LETTER OF INTENT (Purchase of All the Shares of a Company) -Strictly Personal and Confidential-
Exhibit
10.1
(Purchase
of All the Shares of a Company)
-Strictly
Personal and Confidential-
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FROM:
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▇▇▇
▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Montréal,
Québec, Canada
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H3C
1L5
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(the
"Purchaser")
TO: The
Shareholders of :
Micro
Bubble Technologies Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
Barrington,
Illinois, USA
60010
(jointly
describe as the "Vendor")
(the
Purchaser and the Vendor are hereinafter collectively referred to as the
"Parties")
RE: Purchase
of all the issued and outstanding shares of the company Micro
Bubble
Technologies Inc., incorporated under the Nevada Law and having its head
office at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
60010
(the "Company"), by the Purchaser or its solely owned subsidiary;
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PREAMBLE
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The
purpose of this letter of intent ("this Letter") is as follows:
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a)
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to
summarize the basic elements of the final agreement which will evidence
the proposed transaction (the "Final
Agreement");
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b)
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to
set forth, generally, the rights and obligations of the
Parties;
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c)
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to
provide a framework for the steps preceding and relating to the closing of
the proposed transaction (the "Closing");
and
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d)
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to
specify the nature and content of the documents to be signed before or at
the Closing, such as the Final Agreement, the ancillary agreements and the
other documents related to the proposed transaction (the "Closing
Documents").
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Purchaser Vendor
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2 -
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PART I: PROVISIONS
RELATING TO THE PROPOSED
TRANSACTION
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1.00
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PURPOSE
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Subject
to any other applicable provision of this Letter, the Purchaser intends to
purchase from the Vendor all - one hundred percent (100%) - of the issued and
outstanding shares of the share capital of the Company.
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2.00
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CONSIDERATION
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2.01
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Purchase
Price
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As
consideration for the proposed purchase, the Purchaser intends to pay the Vendor
in Common shares of the Purchaser, for an amount to be determined after a
complete due diligence of the Company (the "Purchase Price") and negotiation
with the Vendor.
2.02 Determination
of the Purchase Price
The
Purchase Price will determined by the Purchaser following a complete due
diligence of the company by the purchaser based upon the following elements
provided by the Vendor:
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a)
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the
audited financial statements of the
Company;
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b)
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the
interim financial statements of the
Company;
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c)
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the
budgetary estimates of the Company for the next ............. (…..)
years;
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d)
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various
verbal information and
representations;
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e)
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various
documents and other information in tangible form
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2.03
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Terms
and Conditions of Payment
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The terms and conditions of payment
will be negotiated between the parties;
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3.00
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PRE-CLOSING
PERIOD
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3.01
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Due
Diligence Review of the Company
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In order
to allow the Purchaser to accurately assess the adequacy of the proposed
transaction and to obtain all information required in that regard, the Purchaser
may carry out a due diligence review of the Company.
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3.02
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Preparation
of Audited Financial Statements
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The
Vendor shall cause a reputable firm of chartered accountants to prepare audited
financial statements of the Company, including, among other things, the balance
sheet and income statement, for the fiscal year ending on the date of the
Closing. The said financial statements shall be prepared in accordance with
generally accepted accounting principles and shall be provided with the
auditor's report.
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Purchaser Vendor
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3 -
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3.03
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Ordinary
Course of Business of the Company
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Between
the date of this Letter and the Closing, the Company shall continue its
operations in the ordinary course of business, in a manner substantially similar
to the course of business up to the date hereof. In particular, but without
limiting the generality of the foregoing, the Company shall not do the
following, unless the Purchaser has received prior notice thereof from the
Vendor:
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a)
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take
any measure or make any changes liable to adversely affect the Company or
its operations, assets, financial position, projects or
value;
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b)
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acquire,
undertake to acquire or offer to acquire all or part (whether or not
substantial) of the assets of another
business;
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c)
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acquire,
undertake to acquire or offer to acquire all or part (whether or not
substantial) of the shares of another company held by a natural or legal
person;
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d)
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carry
out an amalgamation, acquisition, winding-up or corporate
reorganization;
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e)
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dispose
of all or part of its assets, except for its inventory in the ordinary
course of business;
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f)
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give
guarantees or charge its assets with security of any kind whatsoever in
favour of third parties;
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g)
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contractually
bind itself towards a third party without the possibility of terminating
the said contract within no more than fifteen (15)
days;
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h)
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make
a change as regards its employees, management, officers or
directors;
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i)
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increase
the amount or value of the remuneration (including, without limitation,
salaries, bonuses, expense accounts, allowances and various contributions)
currently paid to its employees, management, officers and
directors;
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j)
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declare
or pay dividends to all or any of its
shareholders;
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The
Vendor shall promptly notify the Purchaser of any change that occurs. In such a
case, the Purchaser shall have full discretion to cancel this Letter merely by
giving a notice to the Vendor.
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3.04
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Necessary
Approvals
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The
Closing and the signing of the Closing Documents shall be subject to the prior
approval of the following persons, groups of persons, organizations and
governmental or regulatory authorities:
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a)
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the
Vendor;
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b)
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the
Vendor's board of directors;
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c)
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the
Purchaser;
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d)
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the
Purchaser's board of directors;
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e)
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the
Company's board of directors;
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f)
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all
third parties whose consent to the proposed transaction is required
pursuant to any contract, legislation or order, or is otherwise
required;
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If the
preparation and filing of forms, applications for approval or other documents
are required by the governmental or regulatory authorities for the purpose of
authorizing, approving or allowing the proposed transaction,
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Purchaser Vendor
- 4
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the
Parties shall cooperate with one another in good faith so that such preparation
and filing may be carried out diligently and efficiently.
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3.05
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Conditions
Precedent to the Proposed
Transaction
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The
Closing and the signing of the Closing Documents shall be subject to the
following conditions precedent:
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a)
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obtaining
the approvals required pursuant to this
Letter;
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b)
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the
Purchaser obtaining a legal opinion from its legal advisors, which opinion
the Purchaser, acting in its sole discretion, considers to be favourable,
and which opinion shall relate to the proposed transaction and the
consequences resulting therefrom or likely to result
therefrom;
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c)
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the
Purchaser obtaining a legal opinion from the Vendor's legal advisors
regarding the Company's corporate compliance, which opinion the Purchaser,
acting in its sole discretion, considers to be
favourable;
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d)
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the
Purchaser obtaining a report from its various representatives subsequent
to the due diligence review of the Company, which report the Purchaser,
acting in its sole discretion, considers to be
favourable;
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e)
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there
being no change which might adversely affect the Company's operations,
assets, financial position or
projects;
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f)
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there
being no actual or threatened legal proceedings against the Company which
might adversely affect the Company or its operations, assets, financial
position or projects;
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If it
appears that any of the aforementioned conditions cannot be met by the Closing,
the Purchaser shall have full discretion to cancel this Letter merely by giving
a notice to the Vendor.
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4.00
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FINAL
AGREEMENT AND CLOSING
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4.01 Vendor's
Usual Representations and Warranties
The Final
Agreement shall contain the Vendor's usual representations and warranties which
are generally provided in similar transactions.
4.02 Vendor's
General Undertaking to Indemnify
The Final
Agreement shall contain a general undertaking by the Vendor to indemnify the
Purchaser and the Company (as to capital, interest, judicial costs and
extrajudicial costs) from and against all damages which either of them may
suffer, and from and against any direct or indirect, absolute or contingent,
liability, loss or claim asserted against the Purchaser or the Company and
resulting from the Vendor's failure to perform its obligations, or from the
falsity or inaccuracy of the Vendor's representations or
warranties.
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Purchaser Vendor
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5 -
4.03 Vendor's
Confidentiality Undertaking
The Final
Agreement shall contain an undertaking by the Vendor to maintain the
confidentiality of, and refrain from disclosing the information regarding the
Company and its operations, assets, financial position and
projects.
4.04 Vendor's
Undertaking Not to Solicit Customers
The Final
Agreement shall contain an undertaking by the Vendor not to solicit the
Company's customers, or participate in any capacity whatsoever (whether directly
or indirectly, personally or through a legal or natural person) in soliciting
the Company's customers.
4.05 Vendor's
Undertaking Not to Solicit Personnel
The Final
Agreement shall contain an undertaking by the Vendor not to solicit the
Company's personnel, or participate in any capacity whatsoever (whether directly
or indirectly, personally or through a legal or natural person) in soliciting
the Company's personnel.
4.06 Vendor's
Cooperation
The Final
Agreement shall contain an undertaking by the Vendor to fully cooperate with the
Purchaser and the Company, during a reasonable period, in order to ensure a
smooth transition and an efficient transfer of the Vendor's skills and
know-how.
4.07 Other
Provisions of the Sale Agreement
The Final
Agreement shall contain all the other provisions usually found in an agreement
relating to such transactions.
4.08 Closing
Documents
a)
List
The
Closing Documents shall include the following documents, without
limitation:
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a)
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the
Final Agreement;
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b)
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the
non-compete agreement between the Vendor, the Purchaser and the
Company;
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c)
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the
agreement not to solicit customers between the Vendor, the Purchaser and
the Company;
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d)
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the
agreement not to solicit personnel between the Vendor, the Purchaser and
the Company;
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e)
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any
other agreement between the Vendor, the Purchaser and/or the
Company;
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f)
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the
minutes of meetings of the directors of the
Company;
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g)
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the
minutes of meetings of the directors of the
Purchaser;
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h)
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the
closing agenda;
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b)
Preparation
The
Purchaser's legal advisors shall prepare the Closing Documents, except for the
following:
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Purchaser Vendor
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6 -
c)
Approval
The
Closing Documents shall be subject to prior approval by the Vendor, the
Purchaser, and their respective legal advisors, whether such documents are
signed before or at the Closing.
4.22 Date
of the Closing
The
Closing shall take place within Ninety (90) days after acceptance of this
Letter. The date currently scheduled for the Closing is August 6,
2009.
4.23 Location
of the Closing
The place
of Closing shall be determined later.
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PART II: PROVISIONS
RELATING TO THIS LETTER OF
INTENT
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5.00
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SPECIFIC
PROVISIONS
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5.01 Representatives
of the Parties
Each of
the Parties acknowledges that the person designated hereinbelow by that Party
(or any other person replacing the designated person, pursuant to a notice to
that effect given to the other Party) shall represent that Party and shall have
full authority to take all steps, make all decisions and give all consents
required with respect to the performance of this Letter:
Purchaser's
representative:
Chairman:
▇▇▇▇▇▇ ▇▇▇▇▇▇
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Direct
Line
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Email:
▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
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Vendor's
representative:
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Direct
Line: ▇▇▇-▇▇▇-▇▇▇▇
Cell:
▇▇▇-▇▇▇-▇▇▇▇
SKYPE:
SRDINC1
Email:
▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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5.02
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Electronic
Communications
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The
Parties' representatives may communicate with one another by electronic means,
in which case, the following presumptions shall apply:
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·
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the
presence of an identification code in an electronic document shall be
sufficient to identify the sender and to establish the authenticity of the
said document;
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·
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an
electronic document containing an identification code shall constitute a
written instrument signed by the
sender;
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·
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an
electronic document or any printed output of such document, when kept in
accordance with usual business practices, shall be considered to be an
original.
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The
Parties' representatives may also communicate with one another by
telecopier.
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Purchaser Vendor
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7 -
5.03 Legal
Advisors of the Purchaser
For
purposes of the proposed transaction and unless contrary notice is given, the
Purchaser intends to retain the services of the firm of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP as
its legal advisors. This firm as well as the legal advisors and employees
working there shall act exclusively on behalf of the Purchaser.
The
Purchaser acknowledges that the Vendor also has the right to be represented by
an independent legal advisor and encourages such representation.
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5.04
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Cooperation
Among the Parties
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The
Parties shall cooperate with one another, in good faith, in order
to:
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a)
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obtain
the necessary approvals for completion of the proposed
transaction;
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b)
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satisfy
the conditions precedent for completion of the proposed transaction;
and
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c)
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complete
the proposed transaction.
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5.05
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Reciprocal
Confidentiality and Non-Disclosure
Undertaking
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a)
Content of this Letter of Intent
Neither
Party shall disclose, mention or discuss the existence of this Letter or its
purpose or content to or with anyone whomsoever, except:
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i.
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its
employees, legal advisors, accountants, bankers and institutional
lenders;
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ii.
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if
it has obtained the prior written consent of the other Party;
or
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iii.
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if
it is required by law or judicial order to disclose the substance thereof
or provide a copy thereof.
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b)
Information Exchanged Between the Parties
Neither
Party shall disclose, mention or discuss the information provided by the other
Party to or with anyone whomsoever, except:
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i.
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its
employees, legal advisors, accountants, bankers and institutional
lenders;
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ii.
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if
it has obtained the prior written consent of the other Party;
or
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iii.
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if
it is required by law or judicial order to disclose the substance thereof
or provide a copy thereof.
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c)
Public Announcement of the Negotiations or the Transaction
Neither
Party shall make a public announcement or other public disclosure
of:
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i.
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the
existence of negotiations between
them;
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ii.
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any
aspect whatsoever of the said negotiations;
or
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iii.
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the
favourable or unfavourable outcome of such
negotiations,
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unless it
has obtained the prior approval of the other Party.
d)
Press Releases
Neither
Party shall issue, disseminate or otherwise release a press release before the
completion of the proposed transaction and the signing of all the Closing
Documents.
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Purchaser Vendor
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Any press
release prepared by one Party shall be subject to prior approval by the other
Party. However, nothing shall prevent the Parties from issuing a joint press
release.
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5.06
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Purchaser's
Exclusive Right to Negotiate with the
Vendor
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For a
period of One (1) month after acceptance of this Letter, the Vendor shall
negotiate exclusively with the Purchaser as regards the subject matter of the
proposed transaction.
In
particular, but without limiting the generality of the foregoing, the Vendor
shall not, directly or indirectly (whether through the Company, through persons
who are or are not related to the Vendor or the Company, or through its legal
advisors, accountants or others) and in any capacity whatsoever, carry out or
continue to carry out one or more of the following acts:
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a)
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offer
to sell to anyone whomsoever (other than the Purchaser) all or part of the
Shares held by the Vendor in the share capital of the Company, regardless
of the existence, nature or value of the proposed
consideration;
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b)
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solicit
or encourage the submission of a letter of intent, an offer to purchase, a
proposal or another tangible form of interest on the part of a potential
purchaser (other than the Purchaser) with respect to the acquisition,
exchange or other transaction contemplating all or part of the Shares held
by the Vendor in the share capital of the
Company;
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c)
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solicit
or encourage the submission of a letter of intent, an offer to purchase, a
proposal or another tangible form of interest on the part of a potential
purchaser (other than the Purchaser) with respect to the acquisition,
exchange or other transaction contemplating all or part of the assets of
the Company, except as regards the disposition of its inventory in the
ordinary course of business;
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d)
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communicate,
negotiate, discuss or otherwise provide, obtain or exchange information
(in any form whatsoever), or participate in any such activity, with anyone
whomsoever, including a potential purchaser (other than the Purchaser), as
regards the sale, exchange or other disposition of the Shares or the
assets of the Company;
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e)
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plan,
supervise, authorize or otherwise participate in or encourage the
amalgamation, merger or other form of corporate reorganization of the
Company.
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5.07
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Vendor's
Exclusive Right to Negotiate with the
Purchaser
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For a
period of One (1) month after acceptance of this Letter, the Purchaser shall
negotiate exclusively with the Vendor as regards the subject matter of the
proposed transaction.
In
particular, but without limiting the generality of the foregoing, the Purchaser
shall not, directly or indirectly (whether through persons who are or are not
related to the Purchaser, or through its legal advisors, accountants or others)
and in any capacity whatsoever, carry out or continue to carry out one or more
of the following acts:
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Purchaser Vendor
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9 -
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a)
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offer
to purchase from anyone whomsoever all or part of the shares of a firm
competing with the Company, regardless of the existence, nature or value
of the proposed consideration;
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b)
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submit
to anyone whomsoever a letter of intent, an offer to purchase, a proposal
or another tangible form of interest with respect to the acquisition,
exchange or other transaction contemplating all or part of the shares of a
firm competing with the Company;
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c)
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submit
to anyone whomsoever a letter of intent, an offer to purchase, a proposal
or another tangible form of interest with respect to the acquisition,
exchange or other transaction contemplating all or part of the assets of a
firm competing with the Company;
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d)
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communicate,
negotiate, discuss or otherwise provide, obtain or exchange information
(in any form whatsoever), or participate in any such activity, with anyone
whomsoever, including a potential vendor (other than the Vendor), as
regards the sale, exchange or disposition of the shares of such vendor or
the assets of a firm competing with the
Company.
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5.08 Assignment
of the Purchaser's Rights
The
Purchaser may assign all or part of its rights under this Letter to a third
party, after having given notice thereof to the Vendor. The Purchaser shall not
be required to obtain the Vendor's prior approval before assigning its rights,
provided that the third party assignee is:
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a)
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a
company controlled by the
Purchaser;
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b)
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a
company controlled by one or more persons related to the Purchaser;
or
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c)
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a
natural person related to the
Purchaser.
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However,
notwithstanding any such assignment, the Purchaser shall continue to be bound by
the provisions of Part II of this Letter.
6.00 EFFECTIVE
DATE OF THE LETTER OF INTENT
This
Letter shall come into effect on the date of its execution.
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SIGNED
IN TWO (2.)
COUNTERPARTS,
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IN
BARRINGTON, IL
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ON
MAY 21ST,
2009.
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▇▇▇▇▇▇
▇▇▇▇▇▇
THE
PURCHASER
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Tri
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▇▇▇▇▇▇
WITNESS
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Purchaser Vendor
ACKNOWLEDGEMENT OF
RECEIPT AND ACCEPTANCE BY THE VENDOR
The
Vendor acknowledges receipt of this Letter and accepts the proposal set forth
therein.
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SIGNED
IN TWO (2) COUNTERPARTS,
IN
BARRINGTON, ( STATE, DEPARTMENT, ETC.) OF
ILLINOIS.
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ON
MAY, 21ST,
2009 AT 12H29 O'CLOCK.
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE
VENDOR
▇▇
▇▇▇▇▇
WITNESS