EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
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THIS AGREEMENT dated as of Tuesday, September 1,1998.
BETWEEN:
Spectrum Ventures Ltd. (hereinafter "Spectrum") of 509 Tempe
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Crescent, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
OF THE FIRST PART
AND:
The undersigned shareholders in ▇▇▇▇▇▇ Wines & Spirits Imports
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Ltd(hereinafter collectively called the "Principal"),of ▇.▇. ▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
OF THE SECOND PART
AND:
▇▇▇▇▇▇ Wines & Spirits Imports Ltd.: (hereinafter"▇▇▇▇▇▇") of Box
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
OF THE THIRD PART
WHEREAS:
A. The Principal owns all of the issued and outstanding shares of ▇▇▇▇▇▇
and has agreed to sell to Spectrum and Spectrum has agreed to buy all of the
Principal's shares in ▇▇▇▇▇▇ on the terms and conditions set out in this
agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of one
dollar (the receipt and sufficiency of which is hereby acknowledged) and the
mutual promises contained herein the parties agree as follows:
ARTICLE 1
Definitions
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1.1 In this Agreement, unless the context otherwise requires:
(a) "Agreement" means this agreement, its schedules and any amendment to
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any of them;
(b) "Closing" means the closing of the purchase and sale of the ▇▇▇▇▇▇
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Shares on the Closing Date as provided in Article 9;
(c) "Closing Date" means the tenth business day following the day on which
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Spectrum obtains the final approval required to permit to complete
the transactions contemplated herein;
(d) "Encumbrances" means mortgages, charges, pledges, security interests,
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liens, encumbrances, actions, claims, demands and equities of any
nature;
(e) "▇▇▇▇▇▇ Assets" means all of the assets of ▇▇▇▇▇▇ listed in Schedule
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"1";
(f) "▇▇▇▇▇▇ Shares" means all of the issued and outstanding shares of
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▇▇▇▇▇▇.
(g) "Purchase Price" means the purchase price for the ▇▇▇▇▇▇ Shares to be
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paid by Spectrum.
(h) "Regulatory Authorities" means any government agency having
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jurisdiction over the transactions contemplated in this Agreement;
ARTICLE 2
List of Schedules
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2.1 Description Schedule
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▇▇▇▇▇▇ Assets 1
▇▇▇▇▇▇ Financial Statements 2
ARTICLE 3
Purchase And Sale
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3.1 Purchased Shares. Relying upon the representations and warranties
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herein contained, and subject to the terms and conditions hereof, at the
Closing, Principal will deliver to Spectrum and Spectrum will accept and acquire
from Principal all of the issued and outstanding ▇▇▇▇▇▇ Shares in exchange for
the Purchase Price.
3.2 Purchase Price. The purchase price for the ▇▇▇▇▇▇ Shares is Twenty
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Thousand Dollars ($20,000 US.)
3.3 Delivery of Purchase Price. The Purchase Price will be delivered upon
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Closing.
ARTICLE 4
Representations, Warranties and Covenants Of
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▇▇▇▇▇▇ and Principal
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4.1 Representations and Warranties. ▇▇▇▇▇▇ and Principal represent and
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warrant to Spectrum that:
(a) ▇▇▇▇▇▇ Wines & Spirits Imports Ltd. is provincially incorporated and
validly existing and in good standing under the laws of the Province
of British Columbia and has all necessary power to own the ▇▇▇▇▇▇
Assets, a list of which is attached hereto and to conduct its business
as such business is now being conducted;
(b) the authorized share capital of ▇▇▇▇▇▇ consists of an unlimited number
of Class A common voting shares;
(c) there are no outstanding share purchase options, rights to acquire
shares or other contractual rights pursuant to which ▇▇▇▇▇▇ is
obligated to issue additional ▇▇▇▇▇▇ Shares;
(d) Principal owns of record and at the Closing will own all of the ▇▇▇▇▇▇
Shares and at the Closing will have the full and lawful right, and
authority to sell the ▇▇▇▇▇▇ Shares to Spectrum and that upon payment
of the Purchase Price, Spectrum will own the ▇▇▇▇▇▇ Shares free and
clear of all Encumbrances;
(e) the execution and delivery of this Agreement and the consummation of
the transaction contemplated hereby have been duly authorized by the
Board of Directors;
(f) no person other than Spectrum has any agreement, option, understanding
or commitment, or any right or privilege (whether by law, pre-emptive
or contractual) capable of becoming an agreement, option or commitment
for the purchase of any of the ▇▇▇▇▇▇ Shares;
(g) ▇▇▇▇▇▇ now owns and possesses the ▇▇▇▇▇▇ Assets free and clean of all
Encumbrances and, at the Closing, ▇▇▇▇▇▇ will own and possess the
▇▇▇▇▇▇ Assets free and clear of any and all encumbrances;
(h) neither Principal nor ▇▇▇▇▇▇ is aware of any adverse claim or claims
which may affect title to or exclusive possession and use of the
▇▇▇▇▇▇ Assets by ▇▇▇▇▇▇;
(i) neither the execution and delivery of this Agreement, nor the
completion of the purchase and sale contemplated herein will conflict
with or result in any breach of any of the terms and provisions of the
constating documents or articles of ▇▇▇▇▇▇, or any order, decree,
statute, regulation, covenant or restriction applicable to ▇▇▇▇▇▇;
(j) there are no actions, suits or proceedings, judicial or administrative
(whether or not purportedly on behalf of ▇▇▇▇▇▇) pending or threatened
by or against ▇▇▇▇▇▇ or affecting any of the ▇▇▇▇▇▇ Assets, at law or
in equity, or before or by any federal, provincial, state, municipal
or other government court, department, commission, board, bureau,
agency or instrumentality, domestic or foreign and neither Principal
or ▇▇▇▇▇▇ is aware of any existing ground on which any such action,
suit or proceeding might be commenced with any reasonable likelihood
of success;
(k) ▇▇▇▇▇▇ is not in default or breach of its obligations under any one or
more material contracts to which it is a party, and to the knowledge
of ▇▇▇▇▇▇ and Principal, there exists no state of facts which, after
notice of lapse of time or both, would constitute such a default or
breach, and all such material contracts are now in good standing and
in full force and effect without amendment thereto and ▇▇▇▇▇▇ is
entitled to all benefits thereunder. Neither Principal nor ▇▇▇▇▇▇ is
aware of any client of ▇▇▇▇▇▇ having an intention to terminate, either
by notice or breach, any material contract made with or arranged by
▇▇▇▇▇▇;
(l) ▇▇▇▇▇▇ has filed with appropriate taxation authorities, federal,
state, provincial and local, all returns, reports and declarations
which are required to be filed by it and has paid all taxes which have
become due and no taxing authority is asserting or has, to the
knowledge of ▇▇▇▇▇▇ or Principal threatened to assert, or has any
basis for asserting against ▇▇▇▇▇▇ any claim for additional taxes or
interest thereon or penalty;
(m) the financial statements of ▇▇▇▇▇▇ attached hereto have been based on
the books and records of ▇▇▇▇▇▇ fairly present the financial condition
of ▇▇▇▇▇▇ at the date thereof and the results of the operations for
such period; and
(n) ▇▇▇▇▇▇ has no liabilities or obligations, secured or unsecured
(whether accrued, absolute, contingent or otherwise) which are not
disclosed in the financial statements attached hereto, except for
those incurred in the ordinary course of business.
4.2 Covenants of ▇▇▇▇▇▇ and Principal. ▇▇▇▇▇▇ and Principal will:
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(a) not, from the date hereof to the Closing, without the prior consent of
Spectrum enter into any contractual commitment respecting the ▇▇▇▇▇▇
Shares or enter into any transactions or incur any obligations that
could, individually or in the aggregate adversely affect the rights or
interests of Spectrum in and to the ▇▇▇▇▇▇ Shares pursuant to the
terms of this Agreement;
(b) from the date hereof to the Closing Date, permit the representatives
of Spectrum to make such further investigation respecting the ▇▇▇▇▇▇
Shares and the Assets as Spectrum may consider necessary or desirable
and ▇▇▇▇▇▇ will make available all information, books and records
required in this connection.
ARTICLE 5
Representations, Warranties And Covenants Of
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Spectrum
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5.1 Representations and Warrants. Spectrum represents and warrants to
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Principal and ▇▇▇▇▇▇ that:
(a) Spectrum is a corporation duly incorporated and validly existing and
in good standing under the laws of Colorado;
(b) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the
Board of Directors;
(c) Neither the execution and delivery of this Agreement nor consummation
of the transactions contemplated hereby will conflict with or result
in the breach of any of the terms or provisions of, or constitute a
default under, the Memorandum or Articles of Spectrum or any
indenture, mortgage or other agreement or instrument to which Spectrum
is a party of by which it is bound or any order, decree, statute,
regulation, covenant or restriction applicable to Spectrum;
(d) Spectrum has no liabilities or obligations, secured or unsecured
(whether accrued, absolute, contingent or otherwise) which are not
disclosed hereto, except for those incurred in the ordinary course of
business.
ARTICLE 6
Survival Of Representations, Warranties And Covenants
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6.1 Survival. The representations, warranties and covenants made by
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▇▇▇▇▇▇, Principal and Spectrum in this Agreement will survive the Closing and,
notwithstanding
such Closing or any investigation made by or on behalf of either ▇▇▇▇▇▇,
Principal, Spectrum or any other person acting on their behalf, will continue in
full force and effect.
ARTICLE 7
Conditions Precedent To The Obligations Of
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Spectrum
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7.1 Conditions. The obligations of Spectrum to complete the transactions
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provided for in this Agreement are subject to the fulfillment prior to or
concurrently with the Closing of the following conditions:
(a) The representations and warranties of Principal and ▇▇▇▇▇▇ contained
hereunder will be true and accurate and not misleading in any material
respect at the time of the Closing with the same effect as if such
representations and warranties had been made at the Closing;
(b) Principal and ▇▇▇▇▇▇ will have complied with or performed all of the
terms, covenants and conditions contained in this Agreement which are
to be complied with or performed by Principal and ▇▇▇▇▇▇ on or before
the Closing;
(c) The transactions contemplated hereby will have been approved by all
regulatory authorities having jurisdiction including, without
limitation, the Regulatory Authorities;
(d) An officer of ▇▇▇▇▇▇ will have certified to the best of his knowledge
that the representations and warranties of ▇▇▇▇▇▇ hereunder are true
and accurate and not misleading in any material respect at the time of
Closing with the same effect as if such representations and warranties
had been made at the Closing;
(e) Spectrum will have received a satisfactory opinion from the legal
counsel of ▇▇▇▇▇▇ as to the corporate status and affairs of ▇▇▇▇▇▇;
(f) The transactions contemplated hereby will have been approved by all
regulatory authorities having jurisdiction including, without
limitation, the Regulatory Authorities;
(g) Spectrum's employees, counsel, auditors, consultants, officers and
directors will have had free access to the premises, corporate
financial and technical records and documents of ▇▇▇▇▇▇ and will have
obtained such cooperation and assistance from Principal and ▇▇▇▇▇▇ as
is reasonably requested; provided that any information so obtained by
Spectrum concerning the affairs of ▇▇▇▇▇▇ will be considered
confidential and will
not be disclosed prior to the Closing without the prior approval of
Principal and ▇▇▇▇▇▇.
7.2 Waiver of Conditions. The conditions contained in Section 7.1 are
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inserted for the exclusive benefit of Spectrum and may be waived in whole or in
part by Spectrum at any time without prejudice to the right of Spectrum to rely
on all covenants, agreements, representations and warranties in this Agreement
and all conditions contained in Section 7.1, except to the extent so waived in
writing by Spectrum. In case any of the conditions contained in Section 7.1 are
not fulfilled or complied with as provided, Spectrum may, on or prior to the
Closing Date at its option, rescind this Agreement by notice in writing to
Principal and in such event Spectrum, Principal and ▇▇▇▇▇▇ will each be released
from all obligations in this Agreement, except for any loans and loan security
agreements made between the parties.
ARTICLE 8
Conditions Precedent to The Obligations Of
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Principal
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8.1 Conditions. The obligations of Principal to complete the transactions
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provided for in this Agreement are subject to the fulfillment prior or
concurrently with the Closing, of the following conditions:
(a) the representations and warranties of Spectrum contained hereunder
will be true and accurate and not misleading in any material respect
at the time of the Closing with the same effect as if such
representations and warranties had been made at the Closing;
(b) Spectrum will have complied with or performed all of the terms,
covenants and conditions contained in this Agreement which are to be
completed or performed by Spectrum on or before the Closing;
(c) An officer of Spectrum, will have certified to the best of his
knowledge that the representations and warranties of Spectrum
contained hereunder are true and accurate and not misleading in any
material respect at the time of Closing with the same effect as if
such representations and warranties had been made at the Closing;
8.2 Waiver of Conditions. The conditions contained in Section 8.1 are
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inserted for the exclusive benefit of Principal and may be waived in
whole or in part by Principal at any time without prejudice to the
right of Principal to rely on all covenants, agreements,
representations and warranties in this Agreement and all conditions
contained in Section 8.1, except to the extent so waived in writing by
Principal. In case any of the conditions contained in Section 8.1 will
not be fulfilled or complied with, Principal may, on or prior to the
Closing at his option, rescind this
Agreement by notice in writing to Spectrum and in such event Spectrum,
▇▇▇▇▇▇ and Principal will each be released from all obligations
hereunder, except for any loans and loan security agreements made
between the parties.
ARTICLE 9
Appointment and Authority of Manager
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9.1 Appointment of Manager. Principal shall be retained as Manager of
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▇▇▇▇▇▇ to administer the affairs of ▇▇▇▇▇▇ in connection with the sale and
distribution of ▇▇▇▇▇▇ products. The Manager, at the expense of and on behalf
of ▇▇▇▇▇▇, shall implement or cause to be implemented all decisions of the
Directors and shall conduct or cause to be conducted the ordinary and usual
business and affairs of ▇▇▇▇▇▇. The Manager shall at all times conform to the
policies and directives established and approved by the Directors. The Manager
shall at all times be subject to the direction of the Directors and shall keep
the Directors informed as to all matters concerning ▇▇▇▇▇▇.
9.2 Independent Contractor. In performing its services, the Manager
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shall be an independent contractor and NOT an employee or agent of ▇▇▇▇▇▇ NOR
Spectrum except that the Manager shall be the agent of ▇▇▇▇▇▇ solely to perform
the Director's obligations.
9.3 Compensation of Manager. As compensation for its management services
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under Articles 9.1 & 9.2 the Manager will be able to draw up to $2,500 CDN ONLY
AND IF sales have been made AND there is appropriate profits from such sales to
justify any compensation.
9.4 Appointment to Board of Spectrum. Upon the signing of this agreement,
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Principal will be also appointed to the Board of Directors of Spectrum Ventures
Ltd.
ARTICLE 10
Closing
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10.1 Time and Place. Subject to the terms and conditions hereof, the
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transactions contemplated by Article 3 will be completed and closed at the
Closing to be held at Vancouver.
10.2 Deliveries by Principal. At the Closing, Principal or its nominee
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will deliver to Spectrum:
(a) the share certificates representing the ▇▇▇▇▇▇ Shares, duly executed
for transfer in favour of Spectrum.
10.3 Received by Principal. At the Closing, Principal or its nominee will
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receive:
(a) the Purchase Price in the manner set out in Article 3; and
10.4 Delivered by ▇▇▇▇▇▇ and Principal. At closing, Principal and ▇▇▇▇▇▇
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will deliver to Spectrum:
(a) the certificate as provided in 7.1(d); and
(b) the opinion provided for in 7.1(e).
ARTICLE 11
General
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11.1 Interim Secured Loans. It is agreed that if any interim loans are
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made by Spectrum to ▇▇▇▇▇▇, such loans will be secured upon the assets of ▇▇▇▇▇▇
and ▇▇▇▇▇▇ shall execute and deliver promissory notes and security agreements
for any such loans.
11.2 Transactional Expenses. It is agreed that each party to this
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Agreement will bear their own respective costs incurred in negotiating and
preparing this Agreement, in closing and carrying out the transaction
contemplated hereunder. All costs related to satisfying any condition or
fulfilling any covenant contained in this Agreement will be borne by the party
whose responsibility it is to satisfy the provision in question. By way of
example and without limiting the foregoing, the expenses of any independent
legal advice received by Principal regarding the execution of this Agreement
shall be borne by Principal.
11.3 Further Assurances. Each of the parties hereby covenants and agrees
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that at any time and from time to time either before or after the Closing Date
it will, upon the request of the other party, do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all such
further acts, deeds, assignments, transfers, conveyances, powers of attorney and
assurances as may be required for the better carrying out and performance of all
the terms of this Agreement.
11.4 Notice. Any notice required or permitted to be given or delivery
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required to be made to any party may be effectively given or delivered if it is
delivered personally or by telex or telecopy:
(a) In the case of ▇▇▇▇▇▇ and Principal:
▇.▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ Savvis
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(b) In the case of Spectrum:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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or to such other address as the party entitled to or receiving such notice may
notify the other party as provided for herein.
11.5 Governing law. This Agreement will be governed by and construed in
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accordance with the laws of British Columbia.
11.6 Successors and Assigns. This Agreement will be binding upon and enure
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to the benefit of the parties hereto and their respective heirs and executors
and successors and assigns as the case may be.
11.7 Entire Agreement. This Agreement constitutes the entire agreement
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between the parties and supersedes all prior letters of intent,
agreements, representations, warranties, statements, promises,
information, arrangements and understandings, whether oral or written,
express or implied.
11.8 Publicity. All news releases or other public announcements or
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disclosures to clients of the parties or others will be mutually
agreed upon and in any event will be subject to regulatory
requirements.
11.9 Amendment. No modification or amendment to this Agreement may be
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made unless agreed to by the parties thereto in writing.
11.10 Severability. In the event any provision of this Agreement will be
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deemed invalid or void, in whole or in part, by any court of competent
jurisdiction, the remaining terms and provisions will remain in full force and
effect.
11.11 Headings. The headings contained herein are inserted for convenience
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only and will not be construed as part of the Agreement.
11.12 Counterparts. This Agreement may be executed in any number of
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counterparts with the same effect as if all parties to this Agreement had signed
the same document and all counterparts will be construed together and will
constitute one and the same instrument and any facsimile signature shall be
taken as an original.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as
of the day and year first above written.
▇▇▇▇▇▇ Wines & Spirits Imports Ltd.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇. Savvis
______________________________
Per: Authorized Signatory
▇▇▇▇▇▇▇▇▇▇ ▇. SAVVIS
______________________________
Name
▇▇▇▇▇▇▇▇▇ Savvis as Principal
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇. Savvis
______________________________
▇▇▇▇▇▇ Wines & Spirits Imports Ltd. as Principal
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇. Savvis
______________________________
Per: Authorized Signatory
▇▇▇▇▇▇▇▇▇▇ ▇. SAVVIS
______________________________
Name
Spectrum Ventures Ltd.
/s/ Emmanuel Augizakis
_______________________________
Per: Authorized Signatory
EMMANUEL AUGIZAKIS
_______________________________
Name
SCHEDULE "I"
The ▇▇▇▇▇▇ Assets will consist of:
Patents, patents pending, trademarks, copyrights, any right to patent,
trademark or copyright in any Country, title, engineering designs,
concepts, models, prototypes, parts, manufacturing machines and tools,
trade secrets, designs, parts, test equipment for, equipment required for
use with, inventory, customer lists, advertising brochures, supplier lists
and goodwill.
▇▇▇▇▇▇ Wines & Spirits Imports/Exports Int'l Ltd
The undersigned, being all the directors of ▇▇▇▇▇▇ Wines & Spirits
Imports/Exports Int'l Ltd. (the "Company") hereby consent to and adopt the
following resolutions as of......................
WHEREAS the Company has negotiated an agreement (the "Purchase Agreement") for
the sale of all of the shares of the Company to Spectrum Ventures Ltd. on the
terms and conditions as set forth in the Purchase Agreement attached hereto.
AND WHEREAS the board of directors believe it would be in the best interests of
the Company to enter and complete the Purchase Agreement.
BE IT RESOLVED THAT:
1. The negotiation, execution and delivery by any director or officer of the
Company of the Purchase Agreement and any amendments thereto on such terms
and conditions as are acceptable to the directors of the Company in their
absolute discretion and the shareholders of the Company, be and are hereby
authorized for and behalf the Company to execute under seal or otherwise
all other instruments, documents, things and writings, and perform and do
all such other acts and things as in their discretion they deem advisable
for the purpose of giving effect to the Purchase Agreement.
2. These resolutions may be signed in counterpart, which taken together shall
constitute one and the same instrument, and any facsimile signature shall
be taken as an original.
______________________________