EXHIBIT 10.5
▇▇▇▇▇ CORPORATION LIMITED
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▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
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SHARE PURCHASE AGREEMENT
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September 30, 1995
TABLE OF CONTENTS
ARTICLE 1.
INTERPRETATION
1.1. Definitions.................................................. 1
1.2. Schedules.................................................... 5
1.3. Headings and Table of Contents............................... 5
1.4. Gender and Number............................................ 5
1.5. Currency..................................................... 6
1.6. Generally Accepted Accounting Principles..................... 6
1.7. Invalidity of Provisions..................................... 6
1.8. Entire Agreement............................................. 6
1.9. Waiver, Amendment............................................ 7
1.10. Governing Law................................................ 7
ARTICLE 2.
PURCHASE AND SALE
2.1. Agreement to Purchase and Sell and Purchase Price.............. 7
2.2. Payment of Purchase Price and Delivery of Share Certificates... 7
2.3. Deposit........................................................ 8
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
3.1. By The Vendor................................................ 8
3.1.1. Incorporation and Status of the Vendor....................... 8
3.1.2. Corporate Power of the Vendor and Due Authorization.......... 8
3.1.3. Incorporation and Status of the Corporation.................. 8
3.1.4. Corporate Power of the Corporation........................... 9
3.1.5. Capital of the Corporation................................... 9
3.1.6. No Subsidiaries.............................................. 9
3.1.7. No Other Agreements to Purchase.............................. 9
3.1.8. No Obligations to Issue Securities........................... 9
3.1.9. Title to, and Right to Sell, Purchased Shares................ 10
3.1.10. No Contravention............................................. 10
3.1.11. Liabilities and Guarantees................................... 10
3.1.12. Absence of Unusual Transactions and Events................... 11
3.1.13. Material Contracts........................................... 13
3.1.14. Software, Distributorship and Franchise Agreements....... 13
3.1.15. Employment Matters....................................... 13
3.1.16. Employees................................................ 14
3.1.17. No Default Under Agreements.............................. 14
3.1.18. Owned and Leased Property................................ 14
3.1.19. Title to Real Property................................... 15
3.1.20. Matters Relating to Real Property........................ 15
3.1.21. Title to Assets Other Than Real Property................. 17
3.1.22. Tax Matters.............................................. 17
3.1.23. Pension Plans............................................ 18
3.1.24. Insurance................................................ 18
3.1.25. Intellectual Property.................................... 18
3.1.26. Litigation and Other Proceedings......................... 19
3.1.27. Corporate Records........................................ 19
3.1.28. Books of Account......................................... 19
3.1.29. Bank Accounts, etc....................................... 20
3.1.30. Vendor Resident of Canada................................ 20
3.1.31. Environmental Issues..................................... 20
3.1.32. Compliance with Laws..................................... 20
3.1.33. Non-Arm's Length Transactions............................ 20
3.1.34. Correct and Complete Copies.............................. 20
3.1.35. Consents and Approvals................................... 21
3.1.36. Financial Statements..................................... 21
3.1.37. Termination of Contracts................................. 21
3.1.38. Full Disclosure.......................................... 22
3.2. By the Purchaser......................................... 22
3.2.1. Incorporation and Status of the Purchaser................ 22
3.2.2. Corporate Power of the Purchaser and Due Authorization... 22
3.2.3. Discussions with Franchises.............................. 22
3.2.4. Bank Financing........................................... 23
3.3. No Finder's Fees......................................... 23
3.4. Survival of Covenants, Representations and Warranties.... 23
ARTICLE 4.
CONDITIONS
4.1. Conditions for the Benefit of the Purchaser.............. 24
4.1.1. Accuracy of Representations of Vendor and
Compliance With Covenants................................ 24
4.1.2. Closing Documents and Proceedings........................ 24
4.1.3. Opinion of Vendor's Counsel.............................. 25
4.1.4. Bank Approvals........................................... 25
4.1.5. Other Consents and Approvals............................. 25
4.1.6. ▇▇▇▇▇▇ ▇▇▇▇▇ Employment Agreement........................ 25
4.1.7. Computerized Systems Software............................ 25
4.1.8. Environmental Conditions or Liabilities.................. 26
4.1.9. Transfer of Real Property................................ 26
4.1.10. No Action or Proceeding.................................. 26
4.2 Conditions for the Benefit of the Vendor................. 26
4.2.1. Accuracy of Representations of Purchaser and Compliance
With Covenants........................................... 27
4.2.2. Opinion of Purchaser's Counsel........................... 27
4.2.3. Guarantees............................................... 28
4.2.4. ▇▇▇▇▇▇ ▇▇▇▇▇ Employment Agreement........................ 28
4.2.5. No Action or Proceeding.................................. 28
ARTICLE 5.
ADDITIONAL AGREEMENTS OF THE PARTIES
5.1. Access to Information.................................... 29
5.2. Conduct of Business Until Time of Closing................ 29
5.3. Negative Covenant........................................ 30
5.4. Purchaser's Covenant..................................... 30
5.5. Corporate Action, Resignations and Releases.............. 31
5.6. Satisfaction of Conditions, Other Matters................ 31
5.7. Delivery of Books and Records............................ 32
5.8. Cooperation.............................................. 32
5.9. Repayment of Indebtedness................................ 32
5.10. Non-Competition.......................................... 32
5.11. Non-Solicitation......................................... 34
5.12. Termination of Franchise Agreements...................... 35
5.13. Environmental Matters.................................... 35
5.14. Reports Prior to Closing................................. 36
ARTICLE 6.
INDEMNIFICATION
6.1. Indemnification by the Vendor............................ 36
6.2. Notice of Claim.......................................... 38
6.3. Procedure for Indemnification............................ 38
6.3.1. Purchaser's Claims....................................... 38
6.3.2. Third Party Claims....................................... 39
6.4. Additional Rules and Procedures.......................... 40
6.5. Indemnification by the Purchaser......................... 41
ARTICLE 7.
CLOSING
7.1. Location and Time of the Closing......................... 42
7.2. Deliveries at the Closing................................ 42
ARTICLE 8.
GENERAL MATTERS
8.1. Confidentiality.......................................... 43
8.2. Expenses................................................. 43
8.3. Assignment............................................... 44
8.4. Notices.................................................. 44
8.5. Public Announcements..................................... 46
8.6. Reasonable Commercial Efforts............................ 46
8.7. Time of Essence.......................................... 47
8.8. Further Assurances....................................... 47
8.9. Counterparts............................................. 48
SHARE PURCHASE AGREEMENT
THIS AGREEMENT is made on the 30th day of September, 1995
BETWEEN:
▇▇▇▇▇ CORPORATION LIMITED, a corporation
incorporated under the laws of the Province of
Ontario, Canada
(the "Vendor")
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▇▇▇▇▇▇ ▇▇▇▇▇ CORP., a corporation incorporated
under the laws of the State of New York, United
States
(the "Purchaser")
RECITALS:
A. The Vendor wishes to sell all of the shares it owns in the capital of
the Corporation and the Purchaser, after inquiry, wishes to purchase
such shares, on and subject to the terms and conditions of this
Agreement;
NOW THEREFORE in consideration of the mutual covenants and
agreements contained in this Agreement and other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), the parties
hereto agree as follows:
ARTICLE 1.
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INTERPRETATION
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1.1. Definitions
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1.1.1. In this Agreement,
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"affiliate" has the meaning attributed to such term in the Business Corporations
Act (Ontario) as of the date hereof;
"Agreement" means this agreement and all schedules attached to this agreement,
in each case as they may be amended or supplemented from time to time, and the
expressions "hereof", "herein", "hereto", "hereunder", "hereby" and similar
expressions refer to this agreement; and unless otherwise indicated, references
to Articles and sections are to Articles and sections in this agreement;
"Business" means all businesses presently carried on by the Corporation;
"Business Day" means any day, other than Saturday, Sunday or any statutory
holiday in the Province of Ontario;
"Charge" means any security interest, lien, charge, pledge, encumbrance,
mortgage, adverse claim or title retention agreement of any nature or kind;
"Claim" has the meaning attributed to such term in section 6.2;
"Closing" means the completion of the sale and purchase of the Purchased Shares
pursuant to this Agreement at the Time of Closing;
"Closing Date" means October 26, 1995 provided that if the Closing shall not
occur on such date (i) the Closing shall be deferred to a later date agreed to
in writing by the parties; and (ii) failing the agreement in writing of the
parties, the closing date shall be October 31, 1995;
"Corporation" means Command Records Services Limited, a corporation incorporated
under the laws of Ontario;
"Financial Statements" means the balance sheet of the Corporation as at June 30,
1995 and December 31, 1994 and income statements for each of the six months
ended June 30,
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1995 and for the year ended December 31, 1994, including the notes thereto,
attached as Schedule A;
"Financial Statements Date" means June 30, 1995;
"Franchisees" has the meaning attributed to such term in section 3.2.3;
"Intellectual Property" means trade marks and trade ▇▇▇▇ applications, trade
names, certification marks, patents and patent applications, copyrights, know-
how, formulae, processes, inventions, technical expertise, research data, trade
secrets, industrial designs and the other similar property, whether registered
or unregistered;
"Leased Property" has the meaning attributed to such term in section 3.1.18;
"Leases" has the meaning attributed to such term in section 3.1.20.8;
"Person" means any individual, partnership, limited partnership, joint venture,
syndicate, sole proprietorship, company or corporation with or without share
capital, unincorporated association, trust, trustee, executor, administrator or
other legal personal representative, regulatory body or agency, government or
governmental agency, authority or entity however designated or constituted;
"Purchase Price" has the meaning attributed to such term in section 2.1;
"Purchased Shares" has the meaning attributed to such term in section 2.1;
"Purchaser's Claim" has the meaning attributed to such term in section 6.2;
"Purchaser's Counsel" means the firm of Cozen and ▇'▇▇▇▇▇▇ of Philadelphia,
Pennsylvania, or such other counsel as the Purchaser may appoint with respect to
this Agreement and the matters contemplated hereby;
"Real Property" has the meaning attributed to such term in section 3.1.18;
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"subsidiaries" has the meaning attributed to such term in the Business
Corporations Act (Ontario) as of the date hereof;
"Tax Reassessment Period" has the meaning attributed to such term in section
3.4;
"Third Party" has the meaning attributed to such term in section 6.4.3;
"Third Party Claim" has the meaning attributed to such term in section 6.2;
"Time of Closing" means 10:00 a.m., Toronto time, on the Closing Date or such
other time on the Closing Date as may be agreed upon in writing by the parties;
"Vendor's Counsel" means the firm of Tory ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ of
Toronto, Ontario, or such other counsel as the Vendor may appoint with respect
to this Agreement and the matters contemplated hereby.
1.1.2. In this Agreement, the phrase "to the knowledge of the Vendor" means to
the knowledge of:
1.1.2.1. any of the following officers of the Corporation: ▇▇▇▇▇▇ ▇▇▇▇▇,
President; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President, Operations; or ▇▇▇▇▇▇▇
D'Arcy, Treasurer and Controller; or
1.1.2.2. any of the following officers or employees of the Vendor:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice President and Chief Financial Officer;
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Jr., Vice President; ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President and
General Counsel; or ▇▇▇▇ ▇▇▇▇;
in each case, after appropriate inquiry.
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1.2. Schedules
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The following are the schedules attached to this Agreement:
Schedule A - Financial Statements(1.1)
Schedule B - Liabilities and Guarantees, etc.(3.1.11 and 4.2.3.1)
Schedule B1 - Vendor Guarantees of Leased Facilities(4.2.3.2)
Schedule C - Unusual Transactions(Restructuring)(3.1.12)
Schedule D - Material Contracts(including Leases)(3.1.13)
Schedule E - Software, Distributorship and Franchise
Agreements(3.1.14)
Schedule F - Employment Matters(3.1.15 and 3.1.23)
Schedule F1 - Form of Employment Agreement(4.1.6)
Schedule G - Employees(3.1.16)
Schedule H - Description of Real Property and Leased Property
(3.1.18)
Schedule H1 - Environmental Searches(4.1.8)
Schedule I - Charges(3.1.19.1 and 3.1.21)
Schedule J - Real Property Sold(3.1.20.9)
Schedule K - Insurance(3.1.24 and 3.1.34)
Schedule L - Intellectual Property(3.1.25)
Schedule M - Litigation(3.1.26)
Schedule N - Bank Accounts, etc.(3.1.29)
Schedule O - Non-Arm's Length Transactions(3.1.33)
Schedule P - Consents and Approvals(3.1.35)
Schedule Q - Arbitration Procedures(6.3.1)
1.3. Headings and Table of Contents
------------------------------
The inclusion of headings and a table of contents in this Agreement is
for convenience of reference only and shall not affect the construction or
interpretation hereof.
1.4. Gender and Number
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In this Agreement, unless the context otherwise requires, words
importing the singular include the plural and vice versa and words importing
gender include all genders.
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1.5. Currency
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Except where otherwise expressly provided, all amounts in this Agreement
are stated and shall be paid in Canadian currency.
1.6. Generally Accepted Accounting Principles
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In this Agreement, except to the extent otherwise expressly provided,
references to "generally accepted accounting principles" mean, for all
principles stated in the Handbook of the Canadian Institute of Chartered
Accountants, such principles so stated.
1.7. Invalidity of Provisions
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Each of the provisions contained in this Agreement is distinct and
severable and a declaration of invalidity or unenforceability of any such
provision or part thereof by a court of competent jurisdiction shall not affect
the validity or enforceability of any other provision thereof.
1.8. Entire Agreement
----------------
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof. There are no warranties, conditions, or
representations (including any that may be implied by statute) and there are no
agreements in connection with such subject matter except as specifically set
forth or referred to in this Agreement. No reliance is placed on any warranty,
representation, opinion, advice, or assertion of fact made by any party hereto
or its directors, officers, employees or agents, to any other party hereto or
its directors, officers, employees or agents, except to the extent that the same
has been reduced to writing and included as a term of this Agreement.
Accordingly, there shall be no liability, either in tort or in contract,
assessed in relation to any such warranty, representation, opinion, advice or
assertion of fact, except to the extent aforesaid.
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1.9. Waiver, Amendment
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Except as expressly provided in this Agreement, no amendment or waiver
of this Agreement shall be binding unless executed in writing by the party to
be bound thereby. No waiver of any provision of this Agreement shall constitute
a waiver of any other provision nor shall any waiver of any provision of this
Agreement constitute a continuing waiver unless otherwise expressly provided.
1.10. Governing Law
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This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
ARTICLE 2.
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PURCHASE AND SALE
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2.1. Agreement to Purchase and Sell and Purchase Price
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Subject to the terms of this Agreement, at the Closing the Vendor
shall sell and the Purchaser shall purchase 50,855 common shares in the capital
of the Corporation (the "Purchased Shares"), constituting all the issued and
outstanding common shares in the capital of the Corporation, for an aggregate
price of [text omitted as confidential and filed separately with the Securities
and Exchange Commission] (the "Purchase Price").
2.2. Payment of Purchase Price and Deliver of Share Certificates
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The Purchase Price shall be paid in full at the Closing by the
Purchaser by delivery of a negotiable cheque certified by a Canadian chartered
bank or Canadian trust company or an official bank draft drawn on a Canadian
chartered bank in the amount of the Purchase Price payable to or to the order of
the Vendor against delivery by the Vendor of share certificates representing the
Purchased Shares duly endorsed in blank for transfer or accompanied by duly
signed powers of attorney for transfer in blank.
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2.3. Deposit
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The Purchaser agrees to wire transfer on Monday, October 2, 1995
to the Vendor's Counsel, in trust, the amount of [text omitted as confidential
and filed separately with the Securities and Exchange Commission], as a deposit
to be held by the Vendor's Counsel in escrow pursuant to the terms of the escrow
agreement made as of the date hereof between the Purchaser, the Vendor and
Vendor's Counsel.
ARTICLE 3.
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REPRESENTATIONS AND WARRANTIES
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3.1. By The Vendor
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The Vendor represents and warrants to the Purchaser as follows
and acknowledges that the Purchaser is relying upon the following
representations and warranties in connection with its purchase of the Purchased
Shares:
3.1.1. Incorporation and Status of the Vendor. The Vendor is
--------------------------------------
duly incorporated and validly existing under the laws of its jurisdiction
of incorporation.
3.1.2. Corporate Power of the Vendor and Due Authorization. The
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Vendor has the corporate power and capacity to enter into, and to perform
its obligations under this Agreement. Each of this Agreement and the
agreements, contracts, and instruments required by this Agreement to be
delivered by the Vendor at the Closing has been duly authorized by the
Vendor. This Agreement has been duly executed and delivered by the Vendor
and is a valid and binding obligation of the Vendor, enforceable in
accordance with its terms, subject to the usual exceptions as to
bankruptcy and the availability of equitable remedies.
3.1.3. Incorporation and Status of the Corporation. The
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Corporation is duly incorporated and organized, and is validly existing
and up-to-date in the filing of all corporate and similar returns under
the laws of its jurisdiction of incorporation. The
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Corporation is duly registered, licensed or qualified as an extra-provincial or
foreign corporation, and is up-to-date in the filing of all corporate and
similar returns, under the laws of the Provinces of Ontario, British Columbia,
Alberta and Quebec, which are the only jurisdictions, in which the nature of the
Business or the assets owned or leased by it makes such registration, licensing
or qualification necessary other than the Province of Manitoba where the
Business carried on by the Corporation is not significant. The Vendor has
provided to the Purchaser a complete and correct copy of the articles and
by-laws of the Corporation, in each case as amended to the date hereof.
3.1.4. Corporate Power of the Corporation. The Corporation has the corporate
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power and capacity to own or lease its assets and to carry on the Business as
the same is presently conducted.
3.1.5. Capital of the Corporation. The issued and outstanding capital of the
--------------------------
Corporation consists of 50,855 common shares. All such shares have been validly
issued and are outstanding as fully paid and non-assessable shares, and are
owned by the Vendor.
3.1.6. No Subsidiaries. The Corporation has no subsidiaries.
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3.1.7. No Other Agreements to Purchase. The Vendor has not entered into or
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granted 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
Shares.
3.1.8. No Obligations to Issue Securities. There are no agreements, options,
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warrants, rights of conversion or other rights pursuant to which the Corporation
is, or may become, obligated to issue any shares or any securities convertible
or exchangeable, directly or indirectly, into any shares or other securities of
the Corporation.
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3.1.9. Title to, and Right to Sell Purchased Shares. The Vendor is the
---------------------------------------------
sole registered and beneficial owner of the Purchased Shares with good and
marketable title thereto, free of all Charges. There are no agreements or
restrictions which in any way limit or restrict the transfer to the Purchaser of
any of the Purchased Shares other than share transfer restrictions contained in
the Corporation's articles and there are no shareholders agreements, pooling
agreements, voting trusts or other agreements or understandings with respect to
the voting of the Purchased Shares or any of them.
3.1.10. No Contravention. Subject to obtaining any consents and approvals
----------------
referred to in Schedule P, neither the entering into of this Agreement, the sale
of the Purchased Shares nor the performance by the Vendor of any of its other
obligations under this Agreement will contravene, breach or result in any
default under (a) the articles, by-laws, constating documents or other
organizational documents of the Vendor or the Corporation, (b) any resolution of
the board of directors (or any committee thereof) or the shareholders of the
Vendor or the Corporation, (c) any mortgage, lease, agreement or other legally
binding instrument, license, permit, statute, regulation, order, judgment,
decree or law to which any of them is a party or by which any of them or any of
their properties may be bound.
3.1.11. Liabilities and Guarantees. The Corporation does not have
--------------------------
outstanding any debts, obligations or liabilities (contingent or otherwise), and
the Corporation is not a party to or bound by any agreement of guarantee,
support, indemnification, assumption, or endorsement of, or any other similar
commitment with respect to the debts, obligations or liabilities (contingent or
otherwise) of any Person, other than:
3.1.11.1. debts, obligations or liabilities in respect of trade or
business obligations incurred in the ordinary course of the Business,
consistent with past practice, none of which has been or is expected to be
materially adverse to the
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nature, results of operations, assets or financial condition of, or manner
of conducting, the Business; and
3.1.11.2. debts, obligations or liabilities to the extent reflected in the
Financial Statements or set out in Schedule B.
3.1.12. Absence of Unusual Transactions and Events. Except as set out in
------------------------------------------
Schedule C, the Corporation has not, since the Financial Statements Date:
3.1.12.1. paid or satisfied any obligation or liability, absolute or
contingent, other than current liabilities or obligations disclosed in the
Financial Statements and current liabilities or obligations incurred since
the Financial Statements Date in the ordinary course of the Business,
consistent with past practice;
3.1.12.2. sold or otherwise disposed of any fixed or capital assets having
a fair market value, in the case of any single sale or disposition, in
excess of $50,000 and, in the case of all sales and dispositions, in excess
of $100,000 in the aggregate;
3.1.12.3. made any capital expenditures, in the case of any single capital
expenditure, in excess of $50,000 and, in the case of all capital
expenditures, in excess of $100,000 in the aggregate; the Purchaser
acknowledges that the Corporation is currently negotiating a prospective
outsourcing contract with Banque Nationale du Canada and in connection with
such contract the Corporation may commit to make capital expenditures not
exceeding $538,000; the Vendor agrees to consult with the Purchaser prior
to the Corporation entering into such contract and/or committing to such
capital expenditures provided that if the Vendor and the Purchaser do not
otherwise agree, the Purchaser hereby consents to the Corporation entering
into such contract and making capital expenditures not exceeding $538,000
for such purpose;
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3.1.12.4. made any material change in the manner of its ▇▇▇▇▇▇▇▇, or the
credit terms made available by it, to any of its customers;
3.1.12.5. made or suffered any change or changes in its financial
condition, assets, liabilities or the Business which singly or in the
aggregate, have materially adversely affected or could materially adversely
affect its financial condition, assets, liabilities or the Business;
3.1.12.6. made any increase in the compensation or other benefits payable
or to become payable to its employees or any of them, other than general salary
increases in the ordinary course of the Business, consistent with past practice;
3.1.12.7. borrowed any monies other than for requirements in the ordinary
course of the Business under the Corporation's existing banking facilities;
3.1.12.8. knowingly waived or cancelled any right or claim of a material
value;
3.1.12.9. failed to use reasonable efforts to preserve its business
organization intact, to keep available the services of its employees and to
preserve its relationships with its customers and suppliers;
3.1.12.10. declared or paid any dividend or made any distribution, whether
in cash, stock or specie, in respect of any of its shares or repurchased,
redeemed or otherwise acquired any of its securities;
3.1.12.11. authorized or agreed or otherwise become committed to do any of
the foregoing; or
3.1.12.12. taken any other action outside of the ordinary course of the
Business.
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3.1.13. Material Contracts. The Corporation is not a party to or bound
------------------
by any contract, agreement or commitment except as follows:
3.1.13.1. the leases and agreements referred to or set forth in
Schedule D or in this Agreement; and
3.1.13.2. agreements requiring the payment of, or the incurring
of an obligation on the part of the Corporation for, an amount not
exceeding $100,000 in the aggregate.
3.1.14. Software, Distributorship and Franchise Agreements. Except as
--------------------------------------------------
set out in Schedule E, the Corporation has not:
3.1.14.1. sold, leased, licensed or otherwise provided any "active
file management" software to any Person, and has not conducted
negotiations with respect to any such future agreements or commitments;
or
3.1.14.2. entered into any distributorship or franchise
agreements, and has not conducted negotiations with respect to the
entering into of any such agreements.
The Corporation has not approved the entering into by Command Services Atlantic
Limited of any sub-franchise agreements for the establishment of record centres
in the provinces of New Brunswick, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island and/or Newfoundland with
any Person pursuant to the franchise agreement made June 10, 1980 between the
Corporation, Command Services Atlantic Limited and ▇▇▇▇ ▇. McD. ▇▇▇▇▇, and
Command Services Atlantic Limited is no longer permitted to enter into any such
agreements pursuant to such franchise agreement.
3.1.15. Employment Matters. Except as set out in Schedule F, the
------------------
Corporation is not a party to or is bound by any:
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3.1.15.1. written or, to the knowledge of the Vendor, oral, contract or
commitment for the employment of any employee, officer or agent (other
than casual employees hired through agencies); or
3.1.15.2. contract with or commitment to any trade union, council of
trade unions, employee bargaining agent or affiliated bargaining agent
(collectively called "labour representatives"); no labour
representatives hold bargaining rights with respect to any employees of
the Corporation; and no labour representatives have applied to have the
Corporation declared a related employer pursuant to the Labour Relations
Act(Ontario) or similar legislation, and to the knowledge of the Vendor
there are no current or threatened attempts to organize or establish any
trade union or employee association with respect to the Corporation.
There is no work stoppage or other concerted action, grievance or dispute
existing or, to the knowledge of the Vendor, threatened against the Corporation.
3.1.16. Employees. Schedule G contains a complete and accurate list of the
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names of all individuals who are full-time or part-time employees or individuals
engaged on contract to provide employment services (other than casual employees
hired through agencies) or sales or other agents or representatives of the
Corporation as of the date of this Agreement, specifying their length of hire,
title or position, birth date, hourly rate(if applicable), social insurance
number and annual salary.
3.1.17. No Default Under Agreements. The Corporation is not in default or
---------------------------
breach in any respect of any contract, agreement, lease or other instrument to
which it is a party or by which it may be bound.
3.1.18. Owned and Leased Property. Schedule H contains a complete legal and
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municipal description of all of the real property owned by the Corporation (the
"Real Property") and leased by the Corporation (the "Leased Property"). The
Corporation does
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not own or lease and has not agreed to acquire or lease any real property or
interest in real property other than the Real Property and the Leased Property.
3.1.19. Title to Real Property. The Corporation has the exclusive
----------------------
right to posssess, use and occupy, and has good and marketable title in fee
simple to all the Real Property, free and clear of all Charges except for:
3.1.19.1. the Charges set out in Schedule I;
3.1.19.2. liens for current taxes not yet due; and
3.1.19.3. minor title defects which do not, in the aggregate,
materially adversely affect the value of such real property or
materially impair or affect the use of such real property as it is
presently used by the Corporation in connection with the Business.
3.1.20. Matters Relating to Real Property.
---------------------------------
3.1.20.1. The Corporation has adequate rights of ingress and
egress in respect of the Real Property and Leased Property for the
operation of the Business in the ordinary course;
3.1.20.2. None of the buildings, structures, improvements or
appurtenances situated on the Real Property or the Leased Property, nor
the operation or maintenance thereof as currently operated and
maintained by the Corporation, violates any restrictive covenant which
runs with the Real Property or the Leased Property or any provision of
any federal, provincial or municipal law, ordinance, rule or regulation,
other than any such provision relating to environmental matters, and
none of the buildings, structures, improvements or appurtenances
situated on the Real Property encroaches on any property owned by
others;
-16-
3.1.20.3. the Real Property, the Leased Property, the current uses thereof
and the conduct of the Business on such property comply in all respects with all
regulations, statutes, enactments, laws and by-laws, including, without
limitation, those dealing with zoning, parking, access, loading facilities,
landscaping areas, building construction, fire and public health and safety
laws;
3.1.20.4. no alteration, repair, improvement, or other work has been
ordered, directed or requested in writing by any governmental authority or, in
respect of Leased Property, by applicable landlord, to be done or performed to
or in respect of the Real Property of the Leased Property, and to the knowledge
of the Vendor, no notification has been given to the Vendor or the Corporation
by any such person ordering, directing or requesting any such work, other than
those notifications which have been compiled with;
3.1.20.5. there is nothing owing in respect of the Real Property of the
Leased Property by the Corporation to any municipal corporation or to any other
corporation or commission owning or operating a public utility for water,
gas, electrical power or energy, steam or hot water, or for the use thereof, and
there are no outstanding levees, charges or fees assessed against the Real
Property or Leased Property by any public authority, other than current accounts
and assessments in respect of which the payment due date has not yet passed;
3.1.20.6. no part of the Real Property or the Leased Property has been
taken or expropriated by any federal, provincial, municipal or other competent
authority nor has any notice or proceeding in respect thereof been given to the
Vendor or the Corporation, or to the knowledge of the Vendor, commenced;
3.1.20.7. all of the Real Property and the Leased Property (including all
buildings, improvements and fixtures) is reasonably fit for its present use and
-17-
there are no material repairs or replacements which are necessary to
such property;
3.1.20.8. the Corporation is not a party to any lease or agreement in
the nature of a lease in respect of any real property, whether as lessor
or lessee, other than the leases (the "Leases") described in Schedule D
relating to the Leased Property. Except as described in Schedule D, the
Corporation occupies the Leased Property and has the exclusive right to
occupy and use the Leased Property. Each of the Leases is in good
standing and in full force and effect without amendment thereto, and
neither the Corporation nor, to the knowledge of the Vendor, any other
party thereto is in breach of any covenants, conditions or obligations
contained therein; and
3.1.20.9. except as disclosed in Schedule J, since December 31, 1987,
the Corporation has not sold, assigned or otherwise disposed of any real
property owned by it.
3.1.21. Title to Assets Other Than Real Property. The Corporation is the
----------------------------------------
absolute beneficial owner of, and has good and marketable title, free of all
Charges, to all of its properties and assets (other than the Real Property)
except for the Charges referred to in Schedule I.
3.1.22. Tax Matters. The Corporation has filed all tax returns required to be
-----------
filed by it in all applicable jurisdictions and has paid all taxes, levies,
assessments, reassessments, penalties, interest and fines due and payable by it.
Assessments have been issued to the Corporation covering all past periods up to
and including (a) the fiscal year ended December 31, 1993 in respect of Canadian
federal and Ontario provincial income tax, (b) the fiscal year ended December
31, 1994 in respect of Alberta provincial income tax, and (c) the fiscal year
ended December 31, 1992 in respect of British Columbia provincial capital tax,
and such assessments, if any amounts were owing in respect
-18-
thereof, have been paid. Assessment for all other applicable federal and
provincial taxes and levies have been issued and any amounts owing thereunder
have been paid. The Corporation has withheld or collected and remitted all
amounts required to be withheld or collected and remitted by it in respect of
any taxes, government charges or assessments. Correct and complete copies of
all federal and provincial income tax returns, including schedules thereto,
filed by the Corporation since December 31, 1991, all federal goods and services
tax returns filed by the Corporation since December 31, 1993 (other than for the
month ended October 31, 1994), and all written communications relating thereto
have been provided to the Purchaser.
3.1.23. Pension Plans. The only pension plans (the "plans") provided by the
-------------
Corporation or to employees of the Corporation, and the only bonus, profit
sharing, deferred compensation, retirement, hospitalization, disability,
insurance, benefit or similar plan, practice or agreement, formal or informal,
with respect to any of its employees, former employees or others, other than the
Canada Pension Plan, to which the Corporation is a party or is bound, are those
set out in Schedule F. The Corporation has not received, or applied for, any
payment of surplus from any of the pension plans of the Corporation.
3.1.24. Insurance. All physical assets of the Corporation are covered until
---------
the Closing Date by fire and other insurance with responsible insurers against
such risks and in such amounts as are reasonable for prudent owners of
comparable assets, the particulars of which are set out in Schedule K. Upon
Closing, the existing insurance will lapse, and the Purchaser will be
responsible for arranging replacement coverage.
3.1.25. Intellectual Property. Schedule L is a list of all Intellectual
---------------------
Property which is comprised of all of the trade marks and trade ▇▇▇▇
applications, trade names, certification marks, patents and patent applications,
copyrights and industrial designs which is owned by the Corporation or used by
the Corporation in the Business (other than
- 19 -
the Vendor's name or any variation thereof) and the offices (if any) in which
the same is registered. The Corporation is the sole owner of the Intellectual
Property listed on Schedule L and has the sole and exclusive right to use the
Intellectual Property, except as noted on Schedule L. To the knowledge of the
Vendor, the conduct of the Business does not infringe the Intellectual Property
of any Person, and neither the Vendor nor the Corporation is aware of any claim,
existing or threatened, by any Person regarding the Intellectual Property listed
on Schedule L.
3.1.26. Litigation and Other Proceedings.
--------------------------------
3.1.26.1. There is no litigation in progress or, to the knowledge
of the Vendor, threatened which affects the Vendor's ability to
consummate the transactions contemplated by this Agreement.
3.1.26.2. Except as set out in Schedule M, there is no court,
administrative, regulatory or similar proceeding (whether civil, quasi-
criminal or criminal); arbitration or other dispute settlement
procedure; investigation or inquiry by any governmental, administrative,
regulatory or similar body; or any similar matter or proceeding; in
progress or involving the Corporation or, to the knowledge of the
Vendor, threatened against the Corporation.
3.1.27. Corporate Records. The corporate records and minute books of
-----------------
the Corporation contain complete and accurate minutes of all meetings of
directors and committees thereof and shareholders held since its date of
incorporation. The share certificate books, register of shareholders, register
of transfers and register of directors of the Corporation are complete and
accurate.
3.1.28. Books of Account. The books and records of the Corporation
----------------
fairly present and disclose the financial position of the Corporation as at the
relevant dates and
-20-
all material financial transactions of the Corporation have been accurately
recorded in such books and records.
3.1.29. Bank Accounts, etc. Schedule N is a complete and correct list
-------------------
(including addresses and account numbers) of each bank, trust company or similar
institution in which the Corporation has an account or safety deposit box.
3.1.30. Vendor Resident of Canada. The Vendor is not a non-resident of
-------------------------
Canada under the Income Tax Act (Canada).
3.1.31. Environmental Issues. There are no orders or directions of which
--------------------
the Vendor or the Corporation has received notice relating to environmental
matters requiring any work, repairs, construction or capital expenditures with
respect to the Business or any of the real property owned or leased by the
Corporation.
3.1.32. Compliance with Laws. The Corporation is, and is conducting the
--------------------
Business, in compliance in all respects with all applicable laws of each
jurisdiction in which the Business is carried on.
3.1.33. Non-Arm's Length Transactions. Except as disclosed in Schedule
-----------------------------
O or Schedule F, the Corporation is not a party to any written contract or
agreement and, to the knowledge of the Vendor, the Corporation is not a party to
any oral contract or agreement, with any officer, director, employee,
shareholder or any Person not dealing at arm's length with the Corporation
(within the meaning the Income Tax Act (Canada)) or any affiliate of any of the
foregoing.
3.1.34. Correct and Complete Copies. Correct and complete copies have
---------------------------
been provided to the Purchaser of:
3.1.34.1. all leases and agreements (other than sales contracts)
referred to in Schedules D, E and F, including all amendments thereto;
-21-
3.1.34.2. the deferred profit sharing plan and all pension plans
referred to in Schedule F; and
3.1.34.3. all insurance policies referred to in Schedule K.
3.1.35. Consents and Approvals. There is no requirement to make any
----------------------
filing with, give any notice to or obtain any licence, permit, certificate,
registration, authorization, consent or approval of, any governmental or
regulatory authority as a condition to the lawful consummation of the
transactions contemplated by this Agreement, except for the filings,
notifications, licences, permits, certificates, registrations, consents and
approvals which relate solely to the identity of the Purchaser or the nature of
any business carried on by the Purchaser. There is no requirement under any
agreement, instrument or commitment relating to the Business or the Corporation
to which the Vendor or the corporation is a party or by which either of them is
bound to give any notice to, or to obtain the consent or approval of, any party
to such agreement, instrument or commitment relating to the consummation of the
transactions contemplated by this Agreement, except for the notifications,
consents and approvals described in Schedule P.
3.1.36. Financial Statements. The Financial Statements have been
--------------------
prepared in accordance with generally accepted accounting principles in Canada
applied on a basis consistent with prior periods and present fairly the assets,
liabilities (whether accrued, absolute, contingent, or otherwise) and financial
condition of the Corporation as at the respective dates of the Financial
Statements and the sales, earnings and results of operations of the Corporation
for the respective periods covered by the Financial Statements.
3.1.37. Termination of Contracts. To the knowledge of the Vendor, no
------------------------
customer which is a party to any sales contract referred to in Schedule D
intends to terminate such contract, and the Vendor does not currently
contemplate the termination of any of the
-22-
agreements or arrangements between the Vendor and the Corporation
referred to in Schedule O.
3.1.38. Full Disclosure. Neither the Vendor or the Corporation
---------------
has any information or knowledge of any facts relating to the Business
which have not been disclosed to the Purchaser and which would reasonably
be expected to be material to a purchaser of the Purchased Shares.
3.2. By the Purchaser
----------------
The Purchaser represents and warrants to the Vendor as follows
and acknowledges that the Vendor is relying upon the following representations
and warranties in connection with its sale of the Purchased Shares:
3.2.1. Incorporation and Status of the Purchaser. The Purchaser
-----------------------------------------
is duly incorporated and validly existing under the laws of its
jurisdiction of incorporation.
3.2.2. Corporate Power of the Purchaser and Due Authorization.
------------------------------------------------------
The Purchaser has the corporate power and capacity to enter into, and to
perform its obligations under, this Agreement. Each of this Agreement and the
agreements, contracts and instruments required by this Agreement to be delivered
by the Purchaser at Closing has been duly authorized by the Purchaser. This
Agreement has been duly executed and delivered by the Purchaser and is a valid
and binding obligation of the Purchaser enforceable in accordance with its
terms, subject to the usual exceptions as to bankruptcy and the availability of
equitable remedies.
3.2.3. Discussions with Franchisees. The Purchaser has had
----------------------------
preliminary discussions with the franchisees which are parties to the two
franchise agreements referred to in Schedule E (the "Franchisees") and,
on the basis of those preliminary discussions believes that it will be
able prior to or at Closing to negotiate obtaining a confirmation which
will satisfy the condition set forth in section 4.1.7.
- 23 -
3.2.4. Bank Financing. The Purchaser has had discussions with
--------------
its bankers with respect to this Agreement and is confident that
it will be able to satisfy prior to or at Closing the condition
set forth in section 4.1.4.
3.3. No Finder's Fees
----------------
Each of the parties represents and warrants to the other that neither
such party nor its affiliates has taken, and agrees that neither will take, any
action that would cause the other party to become liable to any claim or demand
for a brokerage commission, finder's fee or other similar payment.
3.4. Survival of Covenants, Representations and Warranties
-----------------------------------------------------
To the extent that they have not been fully performed at or prior the
Time of Closing, the representations and warranties contained in this Agreement
and in all certificates and documents delivered pursuant to or contemplated by
this Agreement shall survive the Closing and shall continue for two years
provided, however, that the representations and warranties set out in section
3.1.22 shall terminate at the expiration of the Tax Reassessment Period.
For the purposes of this Agreement, "Tax Reassessment Period" means the
period ending on the ninetieth day following the last date on which an
assessment, reassessment or other document assessing liability for tax, interest
or penalties may be issued to the Corporation in respect of any taxation year
ended prior to the date hereof pursuant to any applicable tax legislation.
-24-
ARTICLE 4.
----------
CONDITIONS
----------
4.1. Conditions for the Benefit of the Purchaser
-------------------------------------------
The obligation of the Purchaser to complete the purchase of the Purchased
Shares pursuant to this Agreement is subject to the satisfaction of, or
compliance with, at or prior to the Time of Closing, each of the following
conditions (each of which is acknowledged to be for the exclusive benefit of the
Purchaser):
4.1.1. Accuracy of Representations of Vendor and Compliance With
---------------------------------------------------------
Covenants. The representations and warranties of the Vendor made in or
---------
pursuant to this Agreement shall be true and correct in all material
respects at the Time of Closing with the same force and effect as if made
at and as of the Time of Closing; the covenants contained in this
Agreement to be performed by the Vendor at or prior to the Time of Closing
shall have been performed in all material respects; the Vendor shall not
be in breach of any material agreement on its part contained in this
Agreement; and the Purchaser shall have received a certificate confirming
the foregoing, signed for and on behalf of the Vendor by senior officers
or directors of the Vendor or other persons acceptable to the Purchaser,
in form and substance satisfactory to the Purchaser and the Purchaser's
Counsel.
4.1.2. Closing Documents and Proceedings. All documents relating to the
---------------------------------
authorization and completion of the transaction contemplated by this Agreement
and all actions and proceedings taken at or prior to the Time of Closing in
connection with the performance by the Vendor of its obligations under this
Agreement shall be satisfactory to the Purchaser and to the Purchaser's Counsel,
acting reasonably, and the Purchaser shall have received copies of all such
documents and evidence that all such actions and proceedings have been taken as
it may reasonably request, in form and substance reasonably satisfactory to the
Purchaser and the Purchaser's Counsel.
-25-
4.1.3. Opinion of Vendor's Counsel. The Purchaser shall have received
---------------------------
an opinion of Vendor's Counsel in form and substance satisfactory to the
Purchaser's Counsel, acting reasonably, substantially to the same effect as the
representations and warranties of the Vendor in sections 3.1.1, 3.1.2,
3.1.3, 3.1.4, 3.1.5, 3.1.9, 3.1.10 and 3.1.19 and as to such other matters
incidental to the matters herein contemplated as the Purchaser and the
Purchaser's Counsel may reasonably request. In rendering such opinion, the
Vendor's Counsel shall be entitled to rely, as to matters of fact, on
certificates of senior officers of the Vendor or the corporation and shall be
entitled to qualify, by reference to his knowledge after appropriate enquiry,
those portions of the opinion which it is reasonable and customary to so
qualify.
4.1.4. Bank Approvals. The Purchaser shall have received approval and
--------------
funding from the Purchaser's banks with respect to the completion of the
purchase of the Purchased Shares.
4.1.5. Other Consents and Approvals. The Vendor shall have delivered
----------------------------
to the Purchaser, in form and substance satisfactory to the Purchaser and the
Purchaser's Counsel, acting reasonably, the consents and approvals referred to
in Schedule P.
4.1.6. ▇▇▇▇▇▇ ▇▇▇▇▇ Employment Agreement. The Corporation and ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ shall have entered into an employment agreement substantially in the form
of the draft employment agreement set forth in Schedule F1.
4.1.7. Computerized Systems Software. The Purchaser shall have
-----------------------------
received confirmation from the Franchisees that the Corporation is not required
to furnish to the Franchisees or permit them to use any computerized systems
software other than that previously furnished to or used by the Franchisees, and
that the Corporation shall have no obligation to further modify or enhance the
computerized systems software previously furnished to or used by the
Franchisees, which confirmation shall be in form and substance satisfactory to
the Purchaser, acting reasonably, it being understood that such
-26-
confirmation is proposed to be obtained as part of the negotiations
between the Corporation, the Purchaser and the Franchisees for the
termination of the franchise agreements referred to in Schedule E as
contemplated in section 5.12.
4.1.8. Environmental Conditions or Liabilities. The tests and enquiries
---------------------------------------
referred to in section 5.13 and the searches referred to in Schedule H1
shall not have disclosed any environmental conditions or liabilities
which, in the aggregate, would reasonably be expected to cost $1,000,000
or more to correct or remediate, provided that the absence of such
conditions or liabilities shall not be a condition of Closing if the
Vendor corrects or remediates such conditions or liabilities or provides
to the Purchaser an indemnity in respect thereof on terms and conditions
satisfactory to the Purchaser, acting reasonably.
4.1.9 Transfer of Real Property. The Vendor shall have transferred to
-------------------------
the Corporation at or prior to the Time of Closing legal title to the real
property (the "Brampton Property") municipally known as ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and more particularly described in Schedule H,
which real property is Real Property for all purposes of this Agreement.
4.1.10. No Action or Proceeding. No legal or regulatory action or
-----------------------
proceeding shall be pending or threatened by any Person to enjoin,
restrict or prohibit the purchase and sale of the Purchased Shares
hereunder.
If any of the conditions contained in this section 4.1 shall not be
fulfilled or performed at or prior to the Time of Closing to the satisfaction of
the Purchaser (acting reasonably), the Purchaser may, by notice to the Vendor,
terminate this Agreement and the obligations of the Vendor and the Purchaser
under this Agreement other than the obligations contained in sections 3.3, 8.1
and 8.2. The Purchaser may also bring an action against the Vendor for damages
suffered by the Purchaser where the non-performance or non-fulfilment of a
condition is as a result of a breach of covenant, representation or warranty by
the Vendor which
- 27 -
is in the Vendor's control. Any condition may be waived in whole or in part by
the Purchaser without prejudice to any claims it may have for breach of
covenant, representation or warranty.
4.2. Conditions for the Benefit of the Vendor
----------------------------------------
The obligation of the Vendor to complete the sale of the Purchased
Shares hereunder is subject to the satisfaction of or compliance with, at or
prior to the Time of Closing, each of the following conditions (each of which is
acknowledged to be for the exclusive benefit of the Vendor):
4.2.1. Accuracy of Representations of Purchaser and Compliance
-------------------------------------------------------
With Covenants. The representations and warranties of the Purchaser made in or
--------------
pursuant to this Agreement (other than the representations and warranties in
sections 3.2.3 and 3.2.4) shall be true and correct in all material respects at
the Time of Closing with the same force and effect as if made at and as of the
Time of Closing; the covenants contained in this Agreement to be performed by
the Purchaser at or prior to the Time of Closing shall have been performed in
all material respects; the Purchaser shall not be in breach of any material
agreement on its part contained in this Agreement; and the Vendor shall have
received a certificate confirming the foregoing, signed for and on behalf of the
Purchaser by senior officers or directors of the Purchaser or other persons
acceptable to the Vendor, in form and substance satisfactory to the Vendor and
the Vendor's Counsel.
4.2.2. Opinion of Purchaser's Counsel. The Vendor shall have received an
------------------------------
opinion of the Purchaser's Counsel substantially to the same effect as the
representations and warranties of the Purchaser in sections 3.2.1 and 3.2.2. In
rendering such opinion, Purchaser's Counsel shall be entitled to rely, as to
matters of fact, on certificates of senior officers of the Purchaser and shall
be entitled to qualify, by reference to his knowledge after appropriate enquiry,
those portions of the opinion which it is reasonable and customary to so
qualify.
-28-
4.2.3. Guarantees.
----------
4.2.3.1. The Purchaser shall have arranged to the satisfaction of the
Vendor to replace all guarantees and similar commitments of the Vendor in
favour of The Bank of Nova Scotia listed in Schedule B.
4.2.3.2. The Purchaser shall have used all reasonable commercial efforts
to arrange to the satisfaction of the Vendor to replace all other guarantees
listed in Schedule B1, and the Vendor shall have received from the Purchaser
an indemnity in form and substance satisfactory to the Vendor, acting
reasonably, in respect of any such guarantee for which no replacement shall
have been arranged.
4.2.4. ▇▇▇▇▇▇ ▇▇▇▇▇ Employment Agreement. The Vendor shall have entered into
---------------------------------
an agreement with ▇▇▇▇▇▇ ▇▇▇▇▇ on terms and conditions satisfactory to the
Vendor, acting reasonably, terminating ▇▇. ▇▇▇▇▇'▇ employment with the Vendor
and releasing the Vendor and the Corporation from any liability thereunder or in
respect thereof (other than as contemplated below or in the employment contract
referred to in section 4.1.6); it being understood that in negotiating such
termination, the Vendor is prepared to pay all compensation and other incentive
payments to which ▇▇. ▇▇▇▇▇ is otherwise entitled under his existing employment
contract with the Vendor to the date of termination (other than severance
payments payable upon termination of ▇▇. ▇▇▇▇▇'▇ employment) and to treat ▇▇.
▇▇▇▇▇ for purposes of entitlement under the Vendor's pension plan as an employee
of the Vendor until December 31, 1995.
4.2.5. No Action or Proceeding. No legal or regulatory action or proceeding
-----------------------
shall be pending or threatened by any Person to enjoin, restrict or prohibit the
purchase and sale of the Purchased Shares hereunder.
If any of the conditions contained in this section 4.2 shall not be
fulfilled or performed at or prior to the Time of Closing to the satisfaction of
the Vendor (acting reasonably),
-29-
the Vendor may, by notice to the Purchaser, terminate this Agreement and the
obligations of the Vendor and the Purchaser under this Agreement other than the
obligations contained in sections 3.3, 8.1 and 8.2. The Vendor may also bring
an action against the Purchaser for damages suffered by the Vendor where the
non-performance or non-fulfillment of a condition is as a result of a breach of
covenant, representation or warranty by the Purchaser which is in the
Purchaser's control. Any condition may waived in whole or in part by the
Vendor without prejudice to any claims it may have for breach of covenant
representation or warranty.
ARTICLE 5
---------
ADDITIONAL AGREEMENTS OF THE PARTIES
------------------------------------
5.1. Access to Information
---------------------
The Vendor shall cause the Corporation to give, until the Time of
Closing, to the Purchaser and its accountants, legal advisers and
representatives during normal business hours full access to its premises,
accounts, tax returns, contracts, commitments and records.
5.2. Conduct of Business Until Time of Closing
-----------------------------------------
Except as expressly provided in this Agreement or except with the
prior written consent of the Purchaser, prior to the Time of Closing the Vendor
shall cause the Corporation to:
5.2.1. operate the Business in the ordinary course, consistent with
past practice;
5.2.2. maintain its books, records and accounts in the ordinary
course on a basis consistent with past practice; and
5.2.3. do or refrain from doing all acts and things in order to ensure
that the representations and warranties in section 3.1 remain true and
correct at the Time of Closing.
-30-
5.3. Negative Covenant
-----------------
Except as expressly provided in this Agreement or except with
the prior written consent of the Purchaser, prior to the Time of Closing the
Vendor shall ensure that the Corporation does not:
5.3.1. amend its articles, by-laws, constating documents or
other organizational documents;
5.3.2. amalgamate, merge or consolidate with, or acquire all or
substantially all the shares or assets of, any Person;
5.3.3. transfer, lease, license, sell or otherwise dispose of
any of its assets, other than inventory in the ordinary course of the
Business, consistent with past practice;
5.3.4. do any act or thing of the kind described in sections
3.1.12 or 3.1.13 or enter into any contract, agreement or commitment of
the kind described in sections 3.1.12, 3.1.13, 3.1.14 or 3.1.15;
5.3.5. reveal any confidential Intellectual Property of the
Corporation to any Person other than the Purchaser or its agents; or
5.3.6. fail to keep the premises occupied by the Corporation
and the physical assets of the Corporation in good operating condition
and in a state of good maintenance and repair having regard to the use
to which the assets are put and the age thereof.
5.4. Purchaser's Covenant
--------------------
Except as otherwise expressly provided in this Agreement or
except with the prior written consent of the Vendor, prior to the Time of
Closing the Purchaser (a) shall do or refrain from doing all acts and things in
order to ensure that the representations and warranties in sections 3.2.1. and
3.2.2. remain true and correct at the Time of Closing as if such representations
- 31 -
and warranties were made at and as of such date and (b) shall use all reasonable
commercial efforts to satisfy or cause to be satisfied the conditions in
sections 4.1. and 4.2. If, notwithstanding such efforts, the Purchaser is unable
to satisfy such conditions, the Purchaser shall not be liable to the Vendor for
any breach of covenant, provided that nothing contained herein shall affect any
condition precedent to the Vendor's obligation to complete the transaction
contemplated hereby referred to in section 4.2. or any obligation of the
Purchaser to indemnify the Vendor pursuant to section 6.5.
5.5. Corporate Action, Resignations and Releases
-------------------------------------------
At or prior to the Time of Closing, the Vendor shall cause all necessary
corporate action to be taken for the purpose of approving the transfer of the
Purchased Shares to the Purchaser. At or prior to such time, the Vendor shall
also obtain the resignations of all the directors of the Corporation. If
requested by the Purchaser, the Vendor shall cause nominees of the Purchaser to
be elected or appointed directors of the Corporation to fill any vacancies.
5.6. Satisfaction of Conditions, Other Matters
-----------------------------------------
The Vendor shall use all reasonable commercial efforts to (a) satisfy or
cause to be satisfied the conditions in sections 4.1 and 4.2, (b) deliver, at
or prior to the Time of Closing, the consents and approvals referred to in
Schedule P, and (c) obtain and register against the applicable Real Property
discharges of the Charges referred to in paragraphs 33, 34 and 35 of Schedule I.
If, notwithstanding such efforts, the Vendor is unable to satisfy such
conditions, deliver any of such consents and approvals or obtain and register
any such discharges, the Vendor shall not be liable to the Purchaser for any
breach of covenant, provided that nothing contained herein shall affect any
condition precedent to the Purchaser's obligation to complete the transaction
contemplated hereby referred to in section 4.1 or any obligation of the Vendor
to indemnify the Purchaser pursuant to section 6.1. If the Purchaser completes
the transaction contemplated hereby on the Closing Date notwithstanding that any
consents, approvals or discharges have not been obtained, the Vendor shall
continue after the Closing to use reasonable
-32-
commercial efforts as requested by the Purchaser from time to time in order to
attempt to obtain any such consent, approval or discharge.
5.7. Delivery of Books and Records
-----------------------------
The Vendor shall deliver or cause to be delivered to the Purchaser, at
the Time of Closing, all of the books and records of and relating to the
Corporation and the Business subject to the right of the Vendor to retain copies
of extracts of such books or records to the extent necessary to maintain its own
books and records or as required by law.
5.8. Cooperation
-----------
The parities shall cooperate fully in good faith with each other and
their respective legal advisers, accountants and other representatives in
connection with any steps required to be taken as part of their respective
obligations under this Agreement.
5.9. Repayment of Indebtedness
-------------------------
At the Time of Closing, the Purchaser shall pay to the Vendor the
outstanding amounts owing by the Corporation to the Vendor (not exceeding
$4,000,000). The Purchaser will also satisfy in full any amounts outstanding
under the bank facilities of the Corporation with the Bank of Nova Scotia (to a
maximum amount of $2.7 million) which have been guaranteed in whole or in part
by the Vendor.
5.10. Non-Competition
---------------
Neither the Vendor nor its affiliates shall (without the prior written
consent of the Corporation and the Purchaser), for a period of 3 years from the
Closing Date, directly or indirectly, in any manner whatsoever including,
without limitation, either individually, in partnership, jointly or in
conjunction with any other Person, or as principal, agent or shareholder:
5.10.1. carry on or be engaged in any business;
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5.10.2. permit its name or any part thereof to be used or
employed by any Person carrying on or engaged in any business; or
5.10.3. have any material financial or other interest (including
an interest by way of loan or guarantee of debts and obligations or
royalty or other compensation arrangements) in or in respect of the
business of any Person which carries on or is engaged in any business:
in Canada which is the same as or substantially similar to or which competes
with the Business provided, however, that nothing in this section shall prevent
the Vendor from owning not more than 10% of the issued shares of the Corporation
or of a corporation, the shares of which are listed on a recognized stock
exchange or traded in the over the counter market in Canada, which; carries
on a business which is the same as or substantially similar to or which competes
with the Business.
For the purposes of this section 5.10 (and notwithstanding
section 1.1.1.), "Business" means the following businesses as presently carried
on by the Corporation in Canada:
(a) the storage of hard copy records and, in connection with such
storage, related management, retrieval, delocation and security
shredding services;
(b) the storage of magnetic media records and, in connection with
such storage, related bar-code driven retrieval services,
including on-line retrieval and refile services, and an "Orange
Card" disaster recovery premium service;
(c) the conversion for storage purposes of hard copy records into
microfilm; and
(d) in connection with the business referred to in paragraph (a),
(b) or (c), the sale of records storage cartons, disk tape,
cartridge carriers, mobile/fixed shelving systems and CasTraC,
SlotTraC, DRTraC, Info-Sort and FileTraC interface software
developed by the Corporation.
-34-
5.11. Non-Solicitation
----------------
5.11.1. Neither the Vendor nor any of its affiliates will (without
the prior written consent of the Corporation and the Purchaser) at any time
during the period from the Closing Date until two years from the Closing Date:
5.11.1.1. contact any Person who is a customer or client of the
Corporation, the Purchaser or their affiliates for the purpose of
soliciting such customer or client to cease to do any Business (as
such term is defined in section 5.10) with the Corporation or the
Purchaser; or
5.11.1.2. initiate contact with any employee or officer of the
Corporation, the Purchaser or their affiliates for the purpose of
offering him or her employment with any Person other than the
Corporation, the Purchaser or their affiliates provided the foregoing
shall not prevent the Vendor or any of its affiliates from contacting
or hiring any such employee or officer in response to an initial
contact from such employee or officer; or
5.11.1.3. except as may be required by law or in connection with any
reasonably necessary corporate or governmental filing or in connection
with any dispute under this Agreement, disclose any confidential
information relating to the Corporation or the Business (other than
information which is generally available to the public) to any Person
or use the same for any purpose other than those of the Corporation
or the Purchaser.
5.11.2. The Vendor agrees not to solicit Bank of Montreal or Canada Trust
with respect to the "Stock Select Service" fulfilment services currently
rendered to them by the Corporation provided, however, that the Vendor may
submit a bid to provide such services in the event of a solicitation of bids by
Bank of Montreal or Canada Trust for the provision of such services.
-35-
5.12. Termination of Franchise Agreements
-----------------------------------
The Purchaser and the Vendor agree to use all reasonable commercial
efforts to terminate the two franchise agreements referred to in Schedule E
between the Corporation and each of the Franchisees in their entirety effective
prior to or at the Time of Closing, such that upon the termination of such
franchise agreements the Corporation will no longer have any obligations to the
Franchisees except as contemplated below. In connection with such efforts and
notwithstanding any other provision of this Agreement, the Purchaser and the
Vendor agree that in consideration for terminating the franchise agreements the
Purchaser and the Corporation will offer (a) to provide the Franchisees with the
source codes for the computer systems software previously furnished by the
Corporation to the Franchisees, (b) to eliminate the royalty payable to the
Corporation under the franchise agreements, (c) to participate with the
Franchisees in future joint business opportunities where it is commercially
reasonable for the Corporation to do so, and (d) in the case of the London,
Ontario franchise, not to compete with the relevant Franchisee within a
twenty-five mile radius of the City of London, and, in the case of the Nova
Scotia franchise, not to compete with the relevant Franchisee in the Province of
Nova Scotia. The Purchaser and the Vendor acknowledge and agree that if the
franchise agreements are terminated as aforesaid the condition precedent to
closing contained in subsection 4.1.7 shall be deemed to have been satisfied.
5.13. Environmental Matters
---------------------
The Purchaser shall arrange (at its expense) as soon as reasonably
practicable:
(a) to have the sprayed on insulation observed by Dames and ▇▇▇▇▇ in its
1995 Phase 1 Environmental Audit Report relating to the ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ property in Scarborough, Ontario (the "Coronation Drive Property")
tested to determine whether it contains any asbestos;
-36-
(b) to pressure test the underground storage tank identified by Dames
and ▇▇▇▇▇ in its 1995 Phase 1 Environmental Audit Report relating
to the 34 Ste. ▇▇▇▇▇▇ property in ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ to
determine whether the tank is sound (that is, there is no
evidence of leakage) and, if the tank is not sound, to test the
surrounding soil to determine whether there is contamination; and
(c) for Dames and ▇▇▇▇▇ to confirm whether the two pipes leading to a
floor drain identified by Dames and ▇▇▇▇▇ in its 1995 Phase 1
Environmental Audit Report relating to the Coronation Drive
Property do not and have not discharged any hazardous substances.
5.14. Reports Prior to Closing
------------------------
The Purchaser shall notify the Vendor forthwith upon the
fulfilment of each of the conditions set forth in sections 4.1.4, 4.1.6, 4.1.7,
4.1.8 and 4.2.3, and the Vendor shall notify the Purchaser forthwith upon the
fulfilment of each of the conditions set forth in sections 4.1.5, 4.1.9 and
4.2.4, or upon such party concluding for any reason that any such condition will
not be fulfilled on or prior to Closing. Prior to Closing, each party shall
report from time to time to the other with respect to the status of the
fulfilment of each such conditions and in any event shall report to the other on
October 16, 1995 and October 23, 1995 with respect to the status of the
fulfilment of each such condition.
ARTICLE 6.
----------
INDEMNIFICATION
---------------
6.1. Indemnification by the Vendor
-----------------------------
The Vendor shall indemnify and save the Purchaser and its
affiliates, directors, officers, agents and employees (collectively, the
"Indemnified Party") harmless for and from:
- 37 -
6.1.1. any assessment or reassessment for taxes payable by the Corporation,
whether relating to income, sales, real or personal property, or other types of
taxes, including interest and penalties, for any period up to the Closing Date
for which no adequate reserve has been provided and disclosed:
6.1.2. any losses, damages or deficiencies suffered by the Indemnified Party as
a result of any breach of representation, warranty, covenant or agreement on the
part of the Vendor contained in this Agreement;
6.1.3. any losses or damages suffered by the Indemnified Party as a result of
any claim by ▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to his existing employment contract with the
Vendor or the termination agreement referred to in section 4.2.4 and any
liability for pension payments to ▇▇. ▇▇▇▇▇ pursuant to the Vendor's pension
plan;
6.1.4. any liability for land transfer tax or other tax or expense payable by
reason of the transfer of the Brampton Property from the Vendor to the
Corporation as contemplated in section 4.1.9;
6.1.5. any liability of the Corporation in respect of the Charges referred to
in paragraphs 33, 34 and 35 of Schedule I; and
6.1.6. all claims, demands, costs and expenses, including legal fees, in
respect of the foregoing.
The Purchaser shall hold and obtain the right and benefits of
this section 6.1 on behalf of and in trust for each of its affiliates and the
directors, officers, employees and agents of the Purchaser and its affiliates
(for greater certainty, an "affiliate" of the Purchaser shall include, without
limitation, a Person with which the Purchaser becomes an affiliate as a result
of the closing of the transaction contemplated hereby).
-38-
6.2. Notice of Claim
---------------
An Indemnified Party shall promptly give notice to the Vendor of any claim
for indemnification pursuant to section 6.1 (a "Claim", which term shall include
more than one Claim) provided, however, that failure to give prompt notice of a
Claim shall not relieve the Vendor of its obligations hereunder except and to
the extent that the Vendor is prejudiced by such failure. Such notice shall
specify whether the Claim arises as a result of a claim by a Person against the
Indemnified Party (a "Third Party Claim") or whether the Claim does not so arise
(a "Purchaser's Claim"), and shall also specify with reasonable particularity
(to the extent that the information is available):
6.2.1. the factual basis for the Claim; and
6.2.2. the amount of the Claim, or, if an amount is not then determinable,
an approximate and reasonable estimate of the likely amount of the Claim.
6.3. Procedure for Indemnification
-----------------------------
6.3.1. Purchaser's Claims. With respect to Purchaser's Claims, following
------------------
receipt of notice from an Indemnified Party of a Claim, the Vendor shall have 30
days to make such investigation of the Claim as the Vendor considers necessary
or desirable. For the purpose of such investigation, the Indemnified Party shall
make available to the Vendor and its authorized representatives the information
relied upon by the Indemnified Party to substantiate the Claim. If the
Indemnified Party and the Vendor agree at or prior to the expiration of such 30
day period (or any mutually agreed upon extension thereof) to the validity and
amount of such Claim, the Vendor shall immediately pay to the Indemnified Party
the full agreed upon amount of the Claim.
If the Indemnified Party and the Vendor do not agree within such period (or
any mutually agreed upon extension thereof), the Indemnified Party and the
Vendor
-39-
agree that the dispute shall be submitted to arbitration pursuant to the
Arbitration Act, 1991 (Ontario). Such dispute shall not be made the subject
matter of an action in a court of law or equity by either the Indemnified Party
or the Vendor unless the dispute has first been submitted to arbitration and
finally determined in accordance with the provisions of Schedule Q. Any such
action commenced thereafter shall only be for judgment in accordance with the
decision of the arbitrators and the costs incidental to the action. In any
such action the decision of the arbitrators shall be conclusively deemed to
determine the rights and liabilities as between the parties to the arbitration
in respect of the matter in dispute.
6.3.2. Third Party Claims. With respect to any Third Party Claim, provided
------------------
that it shall have confirmed in writing its obligation to indemnify the
Indemnified Party in respect of any potential liability arising therefrom, the
Vendor shall have the right, at its own expense, to participate in or assume
control of the negotiation, settlement or defence of such Third Party Claim and,
in such event, the Vendor shall reimburse the Indemnified Party for all the
Indemnified Party's out-of-pocket expenses as a result of such participation or
assumption. If the Vendor elects to assume such control, the Indemnified Party
shall cooperate with the Vendor, and shall have the right to participate in the
negotiation, settlement or defence of such Third Party Claim and to retain
counsel to act on its behalf, provided the fees and disbursements of such
counsel shall be paid by the Indemnified Party unless the Vendor consents to the
retention of such counsel or unless the named parties to any action or
proceeding include both the Vendor and the Indemnified Party and the
representation of both the Vendor and the Indemnified Party by the same counsel
would be inappropriate due to the actual or potential differing interest between
them (such as the availability of different defences). If the Vendor, having
elected to assume such control, thereafter fails to defend the Third Party Claim
within a reasonable time, the Indemnified Party shall be entitled to assume such
control and the Vendor shall be bound by the results obtained by the Indemnified
Party with
-40-
respect to such Third Party Claim. The Vendor agrees to consult with the
Indemnified Party with respect to the selection and retention of
counsel.
6.4. Additional Rules and Procedures
-------------------------------
Notwithstanding any other provision of this Agreement, the
obligation of the Vendor to indemnify an Indemnified Party shall be subject to
the following:
6.4.1. Any Claim arising as a result of a breach of a
representation or warranty contained in this Agreement shall be made not
later than the date on which, pursuant to section 3.4. such
representation or warranty terminated.
6.4.2. The Vendor's obligation to indemnify the Indemnified Party
shall apply only to the extent that the Claims of one or more
Indemnified Parties, including the Claim in question, exceed $1,000,000
in the aggregate; provided that this limitation shall not apply to the
Claims referred to in sections 6.1.3, 6.1.4 or 6.1.5 in respect of which
Claims the Vendor shall have an absolute obligation to indemnify in
accordance with such sections and any such Claims shall not be treated
as Claims in calculating the aggregate amount of Claims for the purposes
of this section 6.4.2.
6.4.3. In the event that any Third Party Claim is of a nature such
that the Indemnified Party is required by applicable law to make a
payment to any Person (a "Third Party") with respect to such Third Party
Claim before the completion of settlement negotiations or related legal
proceedings, the Indemnified Party may make such payment and the Vendor
shall, forthwith after demand by the Indemnified Party, reimburse the
Indemnified Party for any such payment, subject to the limitation in
section 6.4.2. If the amount of any liability of the Indemnified Party
under the Third Party Claim in respect of which such a payment was made,
as finally determined (net of any repayments or refunds by the Third
Party to the Indemnified Party), is less than the amount which was paid
by
-41-
the Vendor to the Indemnified Party, the Indemnified Party shall,
forthwith, pay the amount of such difference to the Vendor.
6.4.4. Except in the circumstance contemplated by section 6.4.3, and
whether or not the Vendor assumes control of the negotiation, settlement or
defence of any Third Party Claim, the Indemnified Party shall not
negotiate, settle, compromise or pay any Third Party Claim except with the
prior written consent of the Vendor (which consent shall not be
unreasonably withheld), unless the Vendor fails to have confirmed its
obligation to indemnify in accordance with section 6.3.2.
6.4.5. The Indemnified Party shall not permit any right of appeal in
respect of any Third Party Claim to terminate without giving the Vendor
notice thereof and an opportunity to contest such Third Party Claim.
6.4.6. The Indemnified Party and the Vendor shall cooperate fully with
each other with respect to Third Party Claims, shall keep each other fully
advised with respect thereto (including supplying copies of all relevant
documentation promptly as it becomes available) and shall each designate a
senior officer who will keep himself informed about and be prepared to
discuss the Third Party Claim with his counterpart and with counsel at all
reasonable times.
6.4.7. Notwithstanding section 6.3.2, the Vendor shall not settle any
Third Party Claim or conduct any related legal or administrative proceeding
in a manner which would, in the opinion of the Purchaser, acting
reasonably, have a material adverse impact on the Purchaser.
6.5. Indemnification by the Purchaser
--------------------------------
The Purchaser shall indemnify and save the Vendor and its affiliates,
directors, officers, agents and employees harmless for and from all claims,
demands, payments, liabilities,
-42-
costs or expenses arising under or by reason of the agreement referred to in
section 4.1.6. including legal fees incurred by the Vendor. The Vendor shall
promptly give notice to the Purchaser of any claim for indemnification pursuant
to this section 6.5 provided, however, that the failure to give prompt notice of
a claim shall not relieve the Purchaser of its obligations hereunder except and
to the extent that the Purchaser is prejudiced by such failure. The provisions
of section 6.3.2 and Sections 6.4.3 to 6.4.7, inclusive, shall apply, mutatis
mutandis, to all claims for indemnity by the Vendor under this section 6.5.
ARTICLE 7.
----------
CLOSING
-------
7.1. Location and Time of the Closing
--------------------------------
The Closing shall take place at the Time of Closing on the Closing
Date at the offices of Vendor's Counsel.
7.2. Deliveries at the Closing
-------------------------
At the Closing, the Vendor shall deliver the share certificates
representing the Purchased Shares and such other documents as are required or
contemplated to be delivered by the Vendor or the Vendor's Counsel pursuant to
this Agreement, and the Purchaser shall pay the Purchase Price and shall deliver
such documents as are required or contemplated to be delivered by the Purchaser
or the Purchaser's Counsel pursuant to this Agreement.
-43-
ARTICLE 8.
----------
GENERAL MATTERS
---------------
8.1. Confidentiality
---------------
If the transaction contemplated by this Agreement is not completed, the
Purchaser shall not, except as contemplated below, directly or indirectly use
for its own purposes or communicate to any other Person any confidential
information or data relating to the Vendor, the Corporation or to the Business
which become known to the Purchaser, its accountants, legal advisers or
representatives as a result of the Vendor making the same available in
connection with the transaction contemplated hereby. The foregoing shall not
prevent the Purchaser from disclosing or making available to its accountants,
professional advisers and bankers and other lenders, whether current or
prospective, any such information or data and shall not apply to any information
that (a) is known to the Purchaser prior to being disclosed to the Purchaser by
the Vendor or the Corporation, (b) subsequently becomes available to the
Corporation from a Person (other than the Vendor or the Corporation or their
officers, employees, agents or representatives), who is not in violation of any
confidentiality obligation owed to the Vendor or the Corporation, (c) is or
becomes generally available to the public, or (d) is required to be disclosed by
the Purchaser by law.
8.2. Expenses
--------
Each of the Vendor and the Purchaser shall be responsible for the
expenses (including fees and expenses of legal advisers, accountants and other
professional advisers) incurred by them, respectively, in connection with the
negotiation and settlement of this Agreement and the completion of the
transaction contemplated hereby.
-44-
8.3. Assignment
----------
Except as provided in this section, no party may assign its rights or
benefits under this Agreement. The Purchaser may assign its rights hereunder to
a corporation legally controlled directly or indirectly by the Purchaser
provided, however, that such assignment shall not release the Purchaser from its
obligations under this Agreement.
8.4. Notices
-------
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid first-class mail, by
facsimile or other means of electronic communication or by hand-delivery as
hereinafter provided. Any such notice or other communication, if mailed by
prepaid first-class mail at any time other than during a general discontinuance
of postal service due to strike, lockout or otherwise, shall be deemed to have
been received on the fourth Business Day after the post-marked date thereof, or
if sent by facsimile or other means of electronic communication, shall be deemed
to have been received on the Business Day following the sending, or if delivered
by hand shall be deemed to have been received at the time it is delivered to the
applicable address noted below either to the individual designated below or to
an individual at such address having apparent authority to accept deliveries on
behalf of the addressee. Notice of change or address shall also be governed by
this section. In the event of a general discontinuance of postal service due to
strike, lock-out or otherwise, notices or other communications shall be
delivered by hand or sent by facsimile or other means of electronic
communication and shall be deemed to have been received in accordance with this
section. Notices and other communications shall be addressed as follows:
-45-
(a) if to the Vendor:
▇▇▇▇▇ Corporation Limited
▇.▇. ▇▇▇ ▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Tory ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & Binnington
Suite 3000, Aetna Tower
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Purchaser:
▇▇▇▇▇▇ ▇▇▇▇▇ Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇.▇.▇.
Attention: J. ▇▇▇▇▇ ▇▇▇▇▇▇, President
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
-46-
Cozen and ▇'▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇.▇.▇.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
Notwithstanding the foregoing, any notice or other communication required or
permitted to be given by either party pursuant to or in connection with any
arbitration procedures contained herein or in any Schedule hereto may only be
delivered by hand.
The failure to send or deliver a copy of a notice to the Purchaser's
Counsel or the Vendor's Counsel, as the case may be, shall not invalidate any
notice given under this section.
8.5. Public Announcements
--------------------
No press release, general communication (oral or written) to employees
of the Corporation or other Persons or other general announcement or disclosure
concerning the transaction contemplated by this Agreement shall be made by the
Vendor or by the Purchaser without the prior written consent of the other (such
consent not to be unreasonably withheld or delayed); provided, however, that
any party may, without such consent make any such disclosure where the same is
required by law or by any stock exchange on which any of the securities of such
party or any of its affiliates are listed or by any securities commission or
other similar regulatory authority having jurisdiction over such party or any of
its affiliates, and if such disclosure is required, the party making the
disclosure shall use reasonable commercial efforts to give prior oral or written
notice to the other, and if such prior notice is not possible, to give such
notice immediately following the making of such disclosure.
8.6. Reasonable Commercial Efforts
-----------------------------
The parties acknowledge and agree that, for all purposes of this
Agreement (unless expressly provided otherwise), an obligation of a party to use
all reasonable commercial
-47-
efforts to obtain any waiver, consent, approval, permit, license, release or
other document shall not require such party to pay any monies or give any
other consideration for the purpose of procuring same, provided that the Vendor
shall pay reasonable legal fees incurred by third parties (if requested by the
third party to make such payment) in connection with a request by the Vendor
for a consent or approval required under this Agreement and the expenses of the
Vendor (including the fees and disbursements of Vendor's Counsel) in obtaining
such consents and approvals.
8.7. Time of Essence
---------------
Time is of the essence of this Agreement.
8.8. Further Assurances
------------------
Each of the parties shall promptly do, make, execute, deliver, or
cause to be done, made, executed or delivered, all such further acts, documents
and things as the other party hereto may reasonably require from time to time
for the purpose of giving effect to this Agreement and shall use reasonable
efforts and take all such steps as may be reasonably within its power to imple-
ment to their full extent the provisions of this Agreement.
8.9. Counterparts
------------
This Agreement may be signed in counterparts and each such
counterpart shall constitute an original document and such counterparts, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
▇▇▇▇▇ CORPORATION LIMITED
By: [SIGNATURE APPEARS HERE]
----------------------------------------
[SIGNATURE APPEARS HERE]
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
J. ▇▇▇▇▇ ▇▇▇▇▇▇, President
----------------------------------------