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EXHIBIT 2.2
SHARE EXCHANGE AGREEMENT
ENTERED INTO AT MONTREAL, PROVINCE OF QUEBEC, ON NOVEMBER 8, 2000;
AMONG: XX.XXX, a corporation incorporated under the laws of the State of
California, United States of America, having its principal place of
business in Reykjavik, Iceland, (the "PURCHASER");
AND: ERICSSON CANADA INC., a corporation incorporated under the laws of
Canada, having its registered office in Montreal, Quebec, ("ERICSSON");
WITNESSETH:
WHEREAS Ericsson owns 31 Common Shares in the capital stock of MCE Holding
Corporation, a corporation incorporated under the laws of the State of Delaware,
United States of America, having its head office in the State of Delaware,
("USCO");
WHEREAS Ericsson wishes to sell to the Purchaser all the Common Shares held by
it in the capital stock of UsCo;
WHEREAS the Purchaser wishes to purchase all the Common Shares held by Ericsson
in the capital stock of UsCo; and
WHEREAS UsCo owns of all the issued and outstanding shares of the capital of
3044016 Nova Scotia Company, an unlimited liability company incorporated under
the laws of Nova Scotia, having a place of business in Xxxxxxxx, Xxxxxx, Xxxxxx,
("XXXXX XXXXXX");
WHEREAS this Agreement and the Share Exchange Agreement between Purchaser and
Microcell Capital II Inc. of even date herewith are intended to constitute a
plan of reorganization within the meaning of the United States Internal Revenue
Code.
NOW THEREFORE the parties hereto hereby covenant and agree as follows.
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS - As used in this Agreement, the following terms have the
following meaning:
1.1.1 "AGREEMENT" means this Share Exchange Agreement including its
recitals, its Schedules and all written instruments
supple-mental hereto signed by all the parties hereto, and any
amendment or confirmation hereof;
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1.1.2 "BOOKS AND RECORDS" means all books, records, files and
documentation, including without limitation, originals of
statements, books, ledgers, records, financial records and
accounting records;
1.1.3 "BUSINESS DAY" means any day, other than a Saturday, Sunday,
or other day on which the majority of the branches of the
principal commercial banks located in Montreal, Quebec are not
open for business during normal banking hours;
1.1.4 "CLOSING DATE" means the date of this Agreement, and "Closing"
means the completion of all the transactions contemplated
hereby at the time of closing on the Closing Date;
1.1.5 "CLOSING PLACE" means the offices of Stikeman, Xxxxxxx in
Montreal, Quebec;
1.1.6 "GOVERNMENTAL BODY" means (i) any domestic or foreign
national, federal, provincial, state or municipal or other
local government or body, (ii) any international or
multilateral body, (iii) any subdivision, agent, commission,
board, instrumentality or authority of any of the foregoing
governments or bodies, (iv) any quasi-governmental or private
body exercising any regulatory, expropriation or taxing
authority under or for the account of any of the foregoing
governments or bodies, or (v) any domestic, foreign,
international, multilateral, or multinational judicial,
quasi-judicial, arbitration or administrative court, tribunal,
commission, board or panel;
1.1.7 "LAWS" means :
(a) all applicable constitutions, treaties, laws,
statutes, codes, ordinances, orders, decrees, rules,
regulations, and municipal by-laws, whether domestic,
foreign or international;
(b) all judgments, orders, injunctions, decisions,
rulings, decrees, and awards of any Governmental
Body; and
(c) all provisions of the foregoing;
in each case binding on the party or Person referred to in the
context in which such word is used; and "Law" means any one of
them;
1.1.8 "LIENS" means (i) all hypothecs, mortgages, pledges,
privileges, liens, security interests, transfers of property
in stock, security granted under the Bank Act (Canada),
charges, leases, occupation rights, restrictive covenants,
title defects and other encumbrances or rights of others of
any nature whatsoever or however arising, and (ii) all
actions, claims or demands of any nature whatsoever or
howsoever arising; and "Lien" means any one of them;
1.1.9 "XX.XXX SHARES" means 5,069,271 fully paid and non-assessable
shares of the Common Stock of the Purchaser issued to Ericsson
pursuant to this Agreement;
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1.1.10 "PARTIES" means Ericsson and the Purchaser and "Party" means
any one of them;
1.1.11 "PERSON" means an individual, a corporation, a partnership, a
trustee or any unincorporated organization;
1.1.12 "PURCHASED SHARES" as the meaning ascribed thereto in Section
2.1;
1.1.13 "TAXES" means all taxes (including without limitation, income,
corporation, capital, value added, sales, withholding,
franchise, profits, gross receipts, excise, property, stamp,
transfer, land transfer, water, business and goods and
services taxes), imposts, duties, levies, deductions,
withholdings, charges, assessments, reassessments or fees of
any nature (including, without limitation, interest, penalties
and additions) that are imposed by any relevant taxing
authority; and "Tax" means any one of them;
1.2 APPLICABLE LAW - This Agreement shall be construed and enforced in
accordance with, and the rights of the Parties shall be construed and
governed by, the laws of the Province of Quebec and the laws of Canada
applicable therein.
1.3 CURRENCY - In this Agreement, all money amounts are expressed in United
States dollars unless otherwise provided.
1.4 RECITALS AND SCHEDULES - The recitals and the Schedules hereto form an
integral part of this Agreement. The Schedules to this Agreement are:
4.4 Authorized and issued capital of the Purchaser
4.6 Form 10 - SB
5.3.2 Shareholder Agreement
1.5 HEADINGS - The titles and headings in this Agreement are solely for
reference and shall not affect the scope, intention or interpretation
of the provisions hereof.
1.6 GENDER - In all cases where the context of this Agreement requires or
permits same, the singular shall include the plural and the masculine
shall include the feminine.
1.7 ENTIRE AGREEMENT - This Agreement, and the agreements and other
documents to be delivered pursuant hereto, constitute the entire
agreement between the Parties pertaining to the subject matter hereof
and supersede all prior agreements, and there are no warranties,
representations or other agreements between the Parties in connection
with the subject matter hereof except as specifically set forth herein
and, the other documents to be delivered pursuant hereto.
1.8 SEVERABILITY - Each provision of this Agreement shall be interpreted
separately and the nullity of any provision of this Agreement shall not
render the remaining parts of the Agreement null.
1.9 WAIVER - No supplement, modification or waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to
be bound thereby. No waiver of
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any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions (whether or not similar)
nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
1.10 TIME - shall be of the essence of this Agreement.
1.11 ACCOUNTING PRINCIPLES - Accounting terms not otherwise defined herein
have the meaning ascribed thereto under generally accepted accounting
principles in the United States of America.
ARTICLE 2
PURCHASE AND SALE
2.1 PURCHASE AND SALE - Upon and subject to the terms and conditions
hereof, Ericsson hereby agrees to sell to the Purchaser, and the
Purchaser hereby agrees to purchase from Ericsson 31 Common Shares of
the capital stock of UsCo (the "PURCHASED SHARES").
2.2 CONSIDERATION - As consideration for the purchase of the Purchased
Shares, the Purchaser shall issue and deliver to Ericsson the XX.XXX
Shares, at Closing.
ARTICLE 3
WARRANTIES AND REPRESENTATIONS OF ERICSSON
Ericsson warrants and represents to the Purchaser as follows and
acknowledges that the Purchaser is relying upon such representations
and warranties in connection with the purchase by the Purchaser of the
Purchased Shares and that the Purchaser would not have entered into
this Agreement without the full benefit of such warranties and
representations.
3.1 CORPORATE STATUS - UsCo is a corporation duly incorporated, organized
and validly subsisting under the laws of the State of Delaware. UsCo is
in good standing under the laws of each jurisdiction in which it is
carrying on business or in which it owns or holds property of a
material nature, and UsCo has all necessary power and authority to own,
lease and operate its property.
3.2 SUBSIDIARIES - UsCo owns one hundred percent (100%) of the issued and
outstanding capital stock of Newco Canada. UsCo presently neither owns
nor controls, directly or indirectly, any interest in any other
corporation, association or other business entity. Newco Canada is an
unlimited liability company duly organized, validly existing and in
good standing under the laws of the Province of Nova Scotia, Canada and
has all requisite power and authority to carry on its business as now
conducted and as proposed to be conducted. Newco Canada is duly
qualified to transact business and is in good standing in each
jurisdiction in which it owns or holds property of a material
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nature, and UsCo has all necessary power and authority to own, lease
and operate its property.
3.3 POWERS AND AUTHORIZATIONS - Ericsson has the capacity, power and
authority and full legal right to enter into and execute this Agreement
and to perform all of its obligations hereunder; Ericsson has taken all
necessary action to authorize the execution of this Agreement on its
behalf by its officers, directors and shareholders and to authorize the
performance of all of its obligations hereunder; this Agreement has
been duly executed by a duly authorized person on behalf of Ericsson
and this constitutes valid and legally binding obligations of Ericsson
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, and other laws
affecting the rights of creditors generally and except that equitable
remedies may be granted only in the discretion of a court of competent
jurisdiction.
3.4 AUTHORIZED AND ISSUED CAPITAL - The authorized and issued capital stock
of UsCo consists of a limited number of 1,000 Common shares, per value
of $0.01 per share and of a limited number of 1,000 Preferred Shares,
per value of $0.01 per share, of which 100 Common Shares are issued and
outstanding, fully-paid and non-assessable. The authorized and issued
capital stock of Newco Canada consists of a limited number of 1,000,000
Common Shares without nominal value and 1,000,000 Preferred Shares
without nominal value of which 100 Common Shares are issued and
outstanding, fully-paid and non-assessable. All of the issued and
outstanding shares of Newco Canada are registered in the books of Newco
Canada and beneficially owned by UsCo.
3.5 TITLE TO PURCHASED SHARES - Ericsson shall transfer to the Purchaser
good and valid title to such Purchased Shares, free and clear of all
Liens.
3.6 NO OPTIONS - To Ericsson's knowledge there is no:
(a) outstanding security convertible or exchangeable into
any share or shares of the capital stock of UsCo or
Newco Canada;
(b) outstanding subscription, option, warrant, call,
commitment or agreement obligating UsCo or Newco
Canada to issue any share or shares of its capital
stock or any security of any class or kind or which
in any way relate to the authorized or issued capital
stock of UsCo or Newco Canada;
(c) agreement (other than this Agreement) that grants to
any Person the right to purchase or otherwise acquire
any share or shares issued and outstanding of the
capital stock of UsCo or Newco Canada; or
(d) voting trust, voting agreement, pooling agreement or
proxy with respect to any Purchased Shares or the
outstanding capital stock of Newco Canada.
3.7 CORPORATE RECORDS - The minute books of UsCo and Newco Canada are
complete and accurate, and contain copies of all by-laws and
resolutions passed by its stockholders and directors since the date of
its incorporation; all of which by-laws and resolutions have been duly
passed.
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The share certificate books, registers of stockholders, registers of
transfers and registers of directors are complete and accurate.
3.8 APPROVALS AND COMPLIANCE - No consent, notification or approval of any
regulatory authority or agency having any jurisdiction over Ericsson or
over the property, rights and assets of Ericsson or of any party to any
agreement which Ericsson is a party or by which any of its property,
rights or assets are bound or affected, is required to be obtained in
connection with the execution of this Agreement and all ancillary
documents hereto or in connection with the performance of Ericsson's
obligations thereunder; the execution of this Agreement and all
ancillary documents hereto and the performance of the obligations
hereunder or thereunder by Ericsson is not and will not be in
contravention or in conflict with its constating documents, by-laws or
the resolutions of its directors or stockholders nor with the
provisions of any indenture, mortgage, lease, agreement, statute,
regulation, judgment, decree or order to which Ericsson or UsCo is a
party or by which it or any of its property, rights or assets are bound
or affected.
3.9 ABSENCE OF CONFLICTING AGREEMENTS ETC. - Save and except as may result
from the identity of the Purchaser or its attributes or actions, the
execution and performance of this Agreement as well as of all the
documents relating thereto shall not (i) place Ericsson in a situation
of default under any agreement, contract or obligation of any kind,
(ii) result in the creation of, or require the creation of any Lien
upon the Purchased Shares, (iii) result in the termination,
cancellation, modification, amendment, or renegotiations of any
contract, agreement, indenture, instrument or commitment to which the
Purchased Shares are subject, or (iv) to the knowledge of Ericsson,
give to any Person the right to terminate, cancel, modify, amend, vary
or renegotiate any contract, agreement, indenture, instrument or
commitment to which UsCo or Newco Canada is a party.
3.10 RESIDENCE OF ERICSSON - Ericsson is a resident of Canada within the
meaning of the Income Tax Act (Canada).
3.11 ADHERENCE TO LAWS, REGULATIONS AND CONTRACTS - Ericsson, UsCo and Newco
Canada have complied and continue to comply with all applicable Laws,
the non-compliance with which would have a materially adverse effect on
UsCo or Newco Canada.
3.12 BROKER'S COMMISSION - None of Ericsson, or to the knowledge of
Ericsson, UsCo or Newco Canada has entered into any agreement that
would entitle any Person to make any valid claim against the Purchaser
for a broker's commission, finder's fee or any like payment in respect
of the purchase and sale of the Purchased Shares or any other
transaction contemplated by this Agreement.
3.13 VALUE OF THE XX.XXX SHARES - Ericsson has received and reviewed to
Ericsson's satisfaction such documents and corporate and financial
records of the Purchaser, and has had answered all questions with
regard thereto that Ericsson deemed necessary or appropriate to
evaluate the business, operations and assets of the Purchaser and the
value of its Common Stock. Ericsson acknowledges that it is basing its
valuation of the XX.XXX shares solely on its review of (i) the
information provided to it by Purchaser as described in the preceding
sentence, and (ii) Purchaser's representations and warranties set forth
in this Agreement and the other documents, instruments and agreements
between Ericsson and Purchaser executed in connection herewith. Such
valuation has
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not been based on any oral representations of the value of XX.XXX
shares made by Purchaser or any officer employee, representative or
agent of Purchaser.
3.14 INVESTMENT REPRESENTATIONS - The XX.XXX Shares to be issued to Ericsson
pursuant to the terms of this Agreement have not been registered under
the Securities Act of 1933, as amended (the "1933 ACT"), or registered
or qualified under applicable state securities or "Blue Sky" laws, and,
therefore, the XX.XXX Shares cannot be reoffered and resold unless
either the reoffer and resale thereof are subsequently registered and
qualified under the 1933 Act and said Blue Sky laws or an exemption
from such registration and qualification is available. Ericsson has
such knowledge and experience in financial and business matters that it
is capable of evaluating the risks of an investment in Purchaser. The
Purchaser has no intention of registering or qualifying under the 1933
Act Ericsson' reoffer and resale of any of the XX.XXX Shares and no
exemption from registration or qualification may be available under the
1933 Act or such Blue Sky laws to Ericsson at the time it wishes to
dispose of such XX.XXX Shares accordingly, Ericsson may have to bear
the economic risk of holding the XX.XXX Shares for an indefinite period
of time. Further, Ericsson is acquiring the XX.XXX Shares for
investment purposes only for Ericsson' own accounts, and not on behalf
of any other person nor with a view to, or for resale in connection
with any distribution thereof. Ericsson understands that the
certificates representing the XX.XXX Shares will be stamped with a
legend substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
3.15 TRUE AND COMPLETE REPRESENTATIONS AND WARRANTIES - The representations
and warranties of Ericsson contained in this Agreement are true,
accurate and complete in all material respects and there has been no
omission by Ericsson to state any fact necessary to make the statements
herein not misleading.
ARTICLE 4
WARRANTIES AND REPRESENTATIONS OF THE PURCHASER
The Purchaser warrants and represents to Ericsson as follows and
acknowledges that Ericsson is relying upon such representations and
warranties in connection with the sale to the Purchaser of the
Purchased Shares and that Ericsson would not have entered into this
Agreement without the full benefit of such warranties and
representations.
4.1 CORPORATE STATUS - The Purchaser is a corporation duly incorporated,
organized and is validly existing under the laws of California (United
States of America) and is in good standing under the laws of each
jurisdiction in which it is carrying on business or in which it owns or
holds property.
4.2 CORPORATE POWERS AND AUTHORIZATIONS - The Purchaser has the corporate
capacity, power and authority and full legal right to enter into and
execute this Agreement and all
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ancillary documents hereto and to perform all of its obligations
thereunder. The Purchaser has taken all necessary action to authorize
the execution of this Agreement and its ancillary documents on its
behalf by its officers, directors and shareholders and to authorize the
performance of all of its obligations thereunder; this Agreement and
such ancillary documents have been duly executed by a duly authorized
person on behalf of the Purchaser and this Agreement and its ancillary
documents constitute valid and legally binding obligations of the
Purchaser enforceable against it in accordance with their terms, except
as enforcement may be limited by bankruptcy, insolvency, and other laws
affecting the rights of creditors generally and except that equitable
remedies may be granted only in the discretion of a court of competent
jurisdiction.
4.3 APPROVALS AND COMPLIANCE - No consent or approval of any regulatory
authority or agency having jurisdiction over the Purchaser or over the
property, rights and assets of the Purchaser, of any of the Purchaser's
creditors or of any Party to any agreement to which the Purchaser is a
party or by which it or any of its property, rights or assets are bound
or affected is required to be obtained in connection with the execution
of this Agreement and all ancillary documents hereto or in connection
with the performance of Purchaser's obligations thereunder; the
execution of this Agreement and all ancillary documents hereto and the
performance of the obligations thereunder by Purchaser is not and will
not be in contravention or in conflict with the Articles, by-laws,
resolutions of the Purchaser, its directors or its shareholders, or of
any indenture, mortgage, lease, agreement, statute, regulation,
judgment, decree or order to which the Purchaser is a party or by which
it or any of its property, rights or assets are bound or affected.
4.4 AUTHORIZED AND ISSUED CAPITAL OF THE PURCHASER - The authorized, issued
and outstanding capital of the Purchaser consists of 275,000,000 shares
of Common Stock, of which 71,124,865 shares are issued and outstanding,
and 25,000,000 shares of Preferred Stock, of which 5,000,000 shares are
undesignated and 20,000,000 shares have been designated Series A
Convertible Stock, 15,480,964 of which are issued and outstanding.
Except as disclosed in Schedule 4.4, no share of the capital stock of
the Purchaser is reserved for issuance and there is no authorized or
outstanding subscription, option, warrant, call, contract, demand,
commitment, convertible security or other agreement or arrangement of
any character or nature whatsoever under which the Purchaser is or may
become obligated to issue, sell, assign, pledge, mortgage, or otherwise
transfer or encumber any shares of the capital stock of the Purchaser
or by which any shareholder of the Purchaser may be required to do any
of the foregoing. Purchaser warrants that the XX.XXX Shares, when
issued pursuant to the terms hereof, shall constitute four percent (4%)
of the "fully diluted capital" of XX.XXX as of August 30, 2000, as more
particularly described on Schedule 6.4.
4.5 RECORDS - The minute books of the Purchaser are complete and accurate,
and contain copies of all by-laws and resolutions passed by its
stockholders and directors since the date of its incorporation; all of
which by-laws and resolutions have been duly passed.
The share certificate books, registers of stockholding registers of
transfers and registers of directors are complete and accurate.
The financial Books and Records of the Purchaser have been maintained
in accordance with sound business practices and fairly, accurately and
completely present and disclose in accordance with Generally Accepted
Accounting Principles applied on a basis
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consistent with prior periods and throughout the periods involved (i)
the financial position of the Purchaser and (ii) all transactions
properly reportable in the Books and Records.
4.6 BUSINESS - Attached as Schedule 4.6 is Form 10-SB, as amended and filed
by the Purchaser before the U.S. Securities and Exchange Commission
("SEC"). Such Form 10-SB is the most recent Form 10-SB filed by and
fairly describes the business affairs and financial position of the
Purchaser as of July 21, 2000 and Purchaser has complied with the SEC
requirements regarding updating of such Form 10-SB.
4.7 CONSENTS AND APPROVALS - There is no requirement for the Purchaser to
make any filing with, give any notice to or obtain any license, permit,
certification, registration, authorization, consent or approval of, any
Governmental Body as a condition to the lawful consummation of the
transactions contemplated by this Agreement.
4.8 ABSENCE OF CONFLICTING AGREEMENTS ETC. - Save and except as may result
from the identity of Ericsson or its attributes or actions, the
execution and performance of this Agreement as well as of all the
documents relating thereto shall not (i) place the Purchaser in a
situation of default under any agreement, contract or obligation of any
kind, (ii) result in the creation of, or require the creation of any
Lien upon the XX.XXX Shares, or (iii) give to any Person the right to
terminate, cancel, modify, amend, vary or renegotiate any contract,
agreement, indenture, instrument or commitment to which the Purchaser
is a party.
4.9 ADHERENCE TO LAWS, REGULATIONS AND CONTRACTS - The Purchaser has
complied and continue to comply with all applicable Laws, the
non-compliance with which would have a materially adverse effect on the
Purchaser.
4.10 INVESTMENT CANADA - The Purchaser is not a Canadian within the meaning
of the Investment Canada Act.
4.11 VALID ISSUANCE OF SHARES - The board of directors of the Purchaser has
duly authorized and issued to Ericsson, in accordance with all relevant
and applicable corporate and securities Laws, the XX.XXX Shares, as
fully paid and non-assessable.
4.12 BROKER'S COMMISSION - The Purchaser has not entered into any agreement
that would entitle any Person to any valid claim against Ericsson or
the Purchaser for a broker's commission, finder's fee or any like
payment in respect of the purchase and sale of the Purchased Shares or
any other matter contemplated by this Agreement.
4.13 VALUE OF THE PURCHASED SHARES - Purchaser has received and reviewed to
Purchaser's satisfaction such documents and corporate and financial
records of UsCo and Newco Canada, and has had answered all questions
with regard thereto that Purchaser deemed necessary or appropriate to
evaluate the business, operations and assets of the UsCo and Newco
Canada and the value of its Common Stock. Purchaser is relying solely
on its own evaluation and analysis in determining the value of the
Purchased Shares and not on any representation of value or worth made
by Ericsson, or any of its respective officers, employees,
representatives or agents.
4.14 INVESTMENT REPRESENTATIONS - The offer and sale to Purchaser of the
Purchased Shares have not been registered under the 1933 Act, or
registered or qualified under applicable state securities or "Blue Sky"
laws, and, therefore, the Purchased Shares
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cannot be reoffered and resold unless either the reoffer and resale
thereof are subsequently registered and qualified under the 1933 Act
and said Blue Sky laws or an exemption from such registration and
qualification is available. Purchaser may have to bear the economic
risk of holding the Purchased Shares for an indefinite period of time.
Purchaser has such knowledge and experience in financial and business
matters that it is capable of evaluating the risks of an investment in
UsCo. Further, Purchaser is acquiring the Purchased Shares for
investment purposes only for Purchaser's own account, and not on behalf
of any other person nor with a view to, or for resale in connection
with any distribution thereof. Purchaser understands that the
certificates representing the Purchased Shares will be stamped with a
legend substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
4.15 REPRESENTATIONS AND WARRANTIES - The representations and warranties of
Purchaser contained in this Agreement are true, accurate and complete
in all material respects and there has been no omission by Purchaser to
state any fact necessary to make the statements herein not misleading.
ARTICLE 5
CLOSING
5.1 CLOSING - At the time of closing on the Closing Date, Ericsson shall:
(a) take all necessary steps and proceedings as may be
required in the opinion of the legal counsel of the
Purchaser, acting reasonably, to permit the Purchased
Shares to be duly and validly transferred to, and
registered in the name of, the Purchaser;
(b) deliver to the Purchaser at the place of Closing
certified copies of resolutions (in form and
substance satisfactory to the Purchaser's legal
counsel, acting reasonably) authorizing and approving
the sale, of the Purchased Shares to the Purchaser;
(c) deliver to the Purchaser, the actual possession of
the certificates representing the Purchased Shares,
duly endorsed for transfer to the Purchaser.
5.2 CLOSING - At the time of closing on the Closing Date, the Purchaser
shall:
(a) deliver a share certificate evidencing the XX.XXX
Shares in the name of Ericsson;
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(b) deliver to Ericsson at the place of Closing certified
copies of the resolutions of the directors of the
Purchaser authorizing and approving (i) the purchase
of the Purchased Shares by the Purchaser, and (ii)
the issuance of the XX.XXX Shares in the capital
stock of the Purchaser to Ericsson.
5.3 CONDITIONS - The purchase and sale of the Purchased Shares in
accordance with the terms of this Agreement are subject to the
following terms and conditions. Such condition must have been performed
or complied with prior or concurrently with the execution of this
Agreement:
5.3.1 THIRD PARTY APPROVALS - There must have been obtained from all
appropriate Persons all such approvals, consents and
assurances, in order to permit the change of ownership of the
Purchased Shares contemplated herein to be completed without
affecting or resulting in the termination, cancellation,
modification, amendment, variation or renegotiation of this
Agreement;
5.3.2 SHAREHOLDER AGREEMENT -The Shareholder Agreement in form and
substance similar to the document attached hereto as Schedule
5.3.2 shall have been executed by all relevant parties
thereto;
5.3.3 OTHER CLOSING - Closing shall have taken place on the same
date with respect to the agreement whereby Microcell Capital
II Inc. sells to XX.XXX all the issued and outstanding shares
it holds in the capital stock of UsCo.
ARTICLE 6
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES - All the warranties and
representations and covenants and agreements made and given hereunder
or in any agreement contemplated hereby shall continue to have full
force and effect from the date of execution hereof, notwithstanding any
verification made by any of the Parties, the whole subject to the
following terms and conditions:
6.1.1 NO TIME LIMIT - All of the warranties and representations set
out in Sections 3.1, 3.3, 3.4, 3.5, 4.1, 4.2, 4.4 and 4.11
shall continue to have full force and effect for an unlimited
period of time. Also, there shall be no time limit on
representations and warranties of Ericsson or the Purchaser
based upon any willful misrepresentation of such nature as to
constitute fraud;
6.1.2 TIME LIMIT - All of the warranties and representations set out
in Section 3.10 shall continue to have full force and effect
for the periods prescribed by Law with respect to assessments
and reassessments for Taxes;
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6.1.3 TIME LIMIT - Subject to Subsections 6.1.1 and 6.1.2 above, all
warranties and representations set out herein shall continue
to have full force and effect for a period of twenty-four (24)
months from the Closing Date.
ARTICLE 7
CLOSING ARRANGEMENTS
7.1 PLACE AND TIME OF CLOSING - The Closing of this transaction shall take
place at 11:00 a.m. on the Closing Date immediately following the
execution hereof, at the offices of Stikeman, Xxxxxxx in Montreal or at
such time and place as may be approved in writing by the Parties
hereto.
ARTICLE 8
MISCELLANEOUS
8.1 PRESS RELEASE - Any press release or any public announcement, statement
or publicity with respect to the transaction contemplated in this
Agreement shall be made only with the prior consent of the Parties
unless such release or announcement is required by Law, in which case
the Party required to make such release or announcement shall submit to
the other Party its proposed public statement for approval of the other
Party to the form, nature and extent of such disclosure, which approval
shall not be unreasonably withheld.
8.2 FURTHER ASSURANCES - Each of the Party upon the request of the other
Party, whether before or after the Closing, shall do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged or
delivered all such further acts, deeds, documents, assignments,
transfers conveyances and assurances as may be reasonably necessary or
desirable to effect complete consummation of the transactions
contemplated by this Agreement.
8.3 SUCCESSORS IN INTEREST - This Agreement and the provisions hereof shall
enure to the benefit of and be binding upon the Parties and their
respective successors and assigns. The Purchaser and Ericsson may not
assign this Agreement or any of its rights and obligations hereunder
without the prior consent of the other Party.
8.4 NOTICES - Any notice, direction or other instrument required or
permitted to be given hereunder shall be in writing and shall be
delivered either by personal delivery or by telex, telecopier or
similar telecommunication device and addressed as follows:
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(a) in the case of Ericsson, to it at:
ERICSSON CANADA INC.
0000 Xxxxxxx Xxxx.
Town of Mount Royal, Quebec
H4P 2N2
Attention: General Counsel
Telecopier: (000) 000-0000
(b) in the case of the Purchaser, to it at:
XX.XXX
Snorrabraut 54
IS- 105 Reykjavik
Iceland
Attention: General Counsel
Telecopier: (000) 000-0000
Any notice, direction or other instrument aforesaid shall be deemed to
have been given and received, if sent by telex, telecopier or similar
telecommunications device on the next Business Day following receipt of
such transmission or, if delivered, to have been given and received on
the date of such delivery. Any Party may change its address for service
by written notice given as aforesaid.
8.5 EXPENSES - Ericsson and the Purchaser shall bear and pay all costs,
expenses and fees (including, without limitation, legal counsel and
accounting fees and disbursements) incurred by it in connection with
the preparation, execution and consummation of this Agreement and the
transactions contemplated hereunder; it being understood, whether or
not the transaction contemplated in this Agreement and ancillary
documentation closes, Ericsson shall not be responsible and shall not
assume any of the Purchaser's transaction expenses.
8.6 COUNTERPARTS - This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed an
original, and such counterparts together shall constitute one and the
same instrument.
8.7 NO THIRD PARTY BENEFICIARIES - Except as otherwise indicated herein,
nothing in this Agreement shall confer any rights upon any Person or
entity not a party or a permitted transferee of a party to this
Agreement.
8.8 FAIRNESS - the parties hereby acknowledge that to their knowledge there
has been no finding or determination as to the fairness of the
transactions set forth herein as provided for in the California
Corporations Code.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and at
the place first above mentioned.
ERICSSON CANADA INC.
By: /s/ XXXXX XXXXXXXX, General Counsel
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OZ. COM
By: /s/ GUNNAR THORODSSEN
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