1
Exhibit 1.I
SHARE PURCHASE AGREEMENT
THIS AGREEMENT made as of the day of November , 1996.
BETWEEN:
NATIONAL ENTERPRISES, INC., a corporation incorporated pursuant to
the laws of the State of Indiana
(hereinafter called the "Vendor")
OF THE FIRST PART
- and -
DANCA INVESTMENTS, INC., a corporation incorporated pursuant to the
laws of the State of Texas
(hereinafter called the "Purchaser")
OF THE SECOND PART
WHEREAS the Vendor desires to sell and the Purchaser desires to purchase
certain of the property and assets of the Vendor, hereinafter called the
"Transferred Assets", on the terms and subject to the conditions hereinafter
set forth;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of other
valuable consideration and the sum of one dollar ($1.00) of lawful money of the
United States of America now paid by the Purchaser to the Vendor (receipt and
sufficiency whereof are hereby acknowledged), the Parties have agreed and do
hereby agree with each other as follows:
ARTICLE 1
INTERPRETATION
Section 1.01 Definitions. Where used in this Agreement, unless the context or
subject matter otherwise requires, the following words and phrases will have
the meanings set forth below:
"Closing" means the closing of the sale and purchase of the Transferred
Assets contemplated by this Agreement.
"Closing Date" means December 11, 1996 or as mutually agreed between the
Parties.
"Company" means NRC, Inc., a corporation incorporated pursuant to the
laws of the State of Texas.
"Fair Market Value" means, when used in relation to assets being
purchased by the Purchaser hereunder, the fair market value of the assets
in question at the Time of Closing.
"NEI Advance" means the advance made by the Vendor to the Company shown
on the financial statements annexed as a Schedule to this Agreement.
2
"Parties" means the Purchaser and the Vendor, and their respective
successors and permitted assigns; and
"Party" means either of the Parties.
"Person" means an individual, a partnership, a corporation, a government
or any department or agency thereof, a trustee, any unincorporated
organization and the heirs, executors, administrators or other legal
representatives of an individual; and words importing "Person" have
similar meanings.
"Purchase Price" means the aggregate price for the Transferred Assets as
determined in Section 2.02.
"Purchaser" means the party of the second part.
"Time of Closing" means the opening of business on the Closing Date.
"Transferred Assets" means all of the issued and outstanding shares of
the Company and the NEI Advance.
"Vendor" means the party of the first part.
"Vendor's Book and Records" means all documents, files, records and other
data and information of the Company or of the Vendor relating to the
Transferred Assets or the Company.
Section 1.02. Currency. All sums of money which are referred to in this
Agreement are, unless the context or subject matter otherwise permits,
expressed in lawful money of the United States of America.
Section 1.03. Division of Agreement. The division of this Agreement into
articles, sections, paragraphs and subparagraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation of this Agreement. The terms "this Agreement", "hereof",
"herein", "hereunder" and similar expressions refer to this Agreement and not
to any particular article, section or other portion thereof and include any
agreement or instrument supplementary of ancillary hereto.
Section 1.04. Number and Gender. Words importing the singular number only
shall include the plural and vice versa, words importing the use of any gender
shall include all genders.
ARTICLE II
PURCHASE AND SALE OF TRANSFERRED ASSETS
Section 2.01. Purchase and Sale. Subject to the terms and provisions hereof
and based upon the warranties and representations herein contained, the Vendor
hereby sells, transfers, assigns and conveys to the Purchaser and the Purchaser
hereby purchases and accepts assignments of from the Vendor, at the Time of
Closing on the Closing Date, free and clear of any and all liens, pledges,
charges, mortgages, claims, security interests and other encumbrances, the
Transferred Assets.
Section 2.02. Purchase Price. The Purchase Price payable by the Purchaser for
the Transferred Assets (the "Purchase Price") shall be the sum of $120,874.20,
being the Fair Market Value of the Transferred Assets on the Closing Date. Of
such amount, the sum of $119,874.20 shall be allocated to the NEI Advance and
the balance to the remainder of the Transferred Assets.
Section 2.03. Payment of Purchase Price. The Purchase Price shall be paid and
satisfied by the Purchaser at the Time of Closing on the Closing Date in the
following manner:
3
(a) The Purchaser shall assume the debt outstanding to Xxxxxx
(U.S.) Holdings, Inc. by the Vendor in the amount of $46,355.96 and
the debt outstanding to Arendscor (Canada) Inc. by the Vendor up to
the sum of $74,518.24 as part of the Purchase Price by issuing to
the Vendor its demand non-interest bearing promissory notes in the
principal amounts of $46,355.96 and $74,518.24 which will
immediately be assigned to Xxxxxx (U.S.) Holdings, Inc and Arendscor
(Canada) Inc., respectively.
(b) In the event that the Purchase Price is greater than the debt
outstanding by the Vendor to Xxxxxx (U.S.) Holdings, Inc. And
Arendscor (Canada) Inc. the Purchaser shall pay the balance of the
Purchase Price in cash or cheque.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF VENDOR
The Vendor represents and warrants, subject to Section 5.03 and 6.01, to
the Purchaser as follows and acknowledges that the Purchaser is relying upon
such representations and warranties in connection with the entering into of
this Agreement and the purchase by the Purchaser of the Transferred Assets:
Section 3.01. Corporate Status of the Vendor. The Vendor is a corporation
duly incorporated, organized and validly subsisting under the laws of the State
of Indiana; the Vendor has the corporate power and capacity to own its property
and to carry on the business now being conducted by it and to carry out the
transactions contemplated hereby.
Section 3.02. Corporate Status of the Company. The Company is a corporation
duly incorporated and validly subsisting under the laws of the State of Texas;
the Company has the corporate power and capacity to own its property and to
carry on the business now being conducted by it and to carry on the
transactions contemplated hereby.
Section 3.03. Sale Permitted by Charter, Agreements, etc. The execution and
delivery by the Vendor of, and the performance of its obligations under, this
Agreement and the completion by the Vendor of the transactions contemplated
hereby will not result in the violation of any of the terms and provisions of
the constating documents or by-laws of the Vendor or the Company.
Section 3.04. Sale Permitted by Laws. The execution and delivery by the
Vendor of and the performance of its obligations under this Agreement and the
completion by the Vendor of the transactions contemplated hereby will not
result in the violation of any law or regulation of the United States of
America, the State of Indiana, or any order or decree of any court or tribunal
to which the Vendor or the Company is subject.
Section 3.05. Agreement Binding on Vendor. This Agreement has been duly
authorized, executed and delivered by the Vendor and is a valid and binding
obligation of the Vendor enforceable in accordance with its terms except as
such enforcement may be limited by bankruptcy, insolvency or other laws of
general application affecting the rights of creditors and except that specific
performance is an equitable remedy which may only be awarded in the discretion
of the Court.
Section 3.06. Income Tax Returns. The Vendor has duly and finally filed all
consolidated tax returns which include the accounts of the Company, except the
1995 federal consolidated tax return, required to be filed by it. The Vendor
remains obligated to file the 1995 federal consolidated tax return which
includes the accounts of the Company for the fiscal year ended December 31,
1995 and will file the 1995 federal consolidated tax return.
Section 3.07. Title, etc. The Vendor will be the owner of the Transferred
Assets at the Time of Closing free and
4
clear of any and all liens, pledges, charges, mortgages, security interests,
claims and other encumbrances, except as may be disclosed to the Purchaser.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser represents and warrants to the Vendor as follows and
acknowledges that the Vendor is relying upon such representations and
warranties in connections with the entering into of this Agreement and the sale
by the Vendor of the Transferred Assets:
Section 4.01. Corporate Status. The Purchaser is a corporation duly
continued, organized and validly subsisting under the laws of the State of
Texas and has the corporate power and capacity to own its property and to carry
out the transactions contemplated hereby.
Section 4.02. Purchaser Permitted by Charter, Agreements, etc. The execution
and delivery by the Purchaser of, and the performance of its obligations under,
this Agreement and the completion by the Purchaser of the transactions
contemplated hereby will not result in the violation of any of the terms and
provisions of the constating documents or by-laws of the Purchaser or of any
indenture or other agreement, written or oral, to which the Purchaser is a
party or by which it is bound.
Section 4.03. Purchase Permitted by Laws. The execution and delivery by the
Purchaser of and the performance of its obligations under this Agreement and
the completion by the Purchaser of the transactions contemplated hereby will
not result in the violation of any law or regulations of the United States of
America, the State of Indiana or any order or decree of any court or tribunal
to which the Purchaser is subject.
Section 4.04. Agreement Binding on Purchaser. This Agreement has been duly
authorized, executed and delivered by the Purchaser and is valid and binding
obligation of the Purchaser enforceable in accordance with its terms except as
such enforcement may be limited by bankruptcy, insolvency or other laws of
general application affecting the rights of creditors and except that specific
performance is an equitable remedy which may only be awarded in the discretion
of the Court.
ARTICLE V
SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 5.01. Survival of Vendor's Covenants, etc. The covenants,
representations and warranties of the Vendor contained in this Agreement shall
survive the Closing, and, notwithstanding such Closing, nor any investigation
made by or on behalf of the Purchaser, shall continue in full force and effect
for the benefit of the Purchaser for a period of six months only and at the end
of such six month period such covenants, representations and warranties shall
expire and be null and void except with respect to claims made in relation
thereto during such six month period.
Section 5.02. Survival of Purchaser's Covenants, etc. The covenants,
representations and warranties of the Purchaser contained in this Agreement
shall survive the Closing, and, notwithstanding such Closing, nor any
investigation made by or on behalf of the Vendor, shall continue in full force
and effect for the benefit of the Vendor for a period of six months only and at
the end of such six month period such covenants, representations and warranties
shall expire and be null and void except with respect to claims made in
relation thereto during such six month period..
Section 5.03. Indemnity. The Vendor and the Purchaser each covenant and agree
to indemnify and save harmless the other of and from any loss whatsoever
suffered by the other directly or indirectly as a result of or arising out of
5
any breach of representation, warranty or covenant of the other contained in
this Agreement, and all claims, demands, costs and expenses in respect of the
foregoing, up to a limit of $500.00. The foregoing limitation does not apply to
any breach pursuant to Section 3.06.
ARTICLE VI
CERTAIN COVENANTS OF THE PARTIES
Section 6.01. Preliminary Investigations. The Vendor shall forthwith make
available to the Purchaser all Vendor's Books and Records. The Purchaser
acknowledges that there are no express or implied representations, warranties
or covenants by the Vendor with respect to the completeness or accuracy of the
financial statements annexed as a Schedule to this Agreement. The Purchaser
further acknowledges that the Vendor is making no representations, warranties
or covenants with respect to any actions, suits or proceedings which may create
a lien on the assets of the Company.
Section 6.02. Commission, Legal Fees, etc. All negotiations relative to this
Agreement and the transaction contemplated hereby have been conducted between
the Parties without the intervention of any other Person so that no valid claim
will arise against either of the Parties for a brokerage commission, finder's
fee or other like payment. The Vendor and the Purchaser will each bear the
fees and disbursements of the respective lawyers, accountants, brokers or
consultants engaged by them respectively in connection with the preparation of
this Agreement and the transactions contemplated hereby.
ARTICLE VII
CLOSING ARRANGEMENTS
Section 7.01. Closing. The Closing of the purchase and sale of the
Transferred Assets shall occur at the Time of Closing on the Closing Date at
the offices of the Purchaser at 000 XxXxx Xxx., Xxxxx Xxxx, Xxxxxxx, X0X 0X0.
At or before the Time of Closing, upon fulfilment of all the conditions set out
in Article VIII which have not been waived in writing by the Purchaser:
(a) The Vendor shall deliver to the Purchaser all necessary
deeds, conveyances, bills of sale, assurances, transfers,
assignments and any other documents necessary or reasonably required
to transfer the Transferred Assets to the Purchaser with a good and
marketable title, free and clear of all mortgages, liens, charges,
pledges, claims, security interests or encumbrances whatsoever;
(b) The Vendor shall deliver physical possession of the
Transferred Assets, including without limitation share certificates
representing all of the outstanding shares of the Company duly
endorsed in blank for transfer and any promissory note evidencing
the NEI Advance together with duly executed assignment thereof, to
the Purchaser;
(c) The Vendor shall take or cause to be taken by itself and the
Company all necessary or desirable actions, steps and corporate
proceedings to approve or authorized validly and effectively the
transfer of the Transferred Assets to the Purchaser and the
execution and delivery of this Agreement and other agreements and
documents contemplated hereby and shall cause all necessary meetings
of directors and shareholders of the Vendor and the Company to be
held for such purpose;
(d) The Vendor shall, if and to the extent requested, cause the
directors, officers and accountants of the Company to resign in
favour of nominees of the Purchaser; and
6
(e) The Vendor shall deliver to the Purchaser the Vendor's Books
and Records, which shall become the property of the Purchaser. The
Purchaser agrees that it will preserve the Vendor's Books and
Records so delivered to it for such period as is required by any
applicable law, and will permit the Vendor or its authorized
representative(s) reasonable access thereto and the Purchaser shall
not destroy any of such Vendor' Books and Records either before or
after such period without giving the Vendor opportunity to take back
such Vendor' Books and Records, but the Purchaser shall not be
responsible or liable to the Vendor as a result of any accidental
loss or destruction of or damage to any such Vendor's Books and
Records.
Section 7.02. Purchase Price. On the Closing Date, the Purchaser shall make
payment to the Vendor of the Purchase Price.
ARTICLE VIII
CONDITIONS OF CLOSING
Section 8.01. Conditions for Purchaser's Benefit. The sale and purchase of
the Transferred Assets is subject to the following terms and conditions for the
exclusive benefit of the Purchaser to be fulfilled and/or performed at or prior
to the Time of Closing:
(a) the representations and warranties of the Vendor contained in
this Agreement shall be true and correct as of the Time of Closing,
and the Closing of the transaction of purchase and sale herein
provided for shall not be nor be deemed to be a waiver of the
covenants, representations and warranties contained in this
Agreement, which covenants, representations and warranties shall
continue in full force and effect for the benefit of the Purchaser
as provided in Article V hereof;
(b) all of the terms, covenants and conditions of this Agreement
to be complied with or performed by the Vendor at or before the Time
of Closing shall have been complied with or performed;
(c) there shall have been obtained from all appropriate federal,
state, provincial, local, municipal or other governmental or
administrative bodies such approvals or consents as are required to
permit the change of ownership of the Transferred Assets
contemplated hereby;
(d) no action or proceeding in Canada or the United States by law
or in equity shall be pending or threatened by any Person to enjoin,
restrict or prohibit the purchase and sale of the Transferred Assets
contemplated hereby.
In case any of the foregoing terms and conditions shall not have been
fulfilled or performed at or prior to the Time of Closing, the Purchaser may
terminate this Agreement by notice in writing to the Vendor and in such event
the Purchaser shall be released from all obligations hereunder, and, unless the
Purchaser can show that the condition or conditions for the non-performance of
which the Purchaser has terminated this Agreement are reasonably capable of
being performed or caused to be performed by the Vendor, then the Vendor shall
also be released from all obligations hereunder; however, that the Purchaser
shall be entitled to waive compliance with any such terms and conditions in
whole or in part if it sees fit to do so without prejudice to any of its rights
of termination in the event of non-performance or non-fulfilment of any other
term or condition in whole or in part.
Section 8.02. Conditions for Vendor's Benefit. The sale and purchase of the
Transferred Assets is subject to the following terms and conditions for the
exclusive benefit of the Vendor to be fulfilled and/or performed at or prior to
the Time of Closing:
(a) the representations and warranties of the Purchaser contained
in Article IV hereof shall be true
7
and correct as of the Time of Closing, and the Closing of the
transaction of purchase and sale herein provided for shall not be
nor be deemed to be a waiver of the covenants, representations and
warranties contained in this Agreement, which covenants,
representations and warranties shall continue in full fore and
effect for the benefit of the Vendor as provided in Article V
hereof;
(b) the Purchaser shall have complied with all terms, covenants,
conditions and agreements herein agreed to be performed or caused to
be performed by it; and
(c) no action or proceeding in Canada or in the United States by
law or in equity shall be pending or threatened by any Person to
enjoin or prohibit the purchase and sale of the Transferred Assets
contemplated hereby or contest the authority of the Purchaser to
executed and deliver this Agreement or to consummate the transaction
contemplated hereby.
In case any of the foregoing terms and conditions shall not have been
fulfilled or performed at or prior to the Time of Closing, the Vendor may
terminate this Agreement by notice in writing tot he Purchaser and in such
event the Vendor shall be released from all obligations hereunder, and, unless
the Vendor can show that the condition or conditions for the non-performance of
which the Vendor has terminated this Agreement are reasonably capable of being
performed or caused to be performed by the Purchaser, then the Purchaser shall
also be released from all obligations hereunder; provided, however, that the
Vendor shall be entitled to waive compliance with any such terms and conditions
in whole or in part if it sees fit to do so without prejudice to any of its
rights or termination in the event of non-performance of any other term or
condition in whole or part.
ARTICLE IX
NOTICES
Section 9.01. Notices. All notices, demands, requests, consents, agreements
and approvals (collectively, "notices") which may or are required to be given
pursuant to any provision of this Agreement shall be given or made in writing
and if mailed by first class registered mail shall be deemed to have been
received seven (7) business days after the post-marked date thereof and if
telegraphed or telexed, shall be followed forthwith by letter and shall be
deemed to have been received on the business day following the dispatch thereof
and, if delivered by hand, shall be deemed to have been received on the day of
delivery. Notices shall be addressed as follows:
(a) if to the Vendor:
X.X. Xxx 000000,
Xxxxx, XX, 00000-0000
XXX
Attention: Secretary
(b) if to the Purchaser:
000 XxXxx Xxx.,
Xxxxx Xxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Fax: (000)-000-0000
Attention: Secretary
or to such other address or in case of such other officers as the Parties may
from time to time advise each other by
8
notice in writing.
ARTICLE X
MISCELLANEOUS
Section 10.01. Time of the Essence. Time shall be of the essence of this
Agreement.
Section 10.02. Entire Agreement. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter of this
Agreement, and supersedes all prior agreements and understanding between the
Parties with respect thereto. There are no representations, warranties,
undertakings or agreements between the Parties with respect to the subject
matter of this Agreement except as set forth herein and this Agreement may not
be amended or modified in any respect except by written instrument signed by
the Parties.
Section 10.03. Further Assurances. The Vendor and the Purchaser will each
execute and deliver such further documents and instruments and do such acts and
things as may before or after the Closing Date be reasonably required by the
other to carry out the intent and meaning of this Agreement and to assure to
the Purchaser the Transferred Assets.
Section 10.04. Applicable Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the Parties shall be governed by, the
laws of the State of Texas. The Parties attorn to the jurisdiction of the
courts of the State of Texas.
Section 10.05. Binding Agreement. This Agreement shall enure to the benefit
of and be binding upon the Parties and their respective successors and
permitted assigns.
Section 10.06. Assignment. Neither Party may assign this Agreement without
the prior written consent of the other Party.
IN WITNESS WHEREOF the Parties have executed this Agreement.
Vendor: NATIONAL ENTERPRISES, INC.
By: _____________________
Name: Xxxx Xxxxxx
Title: Secretary
Purchaser: DANCA INVESTMENTS, INC.
By: _____________________
Name: Xxxx X. Xxxxxxx
Title: President
