants and agreements
under this Agreement.
7.3 RECEIPT OF CLOSING DOCUMENTATION - All documentation relating to the due
--------------------------------
authorization and completion of the sale and purchase of the Purchased Shares
under this Agreement and all actions and proceedings taken on or prior to the
Closing in connection with the performance by the Vendor of their respective
obligations under this Agreement, shall be satisfactory to the Purchaser, acting
reasonably, and the Purchaser shall have received copies of all such
documentation or other evidence as it may reasonably request in order to
establish the consummation of the transactions contemplated hereby and the
taking of all corporate proceedings in connection therewith in compliance with
these conditions, in form (as to certification and otherwise) and substance
satisfactory to the Purchaser acting reasonably.
7.4 CONSENTS, AUTHORIZATIONS AND REGISTRATIONS - All consents, approvals,
---------------------------------------------
orders and authorizations of any Person or Governmental Authority (or
registrations, declarations, filings or recordings with any such authorities),
on the part of the Vendor required in connection with the completion of any of
the transactions contemplated by this Agreement, the execution of this
Agreement, the Closing or the performance of any of the terms and conditions of
this Agreement, shall have been obtained at or before the Closing Time.
7.5 RESIGNATIONS AND RELEASES - There shall have been delivered to the
---------------------------
Purchaser on or before the Closing Time the resignations of all individuals who
are presently directors or officers of the Acquired Corporation from all offices
and positions with the Acquired Corporation as an employee of Ixiem and duly
executed comprehensive releases in form and substance satisfactory to the
Purchaser from the Vendor of all their claims, respectively, against the
Acquired Corporation.
ARTICLE 8
VENDOR'S CONDITIONS PRECEDENT
-----------------------------
The obligations of the Vendor to complete the sale of the Purchased
Shares under this Agreement shall be subject to the satisfaction of or
compliance with, at or before the Closing Time, each of the following conditions
precedent (each of which is acknowledged to be inserted for the exclusive
benefit of the Vendor and may be waived, in writing or verbally, by them in
whole or in part).
8.1 TRUTH AND ACCURACY OF REPRESENTATIONS OF THE PURCHASER AT CLOSING TIME -
----------------------------------------------------------------------
All of the representations and warranties of the Purchaser made in or pursuant
to this Agreement shall be true and correct as at the Closing Time and with the
same effect as if made at and as of the Closing Time.
8.2 PERFORMANCE OF OBLIGATIONS - The Purchaser shall have performed or
----------------------------
complied with, in all respects, all its obligations, covenants and agreements
under this Agreement.
8.3 RECEIPT OF CLOSING DOCUMENTATION - All documentation relating to the
-----------------------------------
due authorization and completion of the sale and purchase of the Purchased
Shares under this Agreement and all actions and proceedings taken on or prior to
the closing in connection with the performance by the Purchaser of its
obligations under this Agreement, shall be satisfactory to the Vendor, acting
reasonably, and the Vendor shall received copies of all such documentation or
other evidence as he may reasonably request in order to establish the
consummation of the transactions contemplated hereby and the taking of all
corporate proceedings in connection therewith in compliance with these
conditions.
ARTICLE 9
OTHER COVENANTS OF THE PARTIES
------------------------------
9.1 ACTIONS TO SATISFY CLOSING CONDITIONS - Each of the parties agrees to
----------------------------------------
take all such actions as are within its power to control, and to use all
reasonable efforts to cause other actions to be taken which are not within its
power to control, so as to ensure compliance with each of the conditions and
covenants set forth in this Agreement which are for the benefit of any other
Party.
9.2 CONSENT TO JURISDICTION - Each of the parties irrevocably attorns and
-------------------------
submits to the exclusive jurisdiction of any Quebec court sitting in Montreal in
any action or proceeding arising out of or related to this Agreement and
irrevocably agrees that all claims in respect of any such action or proceeding
shall be heard and determined in such Quebec court. Each of the parties
irrevocably waives, to the fullest extent possible, the defense of an
inconvenient forum to the maintenance of such action or proceeding.
ARTICLE 10
INDEMNIFICATION
---------------
10.1 INDEMNIFICATION BY THE VENDOR - The Vendor agrees to indemnify and save
-----------------------------
harmless the Purchaser and Ixiem on an after-tax basis as well as the directors
and officers of Ixiem against all Losses suffered or incurred as a result of or
arising directly or indirectly out of or in connection with any breach by the
Vendor of or any inaccuracy of any of the representations and warranties of the
Vendor made by the Vendor on a joint and several basis under this Agreement or
any breach or non-performance by the Vendor of any covenant to be performed by
the Vendor on a joint and several basis under this Agreement or any agreement,
instrument, certificate or other document delivered pursuant hereto.
10.2 NOTIFICATION OF AND PARTICIPATION IN CLAIMS - No Claim will arise until
-------------------------------------------
notice thereof is given to the party (the Indemnitor ) from whom indemnity is
sought. Such notice shall be sent within a reasonable time following the
determination by a party (the Claimant ) that a Claim for indemnity exists. In
the event that any legal proceedings shall be instituted or any Claim or demand
is asserted by any third party in respect of which the Indemnitor may have an
obligation to indemnify the Claimant, the Claimant shall give or cause to be
given to the Indemnitor written notice thereof and the Indemnitor shall have the
right, at its option and expense, to be present at the defense of such
proceedings, claim or demand, but not to control the defense, negotiation or
settlement thereof, which control shall at all times rest with the Claimant,
unless the Indemnitor irrevocably acknowledges full and complete responsibility
for indemnification of Claimant, in which case the Indemnitor may assume such
control through counsel of its choice, provided however, that no settlement
shall be entered into without the Claimant's written consent (which shall not be
unreasonably withheld). The parties hereto agree to cooperate fully with each
other in connection with the defense, negotiation or settlement of any such
third party legal proceeding, claim or demand.
10.3 MISCELLANEOUS - Notwithstanding anything in this Agreement to the
-------------
contrary, the indemnity provided for in this Article 10 shall apply to any loss,
liability, damage, deficiency or expense, whether or not the actual amount
thereof shall have been ascertained prior to the final day upon which a Claim
for indemnity with respect thereto may be made hereunder, so long as written
notice thereof shall have been given to the Indemnitor prior to said date,
setting forth specifically and in reasonable detail, so far as is known, the
matter as to which indemnification is being sought, but nothing herein shall be
construed to require payment of any claim for indemnity until the actual amount
payable shall have been finally ascertained. In addition, any Claims for
damages payable hereunder shall be adjusted, in accordance with Canadian
generally accepted accounting principles, to reflect the after-tax effect
thereof.
10.4 REDUCTION OF LOSSES - The amount of Losses payable by the Vendor
---------------------
shall be reduced by the aggregate amount of:
(a) any insurance proceeds received by the Purchaser or by the Acquired
Corporation or a successor corporation, for and in relation to those Losses,
subject to such reduction not resulting in a loss of coverage or reduction of
the insurance proceeds received or to be received by the Purchaser or the
Acquired Corporation (or a successor corporation) or increase of future
insurance premiums which are attributable to such Losses. If insurance proceeds
for Losses are received by the Purchase or by the Acquired Corporation or a
successor corporation after the Vendor has performed his obligations to
indemnify under this Agreement in connection with such Losses, then the
Purchaser or the Acquired Corporation or a successor corporation, as the case
may be, shall remit to the Vendor the amount of such insurance proceeds;
(b) any reduction in Taxes otherwise payable by the Acquired Corporation or
a successor corporation arising from or relating to the Loss.
Where all or part of the Loss generates a reduction in Taxes the amount of
the reduction in Taxes shall reduce the Loss by an equal amount.
ARTICLE 11
PROCEDURES AT CLOSING OR AFTER
11. DELIVERY OF CLOSING DOCUMENTS - The following shall occur:
--------------------------------
a) The Vendor shall at Closing Time:
(i) deliver to the Purchaser certificates respecting all of the Purchased
shares duly endorsed in blank for transfer;
(ii) cause the transfer of the Purchased shares to be duly registered and
regularly recorded in the name of the Purchaser in the books and corporate
records of the Acquired Corporation;
(iii) deliver to the Purchaser certificates respecting all of the issued
shares of the Acquired Corporation;
(iv) deliver to the Purchaser the minute books and corporate records of the
Acquired Corporation;
(v) deliver to the Purchaser a non-competition agreement and a
non-disclosure agreement duly executed by the Vendor;
(vi) execute receipts;
(vii) deliver releases in favor of the Acquired Corporation.
(b) The Purchaser shall:
(i) deliver to the Vendor, as provided in Section 3, share certificates
respecting all of the Exchanged Shares issued for the Closing;
(ii) remit to Schlagalack, as provided in Section 3, ONE DOLLAR (1.00$);
(iii) at Closing Time, deliver a certified copy of resolutions of the Board
of Directors of the Purchaser and iVision Integral Inc. authorizing the
transactions herein;
ARTICLE 12
GENERAL
-------
12.1 PUBLIC NOTICES - All public notices to third parties and all other
---------------
publicity concerning the transactions contemplated by this Agreement shall be
jointly planned and coordinated by the Vendor and the Purchaser and no party
shall act unilaterally in this regard without the prior approval of the other
party, such approval not to be unreasonably withheld, except where required to
do so by law or by the applicable regulations or policies of any provincial or
Canadian or other regulatory agency of competent jurisdiction or any stock
exchange in circumstances where prior consultation with the other party is not
practicable.
12.2 EXPENSES - The Vendor and the Purchaser shall pay their respective
--------
legal, accounting, and other professional advisory fees, costs and expenses
incurred in connection with the purchase and sale of the Purchased Shares and
the preparation, execution and delivery of this Agreement and all documents and
instruments executed pursuant to this Agreement and any other costs and expenses
incurred by the party.
12.3 NOTICES - Any notice or other writing required or permitted to be given
-------
under this Agreement or for the purposes of this Agreement (in this Section
referred to as a Notice ) shall be in writing and shall be sufficiently given
if delivered, or if transmitted by facsimile or other form of recorded
communication tested prior to transmission to such party:
(a) in the case of a Notice to the Vendor:
Xxxxxxxx Xxxxxxx
0000, Xxxxxxx Xxxxxx
Xxxxxxxxxxxxx, Xxxxxx
X0X 0X0
(b) in the case of a Notice to the Purchaser at:
iVision Integral Inc.
0 Xxxxxxxxx Xxxxxx # 000
Xxxxxxxxx (Xxxxxx) X0X 0X0
or at such other address as the party to whom such Notice is to be given shall
have last notified the party giving the same in the manner provided in this
Section. Any Notice delivered to the party to whom it is addressed as provided
above shall be deemed to have been given and received on the day it is so
delivered at such address, provided that if such day is not a Business Day then
the Notice shall be deemed to have been given and received on the next Business
Day. Any Notice transmitted by facsimile or other form of recorded communication
shall be deemed given and received on the first Business Day after its
transmission.
12.4 ASSIGNMENT - Neither this Agreement nor any benefits or burdens under
----------
this Agreement shall be assignable by any party without the prior written
consent of each of the other parties. Subject to the foregoing, this Agreement
shall enure to the benefit of and be binding upon the parties and their
respective heirs, executors, legal representatives, successors (including any
successor by reason of amalgamation of any party) and permitted assigns.
12.5 FURTHER ASSURANCES - The parties shall, with reasonable diligence, do
-------------------
all such things and provide all such reasonable assurances as may be required to
consummate the transactions contemplated by this Agreement, and each party shall
provide such further documents or instruments required by any other party as may
be reasonably necessary or desirable to effect the purpose of this Agreement and
carry out its provisions, whether before or after the Closing.
12.6 REMEDIES CUMULATIVE - Except as otherwise herein expressly provided,
--------------------
the rights and remedies of the parties under this Agreement are cumulative and
in addition to and not in substitution for any rights or remedies provided by
law. Any single or partial exercise by any party hereto of any right or remedy
for default or breach of any term, covenant or condition of this Agreement does
not waive, alter, affect or prejudice any other right or remedy to which such
party may be lawfully entitled for the same default or breach.
12.7 LANGUAGE - The parties declare that they have requested and do hereby
--------
confirm their request that this Agreement be drawn up in English; les parties d
clarent qu'elles ont exig et par les xx xxxxxx confirment leur demande que ce
contrat soit r dig en anglais.
12.8 COUNTERPARTS AND FACSIMILE - This Agreement may be executed by the
----------------------------
parties in separate counterparts and by facsimile each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF the parties have duly executed this Agreement at the
place and date herein above mentioned.
IVISION GROUP LTD. XXXXXXXX XXXXXXX
Per: /s/ Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx
____________________ _____________________
Xxxxx Xxxxxx, Director Xxxxxxxx Xxxxxxx
SCHLAGALACK INC. IXIEM! PRODUCTION INC.
Per: /s/ Xxxxxxxx Xxxxxxx Per /s/ Xxxxxxxx Xxxxxxx
____________________ _____________________
Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx
