Exhibit 10.12
THIS AGREEMENT made at the City of St. John's, in the Province of Newfoundland
and Labrador this 22nd day of March, 2002.
BETWEEN: XXXXXX XXXXXXX NEWFOUNDLAND
LIMITED, a body corporate, organized and existing under the
laws of the Province of Newfoundland and Labrador,
(hereinafter called the "Vendor")
AND: XXXXX XXXXXX SONS CO. LTD. a body corporate, organized and
existing under the laws of Canada, and duly registered to
carry on business in, the Province of Newfoundland and
Labrador,
(hereinafter called the "Purchaser")
WHEREAS the Vendor owns certain shipbuilding and metal fabrication facilities
located in the Town of Marystown and at Cow Head at Spanish Room, Province of
Newfoundland and Labrador (the "Facilities");
AND WHEREAS the Vendor has agreed to sell to the Purchaser and the Purchaser
has agreed to purchase from the Vendor the real property and certain other
assets owned, used or operated by the Vendor in relation to the Facilities,
upon and subject to the terms of this Agreement;
THIS AGREEMENT WITNESSETH that for and in consideration of the respective
covenants and agreements herein contained, and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged) it
is agreed by and between the parties hereto as follows:
ARTICLE 1.00 - DEFINITIONS
Where used herein or in any amendment hereto, the following terms shall have
the following meanings:
1.01 "Accounts Payable" means the trade payables of the Vendor which are set
forth in Schedule "K" hereto.
1.02 "Business" means the business of shipbuilding and metal fabrication
carried on by the Vendor at the Marystown Facility and the Cow Head
Facility.
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1.03 "Closing Date" means March 26, 2002, or such earlier or later date as
the parties may in writing agree upon.
1.04 "Equipment" means the equipment set forth in Schedules "F1" and "F2"
hereto.
1.05 "Escrow Agreement" means the agreement between Xxxxxx Xxxxxxx
Newfoundland Limited, Xxxxx Xxxxxx Sons Co. Ltd. and White, Xxxxxxxxxxx
& Xxxxx as set forth in Schedule "N" hereto.
1.06 "Excluded Assets" means completed Spud Cans, xxxx-up leg materials,
free issue steel inventory, the 4600 Manitowoc crane, any moneys on
deposit in any bank accounts of the Vendor, accounts receivable and the
proceeds of any claims against third parties including its claim
against the Government of Canada.
1.07 "Inventories" means all inventories, supplies and tools owned by the
Vendor and used in connection with the Facilities excluding the free
issue steel inventory.
1.08 "Purchased Assets" means certain assets of the Vendor located at
Marystown, Newfoundland and Cow Head, at Spanish Room, Newfoundland and
Labrador, Canada, and being the interest of the Vendor in:
(a) the right, title and interest to all those pieces or parcels of land
known as the Marystown facility located at Marystown, Newfoundland
and Labrador and including the shipyard and fabrication facility
including supports and dock facilities, all equipment and fixtures
attached thereto, and all of the interest of the Vendor in any water
rights, realty rights, and personal property rights pertaining to the
Marystown facility, these assets being more particularly described in
part in Schedule "A" annexed hereto (the "Marystown Facility");
(b) the right, title and interest to all those pieces or parcels of land
known as the Cow Head facility located at Cow Head, at Spanish Room,
Newfoundland and Labrador and including the fabrication facility
including the supports and dock facilities, all equipment and
fixtures attached thereto and all of the interest of the Vendor in
any water rights, realty rights, and personal property rights
pertaining to the Cow Head facility, these assets being more
particularly described in Schedule "B" annexed hereto (the "Cow Head
Facility");
(c) the right, title and interest of the Vendor to those water lot leases
which form part of the Marystown Facility and the Cow Head Facility,
the said leases being described in Schedule "C" annexed hereto;
(d) the right, title and interest of the Vendor to any access road
providing access from the highway to the Marystown Facility;
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(e) the right, title and interest of the Vendor to any access road
providing access from the highway to the Cow Head Facility;
(f) all fixed assets and equipment in relation to the Facilities
including all machinery, equipment, office furniture, , furnishings,
handling equipment, storage equipment, appliances, vehicles and
accessories in respect of the Purchased Assets or used in relation
to the Business and all replacements thereto prior to Closing, as
listed in Schedules "F1" and "F2", it being acknowledged and agreed
by the Purchaser that the listing in Schedule "F2" has not been
verified by the Vendor as to its accuracy or completeness, but is
provided for general guidance only;
(g) the inventory, small tools and supplies of the Vendor used by the
Vendor in respect of the operation of the Marystown Facility and
the Cow Head Facility;
(h) subject to the limitations set forth in this Agreement the full
benefit and advantage of the contracts set forth in Schedule "M" (the
"Assumed Contracts");
(i) originals or copies of all books, manuals, records, files and
documents relating to the Purchased Assets as well as the books,
records, files and documents relating to the Inventories, personnel,
payroll, suppliers and photocopies of welding procedures, provided
that such books, records, files and documents do not include
financial information related to the Vendor or engineering/technical
documents (excluding however the photocopies of welding procedures)
or records relating to the Vendor's operation of the Facilities.
(j) all computer software owned or held under license (to the extent
transferable) by the Vendor and in use at the Facilities including
without limitation all related codes, specifications, documentation,
revisions, enhancements and modifications thereto in whatever form
and media, and rights to telephone and facsimile numbers, all of
which are listed in Schedule "U".
(k) to the extent that such are transferable by the Vendor, the
full benefit of all licenses, registrations, permits, certifications,
consents and approvals which the Vendor holds which are required by
the Vendor to own the Purchased Assets and/or operate the Business
including without limitation any governmental permit, and the permits
and licenses listed in Schedule "D".
but excluding always the Excluded Assets.
1.09 "Purchase Price" means the amount of Nine million one hundred
seventy-one thousand three hundred eighty-eight ($9,171,388) US dollars
and shall include the adjustments thereto referred to in Article 4.01.
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1.10 "Purchaser's Solicitor" means the law firm of XxXxxxx Xxxxxx,
Barristers and Solicitors, 00 Xxxx Xxxxxxx Xxxxx, Xx. Xxxx'x,
Xxxxxxxxxxxx X0X 0X0.
1.11 "Vendor's Solicitor" means the law firm of White Xxxxxxxxxxx and Xxxxx,
X.X. Xxx 0000, 00 Xxxx Xxxxxxx Xxxxx, Xx. Xxxx'x, Xxxxxxxxxxxx X0X 0X0.
ARTICLE 2.00 - SCHEDULES
2.01 The following are schedules attached to and incorporated in this
Agreement by reference and deemed to be a part hereof:
Schedule "A" - description of Marystown Facility and water lots
Schedule "B" - description of Cow Head Facility
Schedule "C" - descriptions of water lot leases
Schedule "D" - permits, licences and certifications
Schedule "E" - (deleted)
Schedules "F1" and "F2" - fixed assets and equipment
Schedule "G" - leased equipment
Schedule "H" - litigation
Schedule "I" - (deleted)
Schedule "J" - environmental issues
Schedule "K" - list of trade payables
Schedule "L" - specific indemnities
Schedule "M" - assumed contracts
Schedule "N" - escrow agreement
Schedule "O" - allocation of purchase price
Schedule "P" - liens, charges and encumbrances
Schedule "Q" - union agreements
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Schedule "R" - benefit plans
Schedule "S" - taxes
Schedule "T" - form of chattel lien
Schedule "U" - computer software
Schedule "V" - employee related accruals
Schedule "W" - annual membership dues and fees
ARTICLE 3.00 - AGREEMENT OF SALE
3.01 Subject to the terms and conditions hereof, the Vendor agrees to sell,
assign and transfer to the Purchaser, and the Purchaser agrees to
purchase from the Vendor, the Purchased Assets in consideration of the
payment of the Purchase Price, on the Closing Date.
ARTICLE 4.00 - PAYMENT OF PURCHASE PRICE AND CLOSING
4.01 Subject to the terms of this Agreement, at the Closing the Purchaser
shall purchase the Purchased Assets free and clear of all encumbrances
in consideration of the payment of the Purchase Price, together with
the following adjustments thereto:
(a) prepaid property taxes, annual membership dues or other annual fees
as set forth in Schedule "W"; and
(b) revenues from assumed contracts for work and materials performed
and provided but not yet paid for by the other contracting party.
The Purchase Price as adjusted shall be distributed on Closing by the
Vendor's Solicitor in a manner satisfactory to the Purchaser, to ensure
the payment from the Purchase Price proceeds of the following:
(1) the Xxxxxx Xxxxxxx Halter, Inc. mortgage and related promissory note;
(2) full satisfaction of the liens on equipment by the Royal Bank of
Canada and Xxxx Deere Credit, and any other party that to the
Vendor's knowledge has a claim against the Purchased Assets;
(3) full satisfaction of all liabilities, including applicable taxes,
of the Vendor as set forth in the Statement and Declaration of the
Vendor pursuant to the Bulk Sales Act (Newfoundland);
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(4) full satisfaction of obligations arising from the termination of the
Vendor's two senior executives;
(5) full satisfaction of all other trade payables of the Vendor; and
(6) closing costs incurred by the Vendor to the Closing Date.
(7) full satisfaction of the outstanding claims by or against Siemens
Canada Inc. and the Federal Government of Canada with respect to
the Quest Project.
(8) full satisfaction of any employee bonuses due to employees of the
Vendor up to the Closing Date.
4.02 The balance of the Purchase Price after satisfaction of the above
obligations shall be deposited in a trust account in the name of the
Vendor's solicitors on conditions mutually satisfactory to the Vendor
and the Purchaser pursuant to the terms of the Escrow Agreement which
shall include the following conditions:
(1) the Purchaser shall have access to the funds to apply to the payment
of (i) expenses incurred in defending any claims of whatever nature
brought against the Purchaser, pursuant to this transaction, by a
creditor or other party in interest in the jointly administered
bankruptcy case of Xxxxxx Xxxxxxx Halter, Inc. Case No. 01-52173 SEG,
pending in the United States Bankruptcy Court for the Southern
District of Mississippi (the "Bankruptcy Case") and (ii) expenses
incurred in settling or defending any claim brought by Xxxxxx Xxxx
up to a maximum of $10,000 US;
(2) the Vendor shall have access to the funds for payment of any
demobilization and removal costs, actually incurred, with respect
to the Excluded Assets;
(3) costs incurred by the Vendor arising from this transaction, whether
arising before or after the Closing, including legal costs,
accounting costs, taxes, payments required to secure discharges of
liens, payments required to secure discharges of any of the
obligations referred to in Article 6.01(d), (h) (provided that in
the event of a claim under Article 6.01(h) the claim amount does not
exceed $50,000) or arising under Article 13.01; and
(4) the remaining funds shall be released on the 15th day following
receipt of the final order confirming a plan of reorganization of
Xxxxxx Xxxxxxx Halter, Inc. issued by the bankruptcy court in
Mississippi, United States of America (the "Final Order"), provided
that if an appeal of the Final Order is lodged, the remaining funds
may be released only when a final disposition of such appeal is
arrived at. The remaining funds shall be distributed in accordance
with the directions set out in the Final Order. The Purchaser
acknowledges and agrees that at such time it will make no claim, and
hereby waives and releases any
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claim, against the remaining funds and will take no action to
restrain, enjoin or interfere with the release of the remaining
funds, under Article 13.01 or otherwise.
4.03 The Purchase Price shall be allocated among the various assets
comprising the Purchased Assets, as set forth in Schedule "O" hereto.
4.04 Subject to compliance with the terms and conditions hereof, the
transfer of possession of the Purchased Assets shall take place on the
Closing Date.
ARTICLE 5.00 - PURCHASER'S LIEN
5.01 The Vendor agrees to grant the Purchaser a first priority lien on the
Vendor's 4600 Manitowoc crane presently located on the Marystown
Facility in the form attached as Schedule "T" hereto until the Final
Order as security to the Purchaser to apply to the payment of expenses
incurred in defending any claims of whatever nature brought against the
Purchaser, pursuant to this transaction, by a creditor or other party
in interest in the Bankruptcy Case . The Vendor shall be free to sell
the 0000 Xxxxxxxxx crane provided that the net proceeds from the sale
of the crane are deposited into the trust account created pursuant to
Article 4.02 herein and disbursed in accordance with the Escrow
Agreement.
ARTICLE 6.00 - ASSUMED LIABILITIES
6.01 It is agreed that the Purchaser will have no liability for and the
Vendor shall remain liable for and discharge the following obligations
and liabilities:
(a) liabilities in respect of any indebtedness of the Vendor not assumed
by the Purchaser herein;
(b) any liability relating to any Excluded Assets, provided that the
Purchaser agrees to use its best efforts to care for and preserve
the Excluded Assets until their removal by the Vendor and shall be
liable to the Vendor for the consequences of its gross negligence in
so doing;
(c) negligence or product liability claims and liabilities for warranty
or claims relating to any product, commodity or service of the
Business produced, sold, performed or delivered up to and including
the Closing Date;
(d) liabilities for taxes, duties, levies, assessments and other such
charges, including any penalties, interest and fines with respect
thereto, payable, collectable or remittable by the Vendor to any
federal, provincial, municipal or other government or governmental
agency, authority, board, bureau or commission, domestic or foreign
in respect of the Business and or the Purchased Assets, including
without limitation any taxes payable, collectable or remittable in
respect of or measured by the sale, consumption or
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performance by the Vendor of any product, commodity or service and
any taxes in respect of remuneration payable to persons employed in
the Business and any employer deductions required by statute to be
made by the Vendor in respect of remuneration payable to all persons
employed in the Business up to and including the Closing Date,
including, without limitation, under any employee health tax
legislation;
(e) liabilities for salary or bonuses relating to employment of an
employee or former employee of the Business up to the Closing Date;
(f) any liability including insurance, regulatory, contractual and
intellectual property infringement, or product or service liabilities
resulting from or arising out of the conduct of the Business and the
ownership of the Purchased Assets during the period up to the Closing
Date (whether asserted before or after the Closing Date); and
(g) any liabilities with respect to any present or future litigation,
proceedings, claims or investigation based on any cause of action
resulting from or arising out of the conduct of the Business and the
ownership of the Purchased Assets during the period prior to the
Closing Date.
(h) any liability arising from the Donelad litigation referred to in
Schedule "H";
provided that, notwithstanding the foregoing, the Purchaser assumes and
shall be liable for the following obligations and liabilities of the
Vendor, in addition to those set forth specifically in this Agreement:
(i) all existing and future claims relating to human resources at
the Facilities, including all collective agreements, employment
obligations, grievances, arbitration awards, severance or
termination pay, accruals for vacation pay, clothing allowance,
tool allowance, sick leave and banked time, and any other
matters generally considered to be employment compensation or
benefits, excepting nevertheless the employment liabilities set
forth in Article 6.01(e) (collectively the "HR Obligations");
(ii) all litigation set forth in Schedule "H", with the exception of
the Donelad litigation; and
(iii) any loss or damage to the Excluded Assets which occurs as a
result of any relocation of the Excluded Assets by the
Purchaser for its own purposes. The Purchaser and Vendor shall
agree on an acceptable relocation of the Excluded Assets.
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ARTICLE 7.00 - REPRESENTATIONS AND WARRANTIES OF THE VENDOR
7.01 The Vendor represents and warrants to the Purchaser (which
representations and warranties shall survive closing), that as of the
date of this Agreement and on the Closing Date:
(a) the Vendor is a corporation duly incorporated and organized and
validly subsisting and in good standing under the laws of
Newfoundland and Labrador.
(b) the Vendor has the corporate authority to carry out the transactions
contemplated by this Agreement and has the corporate authority to own
its property and carry out the Business at the Facilities, that the
Agreement and the agreements, contracts and instruments required by
the Agreement to be delivered to the Purchaser at the closing, have
been duly authorized by the Vendor and the Agreement has been duly
executed and delivered by the Vendor and is a valid and binding
obligation of the Vendor enforceable against the Vendor in accordance
with its terms.
(c) other than as set forth in Schedule "P" the Purchased Assets are
free and clear from all liens and charges and that there are no
statutory liens of any kind charging or encumbering the Purchased
Assets.
(d) other than as set forth in Schedule "G" no equipment, chattels or
goods incorporated into the Purchased Assets or sold with or as part
of the Purchased Assets are subject to any lease, conditional sales
agreement, chattel mortgage, or other similar agreement. On or before
the Closing Date, the Vendor shall ensure that it is current with
respect to all obligations in respect of any lease, conditional sale
agreement or chattel mortgage such that any Purchased Asset subject
to same shall be transferred to the Purchaser with such lease,
conditional sale agreement or chattel mortgage in good standing.
(e) the execution and delivery by the Vendor of this Agreement and the
performance by it of its obligations thereunder and the completion
by it of the transactions contemplated thereby does not result in
the violation of any of the terms and provisions of the constating
documents or by-laws of the Vendor or of any contract of agreement
to which it is a party (other than the Assumed Contracts) or, to
the best of its knowledge, violate any law or regulation of Canada
or of any province or territory or any municipal by-law or
ordinance, or any order or decree of any Court or tribunal to
which the Vendor is subject.
(f) except as otherwise provided in this Agreement, the Vendor does not
have knowledge of any authorization, consent or approval of, or
filing with or notice to, any governmental agency, regulatory body,
court or other person, being required in connection with the
execution, delivery, or performance of this Agreement by the Vendor,
or for the sale of the Purchased Assets thereunder.
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(g) there are no written or oral agreements or restrictions which in any
way limit or restrict the sale of the Purchased Assets to the
Purchaser.
(h) to the best of the Vendor's knowledge, it has carried out its
business in relation to the Purchased Assets in compliance in all
material respects with all applicable laws, regulations, by-laws
or ordinances.
(i) the Vendor is not a non-resident of Canada pursuant to the Income Tax
Act (Canada).
(j) the Vendor is not aware of any material defects in relation to the
Purchased Assets or any other facts which are relevant to the
material condition thereof.
(k) no person other than the Purchaser now has, or at the Closing Date
will have, any written or oral agreements, options, undertakings or
commitments or any rights or privileges capable of becoming an
agreement for the purchase of the Purchased Assets from the Vendor
or requiring the Vendor to sell or assign all or any of the
Purchased Assets.
(l) the Vendor does not have any notice of any orders or directives of
any kind from any municipal, provincial, or federal government, or
agency thereof, with respect to the Purchased Assets, including from
the federal or provincial departments of environment or labour in
relation to environmental occupational, health or safety matters.
(m) other than as set forth in Schedule "H" there is, to the knowledge
of the Vendor, no litigation or other proceedings of a similar nature
whatsoever outstanding with respect to the Purchased Assets and
there is no action or claim or demand or other proceedings threatened
before any Court or administrative agency which could adversely
affect the Purchased Assets. To the knowledge of the Vendor there
is not presently or anticipated to be outstanding against the
Vendor or the Purchased Assets any judgment, decree, injunction,
rule, order or award of any court, governmental department,
commission, xxxx, bureau, agency or arbitrator binding upon the
Vendor that has not been satisfied in full. To the knowledge of the
Vendor there are no open files, notices of violation or outstanding
work orders relating to any equipment, buildings or realty owned or
used by the Vendor from or required by any police, fire department,
sanitation, health, workers, safety authorities, or any federal,
provincial, municipal authority, or any matters under discussion with
any such authority or department relating to open files, notice of
violation of work orders and no material order affecting either the
Vendor or the Purchased Assets has been issued or is expected to be
issued by any governmental, ministry, agency, board or authority.
(n) except as set out in Schedule "J" or in any document or report
referred to therein or otherwise disclosed to the Purchaser in any
report, review or analysis
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conducted by it or on its behalf prior to the Closing Date, to the
knowledge of the Vendor:
(i) it has been and is in substantial compliance with all
applicable federal, provincial, municipal and local laws,
statutes, ordinances, by-laws, regulations and orders,
directives and decisions rendered by any ministry, department
or administrative or regulatory agency ("Environmental Laws")
relating to the protection of the environment, occupational
health and safety or the manufacture, processing,
distribution, use, treatment, storage, on and off-site
disposal, discharge, transport or handling of any pollutants,
contaminants, chemicals or industrial, toxic or hazardous
wastes or substances ("Hazardous Substances").
(ii) it has obtained all licences, permits, approvals, consents,
certificates, registrations and other authorizations under
Environmental Laws (the "Environmental Permits") required for
the operation of the Facilities and each Environmental Permit
is valid, subsisting and in good standing and the Vendor is in
substantial compliance with all Environmental Permits and no
proceeding is pending or, to the knowledge of the Vendor,
threatened, to revoke or limit any Environmental Permit.
(iii) it has not used or permitted to be used except in substantial
compliance with all Environmental Laws, any of its property,
whether owned or leased, in connection with the Facilities, to
generate, manufacture, process, distribute, use, treat, store,
dispose of, transport or handle any Hazardous Substance.
(iv) it has not ever received any notice of, nor been prosecuted
for, an offence alleging non-compliance with any Environmental
Laws.
(v) it has not received notice of any orders or directions relating
to environmental matters requiring any work, repairs,
construction or capital expenditures with respect to the
Facilities.
(vi) it has not caused or permitted the release, in any substantial
manner, of any Hazardous Substance on or from the Facilities.
(vii) all Hazardous Substances on or from the Facilities and all
other wastes and other materials and substances used in whole
or in part by the Vendor or resulting from the operation of
the Facilities have been disposed of, treated and stored in
substantial compliance with all Environmental Laws.
(viii)it has not received any notice that it is potentially
responsible for a federal, provincial, municipal or local
clean-up site or corrective action under any Environmental
Laws.
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(ix) it has not received any request for information in connection
with any federal, provincial, municipal or local inquiries as
to disposal sites.
(x) it is not aware of any environmental audits, evaluations,
assessments, studies or tests relating to the operations of
the Facilities.
(xi) it has not owned or operated any diesel or other fuel tankage,
or any equipment or storage facilities containing any "PCBs",
on the Facilities, or either of them.
(o) other than as set forth in Schedule "P" the Vendor has not executed
or agreed to create any bonds, debentures or promissory notes in
relation to or otherwise affecting the Purchased Assets;
(p) other than as set forth in Schedule "P" the Vendor is not party to
any agreements to give any security over the Purchased Assets or for
the Vendor to acquire any assets in relation to or otherwise
affecting the Purchased Assets;
(q) that any and all equipment leases listed in Schedule "G" are in good
standing and in full force and effect, and the Vendors are not aware
of anything which with the passage of time or notice or both would
result in a default thereunder;
(r) that the Vendor is and will remain in compliance until the Closing
Date and in all material respects with all applicable laws, rules,
regulations, by-laws, ordinances and standards in relation to or
otherwise affecting the Purchased Assets, including but not limited
to environmental, civil rights, occupational safety and health,
hazardous substances, zoning laws and building codes;
(s) policies of insurance are maintained on all the Purchased Assets,
issued by responsible insurers, as are appropriate, for loss or
damage by all insurable hazards on a replacement cost basis. All
such policies of insurance are in full force and effect and will
continue in full force and effect until the Closing Date. The Vendor
is not in default, whether as to the payment of premium or otherwise,
under the terms of any such policy and has not failed to give notice
of or present in due and timely fashion any claim or claims under
any such policy;
(t) that the Vendor is the owner in fee simple absolute of the Marystown
Facility including the Marystown water lots and the Cow Head Facility
and is the beneficial owner of the remainder of the assets comprising
the Purchased Assets (except for the leased equipment set forth in
Schedule "G"), with good and marketable title thereto, free and clear
of any pledge, lien, charge, encumbrance or security interest of any
kind on any portion or other right thereto except as otherwise
provided in Schedule "P". The Vendor has the full power and
unrestricted authority to sell the Purchased Assets in accordance
with this Agreement. Further, at the Closing Date no person shall
have any right, option,
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agreement or arrangement capable of becoming an agreement for the
acquisition of, or the enjoyment of any rights attached to, any of
the Purchased Assets or any other interest in any of them, other
than the Purchaser pursuant to this Agreement.
(u) that all of the equipment leased and/or financed by Xxxx Deere
Credit and/or leased or financed by the Royal Bank of Canada (the
"Capital Lease Equipment") is in good working condition, reasonable
wear and tear only accepted, and in accordance with all applicable
governmental or legislative standards. All of the Capital Lease
Equipment (whether owned or leased) used or operated by the Vendor
in connection with the Marystown Facility and the Cow Head Facility,
or intended so to be, is in compliance in all material respects with
all applicable laws, regulations, by-laws, ordinances and orders.
(v) the trade payables set forth in Schedule "K" are all of the trade
payables in respect of the Business of the Vendor carried on, and
previously carried on, in respect of the Facilities, and each of
them as at the date noted on Schedule "K".
(w) except as stated in Schedule "Q" the Vendor is not a party to any
collective agreement with any labour union or other association of
employees. The Vendor is in compliance with in all material respects
with all applicable federal, provincial and local laws respecting
employment and employment practices, terms and conditions of
employment, wages and hours of work and non-discrimination in
employment, and is not engaged in any unfair labour practices.
(x) except as set out in Schedule "R", there are no employee benefit
plans, pensions, group sharing, group insurance or similar plans
or other retirement plans, welfare benefit plans, deferred
compensation plans affecting the Vendor or the Purchased Assets.
The Vendor has no employees entitled to any pension, retirement,
welfare profit sharing, deferred compensation, stock option, employee
stock purchase or other employee benefits plans or arrangements
except as stated in Schedule "R". Schedule "V" accurately sets forth
certain employee related accruals as shown on the books of the
Vendor as at the date set forth in Schedule "V".
(y) all tax returns and reports of the Vendor required by law to be filed
prior to the date hereof have been filed and are true, complete and
correct. All taxes and other governmental charges have been paid or
accrued in the Vendor's financial statements for the year ended
December 31, 2000. Except as set forth in Schedule "S", no property
taxes are owing by the Vendor with respect to the Facilities.
(z) the Vendor has been assessed for federal and provincial income taxes
for all years to and including the fiscal year ended December 31,
2000 and, other than as may be reflected on Schedule "S" hereto,
there are no outstanding liabilities for taxes payable, collectable
or remittable by the Vendor and no matters are
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presently in dispute with respect to federal and provincial income
tax returns. There are no outstanding goods and services taxes,
source deductions or other tax liabilities, due and payable to
Revenue Canada by the Vendor other than as shown in Schedule "S".
(aa) the Vendor is a registrant for purposes of HST and its HST
registration number is 87372 0452 RT0001.
(bb) the Vendor possesses no information or knowledge of facts relating
to the Purchased Assets other than as disclosed herein which might
reasonably be expected to deter the Purchaser from completing the
transactions herein contemplated for the Purchase Price and on the
other terms and conditions of this Agreement.
(cc) Permits and Licences - The Vendor holds all licences, permits,
certifications and registrations including governmental permits as
may be required for the ownership of the Purchased Assets. There are
no proceedings pending or to the knowledge of the Vendor threatened,
which may result in the revocation, cancellation, suspension or
adverse modification of any permit, license, certification or
registration. The Vendor will cooperate with the Purchaser in
transferring to the Purchaser any transferable licenses, permits,
certifications and registrations required for the operation of the
Facilities.
ARTICLE 8.00 - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
8.01 The Purchaser represents and warrants to the Vendor as follows and
acknowledges that the Vendor is relying upon such representations and
warranties in connection with the sale of the Purchased Assets.
(1) the Purchaser is a corporation duly incorporated under the Canada
Business Corporations Act and validly registered to carry on business
in the Province of Newfoundland and Labrador and has the corporate
power and authority to purchase the Purchased Assets as contemplated
by this Agreement.
(2) neither the execution or delivery of this Agreement nor the
fulfillment or the compliance with any of the terms hereof will
conflict with, or result in a breach of the terms, conditions or
provision of, or constitute a default under, the constating documents
of the Purchaser or any material agreement or instrument to which the
Purchaser is subject, or will require any consent or other action by
any administrator or governmental body.
(3) prior to the Closing Date, the purchase of the Purchased Assets
shall have been duly authorized and approved by all required
corporate and legal proceedings of the Purchaser.
14
(4) the Purchaser is not a non-Canadian within the meaning of the
Investment Canada Act (Canada) and the Purchaser is not a non
-resident within the meaning of the Income Tax Act (Canada).
(5) the Purchaser is a registrant for the HST and its HST registration
number is 104160718RT0001.
ARTICLE 9.00 - COVENANTS OF VENDOR
The Vendor hereby covenants and agrees with the Purchaser as follows:
9.01 Due Diligence
The Vendor will provide the Purchaser with access to the Purchased
Assets, and all books, accounts, records and other data in respect of the
Purchased Assets including plans, surveys, descriptions, title documents,
leases, licences, orders and permits in relation to the Purchased Assets
and other information with respect to the Purchased Assets as the
Purchaser shall from time to time consider necessary in order to conduct
due diligence. When requested by the Purchaser, the Vendor shall arrange
at a reasonable time and on reasonable notice for the Purchaser, and its
employees, agents and advisors, to have reasonable access to the Purchased
Assets in order to conduct any required due diligence including but not
limited to environmental reviews and audits, engineering reviews and
surveys, and inventory and equipment reviews. The Vendor shall provide the
Purchaser with all necessary consents and authorizations required by the
Purchaser to authorize, to the extent within their power, the Purchaser to
have access to information concerning the Purchased Assets in the
possession of any third party including any governmental body. The
exercise of any rights of inspection by or on behalf of the Purchaser
under this section shall not mitigate or otherwise affect any of the
representations, warranties, convenants or indemnities of the Vendor under
this Agreement.
9.02 Fulfillments of Conditions
The Vendor shall, subject to the terms hereof, take all commercially
reasonable steps within its power to ensure that all of the conditions in
favour of the Purchaser set forth in Section 11.01 hereof are fulfilled
at or prior to the time of closing.
9.03 Executive Releases
At the Closing the Vendor shall deliver to the Purchaser satisfactory
releases from its two senior executives, in form and substance
satisfactory to the Purchaser's solicitors, releasing any claim they may
have against the Purchaser or the Purchased Assets by virtue of the
transactions contemplated by this Agreement.
15
9.04 Bulk Sales
At or prior to the time of closing, the Vendor shall deliver to the
Purchaser satisfactory evidence of compliance with all bulk sales or
comparable legislation in respect of the Purchased Assets.
9.05 HST Election
The Vendor shall elect jointly with the Purchaser pursuant to the Excise
Tax Act (Canada) by completing at or prior to the time of closing all
prescribed forms and related documents in such manner as is prescribed
such that for the purposes of the Excise Tax Act (Canada), no HST is
payable in respect of the purchase and sale of the Purchased Assets. The
Vendor shall deliver to the Purchaser satisfactory evidence that it has
made such filings as are required in connection with such election in its
HST return.
9.06 Consents and Approvals
The Vendor will:
(a) apply for as soon as reasonably possible and use commercially
reasonable efforts to obtain all corporate, regulatory and
governmental approvals required for the transaction contemplated
by this Agreement including but not limited to the approval of
the Government of Newfoundland and Labrador, Foothill Capital
Corporation and the Unsecured Creditors' Committee in the
bankruptcy proceedings for Xxxxxx Xxxxxxx Halter Inc., and its
related and/or affiliated entities; and
(b) provide to the Purchaser such information as it may reasonably
require, and at the expense of the Purchaser, render such other
assistance within its power as it, acting reasonably, may
require by written notice to the Vendor in order to obtain all
regulatory approvals and other approvals and consents required
to complete the transactions contemplated hereby.
9.07 Excluded Assets
The Vendor covenants that the Excluded Assets shall be removed from the
Facilities, at the Vendor's expense, within six months following the
Final Order, but in no event later than May 31, 2003.
ARTICLE 10.00 - COVENANTS OF PURCHASER
10.01 Completion of the Transaction - The Purchaser covenants to and agrees
with the Vendor that it will take all commercially reasonable steps
within its power necessary
16
to complete the transactions contemplated hereby and to ensure that all
of the conditions in favour of the Vendor in Section 11.02 are fulfilled
at or prior to the Closing Date.
10.02 Consents and Approvals - The Purchaser covenants to and agrees with the
Vendor:
(a) to apply for as soon as reasonable possible and use commercially
reasonable efforts to obtain all corporate, regulatory and other
approvals required to complete the transactions;
(b) to provide to the Vendor such information as it may reasonably
require, and at the expense of the Vendor, render such other
assistance within its power as it, acting reasonably may require by
written notice to the Purchaser in order to obtain all regulatory
approvals and other approvals and consents required to complete the
transactions contemplated hereby.
10.03 Purchaser to Assume Employment Obligations- The Purchaser assumes all
obligations and liabilities owed by the Vendor to all employees of the
Vendor other than Xxxxxx Xxxxx and Xxxxxx Xxxxxxxx and is responsible
for and indemnifies and holds harmless the Vendor from all HR
Obligations as defined in paragraph 6.01.
10.04 Assumed Contracts - The Purchaser shall assume the contracts in
Schedule "M" including all obligations and liabilities relating to the
Contracts. The Purchaser further agrees to indemnify and hold harmless
the Vendor from all obligations and liabilities arising from the
Contracts from the Closing Date onward.
10.05 HST Elections - The Purchaser shall elect jointly with the Vendor
pursuant to the Excise Tax Act (Canada) by completing at or prior to
the Closing Date all prescribed forms and related documents in such
manner as is prescribed, so that for the purposes of the Excise Tax Act
(Canada) the HST will not be payable on closing in respect of the
purchase and sale of the Purchased Assets.
ARTICLE 11.00 - CONDITIONS OF CLOSING
11.01 Conditions for Purchaser's Benefit
The Purchaser shall not be obliged to complete the transactions herein
provided for unless, at or before the Closing Date, each of the following
conditions shall have been satisfied, it being understood that such
conditions are included for the exclusive benefit of the Purchaser and may
be waived , in whole or in part by the Purchaser at any time. The Vendor
shall use its best efforts to ensure that such conditions are fulfilled on
or before closing.
(1) Representations and Warranties - The representations and warranties
set forth in Section 7.01 shall be true and correct in all material
respects as at the Closing Date as if they had been made on and as
of such time.
17
(2) Approvals - The sale and purchase herein shall have been duly
authorized and approved by the following: (i) the Board of Directors
of Xxxxxx Xxxxxxx Newfoundland Limited, Xxxxxx Xxxxxxx Canada Inc.
and Xxxxxx Xxxxxxx, Halter Inc., and a resolution of the shareholders
of Xxxxxx Xxxxxxx Newfoundland Limited, and a copy of the requisite
corporate proceedings for each of the said companies duly certified
by the Secretary thereof shall have been delivered to the Purchaser;
(ii) written approval of the sale of the Purchased Assets to the
Purchaser by Foothill Capital Corporation and the Unsecured
Creditors' Committee in the Xxxxxx Xxxxxxx Halter, Inc. bankruptcy
proceedings; and (iii) all other corporate and legal proceedings and
approvals as are considered necessary by the Purchaser's solicitors
shall have been taken or obtained to permit the Vendor to complete
the transactions contemplated herein.
(3) Agreements - The Vendor shall have performed and complied with all
terms, conditions, covenants, obligations, agreements and
restrictions required by this Agreement to be performed or complied
with by it prior to Closing and the shareholders, directors and
officers of the Vendor shall exercise their respective powers so as
to cause the Vendor to fully perform any and all its obligations
contemplated or necessary under this Agreement prior to Closing.
(4) Regulatory and Government Approvals - Any and all regulatory and
governmental approvals shall have been obtained.
(5) Due Diligence - The Purchaser shall have been provided with full
disclosure and access to the Purchased Assets and operations of the
Marystown Facility and the Cow Head Facility, including all
documentation and records (in any an all forms), relating or
appertaining directly or indirectly to the use of any of the
Purchased Assets, for the purposes of its due diligence review and
the Purchaser being satisfied with the results of the due diligence
review that it conducts relating to the Purchased Assets, including
without limitation receipt of acceptable clearances or releases
from such third parties including but not limited to governmental
authorities, and statutory tax authorities, as the Purchaser may in
its absolute discretion determine necessary.
(6) Clearances - The Purchaser shall receive acceptable clearances or
releases from such third parties with whom the Vendor has had
dealings in respect of the Purchased Assets, as the Purchaser in
its absolute discretion determines necessary prior to Closing.
(7) Material Adverse Change - There shall have been no material adverse
change to the Purchased Assets from the time of execution of the
Agreement until Closing.
18
(8) Government of Newfoundland and Labrador - The Purchaser shall be
in receipt of a waiver and release of the penalties and liquidated
damages associated with the work commitments from the Government of
Newfoundland and Labrador including but not limited to those work
commitments set forth pursuant to Section 4(d) of that Share
Purchase Agreement dated effective January 1, 1998 and made between
inter xxxx Xxxxxx Xxxxxxx Newfoundland Limited, Marystown Shipyard
Limited, and Newfoundland Ocean Enterprises Ltd.
(9) Bulk Sales Act - The Vendor shall have provided proof of
satisfactory compliance with the provisions of the Bulk Sales Act,
(Newfoundland and Labrador).
(10) Environmental Indemnification - The Purchaser shall be in receipt
of an assignment of the environmental undertaking and
indemnification given by the Government of Newfoundland and
Labrador to the Vendor on terms and conditions satisfactory to the
Purchaser.
(11) Environmental Audits - The Purchaser's receipt of a satisfactory
environmental audit and report of the lands comprising the
Marystown Facility and the Cow Head Facility.
(12) Closing Documents - The Purchaser shall have received the following
documentation or a solicitor's undertaking to provide the same:
(a) All instruments of conveyance and other documentation and
assurances relating to the sale and purchase of the Purchased
Assets including without limitation all assignments of any
equipment leases, all bills of sales for the equipment, tools
and Inventories, assignments and consents for the transfer of
the water lot leases, deeds of rectification and confirmation
from the Government of Newfoundland and Labrador for the
Facilities, elections and all documentation in any way
required to transfer the Purchased Assets and consummate the
sale and transfer of the Purchased Assets;
(b) A bring-down certificate of the Vendor;
(c) An opinion of legal counsel of the Vendor in a form and
substance satisfactory to the Purchaser's solicitors;
(d) All of the releases required by this Agreement including but
not limited to a release from Siemens Canada Inc. and a
release by the Federal Government of Canada;
(e) Evidence reasonably satisfactory to the Purchaser that all
required third party consents, releases to the transactions
contemplated herein,
19
including consents under any contracts or agreements, all in
form and substance satisfactory to the Purchaser, have been
obtained.
(f) Such other documents as the Purchaser may request to
demonstrate to the Purchasers satisfaction that the conditions
set out in this Agreement have been satisfied.
(13) Purchaser Termination - If any of the foregoing conditions in
favour of the Purchaser shall not have been fulfilled or performed
at or prior to the time of Closing other than by reason of a
default by the Purchaser, the Purchaser may terminate this
Agreement by written notice to the Vendor and, in such event, the
Purchaser shall be released from all obligations hereunder without
prejudice to any rights or remedies it may have against the Vendor,
provided, however, that the Purchaser may waive compliance with any
of such conditions in whole or in part without prejudice to any of
its rights of termination in the event of non-performance of any
other condition, obligation or covenant in whole or in part.
11.02 Conditions for Vendor's Benefit
The Vendor shall not be obliged to complete the transaction herein
provided for unless, at Closing, each of the following conditions shall
have been satisfied, it being understood that such conditions are
included for the exclusive benefit of the Vendor and may be waived in
writing in whole or in part by the Vendor at any time. The Purchaser
shall use its best efforts to ensure that such conditions are fulfilled
on or before Closing.
(1) Representations and Warranties - The representations and
warranties set forth in Section 8.01 shall be true and correct in
all material respects as at Closing as if they had been made on and
as of such time.
(2) Agreements - The Purchaser shall have performed and complied with
all terms, conditions, covenants, obligations, agreements and
restrictions required by this Agreement, to be performed or
complied with by it prior to Closing.
(3) Closing Documents - The Vendor shall have received:
(a) Payment of the Purchase Price in accordance with Section 4.01
hereof;
(b) A bring-down certificate of the Purchaser;
(c) An opinion of legal counsel of the Purchaser in form and
substance satisfactory to the Vendor's solicitor;
20
(d) Such other documents as the Vendor may reasonably request
to demonstrate to the Vendor's satisfaction that the
conditions to be met by the Purchaser as set out in this
Agreement have been satisfied.
(4) Approvals - The sale and purchase herein shall have been duly
authorized and approved by the following: (i) the Board of
Directors of Xxxxxx Xxxxxxx Newfoundland Limited, Xxxxxx
Xxxxxxx Canada Inc. and Xxxxxx Xxxxxxx, Halter Inc., and a
resolution of the shareholders of Xxxxxx Xxxxxxx Newfoundland
Limited, and a copy of the requisite corporate proceedings for
each of the said companies duly certified by the Secretary
thereof shall have been delivered to the Vendor; (ii) written
approval of the sale of the Purchased Assets to the Vendor by
Foothill Capital Corporation and the Unsecured Creditors'
Committee in the Xxxxxx Xxxxxxx Halter, Inc. bankruptcy
proceedings; and (iii) all other corporate and legal
proceedings and approvals as are considered necessary by the
Vendor's solicitors shall have been taken or obtained to
permit the Purchaser to complete the transactions contemplated
herein.
(5) Regulatory and Government Approvals - Any and all regulatory
and governmental approvals shall have been obtained.
(6) Government of Newfoundland and Labrador - The Vendor shall be
in receipt of a waiver and release of the penalties and
liquidated damages associated with the work commitments from
the Government of Newfoundland and Labrador including but not
limited to those work commitments set forth pursuant to
Section 4(d) of that Share Purchase Agreement dated effective
January 1, 1998 and made between inter xxxx Xxxxxx Xxxxxxx
Newfoundland Limited, Marystown Shipyard Limited, and
Newfoundland Ocean Enterprises Ltd.
ARTICLE 12.00 - SURVIVAL
The representations, warranties, covenants and agreements by the parties
contained in this Agreement, or any certificates or documents delivered
pursuant to the provisions hereof, or in connection with the transactions
contemplated hereby shall be true and correct as of the Closing Date, as though
such representations and warranties were made by the parties as of the Closing
Date. Notwithstanding any investigations or inquiries made by the Purchaser or
its representatives, the representations, warranties, covenants, and agreements
of the parties shall survive the Closing Date and shall continue in full force
and effect for a period of two (2) years beginning on the Closing Date, except
that any claim based on intentional misrepresentation, fraud, the absence of
title, or statutory liens shall survive indefinitely and any claim with respect
to any taxes shall survive to the expiry of any assessment or reassessment
period.
21
ARTICLE 13.00 - INDEMNIFICATION
13.01 Indemnity by Vendor - The Vendor covenants and agrees to indemnify and
hold harmless the Purchaser and its respective directors, officers, and agents
and its respective successors and assigns from and after the Closing Date
against any and all claims, losses, damages, causes of action, demands,
liabilities, expenses, costs and charges (including but without limitation
reasonable legal fees) made against the Purchaser or affecting the Purchased
Assets or for which the Purchaser may be or become liable in respect of,
arising from or in connection with the following:
(a) any misrepresentation or breach of or non-fulfillment of any
representation, warranty, covenant or term on the part of the
Vendor pursuant to the terms of this Agreement or any
misrepresentation in or omission from any schedule, list,
certificate or other instrument furnished or to be furnished
to the Purchaser pursuant to the terms of this Agreement,
regardless of whether, in the case of a breach of
representation and warranty, the Purchaser relied upon the
truth of such representation or warranty, or had any knowledge
of any breach thereof;
(b) any claims related to those items set forth in Schedule "L";
and
(c) any taxes, interest and penalties and other statutory liens
affecting the Purchased Assets.
(d) any liabilities which remain unpaid, unsatisfied,
undischarged, unfulfilled or unperformed on or at the Closing
together with all losses, claims, demands, costs and expenses
in respect of the foregoing.
13.02 Indemnity by Purchaser - The Purchaser covenants and agrees to indemnify
and hold harmless the Vendor and its respective directors, officers, and agents
and its respective successors and assigns from and after the Closing Date
against any and all claims, losses, damages, causes of action, demands,
liabilities, expenses, costs and charges (including but without limitation
reasonable legal fees) made against the Vendor or for which the Vendor may be
or become liable in respect of, arising from or in connection with any
misrepresentation or breach of or non-fulfillment of any representation,
warranty, covenant or term on the part of the Purchaser pursuant to the terms
of this Agreement regardless of whether, in the case of a breach of
representation and warranty, the Vendor relied upon the truth of such
representation or warranty, or had any knowledge of any breach thereof.
ARTICLE 14.00 - MISCELLANEOUS AGREEMENTS OF VENDOR AND PURCHASER
(1) The Purchased Assets shall be and remain at the risk of the Vendor
and, in the event of loss or damage to any of the Purchased Assets
for which insurance coverage exists, the Vendor shall maintain and
preserve the proceeds thereof for the benefit of and payment to the
Purchaser subject to Closing.
22
(2) If the Vendor fails to proceed with the completion of the
transaction as contemplated by this Agreement for reasons within
its control, and not arising as a result of any breach or cause by
the Purchaser, within seven (7) days of having received written
notice from the Purchaser requiring that such default be remedied,
the Purchaser may terminate this Agreement by notice in writing to
the Vendor. In such event, the Purchaser shall be released from all
of its obligations hereunder.
(3) The Purchaser agrees that the Vendor shall have, for a reasonable
time following the Closing, and without payment of any costs in
relation thereto, continued access to the Facilities and the right
to use the human resources of the Executive Secretary, HR
Department, IT Department, and Finance Department, for the
compilation and removal of its executive records, financial
records, HR and MIS data and property and for the collection of its
ongoing accounts receivable.
(4) Remedies - The Vendor acknowledges that a breach of the provisions
of this Agreement, including but not limited to Article 11, will
entitle the Purchaser, without prejudice to any and all rights of
the Purchaser, to proceed with an action for specific performance.
The Vendor further acknowledges that any breach by the Vendor may
cause irreparable harm to the Purchaser for which there may be no
adequate remedy at law and for which the ascertainment of damages
may be difficult. Therefore, without prejudice to any and all
rights of the Purchaser, the Vendor recognizes and consents to the
Purchaser obtaining an injunction to enforce the terms contained
herein without having to prove the adequacy of any other remedies
of law.
(5) The Purchaser undertakes and agrees to provide the Vendor with all
necessary support, including the use of the Facilities and its
human resources, to allow the Vendor to remove the Excluded Assets
within the reasonable time requirements of the Vendor, to be
compensated for by the payment only for such human resources as are
so utilized, at the Vendor' cost of human resources immediately
prior to closing.
ARTICLE 15.00 - INTERPRETATION
15.01 Schedules - Schedules and other documents attached or referred to in
this Agreement are an integral part of this Agreement.
15.02 Division and Sections - The division of this Agreement into articles,
sections, paragraphs and subparagraphs and the insertion of headings
are for the convenience of reference only and shall not affect the
construction or interpretation hereof.
15.03 Plurals and Gender - Words importing the singular number include the
plural and vice-versa and words importing the masculine gender include
the feminine and neuter genders.
15.04 US Dollar - All dollar amounts referred to in this Agreement are in US
dollars.
23
15.05 Severability -In the event that any particular provision or provisions
or a part of a provision is found to be void, voidable, or
unenforceable for any reason whatever, then the particular provision or
provisions or part of the provision shall be deemed severed from the
remainder of this Agreement and all other provisions shall remain in
full force and effect.
15.06 Expenses - Each Party shall be responsible for its own legal and other
charges incurred in connection with the preparation with this
Agreement, all negotiations between the parties and the consummation of
the transactions contemplated hereby.
15.07 Further Assurances - Each Party will from time to time at the other
Party's request and expense and without further consideration, execute
and deliver such other instruments of transfer, conveyance and
assignment and take such further action as the other Party may require
to more effectively complete any matter provided for herein.
15.08 Entire Agreement - This Agreement constitutes the entire agreement
between the Parties and except as herein stated and in the instruments
and documents to be executed and delivered pursuant hereto, contains
all of the representations and warranties of the respective Parties.
There are no oral representations or warranties among the Parties of
any kind. This Agreement may not be amended or modified in any respect
except by written instrument signed by all Parties.
15.09 Non-Merger - Each of the Parties agree that all provisions of this
Agreement, and all provisions of any al all documents delivered in
connection herewith, shall forever, except where otherwise expressly
stipulated herein, survive the Closing of the transactions contemplated
by this Agreement.
15.10 Applicable Law - This Agreement shall be interpreted in accordance
with the laws of the Province of Newfoundland and Labrador and the laws
of Canada applicable therein.
15.11 Time - Time shall be of the essence of this Agreement.
15.12 Notices - Any notice require or permitted to be given hereunder shall
be in writing and shall be effectively given if:
(1) delivered personally,
(2) sent by prepaid courier service, or
(3) send prepaid by telecopier, telex or other similar means of
electronic communication,
24
addressed, in the case of the Vendor, as follows:
Xxxxxx Xxxxxxx Newfoundland Ltd.
Ville Xxxxx Drive
67-77 Ville Xxxxx Drive
P.O. Box 262
Marystown, NF A0E 2M0
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Halter Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX, XXX
00000-0000
Attention: Mr. Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: White, Xxxxxxxxxxx & Xxxxx
0xx Xxxxx, Xxxxx Xxxxxxxx Xxxxxx
00 Xxxx Xxxxxxx Place
P.O. Box 5457
St. John's, NF A1C 5W4
Attention: Xx. Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Xxxxxxx and Xxxxx, LLP
000 Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
25
and addressed, in the case of notice to the Purchaser, as
follows:
Xxxxx Xxxxxx Sons Co. Ltd.
Xxxxxx Xxxxx
Xxxxx, XX 00000
Attention: Xx. Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: XxXxxxx Xxxxxx
00 Xxxx Xxxxxxx Xxxxx
X.X. 0000
Xx. Xxxx'x, XX X0X 0X0
Attention: Xx. Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any notice so given shall be deemed conclusively to have been given and
received when so personally delivered or sent by telex, telecopier or other
electronic communication or on the second (2nd) day following the sending
thereof by private courier. Any party hereto or others mentioned above may
change any particulars of its address for notice by notice to the others in the
manner aforesaid.
15.13 Successors and Assigns - This Agreement shall enure to the benefit of
and be binding upon the Parties hereto and their respective successors
and assigns.
15.14 Execution in Counterparts - This Agreement may be executed in one or
more counterparts, each which so executed shall constitute an original
and all of which together shall constitute one and the same agreement.
The Parties also agree that delivery of an executed signature page to
this Agreement by any of the Parties by telecopier transmission shall
be as effective as delivery of a manually executed copy of this
Agreement of such party or parties.
15.15 Time and Place of Closing - This transaction of Purchase and Sale for
the Purchased Assets shall close on the Closing Date at the offices of
the Purchaser's Solicitor at the hour of a.m. (Newfoundland time).
15.16 Public Announcement - No public announcement concerning the purchase
and sale of the Purchased Assets shall be made by the Vendor or the
Purchaser without the consent of both the Purchaser and the Vendor,
except as may be required by regulatory authority or statute.
26
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first herein before written.
XXXXXX XXXXXXX NEWFOUNDLAND LTD.
By:_________________________
_______________________ Title:______________________
WITNESS
XXXXX XXXXXX SONS CO. LTD.
By:_________________________
_______________________ Title:______________________
WITNESS
27
