Exhibit 10.61
▇▇▇▇▇▇▇▇▇▇.▇▇▇ LTD.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
ACQUISITION AGREEMENT
JULY 20, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Scotia Plaza, Suite 2100
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
THIS ACQUISITION AGREEMENT is made as of the 20/th/ day of July, ▇▇▇▇,
▇ ▇ ▇ ▇ ▇ ▇ ▇:
▇▇▇▇▇▇▇▇▇▇.▇▇▇ LTD. a corporation incorporated pursuant to the
laws of the Province of Ontario ("Travelbyus")
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ an individual normally resident and
domiciled in the State of Illinois (the "Seller")
RECITALS:
A. Travelbyus and the Seller executed the LOI (as hereinafter defined)
pursuant to which, among other things, Travelbyus agreed to purchase 100% of the
issued and outstanding shares in the capital of the Target (as hereinafter
defined); and
B. The parties hereto are desirous of entering into this Agreement to
consummate the transactions contemplated in the LOI;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the covenants
and agreements herein contained and for other good and valuable consideration
(the receipt and adequacy whereof is hereby acknowledged) the parties hereto do
hereby agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
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:
"Act" means the Business Corporations Act, Ontario in effect on the date
hereof.
"Accounts Receivable" means any and all accounts receivable, bills
receivable, trade accounts, book debts and insurance claims of the Target
and recorded as receivable in the Books and Records of the Target and any
other amount due to the Target including any refunds and rebates and the
benefit of all security (including cash deposits), guarantees and other
collateral held by the Target.
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"Accrued Liabilities" means any and all accrued liabilities of the Target
incurred in the ordinary course of business, including accruals for
vacation pay, customer rebates and allowances for product returns.
"Additional Shares" has the meaning ascribed thereto in section 3.2.
"Affiliate" has the meaning ascribed thereto in the Act.
"Agreement" means this Acquisition Agreement, including all schedules and
all instruments supplementing, amending or confirming this Agreement and
references to "Article" or "Section" mean and refer to the specified
Article or section of this Agreement.
"arm's length" means arm's length as defined in the Tax Act.
"Associate" has the meaning ascribed thereto in the Act.
"Benefit Plans" means all plans, arrangements, agreements, programs,
policies or practices, whether oral or written, formal or informal,
registered or unregistered, funded or unfunded, which the Target is a party
to or bound by or under which the Target has any liability or contingent
liability, relating to:
(a) retirement savings or pension plans, including without limitation, any
defined benefit pension plan, defined contribution pension plan, group
registered retirement savings plan or supplemental pension or
retirement plan; or
(b) any bonus, profit sharing, deferred compensation, incentive
compensation, hospitalization, health, dental, disability,
unemployment insurance, vacation pay, severance pay or other benefit
plan with respect to any of the Employees or former Employees of the
Target, individuals working on contract with them or other individuals
providing services to them of a kind normally provided by employees
and all statutory plans with which the Target is required to comply.
"Blue Sky Laws" has the meaning ascribed therein in section 4.10.
"Books and Records" means all books and records of the Target, including
without limitation, all data and information stored on computer-related
media.
"Business" means the business currently and heretofore carried on by the
Target, being the business of the creation, development and production of
travel publications, travel television series and e-commerce website media
as well as other travel-related media including wireless communications.
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"Business Day" means a day, other than a Saturday or Sunday, on which
the principal commercial banks located in the City of Toronto are open
for business during normal banking hours.
"Claims" means any claim, demand, action, suit, litigation,
arbitration, investigation, proceeding, cause of action, damage, loss,
cost, liability or expense, including without limitation, reasonable
professional fees and all costs incurred in investigating or pursuing
any of the foregoing or any proceeding relating to any of the
foregoing.
"Closing" means the completion of the Transaction under this
Agreement.
"Closing Date" means the 20th day of July, 2000, or such other date as
the Parties may agree in writing as the date upon which Closing shall
take place.
"Closing Time" means 11:00 a.m. Toronto time on the Closing Date or
such other time on such date as the Parties may agree in writing as
the time at which Closing shall take place.
"Collective Agreements" means the collective agreements by which the
Target is bound and all related documents including all benefit
agreements, letters of understanding, letters of intent and other
written communications with bargaining agents for the Employees which
impose any obligations upon the Target or which set out the
understanding of the parties with respect to the meaning of any
provisions of such collective agreements.
"Contracts" means all contracts, indentures, mortgages, obligations,
instruments, licences, leases, agreements, commitments, entitlements
and engagements of the Target whether written or oral and includes all
quotations, orders or tenders for contracts which remain open for
acceptance and any manufacturers' or suppliers' warranty, guarantee or
commitment (express or implied).
"control" has the meaning ascribed thereto in the Act.
"Deposit" means the sum of US$5,000 previously advanced by Travelbyus
to the Seller pursuant to the LOI.
"Employees" means all persons employed by the Target.
"Employment Agreement" means the employment agreement to be executed
by the Seller and the Target contemporaneous herewith.
"Encumbrance" means any and all mortgages, pledges, liens, charges,
security interests, adverse claims, demands, voting trusts, proxies
and encumbrances of whatsoever nature and howsoever incurred.
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"Environment" means the environment or natural environment as defined
in any Environmental Law and includes without limitation, air,
surface, water, ground water, land surface, soil, subsurface strata, a
sewer system and the environment in the workplace.
"Environmental Approvals" means all permits, certificates, licences,
authorizations, consents, instructions, registrations, directions or
approvals issued or required by Governmental Authorities pursuant to
Environmental Laws with respect to the operation of the Target or its
assets and includes without limitation, any sewer surcharge agreement.
"Environmental Laws" means all Laws relating in whole or in part, to
the protection of the Environment, product liability and employee and
public health and safety and includes without limitation,
Environmental Laws relating to the storage, generation, use, handling,
manufacture, processing, labeling, advertising, sale, display,
transportation, treatment, Release and disposal of Hazardous
Substances.
"Equipment Contracts" means all motor vehicle leases, equipment
leases, conditional sales contracts, title retention agreements and
other similar agreements relating to equipment used by the Target.
"Fixed Assets" means the fixed assets, machinery, equipment, fixtures,
furniture, furnishings, vehicles, material handling equipment,
implements, parts, tools, jigs, discs, moulds, patterns and tooling,
spare parts owned or used or held by the Target, including without
limitation, those in storage or in transit and other tangible property
and facilities used by the Target whether located in or on the
premises of the Target or elsewhere, including the assets listed and
described in Schedule 5.14.
"Governmental Authority" means any federal, state, foreign or local
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 behalf of any nation or province or state or other
subdivision thereof or any municipality, district or other subdivision
thereof.
"Governmental Authorization" means all authorizations, approvals,
orders, consents or filings, including Environmental Approvals,
licences or permits issued to the Target by any Governmental
Authorities.
"Hazardous Substance" means any pollutant, contaminant, waste of any
nature, hazardous substance, hazardous material, toxic substance,
dangerous substance or dangerous good as defined, judicially
interpreted or identified in any Environmental Law.
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"Intellectual Property" means all patents, copyrights, trade-marks,
trade-names, industrial designs, proprietary information, trade
secrets, know-how, domain names, domain registrations and all other
intellectual property owned by, licensed to or used by the Target,
including applications and registrations for any of the foregoing and
renewals, divisions, extensions and reissues, where applicable,
pertaining thereto.
"Inventories" means all inventories of every kind and nature and
wheresoever situate owned by the Target including without limitation,
all inventories of raw materials, work-in progress, finished goods,
operating supplies, packaging materials, travel credits and media
credits.
"Laws" means all applicable laws, by-laws, rules, regulations, orders,
ordinances, protocols, codes, guidelines, policies, notices,
directions and judgments or other requirements of any Governmental
Authority.
"LOI" means that certain letter of intent dated as of April 16, 2000
between the Seller and Travelbyus.
"Market Price" has the meaning ascribed thereto in section 3.2.
"Material Contract" means; (a) the Equipment Contracts, Real Property
Leases and Benefit Plans; (b) any other Contract involving aggregate
annual payments to or by the Target in excess of $25,000; (c) any
commitment to or by the Target that may reasonably extend beyond one
year which does not terminate or cannot be terminated without penalty
on less than three months' notice; and (d) any Contract which is
outside the ordinary course of business of the Target.
"Muffin" means Muffin Communications Ltd.
"Muffin Balance Sheet" means the balance sheet of Muffin as at
December 31, 1999, forming part of the Muffin Financial Statements for
the last completed fiscal year of Muffin.
"Muffin Financial Statements" means the balance sheet of Muffin as at
December 31, 1999 and the accompanying statement of earnings, retained
earnings and statement of cash flow for the period then ended, copies
of which are attached as Schedule 5.7.
"Non-Arm's Length Person" means a Person who is not at arm's length to
the Party in question.
"Notice" has the meaning ascribed thereto in section 12.3.
"Other Amounts" has the meaning ascribed thereto in section 10.2.
"Parties" means Travelbyus and the Seller and "Party" means any one of
them.
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"Person" means any individual, sole proprietorship, partnership,
unincorporated association, corporation, limited liability company,
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.
"Purchased Assets" means the Purchased Shares and the Assigned
Advances.
"Purchased Shares" means 100 common shares in the capital of Muffin.
"Real Property" means collectively, those premises described on
Schedule 5.21.
"Real Property Leases" means those leases, subleases, agreements to
lease, tenancy agreements, rights of occupation, licenses and other
agreements relating to the Real Property.
"Release" has the meaning prescribed in any Environmental Law and
includes without limitation, any release, spill, leak, pumping,
pouring, emission, emptying, discharge, injection, escape, leaching,
disposal, dumping, deposit, spraying, burial, abandonment,
incineration, seepage or placement.
"Remedial Order" means any administrative complaint, direction, order
or sanction issued, filed or imposed by any Governmental Authority
pursuant to any Environmental Laws and includes without limitation,
any order requiring any remediation or clean-up of any Hazardous
Substance or requiring that any Release or any other activity be
reduced, modified or eliminated.
"Seller" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
"Target" means Muffin.
"Tax Act" means the Internal Revenue Code of 1986, as amended.
"Tax Returns" means and includes without limitation, all returns,
reports, declarations, elections, notices, filings, information
returns and statements filed in respect of Taxes payable by the
Target.
"Taxes" means and 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,
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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 federal and other government pension
plan premiums.
"Transaction" means the transaction of purchase and sale contemplated
by this Agreement.
"Travelbyus" means ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Ltd.
"UCC" has the meaning ascribed thereto in section 4.11.
"U.S. Securities Act" has the meaning ascribed thereto in section
4.10.
"WSE" means the Winnipeg Stock Exchange.
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 United States 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) Consent - whenever a provision of this Agreement requires an
approval or consent by a Party and notification of such approval
or consent is not delivered within the applicable time limit,
unless otherwise specified, the Party whose consent or approval
is required shall be conclusively deemed to have withheld its
approval or consent.
(f) 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 by 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.
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(g) Business Day - whenever any payment to be made or action to be
taken under this Agreement is required to be made or taken on a
day other than a Business Day, such payment shall be made or
action shall be taken on the next Business Day following such
day.
1.3 Knowledge - In this Agreement, any reference to the knowledge of a
Party shall mean to the best of the knowledge, information and belief of the
Party after reviewing all relevant records.
1.4 Entire Agreement - This Agreement together with the other agreements
and documents to be delivered pursuant to this Agreement constitute the entire
agreement between the Parties pertaining to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the Parties (including without limitation, the LOI)
and there are no warranties, representations or other agreements between the
Parties in connection with the Transaction except as specifically set forth in
this Agreement and any document delivered pursuant to this Agreement. No
supplement, modification, waiver or termination of this Agreement shall be
binding unless executed in writing by the Parties to be bound thereby.
1.5 Applicable Law and Attornment - This Agreement shall be construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein and shall be treated in all respects as an Ontario
contract.
1.6 Accounting Principles - Except as provided herein, in this Agreement
all references to generally accepted accounting principles means to principles
recommended, from time to time, by the American Institute of Certified Public
Accountants and all accounting terms not otherwise defined in this Agreement
have the meanings assigned thereto in accordance with United States generally
accepted accounting principles.
1.7 Tender - Any tender of documents or money under this Agreement to be
made upon the Parties or their respective counsel and money shall be tendered by
wire transfer of immediately available funds to the account specified by that
Party.
1.8 Disclosure - The Parties acknowledge that any information, matter,
circumstance, agreement, document or other thing disclosed in any Schedule to
this Agreement shall be deemed to be disclosed in every other Schedule for
purposes of the representations and warranties of the Parties.
1.9 Schedules - The Schedules to this Agreement as listed below are an
integral part of this Agreement:
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Schedule Description
Schedule 5.1 Registrations of the Target
Schedule 5.4 Capitalization of the Target
Schedule 5.5 Location of Material Assets of the Target
Schedule 5.7 Financial Statements of the Target
Schedule 5.12 Guarantees of the Target
Schedule 5.13 Material Suppliers and Customers of the Target
Schedule 5.14 Fixed Assets of the Target
Schedule 5.17 Governmental Authorizations of the Target
Schedule 5.19 Intellectual Property of the Target
Schedule 5.20 Equipment Contracts of the Target
Schedule 5.21 Real Property of the Target
Schedule 5.22 Real Property Leases of the Target
Schedule 5.24 Employees of the Target
Schedule 5.26 Benefit Plans of the Target
Schedule 5.27 Insurance of the Target
Schedule 5.28 Material Contracts of the Target
Schedule 5.35 Bank Accounts of the Target
Schedule 5.37 Non-Arm's Length Transactions
ARTICLE 2
CLOSING
2.1 Closing - Subject to the terms and conditions hereof at the Closing Time
the Parties shall complete the Transaction. Closing on the Closing Date shall
occur at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP or such other place as the
Parties may agree.
2.2 Purchase and Sale of the Purchased Shares - Subject to the terms and
conditions herein:
(a) at Closing, the Seller shall sell, transfer and assign to Travelbyus
and Travelbyus shall purchase and accept the assignment of the
Purchased Shares, free and clear of any and all Encumbrances; and
(b) at Closing, the Seller shall transfer and deliver to Travelbyus share
certificates representing the Purchased Shares duly endorsed in blank
for transfer or accompanied by irrevocable security transfer powers of
attorney duly executed in blank.
ARTICLE 3
PURCHASE PRICE AND PAYMENT ADJUSTMENT
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3.1 The aggregate purchase price for the Purchased Shares shall be satisfied
and paid on Closing by way of the issuance of the Travelbyus Shares to the
Seller. As provided in the LOI, the Deposit shall be retained by the Target to
be used as and by way of working capital. Additionally, on Closing, in
consideration for the provision by the Seller to Travelbyus of the covenants set
forth in Article 11 hereof, Travelbyus shall pay to the Seller the sum of
US$300,000, in cash or by certified cheque, bank draft or wire transfer in
immediately available funds.
3.2 Purchase Price Adjustments - If on December 15, 2000 the then current
market price of the common shares of Travelbyus (the "Market Price") shall be
less than US$6.70 per share, at the option of Travelbyus and subject to receipt
by Travelbyus of requisite regulatory approval, including without limitation,
the approval of the TSE and the WSE, Travelbyus shall issue additional common
shares at the then current Market Price (the "Additional Shares") and/or shall
pay cash (in such combination as shall be determined by Travelbyus) to the
Seller based on the following formula: 1,000,000 multiplied by the difference
between US$6.70 and the Market Price.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLER
The Seller represents and warrants to Travelbyus as follows and acknowledge that
Travelbyus is relying on such representations and warranties in entering into
this Agreement:
4.1 Options - The Seller has not granted an option to any third Person to
acquire any of the Purchased Shares.
4.2 Title to Assets - The Seller is the sole beneficial and (where his
interests are registrable) the sole registered owner of the Purchased Shares
with good and valid title thereto, free and clear of all Encumbrances.
4.3 Regulatory Approvals - No Governmental Authorization is required on the
part of the Seller in connection with the execution, delivery and performance of
this Agreement or any other agreements to be entered into under the terms of
this Agreement.
4.4 Right to Sell - The Seller has the exclusive right to deal with the
Purchased Shares as provided in this Agreement. None of the Purchased Shares is
subject to any shareholders' agreement, voting trust or voting agreement.
4.5 Enforceability of Obligations - This Agreement has been duly executed and
delivered by the Seller and constitutes a valid and binding obligation
enforceable against the Seller in accordance with its terms, save and except
that the enforcement hereof may be limited by applicable bankruptcy, insolvency
and other laws of general application affecting the enforcement of creditors'
rights and except that equitable remedies such as specific performance and
injunction are available only in the
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discretion of a court of competent jurisdiction.
4.6 Absence of Conflicting Agreements - The Seller is not a party to, bound
or affected by or subject to any Contract 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, delivery and performance of this
Agreement or any other agreement to be entered into under the terms of this
Agreement.
4.7 Non-Arm's Length Transactions - Neither the Seller nor any Person not
dealing at arm's length with the Seller:
(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 Target;
(b) owns, directly or indirectly, any interest in any property or asset
of the Target;
(c) is a party to any Contract with the Target, save and except as
contemplated by the Employment Agreement; or
(d) has any indebtedness, liability or obligation to the Target.
4.8 Residence of the Seller - The Seller is a resident of the State of
Illinois.
4.9 No Litigation - There are no outstanding Claims at law or in equity or
before any Governmental Authority pending or to the Seller's knowledge, proposed
or threatened, which would prevent the Seller from completing the Transaction.
4.10 United States Offers and Sales of Consideration Shares - The Seller
understands that the Travelbyus Shares (including for greater certainty and
without limitation, the Additional Shares) have not been and will not be
registered under the U.S. Securities Act or any state securities laws (the "Blue
Sky Laws") and that the sale contemplated hereby is being made in reliance on an
exemption from the registration requirements of the U.S. Securities Act and any
applicable Blue Sky Laws. The Seller further understands that the Travelbyus
Shares (including for greater certainty and without limitation, the Additional
Shares) may not be offered, sold, transferred, pledged or hypothecated in the
absence of an effective registration statement under the U.S. Securities Act or
an opinion of counsel suitable to Travelbyus that registration is not required.
The Seller represents that he is an "accredited investor" as that term is
defined in Rule 501 of Regulation D under the U.S. Securities Act. The Seller
acknowledges that he has had access to such information concerning Travelbyus as
he has considered necessary in connection with his decision to invest in the
Travelbyus Shares (including for greater certainty and without limitation, the
Additional Shares) including the information and statements regarding Travelbyus
referenced in section 6.8. The Seller acknowledges that he and/or his advisors
have had the opportunity to ask questions and receive answers from Travelbyus,
or a Person or Persons acting on
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its behalf, regarding Travelbyus and the Travelbyus Shares (including for
greater certainty and without limitation, the Additional Shares) and to obtain
any additional information so requested that Travelbyus possesses or can acquire
without unreasonable expense or effort, that is necessary to verify the accuracy
of any other information, and all questions have been answered and all such
information has been provided to the full satisfaction of the Seller. The Seller
acknowledges that he has, either alone or with his advisors, such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of his investment in the Travelbyus Shares (including for
greater certainty and without limitation, the Additional Shares) and that he is
able to bear the economic risks of such investment. The Seller is not purchasing
the Travelbyus Shares (including for greater certainty and without limitation,
the Additional Shares) as a result of any general solicitation or general
advertising (as those terms are used in Regulation D under the U.S. Securities
Act), including advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast over radio or
television or any seminar or meeting whose attendees have been invited by
general solicitation or general advertising. The Seller understands that he may
not offer, sell or otherwise transfer any of the Travelbyus Shares (including
for greater certainty and without limitation, the Additional Shares) directly or
indirectly, unless: (i) the sale is to Travelbyus; or (ii) the transaction does
not require registration under the U.S. Securities Act or any applicable Blue
Sky Laws or United States state laws and regulations governing the offer and
sale of securities and the Seller has furnished to Travelbyus an opinion of
counsel of recognized standing to that effect reasonably satisfactory to
Travelbyus. The Seller understands that Travelbyus is under no obligation to
register the Travelbyus Shares (including for greater certainty and without
limitation, the Additional Shares) on his behalf or to assist the Seller in
complying with any exemption from registration. The Seller understands and
acknowledges that upon the original issuance of the Travelbyus Shares (including
for greater certainty and without limitation, the Additional Shares) and until
such time as is no longer required under applicable requirements of the U.S.
Securities Act or applicable Blue Sky Laws, all certificates representing the
Travelbyus Shares (including for greater certainty and without limitation, the
Additional Shares) and all certificates issued in exchange therefor or in
substitution thereof, shall bear, on the face of such certificates, the
following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT") OR ANY
STATE SECURITIES LAWS (THE "BLUE SKY LAWS"). THESE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT COVERING SUCH SECURITIES UNDER THE U.S.
SECURITIES ACT AND ANY APPLICABLE BLUE SKY LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO TRAVELBYUS THAT REGISTRATION IS NOT REQUIRED.
4.11 UCC Searches - For the purposes of permitting Travelbyus to perform
searches of the Uniform Commercial Code (the "UCC") records; (i) the Target has
not conducted business under any name within the last five years; (ii) the chief
executive office or
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of business of the Target is and has at all times within the
last five years been located in Chicago, Illinois; and (iii) the Target does not
own any personal property, as such term is defined in the applicable UCC that is
located in any jurisdiction other than the jurisdictions described in (ii)
hereof.
4.12 Ownership of Property - The Target does not own any titled motor
vehicles, vessels, aircraft, trademarks, copyrights, patents, railcars or other
similar types or items of property that have a recordation system for liens
against such property other than the recordation system set forth in the
applicable UCC. The Target is not a party to any contracts with the United
States Government or any division thereof.
4.13 Brokers - The Seller has not entered into any Contract that would entitle
any Person to a Claim against Travelbyus or the Target for any broker's
commission, finder's fee, agent's fee, fee for financial intermediary services
or any like payment in respect of the Transaction.
4.14 Full Disclosure - The Seller has made available to Travelbyus all
information relating to the Purchased Shares which would be material to a
purchaser thereof. All information which has been provided to Travelbyus is true
and correct in all material respects and does not contain any untrue statement
of a material fact and no material fact or facts have been omitted therefrom
which would make such information misleading. The Seller does not have any
knowledge of any facts nor are there are any facts that should be reasonably
known to the Seller relating to the Purchased Shares not disclosed in this
Agreement which might be reasonably expected to deter Travelbyus from completing
the Transaction.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES CONCERNING THE TARGET
The Seller represents and warrants to Travelbyus as follows and acknowledges
that Travelbyus is relying on his representations and warranties in entering
into this Agreement:
5.1 Incorporation and Registration - The Target is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation and has all necessary corporate power, authority and capacity to
own its property and assets and to carry on its business as currently conducted.
Neither the nature of its business nor the location or character of the property
owned or leased by the Target requires it to be registered, licensed or
otherwise qualified as a foreign corporation in any jurisdiction save and except
as provided in Schedule 5.1.
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5.2 Absence of Conflicting Agreements - The Target is not a party to, bound
or affected by or subject to any Contract 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, delivery and performance of this
Agreement by the Seller.
5.3 Subsidiaries - The Target does not own or have any interest in any
securities of any other Person.
5.4 Capitalization - The authorized capital and the issued capital of the
Target is as set forth in Schedule 5.4. All of the outstanding shares in the
capital of each of the Target have been duly and validly issued and are
outstanding as fully paid and non-assessable shares of the Target and are all
registered as provided in Schedule 5.4. No options, warrants or other rights to
purchase shares or other securities of the Target and no securities or
obligations convertible into or exchangeable for shares or other securities of
the Target have been authorized or agreed to be issued or are outstanding and
all of such options, warrants or other rights shall be terminated on or before
Closing.
5.5 Title to Assets - The Target is the sole beneficial and (where its
interests are registrable) the sole registered owner of its assets and interests
in assets, real and personal, with good and valid title thereto, free and clear
of all Encumbrances. For greater certainty and without limitation, the Target
has full right, title and interest to the "Endless Travel Magazine" and has not
granted any rights to any third Person in connection therewith. All of the
material assets of the Target are situated in the locations set forth in
Schedule 5.5.
5.6 Regulatory Approvals - No Governmental Authorization is required on the
part of the Target in connection with the execution, delivery and performance of
this Agreement by the Seller.
5.7 Financial Statements - The Financial Statements attached as Schedule 5.7
have been prepared in accordance with GAAP and present fairly:
(i) the assets, liabilities and financial position of the
Target (as the case may be) as at the dates indicated;
and
(ii) the sales, earnings, results of operation and statement
of cash flows of the Target for all of the periods
indicated.
5.8 Absence of Undisclosed Liabilities - Since the date of the Balance
Sheets, the Target has not incurred any liabilities or obligations (whether
accrued, absolute, contingent or otherwise) which continue to be outstanding
other than those which have been incurred in the ordinary course of business,
none of which is materially adverse. The Target does not have any liability,
obligation to or agreement with any Person not dealing at arm's length with the
Target.
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5.9 Absence of Changes or Unusual Transactions - Since the date of the
Balance Sheets, the Target has carried on Business and conducted operations and
affairs only in the ordinary and normal course consistent with past practice and
there has not been:
(a) any material change in the financial condition, operations or
prospects of the Target, other than changes in the ordinary 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,
properties or future prospects of the Target;
(c) any transfer, assignment, sale or other disposition of any of the
assets shown or reflected in the Balance Sheets or cancellation of
any debts or entitlements except in each case in the ordinary course
of business;
(d) any assumption of any obligation or liability (fixed or contingent),
except unsecured current obligations and liabilities incurred in the
ordinary course of business;
(e) any discharge or satisfaction of any Encumbrance or payment of any
obligation or liability (fixed or contingent) other than liabilities
included in the Balance Sheets and liabilities incurred since the
date of the Balance Sheets in the ordinary course of business;
(f) 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
course of business where such loss, rights, commitment or
transaction is or would be material in relation to the Target;
(g) any grant of any bonuses, whether monetary or otherwise or the
making or announcement of any general wage or salary increase in
respect of Employees or any change in the terms of employment of any
Employee except in the ordinary course of business, consistent with
past practice;
(h) the hiring or dismissal of any Employee;
(i) any Encumbrance on any of the assets or property of the Target
whether tangible or intangible;
(j) directly or indirectly, any declaration or payment of any dividend
or declaration or making of any other payments or distributions on
or in respect of any of the shares of the Target or directly or
indirectly the purchase or other acquisition of any of the shares of
the Target; or
-16-
(k) the authorization, agreement or other commitment to do any of the
foregoing.
5.10 Reserves and Accruals - There are no reserves or Accrued Liabilities of
the Target not disclosed on or reflected in the Financial Statements and the
Books and Records of the Target.
5.11 No Joint Venture Interests, etc. - The Target is not a partner,
beneficiary, trustee, co-tenant, joint venturer or otherwise a participant in
any partnership, trust, joint venture, co-tenancy or other similar jointly owned
business undertaking and the Target has no other significant investment
interests in any business owned or controlled by any third Person.
5.12 Absence of Guarantees - Save and except as provided in Schedule 5.12, the
Target has not given or agreed to give and is not a party to or bound by any
guarantee or indemnity in respect of indebtedness or other obligations of any
Person or any other commitment by which the Target is, or is contingently,
responsible for such indebtedness or other obligations.
5.13 Major Suppliers and Customers - Schedule 5.13 sets forth a comprehensive
listing of each material supplier of goods and services to and each material
customer of the Target. To the knowledge of the Seller, no material supplier or
customer has any intention of changing its relationship or the terms upon which
it conducts business with the Target as a result of the Transaction.
5.14 Condition of Assets - The Fixed Assets are in good condition, repair and
proper working order, having regard to their use and age and such assets have
been properly and regularly maintained, reasonable wear and tear excepted. The
Fixed Assets listed in Schedule 5.14 are all of the Fixed Assets used to earn
income on the Financial Statements.
5.15 Inventories - All Inventories are valued on the books of the Target at
the lower of out of pocket cost or net recoverable value.
5.16 Collectibility of Accounts Receivable - The Accounts Receivable are bona
fide, good and collectible at the aggregate recorded amounts within 120 days of
the Closing Date. The Accounts Receivable are not subject to any defence,
counterclaim or set off.
5.17 Business in Compliance with Law - The operations of the Target have been
and are now being conducted in compliance with all applicable Laws of each
jurisdiction in which the Target carries on or has carried on business and the
Target has not received notice of any alleged breach of any such Laws. The
Governmental Authorizations set forth in Schedule 5.17 are all authorizations
required by the Target to carry on Business in compliance with applicable Laws.
Such Governmental Authorizations are in full force and effect in accordance with
their terms, there have
-17-
been no violations thereof and no proceedings are pending or to the knowledge of
the Seller, threatened, which could result in their revocation or limitation.
5.18 Restrictive Covenants - The Target is not a party to or is bound or
affected by any commitment, agreement or document containing any covenant
expressly limiting the freedom of the Target to compete in any line of business
anywhere in the world, transfer or move any of its assets or operations or which
materially or adversely affects the business practices, operations or conditions
of the Target or the continued operation of Business after Closing on
substantially the same basis as the Business is currently carried on.
5.19 Intellectual Property - Schedule 5.19 sets forth a complete list and
brief description of all Intellectual Property which has been registered or for
which applications for registration have been filed, including the name of the
registered and beneficial owner of such registrations and applications. The
Target (as indicated in Schedule 5.19) has the exclusive right to use and is the
exclusive owners of all right, title and interest in and to the Intellectual
Property (with no breaks in the chain of title and free and clear of any
Encumbrance of any kind whatsoever). The Intellectual Property which is not
owned by the Target is being used by the Target only with the consent of or
license from the rightful owner thereof and all such licenses are in full force
and effect. All such licenses are listed in Schedule 5.19. The Intellectual
Property is in full force and effect and has not been used or enforced or failed
to be used or enforced in a manner that would result in the abandonment,
cancellation or unenforceability of any of the Intellectual Property. The Seller
has no knowledge of any claim of adverse ownership, invalidity or other
opposition to or conflict with any of the Intellectual Property nor of any
pending or threatened Claim of any nature or kind against the Target relating to
the Intellectual Property. The Seller has no knowledge that the Target, any
activity in which the Target is engaged or any product which the Target uses or
sells or any process, method, packaging, advertising or material that the Target
employs in the marketing or sale of any such product or the use of any of the
Intellectual Property breaches, violates, infringes or interferes with any
intellectual property rights of any third Person or requires payment for the use
of any patent, trade-name, trade secret, trade-▇▇▇▇, copyright or other
intellectual property right or technology of another. The Intellectual Property
is complete to the extent and under the conditions stated in this Agreement to
enable the Target to carry on the Business. Schedule 5.19 sets forth a complete
and correct list and brief description of all Claims, conflicts, breaches,
violations, infringements and interferences of the Intellectual Property of
which the Seller is aware as well as a complete and correct list and brief
description of all judgments, covenants not to ▇▇▇, permits, grants, licenses
and other agreements and arrangements relating to any of the Intellectual
Property which bind, obligate or otherwise restrict the Target. For greater
certainty and without limitation, the Target has full right, title and interest
to all Intellectual Property with respect to the Endless Travel Magazine.
5.20 Equipment Contracts - Schedule 5.20 sets forth a complete list of all
Equipment Contracts together with a description of the equipment and vehicles to
which the Equipment Contracts relate. All of the Equipment Contracts are in full
force and effect
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and no default exists on the part of the Target or to the knowledge of the
Seller, on the part of any of the other parties thereto. The entire interest of
the Target under the Equipment Contracts is held by the Target free and clear of
any Encumbrances and all payments due under the Equipment Contracts have been
duly and punctually paid.
5.21 Real Property - Schedule 5.21 contains a description of all Real Property
owned, leased or occupied by the Target. Save and except as set forth in
Schedule 5.21 there are no contracts or other documents registered or
unregistered affecting or relating to title of the Real Property. There are no
agreements, undertakings or other documents, registered or unregistered, which
affect or relate to the title to or ownership of the Real Property. Except as
disclosed or provided for in this Agreement, no Person has any right to purchase
the Real Property or sublease or otherwise assume or obtain any of the rights of
the Target with respect to the Real Property and no Person other than the Target
is using or has any right to use, as tenant, subtenant, licensee or otherwise or
is in possession or occupancy of, any part of the Real Property. The Target has
not granted any option, right of first refusal or other contractual rights with
respect to the Real Property. The Target has not entered into any agreement to
sell, transfer, encumber or otherwise dispose of or impair its right, title and
interest in and to the Real Property. The Target has not received any
notification of and the Seller has no knowledge of, any outstanding or
incomplete work orders, notices of violation or deficiency notices requiring or
recommending work or repairs in respect of any of the buildings, improvements or
other structures constructed on the Real Property and the premises subject to
the Real Property Leases or any installations therein or of any current non-
compliance with applicable statutes and regulations or building and zoning by-
laws and regulations, fire codes or health and safety regulations. All accounts
for work and services performed or materials placed or furnished upon or in
respect of the construction and completion of any of the buildings, improvements
or other structures constructed on the Real Property and in all premises subject
to the Real Property Leases have been fully paid and no one is entitled to claim
a lien under any construction lien legislation in any applicable jurisdiction
for such work performed by or on behalf of the Target and the Seller has no
knowledge of any proposed or pending change to any zoning affecting the Real
Property. The Seller has no knowledge of any expropriation or condemnation or
similar proceeding pending or threatened against the Real Property. There are no
matters affecting the right, title and interest of the Target in and to the Real
Property, which in the aggregate or individually, would materially and adversely
affect the ability of the Target to carry on business upon the Real Property.
5.22 Real Property Leases - Schedule 5.22 sets forth a complete list of the
Real Property Leases. Each of the Real Property Leases is in full force and
effect and is enforceable against the landlord thereunder. All interests held by
the Target as lessee under the Real Property Leases are free and clear of all
Encumbrances of any nature and kind whatsoever. There are no consents necessary
as a result of the completion of the Transaction save and except as set forth in
Schedule 5.22. All payments required to be made by the Target pursuant to the
Real Property Leases have been duly paid and the Target is not otherwise in
default in meeting their respective obligations under any of the Real Property
Leases. The Seller has no knowledge that any of the landlords under each of the
Real Property Leases are in default in meeting any of the material
-19-
obligations under their respective Real Property Leases. Except as detailed on
Schedule 5.22, the Target does not have any option, right of first refusal or
other contractual right relating to the Real Property. To the knowledge of the
Seller no event exists which, but for the lapse of time or the giving of notice,
or both, would constitute default under any such option, right of first refusal
or other contractual right and to the knowledge of the Seller no Person is
claiming any such material default or taking any action purportedly based upon
any default. To the knowledge of the Seller no event exists which, but for the
passing of time or the giving of notice or both, would constitute a default by
any party to any of the Real Property Leases and no party to any Real Property
Lease is claiming any such default or taking any action purportedly based upon
any such default. The Target has not waived or omitted to take any action in
respect of any substantial rights under any of the Real Property Leases.
5.23 Environmental Matters - All operations of the Target conducted on the
Real Property or any other property now or formerly under its charge,
management, operation or control have been and are now, in compliance with all
Environmental Laws. All Environmental Approvals required to be held by the
Target have been obtained, are valid and in full force and effect, have been and
are being complied with and there have been and are no proceedings commenced or
to the knowledge of the Seller threatened to revoke or amend any Environmental
Approvals. Neither the Target nor any of its operations has been or is now the
subject of any Remedial Order nor does the Seller have any knowledge of any
investigation or evaluation commenced as to whether any such Remedial Order is
necessary nor has any threat of any such Remedial Order been made nor does the
Seller have knowledge of any circumstances which could result in the issuance of
any such Remedial Order. The Target has never been prosecuted for or convicted
of any offence under Environmental Laws nor has either of the Target been found
liable in any proceeding to pay any fine or judgment to any Person as a result
of any Release or threatened Release of any Hazardous Substance into the
Environment or the breach of any Environmental Law and to the knowledge of the
Seller, there is no basis for any such proceeding.
5.24 Employment Matters - Schedule 5.24 sets forth a complete list of all
Employees together with the titles and material terms of employment, including
current wages, salaries or hourly rate of pay of and bonus (whether monetary or
otherwise) paid (including the date of payment if paid since December 31, 1999)
or payable to each Employee, the date upon which such wage, salary, rate or
bonus became effective and the date upon which each such Employee was first
hired by the Target. Except as disclosed in Schedule 5.24 no Employee is on
long-term disability leave, extended absence or is receiving workers'
compensation. Save and except as contemplated by the Employment Agreement and as
set out in Schedule 5.24 there are no written contracts of employment entered
into with any Employees or any oral contracts of employment which are not
terminable on the giving of reasonable notice in accordance with applicable law.
Except as set out in Schedule 5.24, there are no employment policies or plans
including policies or plans regarding incentive compensation, stock options,
severance pay or other terms or conditions of employment or terms or conditions
upon which Employees may be terminated which are binding upon the Target. The
Target has been and is being operated in full compliance with all Laws
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relating to employees, including employment standards, occupational health and
safety, pay equity and employment equity. There have been no complaints under
such Laws against the Target. There are no complaints nor to the knowledge of
the Seller, are there any threatened complaints, against the Target before any
employment standards branch or tribunal or human rights tribunal. To the
knowledge of the Seller nothing has occurred which might lead to a complaint
against the Target under any human rights legislation or employment standards
legislation. There are no outstanding decisions or settlements or pending
settlements under employment standards legislation which place any obligation
upon the Target to do or refrain from doing any act. The Target has not been
subject to any experience-rating surcharge over the past five years. All amounts
owing in respect of salary, wages, bonus or benefits, have been paid or accrued
for on the Books and Records of the Target.
5.25 No Collective Agreements - The Target is not a party, either directly or
by operation of law, to any Collective Agreement, letters of understanding,
letters of intent or other written communication with any trade union or
association which may qualify as a trade union, which would cover any of its
Employees or any independent contractors of the Target. There are no outstanding
labour tribunal proceedings of any kind, including any proceedings which could
result in certification of a trade union as bargaining agent for Employees or
independent contractors of the Target and there have not been any such
proceedings within the last two years. There are no threatened or apparent union
organizing activities involving the Employees or independent contractors of the
Target. There is no strike or lock-out occurring or threatened which affects or
would affect the Target. The Target has no unresolved grievances or pending
arbitration cases outstanding. The Target has no serious labour problems that
might materially affect the value of the Target or that might lead to an
interruption of their respective Business.
5.26 Benefit Plans - Schedule 5.26 sets forth a complete list of all Benefit
Plans. Current and complete copies of all written Benefit Plans or where oral,
written summaries of the material terms thereof, have been provided or made
available to Travelbyus together with current and complete copies of all
documents relating to the Benefit Plans, including without limitation, as
applicable; (i) all documents establishing, creating or amending any Benefit
Plan; (ii) all trust agreements, funding agreements, insurance contracts and
investment management agreements; (iii) all financial statements and accounting
statements and reports and investment reports for each of the last three years
and where actuarial reports are prepared in relation to a Benefit Plan, the two
most recent actuarial reports in relation to each such Benefit Plan; (iv) all
reports, returns, filings and material correspondence with any applicable
regulatory authority in the last three years; and (v) all booklets, summaries or
manuals prepared for or circulated to and written communications of a general
nature to Employees concerning any Benefit Plan. Each Benefit Plan is, and has
been, established, registered, qualified and administered and invested in
compliance with; (i) the terms thereof; and (ii) all applicable Laws. The Target
has not received, in the last three years, notice from any Person questioning or
challenging such compliance and the Seller has no knowledge of any such notice
from any Person questioning or challenging such compliance beyond the last three
years. All obligations under the Benefit Plans
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(whether pursuant to the terms thereof or applicable Laws) have been satisfied
and there are no outstanding defaults or violations thereunder by the Target nor
does the Seller have any knowledge of any default or violation by any other
party to any Benefit Plan. There have been no amendments, modifications or
restatements of any Benefit Plan made or any improvements in benefits promised
under the Benefit Plans that have not been disclosed to Travelbyus. All
contributions or premiums required to be paid to or in respect of each Benefit
Plan have been paid in a timely fashion in accordance with the terms thereof and
all applicable Laws. No Taxes, penalties or fees are owing or exigible under any
Benefit Plan. There is no Claim pending or threatened involving any Benefit Plan
or its assets and no facts exist which could reasonably be expected to give rise
to any such Claim. No event has occurred respecting any Benefit Plan which would
entitle any Person (without the consent of the Target) to wind-up or terminate
any Benefit Plan, in whole or in part, or which could reasonably be expected to
adversely affect the tax status thereof or require any penalty taxes to be paid
under any applicable laws. There are no going concern unfunded actuarial
liabilities, past service unfunded liabilities or solvency deficiencies
respecting any of the Benefit Plans. No material changes have occurred in
respect of any Benefit Plan since the date of the most recent financial or
accounting report issued in connection with any Benefit Plan which could
reasonably be expected to adversely affect the report (including rendering it
misleading in any material respect). All employer contribution or premium
holidays that have been taken under any Benefit Plan have been permitted by the
terms of the relevant Benefit Plan and have been in accordance with applicable
Laws. There have been no improper withdrawals or transfers of assets from any
Benefit Plan. All employee data necessary to administer each Benefit Plan is in
the possession of the Target and is complete, correct and in a form which is
sufficient for the proper administration of the Benefit Plans and none of the
Benefit Plans provide benefits to retired Employees or to the beneficiaries or
dependants of retired Employees. None of the Benefit Plans require or permit a
retroactive increase in premiums or payments and the level of insurance
reserves, if any, under any insured Benefit Plan is reasonable and sufficient to
provide for all incurred but unreported claims. The consummation of the
Transaction shall not constitute an event under any Benefit Plan that shall or
may result; (i) in any acceleration of, or vesting of, or increase in benefits
with respect to any Employee or former Employee; or (ii) in any acceleration of
or increase in the funding requirements of any Benefit Plan.
5.27 Insurance - The Target maintains such policies of insurance, issued by
responsible insurers, as are appropriate to its operations, property and assets,
in such amounts and against such risks as are customarily carried and insured
against by owners of comparable businesses, properties and assets. All such
policies of insurance are in full force and effect and the Target is not in
default as to the payment of premiums or otherwise under the terms of any such
policy. Schedule 5.27 sets forth a complete list of all policies of insurance
which the Target maintains and the particulars of such policies including the
name of the insurer, the risk insured against, the amount of coverage and the
amount of any deductible.
5.28 Contracts - Except for the Material Contracts listed in Schedule 5.28,
the Target is not a party to or bound by any Material Contract. The Material
Contracts listed in
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Schedule 5.28 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. Except as noted on Schedule 5.28 none of the Material Contracts
include provisions requiring consent to a change of control of the Target.
Current and complete copies of the Material Contracts have been delivered to
Travelbyus. There are no current or pending negotiations with respect to the
renewal, repudiation or amendment of any such agreement, plan or policy.
5.29 Litigation - There is no Claim, including appeals and applications for
review, in progress, or, to the knowledge of the Seller, pending or threatened
against or relating to the Target before any court, Governmental Authority,
commission, board, bureau, agency or arbitration panel.
5.30 Tax Matters - The Target has filed on a timely basis (within the time and
manner required by law including any extensions of time to file) all federal and
provincial income Tax Returns and election forms and the Tax Returns of any
other jurisdiction required to be filed and all such returns and forms have been
completed accurately and correctly in all respects. As of Closing, the Target
will have paid all Taxes (including for greater certainty and without
limitation, all federal, state and local taxes, assessments and reassessments or
other imposts in respect of its respective income, business, assets or property)
and all interest and penalties thereon with respect to the Target, for all
previous years and all required quarterly installments based on quarterly
installment requirements for prior fiscal years, due for the current fiscal year
have been paid for which tax returns are not yet required to be filed. As of the
Closing Date, the Target will have provided adequate reserves, if any, for all
Taxes for the period ended December 31, 1999. There are no agreements, waivers
or other arrangements providing for an extension of time with respect to the
payment of any Tax, governmental charge or deficiency by the Target nor are
there any examination, actions, suits, proceedings, investigations or claims now
threatened or pending against the Target in respect of, or discussions under way
with any governmental authority relating to, any such Tax or governmental charge
or deficiency.
The Target has not:
(i) acquired or had the use of any property from a Person with whom the
Target was not dealing at arm's length other than at fair market
value;
(ii) disposed of any property to a Person with whom the Target was not
dealing at arm's length for proceeds less than the fair market value
thereof; and
(iii) discontinued carrying on any business in respect of which non-capital
losses were incurred and any non-capital losses which the Target has
are not losses from property or business investment losses.
There are no contingent tax liabilities for the period ended December 31, 1999
and prior fiscal periods nor any grounds which would prompt a reassessment
except and excluding any contingent tax liabilities that relate to or result
from this transaction. The
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schedules attached to the corporate income tax returns by the Target for its
taxation year ended December 31, 1999, reflect and disclose all transactions to
which the Target was a party that are required to be disclosed by applicable
revenue laws and all such transactions are reflected or disclosed in such
financial statements and schedules and such corporate income tax returns and
schedules have been duly and accurately completed as required by such Acts.
5.31 Books and Records - All Books and Records of the Target have been
delivered or made available to Travelbyus. The Books and Records of the Target
fairly and correctly set out and disclose in all material respects the financial
position of the Target and all financial transactions of the Target have been
accurately recorded in the Books and Records of the Target.
5.32 Corporate Records and Minute Book - The corporate records and minute
books of the Target have been delivered or made available to Travelbyus. The
articles and by-laws of the Target 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 Target include complete and accurate minutes of all meetings
of the directors or shareholders of the Target, as applicable, held to date or
resolutions passed by the directors or shareholders on consent, since the date
of incorporation of the Target. The share certificate book, register of
shareholders, register of transfers and register of directors of the Target, are
complete and accurate.
5.33 Trade Allowances - No customers of the Target are entitled to or
customarily receive discounts, allowances, volume rebates or similar reductions
in price or other trade terms arising from any agreements or understandings
(whether written or oral) with or concessions granted to any customer.
5.34 Location of the Assets - All of the assets of the Target are located on
the Real Property.
5.35 Bank Accounts, etc - Schedule 5.35 sets forth a complete list of every
financial institution in which the Target maintains any depository account,
trust account or safety deposit box and the names of all Persons authorized to
draw on or who have access to such accounts or safety deposit box.
5.36 Judgments and Executions and Insolvency Proceedings - There are no
judgments or executions against the Target which are outstanding and
unsatisfied. The Target has not made any assignment for the benefit of creditors
nor has any receiving order been made against the Target under the provisions of
any applicable bankruptcy or insolvency legislation nor has any petition for
such an order been served upon the Target.
5.37 Non-Arm's Length Transactions - Since December 31, 1999, the Target has
not made any payment or loan to or borrowed any money from and is not otherwise
indebted to, any officer, director, Employee, shareholder or any other Person
not dealing at arm's length with the Target except as disclosed in the Financial
Statements
-24-
and Schedule 5.37 and except for usual Employee reimbursements and compensation
paid in the ordinary and normal course of the Business. The Target 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 Target. No officer, director
or shareholder of the Target 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 the Business or the Target or a lessor, lessee,
supplier, distributor, sales agent or customer of the Business or the Target;
(ii) owns, directly or indirectly, in whole or in part, any property that the
Target uses in the operation of the Business; or (iii) has any Claim whatsoever
against or owes any amount to the Target in connection with the Business, except
for any liabilities reflected in the Financial Statements and claims in the
ordinary and normal course of business such as for accrued vacation pay and
accrued benefits for Employees.
5.38 Year 2000 Readiness - To the knowledge of the Seller, the software
currently utilized by the Target in their operation and the software developed
by or on behalf of the Target and supplied to clients of the Target; (i) will
function without error or interruption related to Date Data, specifically
including errors or interruptions from functions which may involve Date Data
from more than one century; (ii) the software currently utilized for the
operation of Business requires that all Date Data (whether received from user,
systems applications or other sources) include an indication of century in each
instance. All date output and results, in any form, shall include an indication
of century in each instance; and (iii) will recognize the year 2000 as a leap
year. When used in this paragraph, the term "Date Data" shall mean any data or
input which includes an indication of or reference to date. To the knowledge of
the Seller, the software currently utilized by the Target in its operation and
developed by or on behalf of the Target and or otherwise supplied to clients of
the Target does not contain any routines or devices introduced by the Target or
to the knowledge of the Seller introduced by any other person or in any other
manner that could interfere with their use (including without limitation, time
locks, keys or bombs) or interfere with, delete or corrupt data (commonly known
as "viruses").
5.39 Full Disclosure - The Seller has made available to Travelbyus all
information including the financial, marketing, sales and operational
information on a historic basis relating to the Target which would be material
to a purchaser of the Purchased Shares. All information, which has been provided
to Travelbyus is true and correct in all material respects and does not contain
any untrue statement of a material fact and no material fact or facts have been
omitted therefrom which would make such information misleading. The Seller does
not have knowledge of any facts nor are there are any facts that should be
reasonably known to the Seller relating to the Purchased Shares or the Business
not disclosed in this Agreement which might be reasonably expected to diminish
the appreciation of the worth or profitability of the Business which if known by
Travelbyus, might be reasonably expected to deter Travelbyus from completing the
Transaction.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF TRAVELBYUS
Travelbyus represents and warrants to the Seller as follows and acknowledges
that the Seller is relying on the representations and warranties of Travelbyus
in entering into this Agreement:
6.1 Incorporation and Registration - Travelbyus is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation and has all necessary corporate power, authority and capacity to
own its property and assets, to carry on its business as presently conducted and
to execute, deliver and perform its obligations under this Agreement.
6.2 Enforceability of Obligations - This Agreement has been duly executed and
delivered by Travelbyus and constitutes a valid and binding obligation of
Travelbyus enforceable against Travelbyus in accordance with its terms, save and
except that the enforcement hereof may be limited by applicable bankruptcy,
insolvency and other laws of general application affecting the enforcement of
creditors' rights and except that equitable remedies, such as specific
performance and injunction are available only in the discretion of a court of
competent jurisdiction.
6.3 Absence of Conflicting Agreements - Travelbyus is not a party to, bound
or affected by or subject to any Contract 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, delivery and performance of this
Agreement or any other agreement to be entered into under the terms of this
Agreement.
6.4 No Litigation - There are no outstanding Claims at law or in equity or
before any Governmental Authority pending or to the knowledge of Travelbyus,
proposed or threatened, which would prevent Travelbyus from completing the
Transaction.
6.5 Travelbyus Shares - The Travelbyus Shares (and if applicable, the
Additional Shares) form part of a class of shares that are listed and posted for
trading on the TSE and the WSE and upon issuance will be duly and validly issued
and outstanding as fully paid and non-assessable common shares without nominal
or par value.
6.6 Regulatory Approvals - Save and except for the approval of the TSE and
the WSE, no Governmental Authorization is required on the part of Travelbyus in
connection with the execution, delivery and performance of this Agreement or any
other agreements to be entered into under the terms of this Agreement.
6.7 Reporting Issuer Status- Travelbyus is a "reporting issuer" within the
meaning of the Securities Act (Alberta), (British Columbia), (Saskatchewan),
(Manitoba), (Ontario) and (Quebec) and is not in default of any requirement of
applicable Laws and no material change relating to Travelbyus has occurred with
respect to which the
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requisite material change report has not been filed and no such disclosure has
been made on a confidential basis. No securities commission or similar
regulatory authority has issued any order preventing or suspending trading in
any securities of Travelbyus or prohibiting the issue and sale of the common
shares in the capital of Travelbyus and to the knowledge of Travelbyus no such
proceedings for such purposes are pending or threatened.
6.8 Fully Disclosed Information - The information and statements with respect
to Travelbyus set forth in all information filed with the securities commissions
of the provinces of Alberta, British Columbia, Saskatchewan, Manitoba, Ontario
and Quebec and the TSE and the WSE is in compliance or intended compliance with
applicable Laws, were true, correct and complete and did not contain any
misrepresentations of material fact as of the date of such information or
statement.
ARTICLE 7
NON-WAIVER; SURVIVAL
7.1 Non-Waiver - No investigations made by or on behalf of Travelbyus or the
Seller at any time shall have the effect of waiving, diminishing the scope of or
otherwise affecting any representation or warranty made by the Seller or
Travelbyus 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.
7.2 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:
(i) any claim for intentional misrepresentation or fraud may be
brought at any time;
(ii) the representations and warranties set out in sections 4.1, 4.2,
4.3, 4.5 and 4.6 shall survive and continue in full force and
effect without limitation of time;
(iii) representations and warranties as to environmental matters shall
survive for a period of 10 years from the Closing Date;
(iv) representations and warranties concerning Tax matters shall
survive for a period of 90 days after the relevant authorities
shall no longer be entitled to assess liability for Tax against
the Target for any particular taxation year ended on or prior to
the Closing Date; and
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(v) all other representations and warranties shall survive for a
period of 12 months from the Closing Date.
7.3 Timing of Survival - For the purposes of section 7.3 relating to the
survival of representations, warrants and covenants contained in this Agreement,
a claim for breach of a representation, warranty or covenant shall be deemed to
have been properly brought if notice of the asserted claim shall have been
delivered to the Seller of Travelbyus, as the case may be, prior to the last day
for survival for such representation, warranty or covenant.
ARTICLE 8
TRAVELBYUS CONDITIONS PRECEDENT
The obligation of Travelbyus to complete the Transaction 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 Travelbyus and may be waived by Travelbyus in whole or
in part):
8.1 Truth and Accuracy of the Seller's Representations and Warranties at the
Closing Time - All of Seller's representations and warranties made in or
pursuant to this Agreement shall be true and correct as at the Closing Time.
8.2 Performance of Obligations - The Seller has performed or complied with,
in all respects, his obligations, covenants and agreements under this Agreement.
8.3 Receipt of Closing Documentation - All documentation relating to the due
authorization and completion of the Transaction under this Agreement and all
actions and proceedings taken on or prior to Closing in connection with the
performance by the Seller of his obligations under this Agreement, shall be
satisfactory to Travelbyus, acting reasonably and Travelbyus shall have received
copies of all such documentation or other evidence as Travelbyus may reasonably
request in order to establish the consummation of the Transaction 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 Travelbyus, acting reasonably.
8.4 Opinion of Counsel for the Seller - Travelbyus shall have received an
opinion dated the Closing Date from counsel to the Seller, on terms and
conditions satisfactory to Travelbyus and its counsel.
8.5 Releases - All resigning directors and officers of the Target shall have
executed full and final releases, in form and content satisfactory to
Travelbyus.
8.6 Employment Agreement - The Employment Agreement shall have been executed
by all parties thereto, on terms and conditions satisfactory to Travelbyus.
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8.7 No Liabilities - The Target shall not have any outstanding liabilities or
obligations.
8.8 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 Governmental
Authorities) required in connection with the completion of the Transaction, the
execution of this Agreement, Closing or the performance of any of the terms and
conditions of this Agreement shall have been obtained at or before Closing.
8.9 No Injunction - There shall be no injunction or restraining order issued
preventing and no pending or threatened Claim, judicial or administrative or
investigation against any Party by any Governmental Authority, for the purpose
of enjoining or preventing the consummation of the Transaction or otherwise
claiming that this Agreement or the consummation thereof is improper or would
give rise to proceedings under any statute or rule of law.
If any of the foregoing conditions in this Article have not been fulfilled by
Closing, Travelbyus may terminate this Agreement by notice in writing to the
Seller, in which event Travelbyus is released from all obligations under this
Agreement and unless Travelbyus can show that the condition relied upon could
reasonably have been performed by the Seller, the Seller is also released from
all obligations under this Agreement. Travelbyus may waive compliance with any
condition in whole or in part if it sees fit to do so without prejudice to its
rights of termination in the event of non-fulfillment of any other condition, in
whole or in part, or to its rights to recover damages for the breach of any
representation, warranty, covenant or condition contained in this Agreement.
ARTICLE 9
SELLER'S CONDITIONS PRECEDENT
The obligation of the Seller to complete the Transaction under this Agreement
shall be subject to the satisfaction of or compliance with, at or before
Closing, each of the following conditions precedent (each of which is
acknowledged to be inserted for the exclusive benefit of the Seller and may be
waived by the Seller in whole or in part).
9.1 Truth and Accuracy of Travelbyus' Representations and Warranties at
Closing Time - All of the representations and warranties of Travelbyus made in
or pursuant to this Agreement shall be true and correct as at Closing.
9.2 Performance of Obligations - Travelbyus shall have performed or complied
with, in all respects, all of its obligations, covenants and agreements under
this Agreement.
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9.3 Receipt of Closing Documentation - All documentation relating to the due
authorization and completion of the Transaction and the issuance of the
Travelbyus Shares (and if applicable, the Additional Shares) and all actions and
proceedings taken on or prior to Closing in connection with the performance by
Travelbyus of the obligations of Travelbyus under this Agreement, shall be
satisfactory to the Seller, acting reasonably and the Seller shall have received
copies of all such documentation or other evidence as the Seller may reasonably
require in order to establish the consummation of the Transaction 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 Seller, acting reasonably.
9.4 Opinion of Counsel for Travelbyus - The Seller shall have received an
opinion dated the Closing Date from counsel to Travelbyus with respect to
Travelbyus, on terms and conditions satisfactory to the Seller and his counsel.
9.5 Employment Agreement - The Employment Agreement shall have been executed
by all parties thereto, on terms and conditions satisfactory to the parties
thereto.
9.6 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 Governmental
Authority) required in connection with the completion of the Transaction, the
execution of this Agreement, Closing or the performance of any of the terms and
conditions of this Agreement shall have been obtained at or before Closing.
If any of the foregoing conditions in this Article have not been fulfilled by
Closing, the Seller may terminate this Agreement by notice in writing to
Travelbyus in which event the Seller is released from all obligations under this
Agreement and unless the Seller can show that the condition relied upon could
reasonably have been performed by Travelbyus, Travelbyus is also released from
all obligations under this Agreement. The Seller may waive compliance with any
condition in whole or in part if it sees fit to do so, without prejudice to his
rights of termination in the event of non-fulfilment of any other condition in
whole or in part or to his rights to recover damages for the breach of any
representation, warranty, covenant or condition contained in this Agreement.
ARTICLE 10
INDEMNIFICATION
10.1 Indemnification by the Seller - The Seller agrees to indemnify and save
harmless Travelbyus without duplication on an after-tax basis from and against
all losses suffered or incurred by Travelbyus from and after Closing as a result
of or arising directly or indirectly out of or in connection with:
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(a) any breach by the Seller of or any inaccuracy of any of the
representations and warranties of the Seller set out in Article 4
of this Agreement;
(b) any breach or non-performance by the Seller of any covenants to
be performed by the Seller under this Agreement; and
(c) except to the extent Taxes are reserved for on the Financial
Statements, (i) for any and all Taxes with respect to all
taxation years of the Target ending on or prior to December 31,
1999 , except and excluding any and all Taxes that may arise from
or result from the Transaction; (ii) all Taxes allocated to the
Seller pursuant hereto; and (iii) any losses or expenses with
respect to all taxation years of the Target ending on or prior to
December 31, 1999, arising out of or incidental to the
imposition, assessment or assertion of any such Taxes, including
those incurred in connection with the assertion or defense of any
claim or assessment for such Taxes except and excluding any and
all Taxes that may arise from or result from the Transaction
(collectively, the "Other Amounts"). For greater certainty and
without limitation, each of Travelbyus and the Seller shall
prepare or cause to be prepared in a manner consistent with past
practice and shall file or cause to be filed, all Tax Returns of
the Target with respect to periods ending on or before the
Closing Date. Tax Returns shall be subject to the review and
approval by Travelbyus. Tax Returns shall be delivered to
Travelbyus at least 30 days prior to the due date for approval.
Whenever any taxing authority sends a notice of an audit,
initiates an examination of the Target or otherwise asserts a
claim, makes an assessment or disputes the amounts of Taxes for a
tax year ending on or prior to December 31, 1999 (which the
Seller is or may be liable under this Agreement), Travelbyus
shall promptly inform the Seller and the Seller shall have the
right to control, at his own cost and expense any resulting
proceedings and to determine whether and when to settle any such
claim, assessment or dispute to the extent such proceedings or
determinations affect the amount of Taxes for which the Seller is
liable under this Agreement. For greater certainty and without
limitation, each of Travelbyus and the Seller shall provide the
other Party with such assistance as may reasonably be requested
by either of them in connection with the preparation of any Tax
Return, any audit or other examination with the preparation of
any Tax Return, any audit or other examination by any taxing
authority or any judicial or administrative proceedings relating
to liability for Taxes and each will retain and provide the other
Party with any records or information which may be relevant to
such Tax Return, audit or examination, proceedings or
determination.
10.3 Indemnification by Travelbyus - Travelbyus agrees to indemnify and save
harmless the Seller on an after-tax basis from and against all losses suffered
or incurred by the Seller from and after Closing as a result of or arising
directly or indirectly out of or in connection with:
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(a) any breach by Travelbyus of or any inaccuracy of any of the
representations and warranties of Travelbyus set out in Article 6 of
this Agreement; and
(b) any breach or non-performance by Travelbyus of any covenants to be
performed by Travelbyus under this Agreement.
10.4 Notification of and Participation in Claims - No claim for
indemnification shall arise until notice thereof is given to the Seller or
Travelbyus, as the case may be. Such notice shall be sent within a reasonable
time following the determination by Travelbyus or the Seller, as applicable,
that a claim for indemnity exists. If any legal proceedings shall be instituted
or any claim or demand is asserted by any third Person in respect of which the
Seller or Travelbyus, as applicable, may have an obligation to indemnify
Travelbyus or the Seller, as the case may be, Travelbyus or the Seller, as the
case may be, shall give or cause to be given to the Seller or Travelbyus, as the
case may be, written notice thereof and such Party shall have the right, at its
option and expense, to be present at the defence of such proceedings, claim or
demand, but not to control the defence, negotiation or settlement thereof, which
control shall at all times rest with Travelbyus or the Seller, as the case may
be, unless the Seller or Travelbyus, as the case may be, irrevocably acknowledge
full and complete responsibility for indemnification of Travelbyus or the
Seller, as the case may be, in which case the Seller or Travelbyus, as the case
may be, may assume such control through counsel of their respective choice
provided however that no settlement shall be entered into without Travelbyus'
written consent or the Seller's written consent, as the case may be, which shall
not be unreasonably withheld. The Parties shall co-operate fully with each other
in connection with the defence, negotiation or settlement of any such third
Person legal proceeding, claim or demand.
ARTICLE 11
NON-COMPETITION AND NON-SOLICITATION COVENANTS
11.1 Non-Solicitation Covenant. In consideration of the payment of the sum of
US$300,000 and in addition to and notwithstanding the provisions of the
Employment Agreement, the Seller does hereby covenant and agree with Travelbyus
and the Target that he shall not, during the term of the Employment Agreement
and for a period ending two years following the termination thereof:
(a) directly or indirectly solicit, interfere with or endeavour to
direct or entice away from the Target, any person, firm or
company who is or has within the preceding year been a customer,
client or otherwise in the habit of dealing with the Target; or
(b) interfere with, entice away or otherwise attempt to induce the
termination of employment of any employee of the Target.
11.2 Non-Competition Covenant. The Seller does hereby covenant and agree with
------------------------
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Travelbyus and the Target that he will not (without the prior written consent of
Travelbyus and/or the Target) directly or indirectly, in any manner whatsoever,
including without limitation, either individually or in partnership or jointly
or in conjunction with any other person or persons, firm, association,
syndicate, company or corporation, as principal, agent, shareholder, consultant
or in any other manner whatsoever during the term of the Employment Agreement
and for a period ending two years after the termination of the Employment
Agreement, carry on or be engaged in the Business within North America and
Europe or be concerned with or interested in or lend money to, guarantee the
debts or obligations of or permit their name or any part thereof to be used by
any person, persons, firm, association, syndicate, company or corporation
engaged or concerned with or interested in the Business.
Notwithstanding the foregoing provisions, the Seller may invest in stocks, bonds
or other securities in any entity engaging in the Business (but without
participating in such Business) if:
(a) the stocks, bonds or other securities of the Business are listed
on any national or regional securities exchange or are publicly
traded over the counter;
(b) his investment in such entity does not exceed, in the case of any
class of capital stock five percent of the issued and outstanding
shares or in the case of bonds or other securities, five percent
of the aggregate principal amount thereof issued and outstanding;
and
(c) such investment in such entity would not prevent, directly or
indirectly, the transaction of business by the Target with any
federal, state or provincial government of Canada or the United
States of America or any governmental subdivision, agency or
instrumentality thereof by virtue of any statute, law, regulation
or administrative practice.
11.3 Injunctive Relief. The Seller acknowledges and agrees that the agreements
-----------------
and covenants in this Article 11 are essential to the transactions contemplated
in this Agreement and further to protect the business and goodwill of the Target
and that a breach by the Seller of the covenants in this Article 11 could result
in irreparable loss to the Target which could not be adequately compensated for
in damages and that Travelbyus may have no adequate remedy at law if the Seller
breaches such provisions. Consequently, if the Seller breaches any of such
provisions, in addition to and not in lieu of, any other rights and remedies
available to Travelbyus under any law or in equity, Travelbyus shall have the
right to obtain injunctive relief to restrain any breach or threatened breach
thereof and to have such provisions specifically enforced by any court of
competent jurisdiction.
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ARTICLE 12
GENERAL
12.1 Public Notices - All public notices to third Persons and all other
publicity concerning the Transaction shall be jointly planned and coordinated by
the Seller and Travelbyus 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 regulatory agency of competent
jurisdiction or any stock exchange in circumstances where prior consultation
with the other Party is not practicable.
12.2 Expenses - Each of the Parties shall pay their respective legal,
accounting and other professional advisory fees, costs and expenses incurred in
connection with the Transaction 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 including any
fees and expenses of any broker or investment advisor in connection with the
Transaction.
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) to the Seller at: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP
Attorneys At Law
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) to Travelbyus at: 204 - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Scotia Plaza, Suite 2100
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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 the other Parties. Subject to the foregoing, this Agreement shall
enure to the benefit of and be binding upon the Parties and their respective
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 acts and things and shall provide all such reasonable assurances as may be
required to consummate the Transaction 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 Closing.
12.6 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.
▇▇▇▇▇▇▇▇▇▇.▇▇▇ LTD.
Per: /s/ ▇▇▇▇ ▇▇▇▇▇
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SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ) /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------- ) -------------------------------------
Witness ) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
)
