EXHIBIT 4.3
ASSET PURCHASE AGREEMENT
THIS AGREEMENT made the 1st day of September 2004.
BETWEEN:
TRADEPOINTE INC.
a corporation incorporated pursuant to the laws of
the Province of Alberta
(the "Vendor")
- and-
WORLDWIDE PROMOTIONAL PRODUCTS CORPORATION a corporation
incorporated pursuant to the laws of the State of Nevada,
United States of America
(the "Purchaser")
- and-
▇▇▇ DRY AND ▇▇▇▇ ▇▇▇▇▇▇▇▇ individual residents of the
Province of Alberta
(the "Shareholders")
WHEREAS:
--------
A. the Vendor is in the business of operating a showroom in which various
suppliers rent space for a fee from the Vendor to showcase their products
to various distributors who have purchased memberships for a fee from the
Vendor to enable the various distributors to view the products of the
various suppliers;
B. the Shareholders are the only shareholders of the Vendor; and
C. the Vendor has agreed to sell to the Purchaser and the Purchaser has agreed
to purchase from the Vendor all or substantially all of the assets,
undertaking, and property of and pertaining to the Business, upon and
subject to the terms and conditions hereinafter set forth in this Asset
Purchase Agreement (hereinafter called the "Agreement").
NOW THEREFORE THIS ASSET PURCHASE AGREEMENT WITNESSETH that in consideration of
the mutual covenants and agreements hereinafter expressed, and the payment of
the sum of Thirty Thousand ($30,000.00) Dollars now paid by the Purchaser to the
Vendor and the delivery of a total of 100,000.00 Restricted Shares of the
Purchaser issued to the Shareholders with 50,000 Restricted Shares issued to ▇▇▇
Dry and 50,000 Restricted Shares issued to ▇▇▇▇ ▇▇▇▇▇▇▇▇, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each of the parties, the parties agree each with the other as
follows:
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1. ARTICLE ONE - INTERPRETATION
a) Defined Terms
For the purposes of this Agreement, unless the context otherwise
requires, the following terms shall have the respective meanings set
out below, and grammatical variations of such terms shall have
corresponding meanings:
i) "Act" means the Business Corporations Act (Alberta), as amended
from time to time and any successor legislation thereto;
ii) "Applicable Laws" means, with respect to any Person, any Canadian
(whether federal, territorial, provincial, municipal or local) or
foreign statute, law, ordinance, rule, administrative
interpretation, regulation, order, writ, injunction, directive,
judgment, decree or other requirement, all as in effect as of the
Closing of any Governmental Authority applicable to such Person
or any of their respective properties, assets, officers,
directors, employees, consultants or agents;
iii) "Assumed Liabilities" has the meaning set out in section 2.b) of
this Agreement;
iv) "Business" means the Vendor's business of operating a physical
fitness and exercise centre for women which physical fitness and
exercise centre includes, without limitation, a business that
sells fitness and gym wear, nutritional supplements and
nutritional drinks and provides sun tanning and massage services;
v) "Business Day" means any day, other than a Saturday or a Sunday,
on which the main branch of HSBC Bank of Canada located at
Calgary, Alberta is open for business;
vi) "Closing" and "Closing Date" has the meaning set out in Section
3.d) of this Agreement;
vii) "Closing Time" has the meaning set out in Section 3.d) of this
Agreement;
viii)"Contract" means any contract, agreement, indenture, leases of
personality, deed of trust, licence, option, instrument or other
commitment, whether written or oral to which the Vendor is a
party or by which the Vendor is bound;
ix) "Employees" means those employees of the Vendor who are employed
in the Business immediately prior to the Closing Date;
x) "Encumbrance" means any encumbrance, lien, charge, hypothec,
pledge, mortgage, title retention agreement, security interest of
any nature, adverse claim, exception, reservation, easement,
right of occupation, matter capable of registration against
title, option, right of preemption, privilege or any Contract to
create any of the foregoing;
xi) "ETA" means the Excise Tax Act (Canada), as amended from time to
time and any successor legislation thereto;
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1. ARTICLE ONE - INTERPRETATION - continued
xii) "Excluded Assets" has the meaning set out in section 2.d) of this
Agreement;
xiii)"Excluded Liabilities" has the meaning set out in Section 2.c)
of this Agreement;
xiv) "Governmental Authority" means any Canadian (whether federal,
territorial, provincial, municipal or local) or foreign
government, governmental authority, quasi-governmental authority,
instrumentality, court, government or self-regulatory
organization, commission, tribunal or organization or any
regulatory, administrative or other agency, or any political or
other subdivision, department or branch of any of the foregoing;
xv) "GST" means all taxes payable under the ETA;
xvi) "Liability" means with respect to any Person, any liability or
obligation of such Person of any kind, character or description,
whether known or unknown, absolute or contingent, accrued or
unaccrued, liquidated or unliquidated, secured or unsecured,
joint or several, due or become due, unvested or invested,
executory, determined, determinable or otherwise and whether or
not the same is required to be accrued on the financial
statements of such Person;
xvii)"Persons" shall include individuals, corporations, firms,
partnerships, limited liability companies, limited liability
partnerships, associations, syndications, trusts, estates,
unincorporated organizations, governmental bodies and other legal
or business entities of any kind whatsoever;
xviii) "Purchase Price" has the meaning set out in Section 3.a) of
this Agreement; xix) "Purchased Assets" has the meaning set out
in Section 2.a) of this Agreement; and
xx) "Tax" means all taxes imposed of any nature including any United
States (whether federal, territorial, state, municipal or local),
Canadian (whether federal, territorial, provincial, municipal or
local) or foreign income tax, alternative or add-on minimum tax,
profits or excess profits tax, franchise tax, gross income,
adjusted gross income or gross receipts tax, employment related
tax (including employee withholding or employer payroll tax or
employer health tax), capital tax, real or personal property tax
or ad valorem tax, sales or use tax, excise tax, stamp tax or
duty, any withholding or back up withholding tax, value added
tax, GST, severance tax, prohibited tax, premiums tax, occupation
tax, customs and import duties, together with any interest or any
penalty, addition to tax or additional amount imposed by any
Governmental Authority responsible for the imposition of any such
tax or in respect of or pursuant to any United States (whether
federal, territorial, state, municipal or local), Canadian
(whether federal, territorial, provincial, municipal or local) or
other Applicable Laws.
b) Currency
Unless otherwise indicated, all dollar amounts referred to in this
Agreement or the use of the symbol "$" shall be deemed to refer to
Canadian dollars.
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1. ARTICLE ONE - INTERPRETATION - continued
c) Sections, Heading and Party Drafting
The division of the Agreement into Articles, Sections and Paragraphs
and the insertion of headings are for convenience of reference only
and shall not affect the interpretation or Article, Section or
Paragraph of this Agreement. Each party to this Agreement acknowledges
that it and its legal advisors have reviewed and participated in
settling the terms of this Agreement and agrees that any rule of
construction or doctrine of interpretation which has the result of
construing or interpreting any ambiguity against the drafting party to
this Agreement shall not be applicable in the interpretation of this
Agreement. d) Number, Gender and Person
In this Agreement, words imparting the singular number shall include
the plural and vice versa, and words importing the use of any gender
shall include all genders.
e) Entire Agreement
This Agreement constitutes the entire agreement between the parties to
this Agreement with respect to the subject matter hereof and
supersedes all prior agreements, prior drafts of this Agreement,
understandings, negotiations and discussions, whether written or oral,
between the parties to this Agreement with respect to the subject
matter of this Agreement. There are no conditions, covenants,
agreements, representation, warranties or other provisions, express or
implied, collateral, statutory or otherwise, relating to the subject
matter hereof except as herein provided. Neither this Agreement nor
any provisions hereof is intended to confer upon any Person other than
the parties to this Agreement any rights or remedies hereunder.
f) Time of the Essence
Time shall be of the essence of this Agreement and of every part
hereof and no extension or variation to this Agreement shall operate
as a waiver of the provision.
g) Applicable Law
This Agreement shall be construed, interpreted and enforced in
accordance with and the respective rights and obligations of the
parties to this Agreement shall be governed by the laws of the
Province of Alberta and the federal laws of Canada applicable therein
without reference to any principles of conflicts of laws and each
party to this Agreement irrevocably and unconditionally attorns to the
non-exclusive jurisdiction of the Courts of Alberta and all courts
competent to hear appeals there from with respect to any matter
arising hereunder or related hereto to this Agreement.
h) Enurement
This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties to this Agreement and, where the
context so permits, their successors assigns.
i) Assignment
The Vendor may not assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written consent
of each other party to this Agreement, which consent may be
unreasonably withheld. The Purchaser may assign this Agreement and any
of its rights, interests and obligations hereunder without the written
consent of each other party to this Agreement.
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1. ARTICLE ONE - INTERPRETATION - continued
j) Amendments; No Waivers
k) Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of
any amendment, by all parties to this Agreement, or in the case of a
waiver, by the party to this Agreement against whom the waiver is to
be effective.
ii) No waiver by a party to this Agreement of any default,
misrepresentation or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent occurrence. No
failure or delay by a party to this Agreement in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
ARTICLE TWO - PURCHASE AND SALE OF PURCHASED ASSETS
a) Purchased Assets
Subject to the provisions of this Agreement, the Vendor hereby sells
to the Purchaser and the Purchaser hereby purchases from the Vendor
effective as of the opening of business on the Closing Date the
undertaking, goodwill and all of the property and assets of the Vendor
used in connection with or otherwise relating to the Business, whether
real or personal, tangible or intangible, of every kind and
description and wheresoever situate as a going concern, including,
without limitation:
i) all machinery, computers, equipment, office equipment, tools,
furniture, furnishings and other miscellaneous items used in or
relating to the Business as set forth and described in Schedule
"A" attached hereto (collectively the "Office Equipment and
Furniture");
ii) the exclusive right to the continued use of the trade name
"TRADEPOINTE" to the extent permitted by law that the trade name
''TRADEPOINTE'' can be assigned or used, the exclusive right to
the continued use of each and every other trade name of the
Vendor to the extent permitted by law that such trade names can
be assigned or used and the right to retain and use the telephone
number ~ _ to the extent that Telus or the Vendor's telephone
service provider or its assigns or successors will permit such
use (the ''Trade Names and Phone Number");
iii) all rights, title and interest in all leasehold improvements of
the Vendor at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ being shelving and
clothing racks (the "Leasehold Improvements") ;
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ARTICLE TWO - PURCHASE AND SALE OF PURCHASED ASSETS - continued
iv) the exclusive right to the continued use of the name
''TRADEPOINTE'' to the extent permitted by law that the name
''TRADEPOINTE'' can be assigned or used ( the "Name");
v) all licenses, permits, approvals, consents, registrations,
certificates or authorizations relating to the Business, if any
(the "Licenses");
vi) all records, files and documents relating to the Business (the
"Records");
vii) all rights, title and interest under any lease with suppliers of
the Vendor and the right to collect monthly fees there from to
the extent permitted by law (the "Leases");
viii)except as otherwise provided in this Agreement, all pre-paid
expenses including, without limitation, rent, security deposits
(including for ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇), telephone and insurance incurred by the Vendor but
excluding income, capital and other taxes which are personal to
the Vendor or not incurred in connection with the Business (the
"Pre-paid Expenses"); and
ix) all rights, title and interest under any existing memberships of
the Vendor which pay a monthly fee to access the advertising
library of Trade Pointe and the right to collect monthly fees
there from to the extent permitted by the law ( the
"Memberships") (collectively the "Purchased Assets").
b) Assumed Liabilities
Subject to the conditions in this Agreement, on the Closing Date, the
Purchaser shall not assume or thereafter pay, perform, discharge or
satisfy any liabilities of the Vendor incurred by the Vendor up to and
prior to the Closing Date or incurred by the Vendor after the Closing
Date except for the Vendor's liability pursuant to an offer to
sublease between Kaycan Limited and TradePointe Inc. made February
14,2003 (the "Assumed Liabilities").
c) Excluded Liabilities
For greater certainty, it is understood that the Purchaser is not
assuming nor shall it be liable for any liabilities or obligations of
the Business, whether accrued, absolute, contingent or otherwise, of
the Vendor, including, without limitation:
i) any and all claims, suits, demands, actions or proceedings with
respect to the Business prior to the Closing Date;
ii) any and all claims, suits, demands, actions or proceedings with
respect to the Excluded Assets;
iii) any and all claims, suits, demands, actions or proceedings
relating to the operations of the Business up to the Closing Date
including, without limitation, any breach by the Vendor of all
applicable statutes, orders, notices, ordinances, regulations,
permits, authorizations, approvals or laws;
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ARTICLE TWO - PURCHASE AND SALE OF PURCHASED ASSETS - continued
iv) any obligations, liabilities, claims, suits, demands, actions or
proceedings of any kind whatsoever, including, without
limitation, any obligations, liabilities or claims for wages,
salary, bonus, vacation payor other remuneration or any claims
pursuant to any worker's compensation or similar legislation by
any Employee of the Vendor (whether or not they become employees
of the Purchaser) related to any matter or event that occurred
during or arose out of or is attributable to such employee's
employment with the Vendor;
v) any obligations, liabilities, claims or damages, including back
wages, employee benefits or insurance costs, expenses, any unfair
labour practice charges, legal fees and fines, arising out of or
relating to any employment termination, layoff or reduction in
hours of any Employee occurring prior to the Closing Date;
vi) any obligations, liabilities, claims, suits, demands, actions or
proceedings of any kind whatsoever in relation to an offer to
sublease for ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
between Kaycan Limited and TradePointe Inc. made February 14,
2003, incurred prior to the Closing Date;
vii) any obligations, liabilities, claims, suits, demands, actions or
proceedings of any kind whatsoever in relation to a lease for
▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ between 725739 Alberta
Ltd. and TradePointe Inc. made effective February 1, 2002;
viii)any obligations, liabilities or claims whatsoever for any
commission or other remuneration payable or alleged to be payable
to any broker, agent or other person who has acted or purported
to act for the Vendor in connection with the sale of the
Purchased Assets;
ix) any sales commission payable by the Vendor at any time prior to
or on the Closing Date; and
x) all liabilities not specified in Article 2.b) of this Agreement
(collectively the "Excluded Liabilities").
d) Excluded Assets
The Purchaser is not purchasing or acquiring the following assets
belonging to either the Vendor or the Business prior to but not
including the Closing Date:
i) all cash on hand or in banks or other depositories, insurance
proceeds receivable, income and other tax refunds and term
deposits;
ii) all claims and causes of action accruing to the benefit of the
Vendor; and
iii) all accounts receivable.
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3. ARTICLE THREE - PURCHASE PRICE
a) Purchase Price
The purchase price payable by the Purchaser to the Vendor for the
Purchased Assets shall be Thirty ($30,000) Dollars (the "Purchase
Price") and the delivery of a total of 100,000 shares of the
restricted shares of the Purchaser (the "Restricted Shares").
b) Payment of Purchase Price and Delivery of Restricted Shares
The Purchase Price shall be payable, in Canadian Dollars, as follows:
(a) $ 3,600. deposit to be paid to the Vendor;
(b) $26,400 on the Closing Date to be delivered in cash; and
(c) Delivery of 100,000 Restricted Shares of the Purchaser issued to
the Shareholders, with 50,000 restricted shares issued to ▇▇▇ Dry
and 50,000 Restricted Shares issued to ▇▇▇▇ ▇▇▇▇▇▇▇▇.
c) ETA Election
The Purchaser and the Vendor shall elect jointly under subsection
167(1) of the Excise Tax Act (Canada) in the form prescribed for the
purposes of that subsection in respect of the sale and transfer of the
Purchased Assets hereunder and the Purchaser shall file such election
in its GST return for its reporting period that includes the Closing
Date.
d) Closing
The Closing of the transaction (the "Closing") contemplated by this
Agreement shall take place at the offices of Sihvon, Carter, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, at Medicine Hat, Alberta on September 1, 2004 or such other
date as shall be agreed upon by the Purchaser and the Vendor in
writing (the "Closing Date") at 8:30 a.m. Alberta time or such other
time as shall be agreed upon by the Purchaser and the Vendor in
writing (the "Closing Time").
4. ARTICLE FOUR - REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor represents and warrants as at the date hereof to the Purchaser
as follows and acknowledges that the Purchaser is relying on such
representations and warranties in connection with its purchase of the
Business and the Purchased Assets:
a) Organization
The Vendor is a corporation duly incorporated and organized and
validly subsisting under the laws of the Province of Alberta and has
the corporate power to own or lease its property, to carry on the
Business as now being conducted by it and to enter into this Agreement
and to perform its obligations hereunder. The Vendor is duly qualified
as a corporation to do business in the Province of Alberta, being the
only jurisdiction in which the nature of the Business or the Purchased
Assets makes such qualification necessary.
b) Authorization
This Agreement has been duly authorized, executed and delivered by the
Vendor and is a legal, valid and binding obligation of the Vendor,
enforceable against the Vendor by the Purchaser in accordance with its
terms.
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3. ARTICLE THREE - PURCHASE PRICE - continued
c) No Violation
The execution, delivery and performance of this Agreement by the
Vendor and the consummation of the transactions herein provided for
will not, to the best of the knowledge of the Vendor, result in:
i) the breach or violation in any material respect of any of the
provisions of, or constitute a default under, or conflict with or
cause the acceleration of any obligation of the Vendor under:
(1) any Contract to which the Vendor is a party to or by which
it is or its properties are bound;
(2) any provision of the constating documents or by-laws or
resolutions of the board of directors (or any committee
thereof) or shareholders of the Vendor;
(3) judgment, decree, order or award of any court, governmental
body or arbitrator having jurisdiction over the Vendor;
(4) any licence, permit, approval, consent or authorization held
by the Vendor; or
(5) any applicable law, statute, ordinance, regulation or rule;
nor
ii) the creation or imposition of any Encumbrance on any of the
Purchased Assets.
d) Condition of Purchased Assets
To the best of the knowledge of the Vendor, the Purchased Assets owned
and used by the Vendor in connection with the Business are in
reasonable operating condition.
e) Title to Purchased Assets
The Purchased Assets are owned legally and beneficially by the Vendor
with a good and valid title thereto, free and clear of all
Encumbrances.
f) Location of the Purchased Assets
The Purchased Assets are located at ▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
g) Compliance with Laws; Governmental Authorization
To the best of the knowledge of the Vendor, the Vendor has complied in
all material respects with all laws, statutes, ordinances,
regulations, rules, judgments, decrees or orders applicable to the
Business or the Purchased Assets, including all licences, permits,
approvals, consents, certificates, registrations and authorizations
necessary to carry on the Business or to own or lease any of the
Purchased Assets.
h) No Other Agreements to Purchase
No Person other than the Purchaser has any written or oral agreement
or option or any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option for the
purchase or acquisition from the Vendor of any of the Purchased
Assets.
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3. ARTICLE THREE - PURCHASE PRICE - continued
i) Residency
The Vendor is a resident of Canada for the purposes of the Income Tax
Act (Canada).
j) GST Registration
The Vendor is a registrant for purposes of the ETA whose registration
number is **.
k) Employees
No notice has been received by the Vendor which remains outstanding of
any complaint filed by any of the employees against the Vendor
claiming that the Vendor has violated the Employment Standards Code
(Alberta), the Human Rights, Citizenship and Multiculturalism Act
(Alberta), the Human Rights Act (Canada), the Unemployment Insurance
Act (Canada), the Canada Labour Code, the Workers' Compensation Act
(Alberta) or the Occupational Health and Safety Act (Alberta) or any
other applicable employee, workers' compensation. health and safety or
human rights legislation or of any complaints or proceedings of any
kind involving the Vendor or, to the best of the Vendor's knowledge,
any of the employees of the Vendor before any labour relations board.
1) Employee Accruals
All accruals for unpaid vacation pay, premiums for unemployment
insurance, health premiums, Canada Pension Plan premiums, accrued
wages, salaries, overtime, bonuses and commissions and employee
benefit plan payments have been reflected in the books and records of
the Vendor and the Vendor has made all remittances with respect to
such matters as are legally required for all periods up to and
including the Closing Date.
m) Members and Suppliers
There has been no termination or cancellation of and no material
modification or change in the Vendor's business relationship with any
suppliers or members of the Business or any group of suppliers or
members of the Business. The Vendor has no knowledge that the benefits
of any relationship with any of the suppliers or members of the
Business will not continue after the Closing Date in substantially the
same manner as prior to the Closing Date.
5. ARTICLE FIVE - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Vendor as follows and
acknowledges and confirms that the Vendor is relying on such
representations and warranties in connection with the sale of the Business
and the Purchased Assets:
a) Consents and Approvals
There is no requirement for the Purchaser to make any filing with,
give any notice to or obtain any licence, permit, certificate,
registration, authorization, consent or approval of, any government or
regulatory authority as a condition to the lawful consummation of the
transactions contemplated by this Agreement.
b) GST Registration
The Purchaser is a registrant for the purposes of the ETA whose
registration number is _.
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6. ARTICLE SIX - SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES
a) Survival of Covenants, Representations and Warranties
All representations, warranties, covenants and agreements contained in
this Agreement on the part of each of the parties shall survive the
Closing, the execution and delivery hereunder of any bills of sale,
instruments of conveyance, assignments or other instruments of
transfer of title to any of the Purchased Assets and the payment of
the consideration contemplated under this Agreement, except that the
representations and warranties contained in this Agreement shall only
survive for one (1) year following Closing.
7. ARTICLE SEVEN - SUPPLIERS AND MEMBERS
a) Suppliers
The Vendor shall provide to the Purchaser all books, records, files
and documents relating to the suppliers of the Business, including,
without limitation, a list of the suppliers and full particulars of
their leases and lease fees on the Closing Date.
b) Members
The Vendor shall provide to the Purchaser all books, records, files
and documents relating to the members of the Business, including,
without limitation, a list of the members and full particulars of
their memberships and membership fees on the Closing Date.
8. ARTICLE EIGHT - EMPLOYEE
c) Employee Termination
The Vendor shall terminate all Employees of the Business effective the
Closing Date and pay all of the Employees' accruals for unpaid
vacation pay, premiums for unemployment insurance, health premiums,
Canada Pension Plan premiums, accrued wages, salaries, overtime,
bonuses and commissions and employee benefit plan payments as well as
termination or severance payments.
The Purchaser shall make offers of employment as outlined in Clause 3
of this Agreement to the existing employees of Trade Pointe for
employment commencing the day following the Closing Date on terms
comparable to the job description, salary, holiday and benefits
package currently enjoyed by each such employee and to carry forward
their seniority and years of service from the Vendor. The Purchaser
shall forthwith provide the Vendor a list of names of employees who
have accepted or rejected such offer.
9. ARTICLE NINE - CONDITIONS TO CLOSING
a) Deliveries to the Purchaser
At the Closing Time, the Vendor shall deliver to the Purchaser actual
possession of the Purchased Assets and shall deliver to the Purchaser
the following duly executed documents or do the following acts or
things:
i) the ETA election referred to in Section 3.c) of this Agreement
being GST Form 44;
ii) the bills of sale, assurances, transfers, assignments and other
documentation necessary or reasonably required to transfer the
Purchased Assets to the Purchaser with a good and valid title,
free and clear of all Encumbrances whatsoever;
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8. ARTICLE EIGHT - EMPLOYEE - continued
iii) a waiver of conditions; and
iv) all other documents and instruments as may be required by the
Purchaser or its counsel, acting reasonably.
b) Deliveries to the Vendor
At the Closing Time, the Purchaser shall deliver to the Vendor the
following documents duly executed or do the following acts or things:
i) the payment referred to in Section 3.b) of this Agreement; ii)
iii) the ETA election referred to in Section 3.c) of this Agreement;
iv) Certified Director's Resolution authorizing the purchase of the
Assets; and
v) waiver of conditions.
vi)
10. ARTICLE TEN - INDEMNIFICATION
c) Agreement to Indemnify
viii)The Purchaser shall be indemnified and held harmless by the
Vendor in respect of any and all damages incurred by the
Purchaser as a result of any inaccuracy or misrepresentation or
in breach of any representation, warranty, covenant or agreement
made in this Agreement by the Vendor, including, without
limitation, from and against any obligations, liabilities,
claims, suits, demands, actions or proceedings of any kind
whatsoever in relation to an offer to sublease for ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ between Kaycan Limited
and Tradepointe Inc. made February 14, 2003 to and prior to the
Closing Date and a lease for ▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ between 725739 Alberta Ltd. and Tradepointe Inc. made
effective February 1, 2002, both prior to and after the Closing
Date.
ix) The Vendor shall be indemnified and held harmless by the
Purchaser in respect of any and all damages incurred by the
Vendor as a result of any inaccuracy or misrepresentation or in
breach of any representation, warranty, covenant or agreement
made in this Agreement by the Purchaser, and any matters relating
to the Business post Closing.
11. ARTICLE ELEVEN - MISCELLANEOUS
c) Notices
All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim or
other communications hereunder shall be deemed duly given (i) if
personally delivered, when so delivered, (ii) if mailed, two Business
Days after having been sent by registered or certified mail, return
receipt requested, postage prepaid and addressed to the intended
recipient as set forth below, (iii) if given by telex or te1ecopier,
once such notice or other communication is transmitted to the telex or
telecopier number specified below and the appropriate answer back or
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11. ARTICLE ELEVEN - MISCELLANEOUS - continued
telephonic confirmation is received, provided that such notice or
other communication is promptly thereafter mailed in accordance with
the provisions of clause (ii) above or (iv) if sent through an
overnight delivery service in circumstances under which such service
guarantees next day delivery, the day following being so sent:
If to the Vendor: #5,201 ▇▇▇▇▇ Boulevard, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ T4C 204
If to the Purchaser: ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ S.E., Medicine Hat, Alberta, TIA
OA7
Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail
or electronic mail), but no such notice request, demand, claim or
other communication shall be deemed to have been duly given unless and
until it actually is received by the individual for whom it is
intended. Any party may change the address to which notices, requests,
demands, claims and other communications hereunder are to be delivered
by giving the other parties notice in the manner herein set forth.
d) Reasonable Commercial Efforts
The parties acknowledge and agree that, for all purposes of this
Agreement, an obligation of any party to use its reasonable commercial
efforts to obtain any waiver, consent, approval, permit, licence or
document shall not require such party to make any payment to any
person for the purpose of procuring the same, other than payments for
amounts due and payable to such person, payments for incidental
expenses incurred by such person and payments required by any
Applicable Laws.
e) Non-Merger
Except as otherwise expressly provided in this Agreement, the
covenants, representations and warranties of the parties contained in
this Agreement shall not merge on and shall survive the Closing, and,
notwithstanding such Closing, or any investigation made by or on
behalf of any party, shall continue in full force and effect. Closing
shall not prejudice any right of one party against any other party in
respect of anything done or admitted hereunder or under any or in
respect of any right to damages or other remedies.
t) Counterparts and Effectiveness
This Agreement and the documents relating to the transactions
contemplated by this Agreement may be signed in any number of
counterparts and the signatures delivered by telecopy, each of which
shall be deemed to be an original~ with the same effect as if the
signatures thereto were upon the same instrument and delivered in
person. This Agreement and such documents shall become effective when
each party thereto shall have received a counterpart thereof signed by
the other parties thereto. In the case of delivery by telecopy by any
party, that party shall forthwith deliver a manually executed original
to each of the other parties.
g) Transmission by Facsimile
The parties hereto agree that this Agreement may be transmitted by
facsimile or such similar device and that the reproduction of
signatures by facsimile or such similar device will be treated as
binding as if originals and each party hereto undertakes to provide
each and every other party hereto with a copy of the Agreement bearing
original signatures forthwith upon demand.
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3. VENDOR'S CONDITIONS
The Vendor's and the Purchaser's obligations to complete this Agreement
shall be conditional upon:
a) The Purchaser obtaining the necessary assignment for the sublease at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
b) The Vendor obtaining the necessary assignments for the Leases; and
c) The Purchaser offering reasonable employment to the existing employees
of TradePointe Inc.
IN WITNESS WHEREOF this Agreement has been executed by the parties.
/s/
-------------------------
/s/
-------------------------
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