Exhibit 10.24
THIS SHAREHOLDERS' AGREEMENT made this 13th day of February, 2007.
AMONG:
XXXXXXX INTERNATIONAL INC.
OF THE FIRST PART
- and -
EB HOLDING INC.
OF THE SECOND PART
- and -
LOGICAL SEQUENCE INCORPORATED
OF THE THIRD PART
The parties agree as follows:
1 Definitions and Interpretation
1.1 Where used in this Agreement, unless there is something in the context or
the subject matter inconsistent therewith, the following terms shall have
the following meanings respectively:
(a) "Affiliate" of a body corporate (the first body corporate) means a
body corporate which is directly or indirectly controlled by the first
body corporate, or directly or indirectly controls the first body
corporate or is directly or indirectly controlled by a body corporate
which also directly or indirectly controls the first body corporate;
(b) "Agreement" means this agreement and any instrument supplemental
hereto, the expressions "Article", "section", "subsection" and
"clause" followed by a number and/or a letter number mean and refer to
a specified Article, section, subsection or clause of this Agreement;
(c) "Board" means the board of directors of the Company;
(d) "Business Day" means any day other than a Saturday or a Sunday or a
statutory or civic holiday;
(e) "Company" means Logical Sequence Incorporated, a body corporate
incorporated under the laws of Ontario;
(f) "Common Shares" means the common shares in the capital of the Company;
(g) "Control" means, in the case of a corporation, ownership, directly or
indirectly through ownership by other persons of at least 50% plus one
of all of the voting rights attached to all voting shares (exclusive
of shares that are voting only in certain events, unless such events
have occurred and are continuing) and in the case of any other person,
ownership, directly or indirectly, through ownership by any persons,
of at least 50% of the beneficial equity interests therein;
(h) "Fair Market Value" means fair market value of the Shares as
determined in accordance with Article 10;
(i) "EB" means EB Holding Inc., a body corporate incorporated under the
laws of Nova Scotia;
(j) "Person" includes an individual, a firm, a corporation, a syndicate, a
partnership, a trust, an association, a joint venture, an
unincorporated organization and every other legal or business entity
whatsoever;
(k) "Related Party" means either an Affiliate of a Shareholder or a person
with whom a Shareholder is related or affiliated within the meaning of
the Income Tax Act (Canada);
(l) "SII" means Xxxxxxx International Inc., a body corporate incorporated
under the laws of Nevada;
(m) "Shares" means all or any of the issued shares in the capital stock of
the Company;
(n) "Shareholders" means collectively EB and SII as long as each of these
continue to own Shares and in each case includes any future owner of
such Shares; and
(o) "Transfer" of a Share includes any sale, exchange, transfer,
assignment, gift, pledge, encumbrance, hypothecation, alienation or
other transaction, whether voluntary, involuntary or by operation of
law, by which the legal or beneficial ownership of, or any security
interest or other interest in the Share, passes from one Person to
another, or to the same Person in a different capacity, whether or not
for value, and any changing control of the legal or beneficial owner
of the Share or any Person that controls, directly or indirectly, in
any manner whatsoever, such legal or beneficial owner of the Share,
other than an involuntary change of control resulting from the
transmission of the securities from a deceased or incompetent
Shareholder to its estate or legal personal representative for so long
as the securities continue to be held by the estate or such legal
personal representative, and "to transfer", "transferred" and similar
expressions shall have corresponding meanings.
1.2 Words importing the singular number only shall include the plural and vice
versa, and words importing the use of any gender shall include both
genders.
1.3 The Article and section headings in this Agreement are included herein for
convenience of reference only, and shall not constitute a part of this
Agreement for any other purpose.
1.4 This Agreement and all documents ancillary hereto shall be governed by and
interpreted in accordance with the laws of the Province of Nova Scotia and
the federal laws of Canada applicable therein.
1.5 If any act is required hereunder to be done, any notices required in order
to be given, or any period of time is to expire hereunder on any day that
is not a Business Day, any such act shall be required to be done or notice
shall be required to be given or time shall expire on the next succeeding
Business Day.
1.6 The provisions of this Agreement shall apply mutatis mutandis to any shares
or securities of any nature into which the Shares or any of them may be
converted, exchanged, reclassified, redivided, redesignated, subdivided or
consolidated, to any shares or securities of any nature that are received
by a Shareholder as a stock dividend or distribution payable in shares,
securities, warrants, rights or options of any nature of the Company, to
any shares, securities, warrants, rights or options of any nature of the
Company or any successor, continuing company or corporation of the Company
that may be received by a Shareholder on a reorganization, amalgamation,
arrangement, consolidation or merger, statutory or otherwise, and to any
shares, securities, warrants, rights or options hereafter issued or
allotted by the Company to a Shareholder, all of which shares, securities,
warrants, rights or options shall be deemed to be Shares for the purposes
of this Agreement.
2 Purpose
2.1 The Shareholders of the Company are desirous of entering into this
Agreement for the purpose of regulating their share holdings and affairs of
the Company in the circumstances herein provided for.
2.2 As of the date of this Agreement, the shares of the Company are held as
follows:
(a) EB - 544,983 Common Shares;
(b) SII - 5,100,000 Common Share; and
(c) Others - 4,355,017 Common Shares.
3 Management
3.1 Subject as hereinafter provided, the Shareholders agree to exercise any and
all voting rights attaching to the Shares and to otherwise exercise their
influence that, unless the Shareholders otherwise agree in writing, at all
times while this Agreement is in effect:
(a) The Board shall consist of five (5) directors. SII and EB shall each
be entitled to nominate one (1) director;
(b) The Company agrees to appoint Xxxxxxx Xxxxxxxx as the President of the
Company on terms to their mutual satisfaction. The remaining officers
of the Company shall be as selected from time to time;
(c) A quorum for meetings of the Board, except as herein provided, will be
all of the directors, present in person or by means of conference
telephone or other communications equipment whereby all persons
participating in the meeting can hear each other, provided that the
Directors nominated by each of the Shareholders are present at all
times (except that where any director is unavailable to attend any
directors meeting as provided in this Agreement, the Shareholder who
nominated the director in question may designate another person to
perform the obligations of the unavailable director), unless the party
whose representatives were not in attendance subsequently consents in
writing to the business conducted at the meeting. If at any meeting
(the "Initial Directors' Meeting") any one of the Directors nominated
by each Shareholder is not present or ceases to be present the
Directors present may adjourn the meeting to the same time and place
five Business Days later (the "Adjourned Directors' Meeting"). Notice
of the Adjourned Directors' Meeting shall be delivered in accordance
with the provisions of section 13.2 as soon as possible to the
Shareholder whose nominees were not present or ceased to be present at
the Initial Directors' Meeting. A quorum of directors at the Adjourned
Directors' Meeting will consist of those directors who are present in
person or by telephone, and such quorum, notwithstanding the other
provisions of this Agreement, shall be authorized to conduct all of
the business of the Company;
(d) Subject to section 3.2, all matters or questions requiring action or
decision at a meeting of the Board shall be determined by a majority
of votes cast at the meeting and each Shareholder agrees that there
shall be no casting vote with respect to any of the proceedings of the
Shareholders or the Directors of the Company; and
(e) A quorum for meetings of the Shareholders of the Company shall not
exist unless there is at least one representative from each
Shareholder present in person or by proxy, unless the party whose
representative was not in attendance subsequently consents in writing
to the business conducted at the meeting. If at any meeting (the
"Initial Shareholders' Meeting") a representative of each Shareholder
is not present or ceases to be present, the Shareholder remaining
present may adjourn the meeting to the same time and place five
Business days later (the "Adjourned Meeting"). Notice of the Adjourned
Shareholders' Meeting shall be delivered in accordance with the
provisions of section 13.2 as soon as possible to the Shareholder who
was not present or ceased to be present at the Initial Shareholders'
Meeting. A quorum of Shareholders at the Adjourned Shareholders'
Meeting will consist of those Shareholders present in person or by
proxy, and such quorum, notwithstanding the other provisions of this
Agreement, shall be authorized to conduct all of the business of the
Company.
3.2 Notwithstanding anything contained in the Articles and By-Laws of the
Company, unless otherwise expressly agreed in writing by each of the
Shareholders, regardless of any action taken or purported to be taken at
any meeting of the Board or Shareholders, no obligation of the Company will
be created or action taken by the Company with respect to or concerning any
of the following matters without the prior consent of Shareholders holding
an aggregate 66 2/3% of the votes attaching to the outstanding issued
Shares which carry a right to vote in all circumstances:
(a) changes in the Articles or By-Laws of the Company;
(b) the creation or issue of shares of the Company or of any security
exchangeable or convertible into shares of the Company except as
expressly provided for in this Agreement;
(c) the conversion, exchange, reclassification, redesignation,
subdivision, consolidation or other change to any shares of the
Company;
(d) the redemption or purchase for cancellation of any shares in the
capital of the Company, except as expressly herein permitted;
(e) the amalgamation, continuance, merger, consolidation or reorganization
of the Company, or the approval or effecting of any plan of
arrangement in each case, whether statutory or otherwise;
(f) the choice and terms of appointment of bankers, auditors, lawyers and
other major consultants of the Company;
(g) except in the ordinary course of business, all matters relating to the
borrowing of money, financing and refinancing and giving security upon
the assets of the Company;
(h) changes in the size of the Board;
(i) the loaning of any amount to any shareholder, officer or director of
the Company or the repayment of any shareholder's loans to the
Company;
(j) any significant change in the nature of the business of the Company or
any significant decision affecting its operation;
(k) the sale or disposition by the Company of a substantial portion of its
assets or undertaking or the liquidation, dissolution or winding-up of
the Company;
(l) any change in the authorized signing officers of the Company in
respect of legal documents or other bank or financial institutions;
and
(m) except as otherwise expressly permitted hereunder, the payment of any
salary, bonuses, and other payments to the Shareholders of the Company
or their Affiliates except in the ordinary course of business.
3.3 Each Shareholder agrees that any transactions between the Company, any
Shareholder and any Related Party to a Shareholder shall take place at fair
market rates.
3.4 Each Shareholder agrees that it, acting by itself or in concert with or
through any Related Party, shall not derive any benefit or seek any benefit
from any contract or arrangement arising from or related to the business of
the Company from time to time without first disclosing such opportunity to
the other Shareholders in writing. Upon the execution of this Agreement,
each Shareholder shall disclose to the other Shareholders all such
contracts or arrangements as may have been entered into by such Shareholder
prior to the execution of this Agreement.
3.5 Each Shareholder covenants and agrees that it will not at any time during
the term of this Agreement and for a period of two years following the
termination of this Agreement in any manner whatsoever (including, without
limitation, either individually or in partnership or jointly or in
conjunction with any person or persons, firm, association, syndicate,
company or corporation, as principal, agent, shareholder, employee,
consultant, trustee or in any other manner whatsoever), whether directly or
indirectly, carry on or be engaged in or establish or acquire control of
any person, firm, corporation or other entity which operates, or advise,
lend money to, guarantee the debts or obligations of, or permit its, his or
her name or any part thereof to be used or employed by or associated with,
any person or persons, firm, association, syndicate, company or corporation
carrying on or engaged in, the business of the Company. Nothing herein
shall prevent any Shareholder from owning, as a passive investor, less than
five percent (5%) of any class of securities of a corporation which may be
a competitor of the Company whose securities are trading- 1 -
on a recognized stock exchange.
4 Restrictions on Transfer
4.1.1 Except as expressly provided in this Agreement, no Shareholder shall
Transfer any of his right, title or interest in or to any Shares now or
hereafter owned on record or beneficially by it without the express written
consent of all Shareholders first being obtained.
4.1.2 Any Shareholder (including an Affiliate of any Shareholder that becomes a
shareholder), may at any time, or from time to time, transfer all or a
portion of his Shares, to an Affiliate of such Shareholder or in the case
of an individual shareholder to a company controlled by such Shareholder;
provided, however, that as a condition precedent to any transfer in
accordance with the provisions of this section 6.2, the transferee (a
"Permitted Transferee") shall execute and deliver an acknowledgment to the
parties to this Agreement whereby the Permitted Transferee agrees to be
bound by the provisions hereof as if the Permitted Transferee were an
original party hereto. Thereupon, the Permitted Transferee shall have the
same rights, and shall be subject to the same obligations and restrictions,
as the transferor (the "Transferor") under this Agreement.
Notwithstanding any transfer permitted pursuant to this section 6.2, the
Transferor shall continue to be liable to the other party or parties to
this Agreement for any default in performance by the Permitted Transferee
of his obligations hereunder and the Transferor shall indemnify the other
parties hereto against any loss, cost, damage or expense suffered or
incurred as a result of any failure by the Permitted Transferee to comply
with the provisions of this Agreement.
4.1.3 In the event of any transfer pursuant to section 4.1.2 hereof or for the
purposes of the provisions of Articles 4, 5 or 6 inclusive, of this
Agreement:
4.1.4 Any notice required to be given to SII or a Permitted Transferee
(including successive Permitted Transferees pursuant to section 4.1.2) need
only be given to SII and Shares held by SII or any such Permitted
Transferees shall be deemed for all such purposes to be held by SII any
rights or obligations of SII or such Permitted Transferees shall be deemed
to be those of SII and all actions taken by SII in connection therewith
shall be effective and binding upon SII or all such Permitted Transferees
as if made by them, respectively; and
4.1.5 Any notice required to be given to EB or a Permitted Transferee (including
successive Permitted Transferees pursuant to section 4.1.2) need only be
given to EB, any Shares held by EB or any such Permitted Transferees shall
be deemed for all such purposes to be held by EB, any rights or obligations
of EB or such Permitted Transferees shall be deemed to be those of EB and
all actions taken by EB in connection therewith shall be effective and
binding upon EB or all such Permitted Transferees as if made by them,
respectively;
Nothing herein contained shall restrict the ability of any Shareholder and
his Permitted Transferees from entering into such agreements as they may
determine to be necessary or desirable to govern, as between themselves,
the matters arising from the operation of this Article 4 of this Agreement.
4.2 All certificates representing Shares shall bear the following legend:
"The Shares represented by this Certificate are subject to the provisions
of a shareholder agreement made as of the ____ day of ________, 2007 which
contains restrictions on the right to transfer, pledge, vote and otherwise
deal with such shares, a copy of which agreement is available for
inspection from the Secretary of the Company. Notice of such restrictions
and the other provisions of such agreements is hereby given."
4.2.1 The Company shall not accept for registration in its relevant books of
record, any transfer of Shares not made in accordance with the provisions
of this Agreement.
4.2.2 Any transfer of Shares contemplated to be made other than in accordance
with the provisions of this Agreement shall be void and have no effect.
5 Right of First Refusal
5.1 If any Shareholder (the "Offeror") desires to transfer all but not less
than all of the Shares owned by him (the "Offered Shares"), the Offeror
shall first deliver a notice in writing (the "Sale Notice") to the other
Shareholders (the "Offeree") whereby the Offeror offers to sell the Offered
Shares to the Offeree for the price per Share, payable in cash on closing,
set out in the Sale Notice and subject to such other terms and conditions
as are set forth in that notice (the price, terms and conditions being
hereinafter collectively referred to as the "Sale Terms").
5.2 The delivery by an Offeror of a Sale Notice shall be irrevocable, and if
the Offeree delivers an Acceptance Notice within the Acceptance Period, the
Offeror shall be bound to sell, and the Offeree shall be bound to purchase,
the Offered Shares in accordance with the Sale Terms.
5.3 If the Offeree does not accept the Sale Notice as provided in section 5.2,
the Offeror may thereafter sell the Offered Shares to any person (a "Third
Party") with whom the Offeror deals at arm's length as that term in defined
in the Income Tax Act (Canada) at a price not less than the price set forth
in the Sale Notice and on terms not more favourable to the Third Party than
the Sale Terms except that any such third party purchaser must agree to
enter into this Agreement at or before the time it acquires the Shares. If
no such sale is completed by the Offeror within 120 days following the
expiration of the Acceptance Period, the Offeror shall not complete any
transfer of the Shares to any Third Party without again complying with the
provisions of this Article 5.
5.4 If an Offeror proposes to sell the Offered Shares to a Third Party pursuant
to section 5.3, the Offeror shall within 90 days following the expiry of
the Acceptance Period, give written notice (the "Follow Up Notice") to the
Offeree of the identity of Third Party and the price and other terms of the
transaction. The Offeree may, not later than 5 Business Days after receipt
of the Follow Up Notice, deliver to the Offeror, a written notice (the
"Follow Up Demand") requiring the Third Party to acquire the Offeree's
Shares on the same terms and conditions as the Third Party has agreed to
acquire the Offeror's Shares. The delivery by the Offeree of a Follow Up
Demand shall be irrevocable and shall bind the Offeree to sell all, but not
less than all, of the Offeree's Shares (the "Follow Up Shares") to the
Third Party. If the Offeree delivers a Follow Up Demand, then before
completing any sale, the Offeror shall cause the Third Party, as a
condition of acquiring the Offeror's Shares, to deliver to such Offeree a
bona fide offer in writing (the "Follow Up Offer") to purchase from such
Offeree the Follow Up Shares. The Follow Up Offer will be binding upon the
Third Party and shall contain only such terms and conditions as are
identical to those upon which the Offeror proposes to sell to the Third
Party the Offered Shares pursuant to section 7.4. The closing date and
other closing arrangements for the purchase and sale transaction between
the Offeree and the Third Party shall be specified in the Follow Up Offer
and shall be the same, mutatis mutandis, as those specified between the
Third Party and the Offeror.
5.5 Where any Shareholder acquires, in any manner, 75% of all the outstanding
classes of shares of the Company measured in votes and equity valuation,
they may, within 90 days of so acquiring, deliver to all remaining
shareholders a written notice (the "Drag Along Demand") requiring all
remaining shareholders to sell all, but not less than all, of the Shares
owned by each shareholders at a price not less than the highest price per
share paid by the acquiring shareholder during the two year period ending
on the date of the Drag Along Demand and on terms and conditions not less
favourable to the remaining shareholders than the most favorable terms and
conditions for each class of shares as agreed to by the acquiring
shareholder for any acquisitions of the Company's shares during the two
year period ending on the date of the Drag Along Demand. The delivery by
the acquiring shareholder of a Drag Along Demand shall be irrevocable and
shall bind all remaining shareholders to sell all, but not less than all,
of their Company shares (the "Drag Along Shares") to the acquiring
shareholder. The closing date and other closing arrangements for the
purchase and sale transaction between the remaining shareholders and the
acquiring shareholder shall be specified in the Drag Along Demand.
5.6 Where any of the Shareholders is a body corporate (the "Holding Company"),
a change in control of the Holding Company shall be deemed to be a transfer
of the Shares owned by that Shareholder and the provisions of this
Agreement applicable to a transfer of any Shares shall apply to such
transfer.
6 Bankruptcy
6.1 In the event of the bankruptcy of any Shareholder (the "Defunct
Shareholder"), the other Shareholders (the "Active Shareholders") shall
have the right, but not the obligation, exercisable at any time during the
period of 6 months following the date on which the Defunct Shareholder
becomes bankrupt to purchase all the Shares owned, directly or indirectly,
by the Defunct Shareholder or over which any such Defunct Shareholder
exercises control or direction, by delivery of notice to the Defunct
Shareholder within such 6 month period, for a purchase price equal to 100%
of the Fair Market Value of the Defunct Shareholder's Shares, (which notice
shall state the time and place of the closing, such time not to be more
than 60 days from the date of the notice). The Active Shareholders shall be
entitled to purchase the Defunct Shareholder's Shares in proportion to
their respective ownership of Shares, or in such other proportion as they
may agree.
7 Death of a Shareholder
7.1 The following definitions shall apply to this section:
7.1.1 "Deceased" means the individual Shareholder who has died;
7.1.2 "Deceased's Shares" means all the Shares at the time of the Deceased's
Death beneficially owned by the Deceased or by a body corporate controlled
by the Deceased (the "Deceased's Holding Company");
7.1.3 "Deceased's Spouse" means the legal or common-law spouse of the Deceased
at the time of the Deceased's death;
7.1.4 "Personal Representative" means such one or more persons as are the
executors, administrators or representatives of the estate of the Deceased
acting in such capacity;
7.1.5 "Prescribed Consideration" in respect of Shares means an amount in lawful
money of Canada equal to the Fair Market Value thereof as determined in
accordance with this Agreement; and
7.1.6 "Survivor" means the individual Shareholder other than the Deceased;
7.2 Subject to the provisions hereinafter contained, upon the death of the
Deceased, the Survivor shall have the right to purchase the Deceased's
Shares as hereinafter set out.
7.3 The right referred to in paragraph 7.2 may be exercised by the Survivor
giving notice in writing to the Personal Representative and the Company on
or before the date 120 days following the death of the Deceased.
7.4 Within Thirty (30) days of the exercise of a right referred to in paragraph
7.2, the Survivor shall purchase, and the Personal Representative shall
sell, transfer, assign and otherwise convey to the Survivor, the Deceased's
Shares for a purchase price equal to the Prescribed Consideration thereof.
The Survivor shall, at the time of purchase of the Deceased's Shares, pay
to the Personal Representative the amount of at least 25% of the Prescribed
Consideration and shall give a non-interest bearing promissory note to the
Personal Representative in an amount equal to the remainder of the purchase
price of the Deceased's Shares (the "Remaining Balance"). Such promissory
note shall be due and payable to the extent of one third of the Remaining
Balance on the next three anniversary dates of the delivery of the
promissory note. Upon receipt of such promissory note, the Personal
Representative shall immediately cause the respective Deceased's Shares to
be transferred to the Survivor.
7.5 Upon the death of the Deceased, the Company shall, immediately following
purchase of the Deceased's Shares as aforesaid, should such a right be
exercised, repay to the Personal Representative the amount of any unpaid
loans or other indebtedness owing to the Deceased and/or the Deceased's
Holding Company by the Company.
7.6 If a Shareholder shall become missing, such Shareholder shall be deemed to
be conclusively presumed dead upon being missing for one (1) full year.
7.7 In the event no executor or administrator is appointed as the Personal
Representative within Ninety (90) days after his death, the Survivor shall
be considered a creditor of the estate of the Deceased with all the rights
conferred upon a creditor of the estate of the Deceased by the place of his
domicile, including, without limitation, the right to cause an executor or
administrator to be appointed, provided such right shall be recognized by
applicable law. Upon such appointment of an executor or administrator, the
Survivor's rights pursuant to this Agreement shall again take effect.
7.8 For greater certainty, any reference to any action by a Personal
Representative shall include such action on behalf of the Deceased and also
on behalf of the Deceased's Holding Company, as appropriate.
8 Determination of Fair Market Value
8.1 For the purposes of this Agreement, "Fair Market Value" means the fair
market value of all of the Shares as the case may be determined without
reference to a minority discount or control block premium as determined by
agreement of the relevant parties, or, in the absence of such agreement, as
determined by the Valuator or arbitration in accordance with the subsequent
provisions of this Article 8.
8.2 If the Shareholders who will be party to the purchase and sale are unable
to agree on the Fair Market Value of the Shares within 30 days from the
date of receipt by the other Shareholders of a request in writing from a
Shareholder to determine this value, any party may deliver to the other
Shareholders a notice setting forth a list of three firms with substantial
experience in business valuation in Nova Scotia, each of which shall be a
firm which is either a nationally recognized Canadian chartered accountant
firm, an investment dealer carrying on business in one of the provinces of
Canada or a firm specializing in business valuation and in each case
specifying the particular individual within such firm to have
responsibility for the determination of the Fair Market Value of the
Shares. The Shareholders acting reasonably shall then attempt to identify
one of the firms on the list as the valuator for the purposes of
determining Fair Market Value in accordance with this Article within 10
days from the date of receiving the list of valuators from the selecting
Shareholder, failing which any party may thereafter apply to a judge of the
Supreme Court of Nova Scotia to select a valuator. The firm identified as
the firm selected in accordance with the foregoing shall be referred to as
the "Valuator".
8.3 The Shareholders shall jointly retain the Valuator to determine the Fair
Market Value, as at the date that the relevant notice was given or relevant
event occurred (the "Relevant Date") of all of the issued and outstanding
Shares, applying such principles of valuation as the Valuator considers
appropriate in the circumstances.
8.4 The Valuator, in its discretion, may engage the services of such
professional valuators or appraisers as the Valuator considers necessary or
desirable. Each Shareholder agrees to fully cooperate with the Valuator in
the determination of the Fair Market Value. If the Valuator specifies a
range of values for the Fair Market Value, the Fair Market Value shall be
the midpoint of the range.
8.5 The parties agree to provide the Valuator with such information as it may
require to proceed with the valuation with all reasonable dispatch so as to
provide a prompt and timely decision. The closing date with respect to any
such transfer shall be 30 days after the date upon which the Valuator
provides the parties a written decision on the valuation.
8.6 All fees, disbursements and other costs and expenses of the Valuator shall
be equally divided between the Shareholders participating in the
transaction of purchase and sale.
8.7 If any of the Shareholders disagrees with the determination of Fair Market
Value made by the valuator in accordance with section 10.5, such
Shareholder may submit the matter to arbitration in accordance with the
provisions of Article 10.
9 General Sale Provisions
9.1 Except as may otherwise be provided in this Agreement, or unless
specifically waived in writing by the selling Shareholder, the provisions
of this Article shall apply to any sale of the Shares notwithstanding
anything herein or in any agreement referred to in Articles 4, 5, 6 and 7
to the contrary. Unless otherwise specified, the place of the closing will
be the registered office of the Company and the time of closing will be
2:00 p.m. local time.
9.2 At the time of closing, the vendor, or vendors, as the case may be,
(hereinafter in this Article 11 referred to as the "Vendor") of the Shares
(the "Purchased Shares") shall:
9.2.1 Deliver to the Company, respectively, signed resignations of the Vendor
or its nominees, as a director, officer and employee of the Company,
respectively, as the case may be;
9.2.2 Deliver to the purchaser thereof (the "Purchaser") the certificates
representing the Purchased Shares duly endorsed for transfer to the
Purchaser together with a representation and warranty of the Vendor
that the Vendor legally and beneficially owns the Purchased Shares with
good and marketable title thereto free and clear of all encumbrances
and claims of any kind;
9.2.3 Deliver to the Purchaser all such assignments and transfers or other
documents to transfer to the Purchaser all indebtedness and any
security therefor owed by the Company, to the Vendor or any party
related to the Vendor (the Purchased Loans"), free and clear of all
encumbrances and claims of any kind or to otherwise comply with the
terms or intent of this Agreement (each of which shall be in form and
content satisfactory to the Purchaser);
9.2.4 Do all other things required in order to deliver good and marketable
title to the Purchased Shares and Purchased Loans to the Purchaser free
and clear of any claims, liens and encumbrances whatsoever, including
without limitation, the delivery of any governmental releases and
declarations of transmission;
9.2.5 Provide the Purchaser with evidence reasonably satisfactory to the
Purchaser that the Vendor is not then a "non-resident" of Canada within
the meaning of the Income Tax Act (Canada);
9.2.6 Pay to the Company the amount of all indebtedness of the Vendor to the
Company.
9.3 At the time of closing, the Purchaser shall deliver to the Vendor:
9.3.1 A release of any guarantee, security or covenant provided by the
Vendor, or any person acting on that Shareholder's behalf, in respect
of any obligation of the Company, respectively; and
9.3.2 Cash, a bank draft or certified cheque in the amount of the purchase
price of the Purchased Shares, plus an amount equal to the amount of
the Purchased Loans.
9.4 In addition, at the time of closing the Vendor and the Company shall, and
the Vendor shall cause its Related Parties, if applicable, to take all
necessary action to terminate, and release the Vendor, its Related Parties
and the Company from, the terms of any management, consulting or employment
agreement or like agreement between either the Company, the Vendor or any
Related Party of the Vendor, except for any provisions of any such
agreement that are intended to prohibit the Vendor or any Related Party
from competing with the Company following the term of such agreement or are
otherwise expressed to survive the sale by the Vendor of its Shares in the
Company.
9.5 If the Vendor is not present at the place of closing at the time of
closing, or is present but fails for any reason whatsoever to comply with
the provisions of this Agreement, the Vendor irrevocably constitutes and
appoints the Purchaser, with full power of substitution, as his true and
lawful attorney in fact, and as agent for, in the name of and on behalf of
the Vendor, to execute and deliver in the name of the Vendor, all such
assignments, transfers, deeds and instruments as may be necessary to
effectively transfer and assign to the Purchaser or its nominee or nominees
on the books of the Company, the Purchased Shares and Purchased Loans. Such
appointment and power of attorney, being coupled with an interest, shall
not be revoked by the insolvency, bankruptcy, or incapacity of the Vendor,
and the Vendor hereby ratifies and confirms and agrees to ratify and
confirm all that the Purchaser may lawfully do or cause to be done by
virtue of the provisions of this section 11.5.
9.6 If, at the time of closing, the Vendor fails to complete the subject
transaction as herein provided, the Purchaser shall have the right, if not
in default under this Agreement, without prejudice to any other rights
which he may have, upon payment of the amount payable to the Vendor at the
time of closing (for greater certainty, after deducting the amount of any
adjustments or set offs contemplated hereunder) to purchase in the name of
the Vendor at the main branch of the Company's bankers from time to time, a
term deposit in an amount equal to the amounts payable to the Vendor
pursuant to the terms of this Agreement, for such term as the Purchaser in
his discretion deems advisable. The Purchaser may instruct the lending
institution to communicate with the Vendor at the address for the Vendor
herein provided, and to continue to renew the term deposit for similar
terms unless otherwise instructed by the Vendor. Upon making such
arrangements the Vendor shall cease to be a Shareholder of the Company and
its sole remedy with respect to the Purchased Shares and the Purchased
Loans shall be to collect the amount of the term deposit as herein
provided.
10 Arbitration
10.1 Any dispute, controversy or claim arising out of or relating to this
Agreement, or the breach, termination or invalidity of this Agreement,
shall be settled by arbitration before an arbitrator acceptable to each of
the Shareholders in accordance with the Commercial Arbitration Act (Nova
Scotia). If the Shareholders are unable to agree on an arbitrator, each of
EB and SII shall appoint an arbitrator which arbitrators shall in turn
appoint a third arbitrator to chair the panel. The decision of the
arbitrator or arbitrators shall be final and binding upon the parties
hereto. Each of the parties to the arbitration shall bear their respective
costs of the arbitration. The arbitrator or arbitrators shall have the
discretion to determine which of the parties to the arbitration, if any,
shall pay the costs of the arbitrator or arbitrators and the proportion
thereof.
10.2 The place of arbitration shall be Halifax, Nova Scotia, unless the parties
to the dispute mutually agree upon another location.
10.3 Time shall be of the essence in any arbitration proceeding.
11 General
11.1 This Agreement shall come into force and effect as of and from the date
hereof and shall continue in force until the earliest of:
The date upon which one Shareholder shall have acquired all of the
outstanding Shares; or
the date upon which this Agreement is terminated by written agreement among
all of the parties hereto.
11.2 Any notice or other document required or permitted to be given to any
party hereunder shall be validly given if delivered personally (including
by courier service) or mail by prepaid registered mail, return receipt
requested, or sent by facsimile transmittal addressed to the addressee
thereof at the following respective addresses:
11.2.1 If to SII , at:
000X Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx Xxxxxx X0X 0X0
11.2.2 If to EB, at:
Xxx 000 000 Xxxxxxx Xxxxxx
Xxxxxxxxx XX X0X 0X0
11.2.3 If to the Company, at:
000X Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx Xxxxxx X0X 0X0
Attention: Mr. J. Xxxxxxx Xxxxxxxx, President
Fax: (000) 000-0000
11.3 Any notice or other document so mailed shall be deemed to have been
received by and given to the addressee on the fourth Business Day
following the date of mailing; if delivered, shall be deemed to have been
received by and given to the addressee on the date of delivery; and if
given by facsimile transmittal, shall be deemed to have been received by
and given to the addressee on the next Business Day following the day of
sending. Any party may at any time given notice in writing to the others
of any change of address for these purposes. In the event of any actual or
threatened postal interruption in Canada, no such notice shall be deemed
to have been received until it has in fact been received by the party for
whom it is intended.
11.3.1 Each of the parties shall from time to time execute and deliver all
such further documents and instruments and do or cause to be done all
such acts and things as any party may reasonably consider necessary to
carry out effectively or better evidence or perfect the full intent and
meaning of this Agreement, including the exercise of their respective
votes as Shareholders in connection with any amendment which may be
required to the Articles or By-Laws of the Company.
11.3.2 This Agreement may be executed in any number of counterparts by one or
more of the parties to be bound hereby. Each executed counterpart shall
be deemed to be an original and such counterparts shall together
constitute one and the same agreement and shall be as valid and binding
as if all parties had attended at the same place and at the same time
and affixed their signatures to one instrument.
11.4 For all purposes of this Agreement and other documents and agreements
contemplated hereby, the signature of any party hereto or thereto,
evidenced by a telecopy showing such signature or other electronically
transmitted version of such signature, shall constitute conclusive proof
for all purposes of the signature of such person to such documents and
agreements, to the same extent in all respects as a copy of such documents
and agreements showing the original signature of such party. Any party
delivering a document with such electronically reproduced signature shall
provide a copy bearing original signature as soon as reasonably possible
thereafter.
11.5 The performance of the obligations of EB pursuant to this Agreement is
personally guaranteed by Xx. Xx Xxxxx.
11.6 Time shall be of the essence of this Agreement and every part thereof.
11.7 This Agreement may only be amended or altered in any of its provisions by
the mutual agreement of the parties hereto, such amendments or alterations
to become effective when reduced to writing and signed by all the parties
hereto.
11.10 This Agreement expresses the final agreement between the parties hereto
with respect to all matters herein and its execution has not been induced,
nor do any of the parties hereto rely upon or regard as material, any
representations or promises whatsoever not incorporated herein or made a
part hereof, and any alteration, amendment or qualification thereof shall
be null and void and shall not be binding upon any such party unless made
and recorded as aforesaid.
11.11 Except as expressly otherwise provided in this Agreement, this Agreement
may not be assigned by a party without the written consent of the other
parties and shall enure to the benefit of and be binding upon the parties
and their respective successors, heirs, executors, administrators, personal
representatives and permitted assigns.
11.12 The Company joins in this Agreement for the purpose of acknowledging the
existence of this Agreement and covenants to fulfill any obligations set
out herein as being an obligation of the Company.
11.13 Notwithstanding section 11.1, this agreement shall terminate 90 days after
its effective date, provided however, that if 66 2/3% of all the
shareholders of the company (measured by voting rights and equity
valuation) become a party to this agreement or a substantially similar
agreement (a declaration by the contracting parties, contained in an
agreement, is conclusive evidence that the agreement is substantially
similar) then this agreement will terminate as provided in Section 11.1. If
any party to this agreement is or becomes bankrupt or insolvent during the
90 day period in the preceding sentence, then the reference to 90 days
shall be struck and 120 days inserted.
IN WITNESS WHEREOF the parties have properly executed this Agreement.
SIGNED SEALED AND DELIVERED ) EB HOLDINGS INC.
in the presence of )
)
) By: /s/ Xx Xxxxx
/s/ Xxxxxx Xxxxxx
Witness )
)
)
) LOGICAL SEQUENCE
INCORPORATED.
)
)
)
) By: /s/ Xx XxXxxxxx
/s/ Xxx XxxXxxxxx
Witness )
)
)
)
)
) XXXXXXX
INTERNATIONAL INC.
)
)
) By: /s/ J. Xxxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxx )
Witness )
)
)
) And:
Witness )
) By: /s/ Xxxxxx Xxxxxxxxx
DATED February 13, 2007
AMONG:
XXXXXXX INTERNATIONAL INC.
OF THE FIRST PART
- and -
EB HOLDINGS LIMITED
OF THE SECOND PART
- and -
LOGICAL SEQUENCE INCORPORATED
OF THE THIRD PART
SHAREHOLDERS' AGREEMENT
