EXHIBIT 4.3
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
AND
▇▇▇▇ ▇▇▇▇▇▇
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇
(AS VENDORS)
AND
156499 CANADA INC.
(AS THE PURCHASER)
SHARE PURCHASE AGREEMENT
MAY 24, 2002
STIKEMAN ELLIOTT
SHARE PURCHASE AGREEMENT
Share Purchase Agreement effective as of November 25, 2001, between
▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc., a corporation incorporated under the laws of Canada
("PURCHASER"), on the one hand, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (sometimes spelled
"▇▇▇▇▇▇") ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("VENDORS"), on the other hand.
WHEREAS Purchaser wishes to acquire the minority interest in the
capital of Argo Steel Ltd. ("ARGO STEEL") held by 165948 Canada Inc. (the
"CORPORATION"), ▇▇▇▇ ▇▇▇▇▇ and McKendwell Investments Inc., representing 49.125%
of the issued and outstanding shares of Argo Steel;
WHEREAS Purchaser intends to enter into, concurrently with this
Agreement, share purchase agreements with each of ▇▇▇▇ ▇▇▇▇▇ and the
shareholders of McKendwell Investments Inc. in order to acquire, directly or
indirectly, all of the said minority interest in the capital of Argo Steel;
WHEREAS the Corporation is the legal and beneficial owner of shares in
the capital of Argo Steel;
WHEREAS Vendors are the legal and beneficial owners of an aggregate of
20 common shares and 100 preferred shares in the share capital of the
Corporation, being all of the issued and outstanding shares of the Corporation
(the "PURCHASED SHARES");
AND WHEREAS Purchaser wishes to acquire from Vendors all of the
Purchased Shares, and Vendors wish to transfer the Purchased Shares to Purchaser
in order for Purchaser to acquire indirectly the Argo Steel Shares (as
hereinafter defined), the whole upon and subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH THAT, in consideration of the
mutual covenants herein contained, it is agreed between the parties as follows:
ARTICLE 1 INTERPRETATION
1.1 DEFINED TERMS.
Where used herein or in any amendments hereto or in any communication
required or permitted to be given hereunder, the following capitalized terms
shall have the following meanings, respectively, unless the context otherwise
requires:
(a) "ACCOUNTANTS" has the meaning ascribed to it in Section 2.4.
(b) "ACCOUNTS RECEIVABLE" has the meaning ascribed to it in Section 2.8.
(c) "AGREEMENT" means this Share Purchase Agreement and all instruments
supplemental hereto or in amendment or confirmation hereof; "HEREIN",
"HEREOF", "HERETO",
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"HEREUNDER" and similar expressions mean and refer to this Agreement
and not to any particular Article, Section or other subdivision;
"ARTICLE", "SECTION" or other subdivision of this Agreement means and
refers to the specified Article, Section or other subdivision of this
Agreement.
(d) "ARGO STEEL" means Argo Steel Ltd.
(e) "ARGO STEEL SHARES" means the seventy-four (74) common shares in the
capital of Argo Steel legally and beneficially owned by the
Corporation.
(f) "AUTHORIZATION" means, with respect to any Person, any order, permit,
approval, waiver, licence or similar authorization of any Governmental
Entity having jurisdiction over the Person.
(g) "BOOKS AND RECORDS" means all books of account, tax records, and all
other documents, files, correspondence and other information of the
Corporation whether in writing or electronic form.
(h) "BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which the principal commercial banks in Montreal, Quebec are not
open for business during normal business hours.
(i) "CAUSE" means any act or omission of an employee which would in law
permit an employer to, without notice or pay in lieu of notice,
terminate the employment of an employee.
(j) "CLOSING" means the completion of the transactions contemplated in this
Agreement.
(k) "CLOSING DATE" means the date hereof.
(l) "CORPORATE RECORDS" means the corporate records of the Corporation,
including (i) all constating documents and by-laws, (ii) all minutes of
meetings and resolutions of shareholders and directors (and any
committees), and (iii) the share certificate books, securities
register, register of transfers and register of directors.
(m) "CORPORATION" means ▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(n) "DAMAGES" has the meaning ascribed to it in Section 4.1.
(o) "FINANCIAL STATEMENTS" shall mean the unaudited financial statements
for the Corporation as at December 31, 2001 and December 31, 2000,
respectively, consisting in each case of a balance sheet and the
accompanying statements of income, retained earnings and changes in
financial position for the period then ended and notes to the financial
statements, a copy of which financial statements is annexed hereto as
SCHEDULE 3.1(p).
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(p) "FORMULA" has the meaning ascribed to it in Section 2.6.
(q) "GOVERNMENTAL ENTITY" means any (i) multinational, national, federal,
provincial, state, municipal, special administrative region, local or
other governmental or public department, central bank, court,
commission, board, bureau, agency or instrumentality, domestic or
foreign, (ii) any subdivision or authority of any of the foregoing, or
(iii) any quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of
the above.
(r) "INCAPACITY" means in respect of a person, any incapacity or disability
of such severity that such person shall be unable to attend his duties
with his employer for more than four (4) consecutive months or for six
(6) months out of any period of fifteen (15) consecutive months.
(s) "LAWS" shall mean (i) all constitutions, treaties, laws, statutes,
codes, ordinances, orders, decrees, rules, regulations, and municipal
by-laws, whether domestic, foreign or international; (ii) all
judgments, orders, writs, injunctions, decisions, rulings, decrees, and
awards of any Governmental Entity; and (iii) all policies, practices
and guidelines of any Governmental Entity which, although not actually
having the force of law, are considered by such Governmental Entity as
requiring compliance as if having the force of law, in each case
binding on or affecting the Party or Person referred to in the context
in which such word is used; and "LAW" shall mean any one of them.
(t) "LIEN" means any mortgage, charge, pledge, hypothecation, security
interest, assignment, lien (statutory or otherwise), title retention
agreement or arrangement, restrictive covenant or other encumbrance of
any nature or any other arrangement or condition which, in substance,
secures payment or performance of an obligation.
(u) "NOTICE OF DISPUTE" shall have the meaning ascribed to it in Section
2.4.
(v) "ORDINARY COURSE" means, with respect to an action taken by a Person,
that such action is consistent with the past practices of the Person
and is taken in the ordinary course of the normal day-to-day operations
of the Person.
(w) "PARTIES" means Purchaser and Vendors.
(x) "PERSON" means a natural person, partnership, limited liability
partnership, corporation, joint stock corporation, trust,
unincorporated association, joint venture or other entity or
governmental entity, and pronouns have a similarly extended meaning.
(y) "PRETAX PROFITS" means the sum of (i) pretax profits as reflected in
the Unaudited Financial Statements for a given Year, prepared
consistent with past practice and before deduction of management fees
to Purchaser or its affiliates and bonuses paid to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as they appear in such
statements, and (ii) an amount equal to the interest on an amount equal
to any dividend paid by Argo Steel from the Closing to the last
Saturday in November 2004, calculated monthly
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at Argo Steel's working capital borrowing rate from the date of payment
of the dividend to the last Saturday in November 2004.
(z) "PRIME RATE" means the prime rate of interest in effect from time to
time at the Royal Bank of Canada.
(aa) "PRO RATA SHARE" has the meaning ascribed to it in Section 2.3.
(bb) "PURCHASE PRICE" has the meaning ascribed thereto in Section 2.2.
(cc) "PURCHASE PRICE INCREASE" has the meaning ascribed to it in Section
2.5.
(dd) "PURCHASED SHARES" has the meaning ascribed to it in the preamble.
(ee) "SPECIAL MATTERS" has the meaning ascribed to it in Section 2.10.
(ff) "TAXES" has the meaning ascribed to it in Section 3.1(l).
(gg) "TAX RETURNS" has the meaning ascribed to it in Section 3.1(l).
(hh) "THIRD PARTY AUDITOR" has the meaning ascribed in Section 2.4
(ii) "UNAUDITED FINANCIAL STATEMENTS" has the meaning ascribed to it in
Section 2.4.
(jj) "YEAR" has the meaning ascribed to it in Section 2.5.
1.2 INCORPORATION OF SCHEDULES.
The schedules attached to this Agreement shall, for all purposes of
this Agreement, form an integral part of it.
ARTICLE 2
PURCHASED SHARES AND PURCHASE PRICE
2.1 PURCHASE AND SALE.
Subject to the terms and conditions of this Agreement, Vendors hereby
sell, assign and transfer to Purchaser and Purchaser hereby purchases from
Vendors the Purchased Shares.
2.2 PURCHASE PRICE.
The purchase price (the "PURCHASE PRICE") payable by Purchaser to
Vendors for the Purchased Shares shall be an amount equal to $4,788,970.89, or
such amount to which it may be adjusted pursuant to Sections 2.5, 2.7 and 2.8.
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2.3 PAYMENT OF THE PURCHASE PRICE.
Subject to Section 2.9, the Purchase Price shall be paid by Purchaser
to Vendors in the proportion set out beside each of Vendors' respective names in
SCHEDULE 2.3 ("PRO RATA SHARE") as follows:
(i) at Closing an aggregate of $2,394,485.44 by certified checks
or bank drafts;
(ii) on January 7, 2003 an aggregate of $2,394,485.44 plus interest
calculated at Prime Rate from May 24, 2002 by certified checks
or bank drafts; and
(iii) the balance of the Purchase Price, if any, shall be determined
and paid in accordance with Sections 2.5, 2.7 and 2.8.
2.4 POST-CLOSING ADJUSTMENT.
Forthwith after the last Saturday of November of each of the years
2002, 2003 and 2004, Argo Steel shall instruct Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ (the "ACCOUNTANTS") to prepare unaudited financial statements which
shall be those financial statements of Argo Steel which shall be included in the
audited consolidated financial statements of Novamerican Steel Inc., the
ultimate parent of Argo Steel, and which shall show, INTER ALIA, the Pretax
Profit for the fiscal year then ended (the "UNAUDITED FINANCIAL STATEMENTS").
The Unaudited Financial Statements shall be prepared in accordance with
generally accepted accounting principles in Canada, applied on a basis
consistent with prior periods and consistent throughout the periods involved.
Argo Steel shall instruct the Accountants to produce the Unaudited Financial
Statements and Argo Steel shall deliver them to Purchaser and Vendors within
forty-five (45) calendar days after the fiscal year end for each of the years
2002, 2003 and 2004.
If any of Purchaser or Vendors wishes to dispute any matter in any of
the Unaudited Financial Statements, it may do so by notice ("NOTICE OF Dispute")
to the other(s) given within fifteen (15) calendar days of the delivery of such
Unaudited Financial Statements to Purchaser and Vendors. The Notice of Dispute
shall specify the basis for each objection and the dollar amount involved. The
Parties shall use their best efforts to amicably resolve any matters identified
in a Notice of Dispute as promptly as practicable. If any such dispute shall not
have been resolved within thirty (30) calendar days following the date on which
the Notice of Dispute is given, then either Party may refer such unresolved
matters to Messrs. Deloitte & Touche (the "THIRD PARTY AUDITORS") for
resolution. The determination of the Third Party Auditors shall be made within
thirty (30) calendar days after the matter has been referred to them. If no
Notice of Dispute is given within the delay prescribed above, such Unaudited
Financial Statements shall be final and binding on the Parties as of and from
the date of such delivery. If a Notice of Dispute is given in accordance with
this Section 2.4, then the Accountants shall, forthwith following the decision
of the Third Party Auditors, amend the Unaudited Financial Statements to reflect
the decision of the Third Party Auditor and deliver the Unaudited Financial
Statements to the Parties, and such Unaudited Financial Statements shall be
final and binding on the Parties as of and from the date of such delivery.
The fees and disbursements of the Accountants shall be paid by Argo
Steel and the fees and disbursements of the Third Party Auditors shall be shared
one half by Purchaser and one half by Vendors.
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2.5 PURCHASE PRICE ADJUSTMENT.
(a) Subject to Sections 2.5 (b) and 2.6 below, the Purchase Price shall be
increased (the "PURCHASE PRICE INCREASE") by an amount equal to 7.532%
of the Pretax Profits, if any, as reflected in the Unaudited Financial
Statements for each of the fiscal years ending as of the last Saturday
in November in each of the years 2002, 2003 and 2004, up to a maximum
of $188,300 for each of the three fiscal years (the "YEAR"). Any
Purchase Price Increase shall be payable by Purchaser to Vendors,
within ten (10) calendar days of the date on which the Unaudited
Financial Statements become final and binding on the Parties and shall
be made in accordance with their Pro Rata Share.
(b) In the event the Unaudited Financial Statements in a given Year reflect
losses incurred by Argo Steel, such losses shall be carried forward and
shall offset any Pretax Profit for any subsequent Year, for the
purposes of calculating the Purchase Price Increase, if any, in such
subsequent Year.
2.6 TERMINATION OF EMPLOYMENT.
(a) In the event, within a given Year, (i) that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ resigns
from his employment with Argo Steel, (ii) that his employment is
terminated by Argo Steel for Cause or, (iii) subject to Section 2.6(b),
that he fails to devote his full time and attention to the business and
affairs of Argo Steel during normal business hours for any reason,
Vendors shall not be entitled to any Purchase Price Increase for such
Year, or for any subsequent Year.
(b) In the event ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ dies or suffers an Incapacity within a
given Year, then the amount of the Purchase Price Increase, if any, for
such Year shall be an amount equal to the result obtained when the
Formula is applied, it being understood that Vendors shall not be
entitled to any Purchase Price Increase in any subsequent Year. For
greater certainty, in no event shall the Purchase Price Increase in any
Year be greater than $188,300.
For the purpose of this Section 2.6 (b) "FORMULA" shall mean (AxB) x
(C/D), where:
A = 7.532%;
B = pretax profits as reflected in the Unaudited Financial Statements
for the Year with respect to which the Purchase Price Increase is
being calculated;
C = the number of days from the beginning of the Year to the date of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ death or Incapacity; and
D = 365.
2.7 MONTSTEEL PROVISION.
The Parties hereto acknowledge that as at November 24, 2001,
an amount equal to $751,629 was reflected on Argo Steel's balance sheet
as being payable to Montsteel and this indebtedness is being disputed
by Argo Steel. In the event a final decision not subject to appeal is
rendered with respect to the amount payable by Argo Steel to Montsteel,
then the Purchase Price shall be increased by an amount equal to 37% of
the
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amount by which $751,629 exceeds the amount determined by the final
decision to be payable by Argo Steel to Montsteel, including the
applicable cost to Argo Steel of arbitration, litigation and other
related charges incurred after November 24, 2001. Such amount shall be
payable by Purchaser to Vendors in accordance with their Pro Rata
Share.
2.8 ACCOUNTS RECEIVABLE.
The parties acknowledge that from Argo Steel's accounts
receivable as at November 24, 2001, which accounts receivable are set
out in SCHEDULE 2.8 (the "ACCOUNTS RECEIVABLE"), an amount equal to
$130,000 was established as a provision for uncollectable accounts
receivable in Argo Steel's unaudited financial statements as at
November 24, 2001. In the event that more than $130,000 of the Accounts
Receivable remain uncollected by November 28, 2003, then an amount
equal to 37% of the amount by which such uncollected receivables exceed
$130,000 shall immediately be payable by Vendors to Purchaser and the
Purchase Price shall be adjusted accordingly. In the event that less
than $130,000 of the uncollected Accounts Receivable remain uncollected
by November 28, 2003, then an amount equal to 37% of the amount by
which $130,000 exceeds such uncollected receivables shall immediately
be payable by Purchaser to Vendors and the Purchase Price shall be
adjusted accordingly. If, after November 28, 2003 Purchaser or Argo
Steel receives any payment on account of such uncollected Accounts
Receivable, Purchaser or Argo Steel shall forthwith pay an amount equal
to 37% of such payment, after related recovery or collection expenses,
to Vendors in accordance with their Pro Rata Share.
2.9 SALE OF SHARES IN ARGO STEEL.
In the event Purchaser sells or causes the Corporation to sell
all or part of its shares in the capital of Argo Steel on or prior to
January 7, 2003, then the portion of the Purchase Price due to Vendors
pursuant to Section 2.3(ii) shall immediately become payable. Any sale
of such shares in the capital of Argo Steel shall include an obligation
on the part of the purchaser of such shares to pay the portion of the
Purchase Price that may become due to Vendors pursuant to Section
2.3(iii) of this Agreement; it being understood, however, that
Purchaser shall remain solidarily liable with such purchaser for such
obligation.
2.10 GUARANTEE.
(a) The Purchaser shall provide, concurrently to the execution of this
Agreement, a joint and several guarantee by its parent, Novamerican
Steel Inc. of the amount and interest due under Section 2.3(ii).
2.11 ACKNOWLEDGEMENT.
Vendors hereby acknowledge and accept that:
(i) Argo Steel will not be renewing its present lease and will be
moving to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, the
premises currently occupied by Nova Steel Ltd. ("NOVA STEEL");
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(ii) Argo Steel intends to transfer its hot rolled business to Nova
Steel, in exchange for Nova Steel's business at its said
Dorval premises with respect to its (i) coated, cold rolled,
galvanized and other carbon steel products, and (ii)
pre-paint, ni-terne and similar coated products;
(iii) Argo Steel may move and/or upgrade all equipment associated
with the business transferred from Nova Steel; and
(iv) Argo Steel intends to expand its existing operations in
Brampton, Ontario.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF VENDORS.
Vendors solidarily (jointly and severally) represent and warrant as
follows to Purchaser and acknowledge and confirm that Purchaser is relying upon
such representations and warranties in connection with the purchase by Purchaser
of the Purchased Shares:
(a) TITLE TO PURCHASED SHARES. Each Vendor is the registered, legal and
beneficial owner of the number and class of shares held by it as set
forth in SCHEDULE 3.1(A) and has good and valid title thereto, free and
clear of all Liens. Upon Closing, Purchaser will have good and valid
title to the Purchased Shares, free and clear of all Liens.
(b) NO OPTIONS. Neither the Purchased Shares nor the Argo Steel Shares are
subject to any options, rights of first refusal or similar rights which
would render the consent of any third party necessary for the
completion of the transaction contemplated herein.
(c) NO OTHER SECURITIES. Vendors have no outstanding options, securities,
loans or notes convertible or exchangeable for any shares or other
securities of the Corporation, other than the Purchased Shares. Neither
Vendors nor the Corporation have any outstanding option, security, loan
or note convertible or exchangeable for any shares or other securities
of Argo Steel, other than the Argo Steel Shares.
(d) ENFORCEABILITY OF OBLIGATIONS. This Agreement has been duly executed
and delivered by, and constitutes a legal, valid and binding obligation
of each of Vendors, enforceable against each of them in accordance with
its terms.
(e) RESIDENCE OF VENDORS. Each of the Vendors is not a non-resident of
Canada within the meaning of the INCOME TAX ACT (Canada) (the "ITA").
(f) INCORPORATION AND QUALIFICATION. The Corporation is a corporation
incorporated, organized, in good standing and existing under the Laws
of its jurisdiction of incorporation and has the corporate power to own
and operate its property, carry on its business and enter into and
perform its obligations under this Agreement.
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(g) AUTHORIZED AND ISSUED CAPITAL. The authorized capital of the
Corporation consists of an unlimited number of common shares of which
20 common shares and 100 preferred shares (and no more) have been duly
issued and are outstanding as fully paid and non-assessable. All of the
Purchased Shares have been issued in compliance with all applicable
Laws including, without limitation, applicable securities Laws.
(h) REQUIRED AUTHORIZATIONS. There is no requirement to make any filing
with, give any notice to, or obtain any Authorization of, any
Governmental Entity or Person as a condition to the lawful completion
of the transactions contemplated by this Agreement.
(i) TITLE TO ARGO STEEL SHARES. The Corporation is the registered, legal
and beneficial owner of the Argo Steel Shares with a good and valid
title thereto, free and clear of all Liens.
(j) NO SUBSIDIARIES. The Corporation has no subsidiaries and, other than
the Argo Steel Shares, holds no shares or other ownership, equity or
proprietary interests in any other Person.
(k) NO OTHER AGREEMENTS TO PURCHASE. Except for Purchaser's rights under
this Agreement, no Person has any written or oral agreement, option or
warrant or any right or privilege (whether by Law, pre-emptive or
contractual) capable of becoming such for (i) the purchase or
acquisition from Vendors of any of the Purchased Shares, (ii) the
purchase or acquisition from the Corporation of any of the Argo Steel
Shares, or (iii) the purchase, subscription, allotment or issuance of
any of the unissued shares or other securities of the Corporation.
(l) TAX MATTERS:
(i) DEFINITION OF TAXES - For the purposes of this Agreement, the
term "TAX" or, collectively, "TAXES" shall mean (A) any and
all federal, state, provincial, municipal, local and foreign
taxes, assessments and other governmental charges, duties,
impositions and liabilities including Canada Pension Plan and
Provincial Pension Plan contributions and unemployment
insurance contributions and employment insurance contributions
and ▇▇▇▇▇▇▇'▇ compensation and deductions at source, including
taxes based upon or measured by gross receipts, income,
profits, sales, capital use and occupation, good and services,
and value added, ad valorem, transfer, franchise, withholding,
customs duties, payroll, recapture, employment, excise and
property taxes, together with all interest, penalties, fines
and additions imposed with respect to such amounts and (B) any
liability for the payment of any amounts of the type described
in clause (A) of this Section 3.1(l)(i) as a result of any
express or implied obligation to indemnify any other Person or
as a result of any obligations under any agreements or
arrangements with any other Person with respect to such
amounts and including any liability for taxes of a predecessor
entity.
(ii) COMPUTATION, PREPARATION AND PAYMENT - The Corporation has
correctly computed all Taxes, prepared and duly and timely
filed all ▇▇▇▇▇▇▇, ▇▇▇▇▇,
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, local and foreign returns, estimates,
information statements, elections, designations, reports and
any other related filings ("TAX RETURNS"), required to be
filed by it, has timely paid all Taxes which are or may become
due and payable and has made adequate provision in the
Financial Statements for the period ended December 31, 2001
for the payment of all Taxes which are or may become due and
payable for any taxation year ending on or prior to the
Closing Date. The Corporation has made adequate and timely
instalments of Taxes required to be made.
(iii) ACCRUED TAXES - With respect to any periods for which Tax
Returns have not yet been required to be filed or for which
Taxes are not yet due and payable, the Corporation has only
incurred liabilities for Taxes in the Ordinary Course and in a
manner and at a level consistent with prior periods. Tax
returns, reports, elections, designations and any other
filings required to be filed for any period ending up to the
Closing Date will correctly be prepared and duly and timely
filed by Vendors.
(iv) STATUS OF ASSESSMENTS - All Tax returns of the Corporation
have been assessed through and including each of the dates set
forth in SCHEDULE 3.1(L)(IV) annexed hereto, and there are no
outstanding waivers of any limitation periods or agreements
providing for an extension of time for the filing of any Tax
Return or the payment of any Tax by the Corporation or any
outstanding objections to any assessment or reassessment of
Taxes. Any deficiencies proposed as a result of such
assessments or reassessments of the Tax returns through and
including the dates set forth in SCHEDULE 3.1(L)(IV) annexed
hereto have been paid and settled.
(v) WITHHOLDINGS -The Corporation has withheld from each payment
made to any of its past and present shareholders, directors,
officers, employees and agents the amount of all Taxes and
other deductions required to be withheld and has paid such
amounts when due, in the form required under the appropriate
legislation, or made adequate provision for the payment of
such amounts to the proper receiving authorities. The amount
of Tax withheld but not remitted by the Corporation will be
retained in their respective accounts and will be remitted by
them to the appropriate authorities when due.
(vi) COLLECTION AND REMITTANCE - The Corporation has collected from
each receipt from any of the past and present customers (or
other Persons paying amounts to the Corporation) the amount of
all Taxes (including goods and services tax and provincial
sales taxes) required to be collected and has paid and
remitted such Taxes when due, in the form required under the
appropriate legislation or made adequate provision for the
payment of such amounts to the proper receiving authorities.
The amount of Tax collected but not remitted by the
Corporation will be retained in their respective accounts and
remitted by them to the appropriate authorities when due.
(vii) ASSESSMENTS - The Corporation is not or to the knowledge of
Vendors will not be subject to any assessments, reassessment,
levies, penalties or interest with respect to Taxes which will
result in any liability on its part in respect of any period
ending on or prior to the Closing Date.
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(viii) JURISDICTIONS OF TAXATION - The Corporation has not been and
is not currently required to file any returns, reports,
elections, designations or other filings with any taxation
authority located in any jurisdiction outside Canada or
outside the province of Quebec.
(ix) RELATED PARTY TRANSACTIONS - The Corporation has not, or has
not been deemed to have for purposes of the ITA, acquired or
had the use of property for proceeds greater than the fair
market value thereof from, or disposed of property for
proceeds less than the fair market value thereof to, or
received or performed services for other than the fair market
value from or to, or paid or received interest or any other
amount other than at a fair market value rate to or from, any
Person, firm or corporation with whom it does not deal at
arm's length within the meaning of the ITA.
(x) FORGIVENESS OF DEBT - The Corporation has not at any time
benefited from a forgiveness of debt or entered into any
transaction or arrangement (including conversion of debt into
shares of their share capital) which could have resulted in
the application of Section 80 and following of the ITA.
(xi) TAX RETURNS - The Corporation has made available to Purchaser
or its legal counsel, copies of all foreign, federal, state,
provincial, municipal and local income and all state and local
sales and use Tax Returns for the Corporation filed for all
periods terminating after December 31, 1989.
(xii) DEDUCTIBILITY - As of the Closing, there will not be any
contract, plan or arrangement, including but not limited to
the provisions of this Agreement, covering any employee or
former employee of the Corporation that, individually or
collectively, could give rise to the payment of any amount
that would not be deductible by the Corporation as an expense
under applicable Law other than reimbursements of a reasonable
amount of entertainment expenses and other nondeductible
expenses that are commonly paid by similarly situated
businesses in reasonable amounts.
(xiii) TAX BASIS -The Corporation tax basis in its assets (and the
undepreciated capital cost of such assets) for purposes of
determining its future amortization, depreciation and other
Federal or Provincial income Tax deductions is accurately
reflected on the Corporation Tax Returns and records.
(m) PAID-UP CAPITAL - The paid-up capital for Tax purposes of each of the
Purchased Shares is no less than its stated capital for corporate
purposes.
(n) CORPORATE RECORDS. The Corporate Records are complete and accurate, and
contain copies of all of the articles, by-laws and resolutions passed
by the shareholders and directors of the Corporation since the date of
their incorporation.
(o) BOOKS AND RECORDS. All accounting and financial Books and Records have
been fully, properly and accurately kept and completed in all material
respects. The Books and Records and other data and information are not
recorded, stored, maintained, operated
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or otherwise wholly or partly dependent upon or held by any means
(including any electronic, mechanical or photographic process, whether
computerized or not) which are not available to the Corporation in the
Ordinary Course.
(p) FINANCIAL STATEMENTS. The Financial Statements have been prepared on a
basis consistent with those of previous fiscal years and each fairly,
accurately and completely discloses in all material respects (i) the
assets, liabilities and obligations (whether accrued, contingent,
absolute or otherwise), income, losses, retained earnings, reserves and
financial position of the Corporation (ii) the results of operations of
the Corporation and (iii) the changes in the financial position of the
Corporation all as at the dates and for the periods therein specified.
True, correct and complete copies of the Financial Statements are
attached as SCHEDULE 3.1(p).
(q) NO LIABILITIES. Except as reflected or reserved against in the balance
sheet forming part of the Financial Statements, the Corporation has no
liabilities or obligations of any nature (whether absolute, accrued,
contingent or otherwise).
3.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants as follows to Vendors and
acknowledges and confirms that Vendors are relying upon such representations and
warranties in connection with the acquisition by Purchaser of the Purchased
Shares:
(a) INCORPORATION AND QUALIFICATION. Purchaser is a corporation established
and existing under the laws of its jurisdiction of incorporation and
has the corporate power to own and operate its property, carry on its
business and enter into and perform its obligations under this
Agreement.
(b) VALIDITY OF AGREEMENT. The execution, delivery and performance by
Purchaser of this Agreement:
(i) have been duly authorized by all necessary corporate action on
the part of Purchaser;
(ii) do not (or would not with the giving of notice, the lapse of
time or the happening of any other event or condition) result
in a breach or a violation of, or conflict with, any of the
terms or provisions of the constating documents or by-laws of
Purchaser;
(iii) will not result in the violation of any law, except where such
violation would not have a material adverse effect on the
transactions contemplated by this Agreement.
(c) EXECUTION AND BINDING OBLIGATION. This Agreement has been duly executed
and delivered by, and constitutes a legal, valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with its
terms.
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ARTICLE 4
INDEMNIFICATION
4.1 VENDORS INDEMNIFICATION IN FAVOUR OF PURCHASER.
Subject to Section 4.3, Vendors shall solidarily (jointly and
severally) indemnify and save each of Purchaser and Corporation harmless of and
from any loss, liability, claim, damages of any kind or nature whatsoever or
expense (whether or not involving a third-party claim) including legal expenses
(collectively, "DAMAGES") suffered by, imposed upon or asserted against
Purchaser or Corporation as a result of, in respect of, connected with, or
arising out of, under, or pursuant to:
(i) any failure of Vendors to perform or fulfil any covenant of
Vendors under this Agreement;
(ii) any breach or inaccuracy of any representation or warranty
given by Vendors contained in this Agreement;
(iii) any liabilities or obligations of the Corporation for Taxes
due, together with any penalties or interest, in connection
with any period ending on or prior to the Closing Date;
(iv) any liabilities or obligations of the Corporation of any
nature whatsoever existing on or arising after the Closing
Date in respect of any fact, condition or circumstance
existing or occurring on or prior to the Closing Date, other
than liabilities or obligations reflected in or reserved
against in the Financial Statements;
4.2 PURCHASER INDEMNIFICATION IN FAVOUR OF VENDORS.
Subject to Section 4.3, Purchaser shall indemnify and save Vendors
harmless of and from any Damages suffered by, imposed upon or asserted against
Vendors as a result of, in respect of, connected with, or arising out of, under
or pursuant to:
(i) any failure of Purchaser to perform or fulfil any covenant of
Purchaser under this Agreement; and
(ii) any breach or inaccuracy of any representation or warranty
given by Purchaser contained in this Agreement.
4.3 TIME LIMITATIONS.
(a) The representations and warranties of Vendors contained in this
Agreement shall survive the Closing and, notwithstanding the Closing
and any investigation made by or on behalf of Purchaser, shall continue
for a period of three years after the Closing, except that:
(i) the representations and warranties set out in Sections 3.1(d)
(Execution and Binding Obligation), 3.1(a) (Title to Purchased
Shares), 3.1(i) (Title to Argo Steel
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Shares), 3.1(e) (Residence of Vendors), 3.1(f) (Incorporation
and Qualification), 3.1(g) (Authorized and Issued Capital),
and 3.1(k) (No Other Agreement to Purchase) shall survive the
Closing and continue in full force and effect without
limitation of time;
(ii) the representations and warranties set out in Sections 3.1(l)
(Tax Matters) and 3.1(m) (Paid-up Capital) shall survive for a
period of 30 days after the expiration of the statute of
limitations applicable to claims relating to such matters; and
(iii) a claim for any breach of any of the representations and
warranties of Vendors contained in this Agreement involving
fraud or fraudulent misrepresentation shall survive and
continue in full force and effect without limitation of time.
(b) The representations and warranties of Purchaser contained in this
Agreement shall survive the Closing and, notwithstanding the Closing
and any investigation made by or on behalf of Vendors, shall continue
for a period of three years after the Closing except that:
(i) the representations and warranties set out in Sections 3.2(a)
(Incorporation and Qualification) and 3.2(c) (Execution and
Binding Obligation) shall survive the Closing and continue in
full force and effect without limitation of time; and
(ii) a claim for any breach of any representations and warranties
of Purchaser contained in this Agreement involving fraud or
fraudulent misrepresentation shall survive and continue in
full force and effect without limitation of time.
(c) The obligations of indemnification set out in Sections, 4.1 and 4.2
shall survive the Closing, except for the obligation of indemnification
arising from any incorrectness in, or breach of, any representation or
warranty made by Vendors or Purchaser, as the case may be, which in
each case shall be subject to the limitations regarding survival of
representations and warranties set forth in Sections 4.3(a), or 4.3(b)
as the case may be.
4.4 INTEREST.
The amount of any Damages suffered or incurred by a party being
indemnified hereunder (the "INDEMNIFIED PARTY") shall accrue interest at a rate
per annum equal to the Prime Rate from the date it is determined that the
Indemnified Party incured any such Damages until payment in full by the Party
providing for indemnification hereunder (the "INDEMNIFYING PARTY").
4.5 NOTIFICATION.
Promptly upon obtaining knowledge thereof, the Indemnified Party shall
notify the Indemnifying Party of any cause which the Indemnified Party has
determined has given or could give rise to indemnification under this Article 4.
The omission so to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any duty to indemnify and hold harmless which otherwise
might exist with respect to such cause unless (and only to that
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extent) the omission to notify materially prejudices the ability of the
Indemnifying Party to exercise its right to defend provided in this Article 4.
4.6 SURVIVAL OF INDEMNIFICATION.
The obligations and indemnifications set forth herein shall survive the
Closing provided, however, that as a condition to the exercise of the right to
be indemnified under either Section 4.1(ii) or 4.2(ii) the Indemnified Party
shall have given written notice thereof to the Indemnifying Party within the
applicable period referred to in Section 4.3.
4.7 REMEDIES.
The provisions of this Article 4 and any other recourses specifically
referred to in this Agreement shall be the sole remedies of the Parties with
respect to the matters herein subject, however, to the right of any Party to
seek specific performance or any other extraordinary remedy in a court of
competent jurisdiction for breaches which give rise to such extraordinary
remedies.
ARTICLE 5
MISCELLANEOUS
5.1 NOTICES.
Any notice, direction or other communication given under this Agreement
shall be in writing and given by delivering it or sending it by facsimile or
other similar form of recorded communication addressed:
(a) to Purchaser at:
156499 Canada Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: D. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to Stikeman Elliott at:
▇▇▇▇, ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) to Vendors:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
1850, chemin Grand Lac noir, C. P. E7
▇▇▇▇▇▇▇▇, Quebec
J0T 1Y0
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
1850, chemin Grand Lac noir, C. P. E7
▇▇▇▇▇▇▇▇, Quebec
J0T 1Y0
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to ▇▇▇▇▇▇ & Associes at:
▇▇▇▇, ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ West
Suite 280
Montreal, Quebec
H3B 2S2
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Any such communication shall be deemed to have been validly and
effectively given (i) if personally delivered, on the date of such delivery if
such date is a Business Day and such delivery was made prior to 4:00 p.m.
(Montreal time) and otherwise on the next Business Day, or (ii) if transmitted
by facsimile or similar means of recorded communication on the Business Day
following the date of transmission. Any Party may change its address for service
from time to time by notice given in accordance with the foregoing and any
subsequent notice shall be sent to such Party at its changed address.
5.2 TIME OF THE ESSENCE.
Time shall be of the essence of this Agreement.
5.3 THIRD PARTY BENEFICIARIES.
The Parties intend that this Agreement shall not benefit or create any
right or cause of action in, or on behalf of, any Person other than the Parties
to this Agreement and no Person other than the Parties to this Agreement shall
be entitled to rely on the provisions of this Agreement in any action, suit,
proceeding, hearing or other forum.
5.4 AMENDMENTS.
This Agreement may only be amended, supplemented or otherwise modified
by written agreement signed by the Parties.
5.5 WAIVER.
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar), nor shall
such waiver be binding unless executed in writing by the Party to be bound by
the waiver. No failure on the part of the Parties to exercise, and no delay in
exercising any right under this Agreement shall operate as a waiver of such
right; nor shall any single or partial exercise of any such right preclude any
other or further exercise of such right or the exercise of any other right.
5.6 NON-MERGER; SURVIVAL.
Except as otherwise expressly provided in this Agreement, the
covenants, representations and warranties shall not merge on, and shall survive,
the Closing and, notwithstanding such Closing and 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 omitted under this Agreement or in respect of any right to
damages or other remedies.
5.7 EMPLOYMENT AGREEMENT AND NON-COMPETITION AGREEMENT.
Vendors and Purchaser acknowledge that the execution and delivery of
this Agreement is conditional upon the concurrent entering into of an employment
agreement between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Argo Steel and a non-competition agreement
between Vendors and Argo Steel.
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5.8 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the Parties
with respect to the transactions contemplated in this Agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written, of the Parties. There are no representations, warranties, covenants,
conditions or other agreements, express or implied, collateral, statutory or
otherwise, between the Parties in connection with the subject matter of this
Agreement except as specifically set forth herein and therein and neither
Purchaser nor Vendors have relied or are relying on any other information,
discussion or understanding in entering into and completing the transactions
contemplated in this Agreement.
5.9 SUCCESSORS AND ASSIGNS.
This Agreement shall become effective when executed by Purchaser and
Vendors and after that time shall be binding upon and enure to the benefit of
each of Purchaser and Vendors, and their respective successors and permitted
assigns. Vendors may not assign and transfer this Agreement nor any of its
rights and obligations under this Agreement without the prior written consent of
Purchaser.
5.10 SEVERABILITY.
If any provision of this Agreement shall be determined by any court of
competent jurisdiction to be illegal, invalid or unenforceable, that provision
shall be severed from this Agreement and the remaining provisions shall continue
in full force and effect.
5.11 GOVERNING LAW.
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Quebec.
5.12 LANGUAGE.
The Parties hereto confirm that it is their wish that this Agreement as
well as other documents relating hereto have been and shall be drawn up in
English only. LES PARTIES AUX PRESENTES CONFIRMENT LEUR VOLONTE QUE CETTE
CONVENTION DE MEME QUE TOUS LES DOCUMENTS S'Y RATTACHANT SOIENT REDIGES EN
ANGLAIS SEULEMENT.
5.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts (including
counterparts by facsimile) and all such counterparts taken together shall be
deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF the parties have executed this Share Purchase
Agreement on this 24th day of May 2002.
156499 CANADA INC.
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇
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President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
INTERVENTION
Argo Steel Ltd. hereby acknowledges having taken communication of the
present Agreement, agrees to be bound by Sections 2.4 and 2.8 of the Agreement
in so far as such sections apply to it, and represents and warrants that (i) it
has duly executed and delivered the present intervention, and (ii) the
obligations of Argo Steel Ltd. contained in Sections 2.4 and 2.8 are legal,
valid and binging obligations of Argo Steel Ltd., enforceable against it in
accordance with their terms.
SIGNED on this 24th day of May 2002.
ARGO STEEL LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
President