EXHIBIT 99.1
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THIS SHARE PURCHASE AGREEMENT made as of the 23/rd/ day of November, 2000.
BETWEEN:
WEBENGINE TECHNOLOGIES INTERNATIONAL INC., a
corporation incorporated under the laws of the State of Delaware
(hereinafter referred to as "Webengine")
OF THE FIRST PART,
-- and --
CALLMATE TELECOM INTERNATIONAL INC. a
corporation incorporated under the laws of the State of Florida,
(hereinafter referred to as "Callmate"),
OF THE SECOND PART,
WHEREAS Webengine presently has, 12,000,000 common shares outstanding and at the
time of closing there will be no other securities outstanding;
AND WHEREAS Webengine has agreed to sell to Callmate an 100% interest in the
share capital of Webengine by the transfer of all of Webengine's Issued Shares
from Webengine's shareholders in exchange for Callmate shares on a one for one
basis.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the respective covenants and agreements of the parties contained
herein, the sum of two dollars now paid by each party hereto to the other party
hereto, and other good and valuable consideration (the receipt and sufficiency
of which is hereby acknowledged by each of the parties hereto), it is agreed as
follows:
ARTICLE 1
DEFINITIONS
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1.1 Definitions: whenever used in this Agreement and in the recitals
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hereto, unless there is something inconsistent in the subject matter or context,
the following words and phrases shall have the meanings set out below:
"Agreement" means this share purchase agreement, including all documents and/or
instruments supplementing or amending or confirming this Agreement and
references to Articles or Sections mean and refer to the specified Articles and
Sections of this Agreement;
"Business Day" means a day, other than a Saturday or Sunday, on which Canadian
chartered banks are open for business in Toronto, Ontario during normal banking
hours;
"Claims" means actual claims against Webengine for damages or reimbursement for
loss which are in respect of activities or matters occurring prior to December
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31, 1999 which are not accrued as liabilities in the Financial Statements, less
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recoveries in respect thereof;
"Closing" means the completion of the sale to and purchase by the Purchasers of
the Purchased Shares hereunder in accordance with Article 2 hereof;
"Closing Date" means November 23, 2000 or such earlier or later date as may be
mutually agreed between the Parties;
"Closing Time" means 5:00 P.m., Toronto time, on the Closing Date, or such
other time on such date as the Parties may agree in writing as the time at which
the Closing shall take place;
"Common Shares" means common shares in the capital of Callmate;
"Encumbrance" means any encumbrance, lien, charge, pledge, mortgage, title
retention agreement, security interest of any nature, adverse claim, exception,
reservation, easement, right of occupation, any matter capable of registration
against title, option, right of pre-emption, privilege or any contract to create
any of the foregoing;
"Governmental Authorities" means any government, regulatory authority,
governmental department, agency, commission, board, tribunal, crown corporation,
or court or other law, rule or regulation-making entity having or purporting to
have jurisdiction on behalf of any nation, province, territory, state or any
municipality thereof, district or any other subdivision thereof;
"Issued Shares" means the issued and fully paid shares of Webengine.
"Laws" means all applicable published laws, by-laws, rules, regulations, orders,
ordinances, protocols, codes, guidelines, policies, notices, directions,
directives and judgments or other requirements of any Governmental Authorities;
"Parties" means all the parties to this Agreement and "Party" means any one of
them;
"Person" means any individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization, trust, body
corporate, Governmental Authority, and a natural person in such person's
capacity as trustee, executor, administrator or other legal representative;
"Purchase Price" has the meaning attributed thereto in Article 3;
"Purchaser" means Callmate;
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"Treasury Shares" means the Common Shares to be issued by Callmate in accordance
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with the provisions hereof;
"Vendor" means Webengine.
"Webengine Shareholders" means Ion Technologies Ltd., International Marketing
Solutions Ltd., Hypernet Research Inc., International Enterprise Solutions Ltd.,
and Net Technology Group Ltd.
1.2 Certain Rules of Interpretation: In this Agreement:
--------------------------------
(a) Time - time is of the essence in the performance of the Parties'
respective obligations under this Agreement;
(b) Currency - unless otherwise specified, all references to dollar
amounts in this Agreement are to the lawful currency of the United
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States of America;
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(c) Headings - descriptive headings of Articles and Sections are inserted
solely for convenience of reference and are not intended as complete
or accurate descriptions of the content of such Articles or Sections;
(d) Gender and Number - the use of words in the singular or plural, or
with a particular gender, shall not limit the scope or exclude the
application of any provision of this Agreement to such Person or
Persons or circumstances as the context otherwise permits; and
(e) Business Day - whenever any payment is to be made or action to be
taken under this Agreement on a day other than a Business Day, such
payment shall be made or action taken on the next Business Day
following such day.
1.3 Entire Agreement:
-----------------
This Agreement and the agreements and other documents to be delivered pursuant
to this Agreement constitute the entire agreement between the Parties pertaining
to the subject matter of this Agreement and this Agreement supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties, and there are no warranties, representations or other
agreements between the Parties in connection with the subject matter of this
Agreement except as specifically set forth in this Agreement and any documents
delivered pursuant to this Agreement. No supplement, modification or waiver or
termination of this Agreement shall be binding unless executed in writing by the
Party to be bound thereby.
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1.4 Applicable Law:
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This Agreement shall be construed in accordance with the laws of the State of
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Delaware and the federal of laws of the United States of America applicable
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therein, and shall be treated, in all respects, as a Delaware contract.
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1.5 Accounting Principles:
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Unless otherwise expressly provided herein, all references to generally accepted
accounting principles means to American generally accepted accounting
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principles.
ARTICLE 2
TRANSACTION AND CLOSING
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2.1 Actions by Vendor and Purchaser:
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Subject to all of the terms and conditions of this Agreement and in reliance
upon the representations, warranties and covenants contained herein at the
Closing Time, the Parties hereto shall cause the transaction and events
described below to be completed in sequential order.
2.1.1 Sale and Purchase
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(a) Sale and Purchase of Treasury Shares: Callmate shall issue to
Webengine Shareholders the Treasury Shares and Webengine Shareholders
shall trasnfer shares for the Purchase Price, payable all as provided
in the Agreement, with the result that immediately following the
Closing, Callmate will own all of the issued and outstanding
securities of Webengine;
(b) Payment of Purchase Price: Callmate shall deliver to Webengine
Shareholders the Purchase Price for the Purchased Shares as provided
in Article 3; and
(c) Transfer and Delivery of Treasury Shares: Webengine Shareholders shall
deliver to Callmate a share certificate representing the Issued Shares
of Webengine and shall enter Callmate upon the books of Webengine as
the only registered holder of Webengine.
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2.2 Place of Closing:
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The Closing shall take place at the Closing Time at the offices of Webengine,
Suite 2000, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, or at such other place as
may be agreed upon by the Parties.
ARTICLE 3
PURCHASE PRICE
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3.1 Purchase Price:
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The aggregate purchase price payable by Callmate for the purchase of the
Webengine shares shall be the quantity of 12,000,000 common shares of Callmate
issued from Treasury on Closing (the "Purchase Price").
3.2 Satisfaction of Purchase Price by Callmate
------------------------------------------
At the Closing Callmate shall issue the Treasury Shares by the delivery on
closing of stock certificates to the shareholders of Webengine totaling
12,000,000 shares.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF WEBENGINE
-------------------------------------------
Webengine represents and warrants to Callmate as follows and acknowledges that
Callmate is relying on such representations and warranties in connection with
its execution and delivery of this Agreement and the completion of the
transaction contemplated by this Agreement:
4.1 Incorporation and Organization:
-------------------------------
Webengine has been duly incorporated and is validly existing and in good
standing (in respect of the filing of annual returns where applicable or other
information filings under applicable corporations information legislation) under
the laws of the State of Delaware and has all requisite corporate power and
authority under such laws to carry on its business as now conducted and to own,
lease and operate its properties and assets. No proceedings have been instituted
or are pending for the dissolution or liquidation of Webengine or threatening
its existence.
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4.2 Conduct of Business:
--------------------
Webengine has conducted and is conducting its business in compliance in all
material respects with all applicable Laws of each jurisdiction in which its
business is carried on and has all necessary licences, permits, authorizations
and other approvals necessary to permit it to carry on its business as now
conducted and to own, lease and operate its properties and assets, except where
the absence of such power and authority or the failure to make any filing or
obtain any licence, lease, permit, authorization or other approval would not
result in a material adverse change to Webengine.
4.3 Due Authorization:
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Webengine has all necessary corporate power, authority and capacity to enter
into this Agreement and to carry out its obligations under this Agreement
including, without limitation, the delivery by the Webengine Shareholders of the
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Issued Shares to Callmate. The execution and delivery of this Agreement and all
other documents required to be executed and delivered by Webengine at the
Closing, and the consummation of the transaction contemplated under this
Agreement have been or will at the Closing Time have been duly authorized by all
necessary corporate action of Webengine.
4.4 Enforceability of Obligations:
------------------------------
This Agreement and all other documents to be executed and delivered by Webengine
at the Closing constitute valid and binding obligations of Webengine,
enforceable against it in accordance with their respective terms, subject to the
usual exceptions as to bankruptcy, insolvency and other laws affecting the
enforcement of creditors' rights generally and the availability of equitable
remedies.
4.5 Capitalization:
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At the Closing Time, the authorized capital of Webengine will consist of
75,000,000 Common Shares with a par value of $0.001US per common share. At the
Closing Time there will be 12,000,000 Common Shares outstanding and no preferred
shares outstanding.
4.6 No Issue of Shares or Convertible Securities:
---------------------------------------------
Except as contemplated in this Agreement, no Person has any agreement or option,
or right or privilege (whether pre-emptive or contractual) capable of becoming
an agreement (including convertible securities and warrants) for the purchase,
subscription or issuance of any unissued shares, securities or warrants of
Webengine.
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4.7 Subsidiaries:
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Webengine has a wholly owned subsidiary, Cyberstation Inc. Webengine has no
other subsidiaries (as the term "subsidiary" is defined in the Business
Corporations Act (Ontario)), any agreements of any nature to acquire, directly
or indirectly, any shares in the capital of or other equity or proprietary
interests in any Person or any agreements to acquire or lease any other business
operations.
4.8 Financial Statements:
---------------------
The Financial Statements fairly present the financial position and condition of
Webengine as at the respective dates thereof, reflect all material liabilities
(absolute, accrued, contingent or otherwise) of Webengine as at the respective
dates thereof required to be disclosed therein and fairly present the results of
the operations of Webengine for the respective periods covered thereby.
4.9 No Breach. etc.:
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Webengine is not in default or breach of, and the execution and delivery by
Webengine of this Agreement, and the performance and compliance with the terms
thereof will not result in any breach of, or be in conflict with or constitute a
default under, or create a state of facts which after notice or lapse of time,
or both, would constitute a default by Webengine under any Law applicable to
Webengine or any licence, permit or other instrument granted or issued to
Webengine, any term or provision of the constating documents or by-laws of
Webengine, any resolutions passed or consented to by the directors or
shareholders of Webengine or any mortgage, note, indenture, contract, deed of
trust, agreement (written or oral), or other document to which Webengine is a
party or by which it is bound, or any judgment, decree, order, statute, rule or
regulation of any arbitrator, stock exchange or securities regulatory authority
applicable to Webengine which, if breached, would have a material adverse effect
on the condition (financial or otherwise), business, properties or results of
operations of Webengine.
4.10 No Litigation. etc.:
--------------------
There is no action, suit, enquiry, investigation or other proceeding, formal or
informal, pending or threatened against or affecting Webengine and its
subsidiaries, at law or in equity, or before or by any Governmental Authority,
domestic or foreign, which is reasonably likely, individually or in the
aggregate, to have a material adverse effect on the condition (financial or
otherwise) of Webengine or which questions or could question the validity of the
transaction contemplated by this Agreement or any action taken or to be taken by
Webengine pursuant to or in connection with this Agreement.
4.11 Taxes:
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Webengine has duly filed all tax returns required to be filed by it, has paid
all taxes due and payable by it and has paid all assessments and re-assessments
and all other taxes, governmental
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charges, penalties, interest and other fines due and payable by it and which are
claimed by any Governmental Authority to be due and owing, and adequate
provision has been made for taxes payable for any completed fiscal period for
which tax returns have not yet been filed or are not yet required to be filed;
there are no agreements, waivers or other arrangements providing for an
extension of time with respect to the filing of any tax return or payment of any
tax, governmental charge or deficiency by Webengine in respect of any taxes,
governmental charges or assessments asserted by any such authority.
4.12 Regulatory Approvals:
---------------------
No governmental or regulatory authorization, approval, order, consent or filing
is required on the part of Webengine in connection with the execution, delivery
and performance of this Agreement or any other documents and agreements to be
delivered under this Agreement or the performance of Webengine'ss obligations
under this Agreement or any other documents and agreements to be delivered under
this Agreement.
4.13 Consents and Approvals:
-----------------------
There is no requirement under any agreement, instrument or commitment (written
or oral) relating to Webengine and its subsidiaries or the business of Webengine
to which Webengine is a party or by which it is bound to give any notice to, or
to obtain the consent or approval of any party to such agreement, instrument or
commitment (written or oral) relating to the consummation of the transaction
contemplated by this Agreement.
4.14 Absence of Unusual Transaction:
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Since the date of the Financial Statements, there has not been any material
adverse change in the financial condition, operations or prospects of Webengine,
and Webengine has not, other than in the ordinary course of its business and
except for as otherwise provided for in this Agreement:
(a) transferred, assigned, sold or otherwise disposed of any of the assets
shown or reflected in the Financial Statements or cancelled any debts
or entitlements;
(b) incurred or assumed any material liabilities or obligations whether
accrued, absolute, contingent or otherwise;
(c) discharged or satisfied any Encumbrance or paid any material
obligation or liability (fixed or contingent);
(d) suffered any extraordinary loss, waived or omitted to take any action
in respect of any rights of substantial value, or entered into any
commitment or transaction where such loss, rights, commitment or
transaction is or would be material in relation to Webengine;
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(e) hired or dismissed any employees, or granted any bonuses, whether
monetary or otherwise, or made any general wage or salary increases in
respect of its employees, or changed the terms of employment for any
employee;
(f) mortgaged, pledged, subjected to lien, granted a security interest in
or otherwise encumbered any of its assets or property, whether
tangible or intangible;
(g) directly or indirectly, declared or paid any dividends or declared or
made any other payments or distributions on or in respect of any of
its capital stock and has not, directly or indirectly, purchased or
otherwise acquired any of its capital stock; or
(h) authorized, agreed or otherwise become committed to do any of the
foregoing.
4.15 No Loans to Directors etc.:
---------------------------
Webengine has made no loans or advances of any nature whatsoever which are
outstanding to any director, officer, shareholder or employee of Webengine or to
any person with which it or any of the foregoing do not deal at arm's length.
4.16 No Claims:
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Webengine has no outstanding Claims against it.
4.17 Certificate of Incorporation and By-Laws:
-----------------------------------------
The certificate of incorporation and by-laws of Webengine, including any and all
amendments, have been delivered or made available to Callmate and such
certificate and by-laws as so amended are in full force and effect and no
amendments are being made to the same.
4.18 Books of Account:
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The books and records of Webengine fairly present and disclose the financial
position of Webengine as at the relevant dates and all material financial
transaction of Webengine have been accurately recorded in such books and
records.
4.19 Issuance of Treasury Shares:
----------------------------
Prior to the Closing Date, Webengine's board of directors will have duly
authorized and approved the transfer of the Issued Shares by Webengine's
Shareholders to Callmate and all matters relating thereto
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4.20 Brokerage Fees etc.:
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There is no Person acting or purporting to act for Webengine entitled to any
brokerage or finder's fee in connection with this Agreement or any of the
transactions contemplated herein and, in the event any Person acting or
purporting to act for Webengine establishes a claim for any such fee from
Callmate, Webengine covenants to indemnify and hold harmless Callmate with
respect thereto and with respect to all costs reasonably incurred in the defence
thereof.
4.21 Material Contracts:
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Schedule E lists all material contracts outside of the ordinary course of
business including loans, employment contracts, insurance policies, benefit
plans, shareholder agreements and the like, copies of all of which will be made
available to Callmate before Closing.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF CALLMATE
------------------------------------------
Callmate hereby represents and warrants to Webengine as follows and
acknowledges that Webengine is relying on such representations and warranties in
connection with its execution and delivery of this Agreement and the completion
of the transaction contemplated by this Agreement.
5.1 Incorporation and Organization:
-------------------------------
Callmate is a corporation continued and validly existing under the laws of the
State of Florida. No proceedings have been initiated or are pending for the
dissolution or liquidation of Callmate or threatening its existence.
5.2 Due Authorization:
------------------
Callmate has all necessary corporate power, authority and capacity to enter into
this Agreement and to carry out its obligations under this Agreement. The
execution and delivery of this Agreement and all other documents required to be
executed and delivered by Callmate at the Closing, and the consummation of the
transaction contemplated under this Agreement have been or will at the Closing
Time have been duly authorized by all necessary corporate action of Callmate.
5.3 Enforceability Of Obligations:
------------------------------
This Agreement constitutes, and all other documents to be executed and delivered
by Callmate at the Closing will constitute valid and binding obligations of
Callmate, enforceable against it in accordance with their respective terms,
subject to the usual exceptions as to bankruptcy, insolvency and other laws
affecting the enforcement of creditors' rights generally and the availability of
equitable remedies.
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5.4 Absence of Conflicting Agreements:
----------------------------------
Callmate is not a party to, bound or affected by or subject to any indenture,
mortgage, lease, agreement, obligation, instrument, charter or by-law provision,
or Law which would be violated, contravened or breached by or under which any
default would occur or an Encumbrance would be created as a result of the
execution and delivery by it of this Agreement or the performance by it of any
of the terms of this Agreement.
5.5 Brokerage Fees etc.:
--------------------
There is no Person acting or purporting to act for Callmate entitled to any
brokerage or finder's fee in connection with this Agreement or any of the
transaction contemplated herein and, in the event any Person acting or
purporting to act for Callmate establishes a claim for any such fee from
Webengine, Callmate covenants to indemnify and hold harmless Webengine with
respect thereto and with respect to all costs reasonably incurred in the defence
thereof.
5.6 Consents and Approvals:
-----------------------
There is no requirement under any agreement, instrument or commitment (written
or oral) to which Callmate is a party or by which it is bound to give any notice
to, or to obtain the consent or approval of, any party to such agreement,
instrument or commitment (written or oral) relating to the consummation of the
transaction contemplated by this Agreement.
5.7 Regulatory Approvals:
---------------------
No governmental or regulatory authorization, approval, order, consent or filing
is required on the part of Callmate in connection with the execution, delivery
and performance of this Agreement or any other documents and agreements to be
delivered under this Agreement or the performance of Callmate's obligations
under this Agreement or any other documents and agreements to be delivered under
this Agreement, except the consent from the Securities Exchange Commission which
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will be obtained and available at the Closing.
5.8 Reporting Issuer Status
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Callmate is a "reporting issuer" as the term is defined in the Securities
Act (United States) and is not in default of any requirement under such Act.
5.9 OTC:BB Status
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The Common Shares of Callmate are listed and posted for trading on the
United States Over the Counter (OTC:BB) Stock Exchange.
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ARTICLE 6
CLOSING
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6.1 At the Closing:
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A) Webengine will:
i) Have its shareholders transfer their common shares to Callmate;
and
ii) deliver to Callmate an opinion of Webengine's counsel in the
form annexed as Schedule B hereto.
B) Callmate will:
i) Issue 12,000,000 common shares from the Treasury of Callmate and
deliver them as per the direction from Webengine;
ii) Use its best endeavors to apply to the SEC for a change of its
corporate name from Callmate Telecom International Inc. to
Webengine Technologies International Inc.
iii) Use its best endeavors to apply for a change in its trading
symbol
E) Directorship of Webengine
i) Webengine's directors shall resign
F) Directorship of Callmate
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i) Webengine Shareholders will appoint 2 member(s) to the board of
Callmate
ii) A new board will be appointed that shall be made comprised of 5
persons, 2 being about appointed by Webengine
ARTICLE 7
COVENANTS
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7.1 Webengine covenants and agrees with Callmate that:
(a) the business of Webengine will be carried on in the ordinary and
normal course up to the Closing Time, and, without the consent of
Callmate, Webengine will not enter into any transaction, arrangement
or obligation outside of the ordinary course of business;
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ARTICLE 8
NON-WAIVER SURVIVAL
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8.1 Non-Waiver:
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No investigations made by or on behalf of any Party at any time shall have the
effect of waiving, diminishing the scope or otherwise affecting any
representation, warranty or covenant made by the other Party in or pursuant to
this Agreement, except where any such investigations leads a Party to actual
knowledge, prior to the execution of this Agreement, of a breach of any
representation, warranty or covenant for which the investigating Party has not
notified the breaching Party within 10 Business Days of having such actual
knowledge. No waiver of any condition or other provisions, in whole or in part,
shall constitute a waiver of any other condition or provision (whether or not
similar) nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
8.2 Nature and Survival:
--------------------
The representations and warranties of the Parties contained in this Agreement
and contained in any document or certificate given pursuant hereto shall survive
the closing of the purchase and sale of the Purchased Shares herein provided for
and continue in full force and effect for the benefit of the Parties without any
limitation as to time.
ARTICLE 9
CONDITIONS PRECEDENT FOR BENEFIT OF WEBENGINE
---------------------------------------------
The obligation of Webengine to complete the transfer of the Issued Shares under
this Agreement shall be subject to the satisfaction of or compliance with, at or
before the Closing Time, each of the following conditions precedent (each of
which is acknowledged to be inserted for the exclusive benefit of Webengine and
may be waived by it in whole or in part):
9.1 Performance of Obligations:
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Callmate shall have performed or complied with, in all material respects, all of
its respective obligations, covenants and agreements under this Agreement.
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9.2 Receipt of Closing Documentation:
---------------------------------
All documentation relating to the due authorization and completion of the
transaction contemplated pursuant to this Agreement and all actions and
proceedings taken on or prior to the Closing in connection with the performance
by Callmate of its obligations under this Agreement shall be satisfactory to
Webengine, acting reasonably, and Webengine shall have received copies of all
such documentation or other evidence as it may reasonably request in order to
establish the consummation of the transaction contemplated hereby and the taking
of all corporate proceedings in connection therewith in compliance with these
conditions, in form (as to certification and otherwise) and substance
satisfactory to Webengine, acting reasonably.
9.3 No Injunction:
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There shall be no injunction or restraining order issued preventing, and no
pending or threatened claim, action, litigation or proceeding, judicial or
administrative, or investigation against any Party by any Governmental Authority
for the purpose of enjoining or preventing the consummation of the transaction
contemplated in this Agreement or otherwise claiming that this Agreement or the
consummation thereof is improper or would give rise to proceedings under any
Law.
9.4 No Laws:
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No Laws shall have been enacted, introduced or announced which materially
adversely affect Callmate, or the ability of Callmate to legally issue the
Treasury Shares as contemplated by this Agreement.
If any of the foregoing conditions in this Article has not been fulfilled by
Closing, Webengine may terminate this Agreement by notice in writing to
Callmate, in which event Webengine is released from all obligations under this
Agreement. However, Webengine may waive compliance with any condition in whole
or in part if it sees fit to do so, without prejudice to its rights of
termination in the event of non-fulfillment of any other condition in whole or
in part or to its rights to recover damages for the breach of any
representation, warranty, covenant or condition contained in this Agreement.
ARTICLE 10
CONDITIONS PRECEDENT FOR BENEFIT OF CALLMATE
--------------------------------------------
The obligations of Callmate to complete the transaction contemplated by this
Agreement shall be subject to the satisfaction of, or compliance with, at or
before the Closing Time, each of the following conditions precedent (each of
which is acknowledged to be inserted for the exclusive benefit of Callmate and
may be waived by it in whole or in part):
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10.1 Performance of Obligations:
---------------------------
Webengine shall have performed or complied with, in all respects, all its
obligations, covenants and agreements under this Agreement
10.2 Receipt of Closing Documentation:
---------------------------------
All documentation relating to the due authorization and completion of the
transaction contemplated by this Agreement and all actions and proceedings taken
on or prior to the Closing in connection with the performance by Webengine of
its obligations under this Agreement shall be satisfactory to Callmate, acting
reasonably, and Callmate shall have received copies of all such documentation or
other evidence as it may reasonably request in order to establish the
consummation of the transaction contemplated by this Agreement and the taking of
all corporate proceedings in connection with such transaction in compliance with
these conditions, in form (as to certification and otherwise) and substance
satisfactory to Callmate, acting reasonably.
10.3 No Injunction:
--------------
There shall be no injunction or restraining order issued preventing, and no
pending or threatened claim, action, litigation or proceeding, judicial or
administrative, or investigation against any Party by any Governmental
Authority, for the purpose of enjoining or preventing the consummation of the
transaction contemplated in this Agreement or otherwise claiming that this
Agreement or the consummation thereof is improper or would give rise to
proceedings under any Law.
10.4 No Laws:
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No Law shall have been enacted, introduced or announced which materially
adversely affects Webengine or the ability of Callmate to acquire and hold the
Issued Shares as contemplated by this Agreement.
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10.5 Due Diligence:
--------------
Callmate shall be satisfied, in its sole discretion, with its due diligence
investigations of Webengine.
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ARTICLE 11
OTHER COVENANTS OF THE PARTIES
------------------------------
11.1 Actions to Satisfy Closing Conditions:
--------------------------------------
Each of the Parties agrees to take all such actions as are within its power to
control, and to use its best efforts to cause other actions to be taken which
are not within its power to control, so as to ensure compliance with each of the
conditions and covenants set forth in this Agreement which are for the benefit
of either Party.
11.2 Expenses:
---------
Each of Webengine and Callmate shall be responsible for its own expenses
(including fees and expenses of legal advisers, accountants and other
professional advisers) incurred by them in connection with the negotiation and
settlement of this Agreement and the completion of the transaction contemplated
thereby, whether or not the transaction contemplated by this Agreement is
consummated.
ARTICLE 12
INDEMNIFICATION
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12.1 Mutual Indemnifications for Breaches of Covenants and Warranty. etc.:
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Webengine covenants and agrees with Callmate and Callmate covenants and agrees
with Webengine (the Party or Parties so covenanting and agreeing to indemnify
another Party being referred to in this Section as the "Indemnifying Party" and
the Party so to be indemnified being called the "Indemnified Party") to
indemnify and save harmless the Indemnified Party, effective as and from the
Closing Time, from and against all claims ("claims") which may be made or
brought against the Indemnified Party or which it may suffer or incur, directly
or indirectly as a result of or in connection with any non-fulfillment of any
covenant or agreement on the part of the Indemnifying Party under this Agreement
or any incorrectness in or breach of any representation or warranty of the
Indemnifying Party contained in this Agreement or in any certificate or other
document furnished by the Indemnifying Party pursuant to this Agreement. The
foregoing obligation of indemnification in respect of such claims shall be
subject to the requirement that the Indemnifying Party shall, in respect of any
claim made by any third person, be afforded an opportunity at its sole expense
to resist, defend and compromise such claim, provided, however, that no
compromise shall be entered into by the Indemnifying Party without the prior
written consent of the Indemnified Party, such consent not to be unreasonably
withheld, or upon delivery by the Indemnifying Party to the Indemnified Party of
an unconditional release of the Indemnified Party, in form and substance
satisfactory to the Indemnified Party, acting reasonably.
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12.2 Indemnification Procedures:
---------------------------
(a) In the case of claims or demands made by a third party with respect to
which indemnification is sought, the Party seeking indemnification
shall give prompt written notice, and in any event within 10 days, to
the other Party of any such claims or demands made upon it, provided
that in the event of a failure to give such notice, such failure shall
not preclude the Party seeking indemnification to obtain such
indemnification but its right to indemnification may be reduced to the
extent that such delay prejudiced the defence of the claim or demand
or increased the amount of liability or cost of defence and provided
that, notwithstanding anything else herein contained, no claim for
indemnity in respect of the breach of any representation or warranty
or covenant contained herein may be made unless notice of such claim
has been given.
(b) The Indemnifying Party shall have the right, by notice to the
Indemnified Party given not later than 30 days after receipt of the
notice described in subsection (a) to assume the control of the
defence, compromise or settlement of the claim or demand, provided
that such assumption shall, by its terms, be without cost to the
Indemnified Party and provided the Indemnifying Party acknowledges in
writing its obligation to indemnify the Indemnified Party in
accordance with the terms contained in this Section in respect of that
claim or demand.
(c) Upon the assumption of control of any claim or demand by the
Indemnifying Party as set out in subsection (b), the Indemnifying
Party shall diligently proceed with the defence, compromise or
settlement of the claim or demand at its sole expense, including, if
necessary, employment of counsel reasonably satisfactory to the
Indemnified Party and, in connection therewith, the Indemnified Party
shall co-operate fully, but at the expense of the Indemnifying Party
with respect to any out-of-pocket expenses incurred, to make available
to the Indemnifying Party all pertinent information and witnesses
under the Indemnified Party's control, make such assignments and take
such other steps as in the opinion of counsel for the Indemnifying
Party are reasonably necessary to enable the Indemnifying Party to
conduct such defence. The Indemnified Party shall also have the right
to participate in the negotiation, settlement or defence of any claim
or demand at its own expense.
(d) The final determination of any claim or demand pursuant to this
Section, including all related costs and expenses, will be binding and
conclusive upon the parties as to the validity or invalidity, as the
case may be, of such claim or demand against the Indemnifying Party.
(e) Should the Indemnifying Party fail to give notice to the Indemnified
Party as provided in subsection (b), the Indemnified Party shall be
entitled to make such settlement of the claim or demand as in its sole
discretion may appear advisable, and such settlement or any other
final determination of the claim or demand shall be binding upon the
Indemnifying Party.
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ARTICLE 13
GENERAL
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14.1 Notices:
--------
Any notice or other writing required or permitted to be given under this
Agreement or for the purposes of this Agreement (in this Article referred to as
a "Notice") shall be in writing and shall be sufficiently given, if delivered or
sent by prepaid registered mail or by facsimile to such Party:
(a) In the case of Notice to Webengine at;
▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Gowling, Strathy & ▇▇▇▇▇▇▇▇▇
Commerce Court West
Suite 4900
Toronto, Ontario
Canada ▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
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(b) In the case of Notice to Callmate at:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
with a copy to:
▇▇▇▇▇▇▇, Savage & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
or at such other address as the Party to whom such Notice is to be given shall
have last notified the Party giving the same in the manner provided in this
Article. Any Notice given delivered to the Party to whom it is addressed as
provided above shall be deemed to have been given and received on the day it so
delivered at such address, provided that if such day is not a Business Day then
the Notice shall be deemed to have been given and received on the next Business
Day. Any Notice sent by prepaid registered mail shall be deemed to have been
given and received on the fifth Business Day following the date of its mailing.
Any Notice transmitted by facsimile shall be deemed given and received on the
first Business Day after its transmission.
14.2 Assignment:
-----------
Neither this Agreement nor any benefits or burdens under this Agreement shall be
assignable by either Party without the prior written consent of the other Party,
which consent shall not be unreasonably withheld, provided that Callmate shall,
without consent, be permitted to assign the benefits or burdens under this
Agreement to a wholly-owned subsidiary of Callmate. Subject to the foregoing,
this Agreement shall enure to the benefit of and be binding upon the Patties and
their respective successors and permitted assigns.
19
14.3 Further Assurances:
-------------------
The Parties shall do all such things and provide all such assurances as may be
required to consummate the transaction contemplated by this Agreement, and each
Party shall provide such further documents or instruments required by the other
Party as may be reasonably necessary or desirable to effect the purpose of this
Agreement and carry out its provisions, whether before or after the Closing.
14.4 Independent Legal Advice:
--------------------------
Each of the Parties acknowledge that it has received independent legal advice in
connection with this Agreement and the transaction contemplated therein.
14.5 Counterparts:
-------------
This Agreement may be executed by the Parties in separate counterparts each of
which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
14.6 Facsimile:
----------
All signatures of the Parties to and pursuant to this Agreement may be
transmitted by facsimile and each such facsimile signature shall for all
purposes be deemed to be the original signature of the Person whose signature it
reproduces and shall be binding upon that Person and on the Party on whose
behalf that Person signed.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as
of the day and year first above written.
WEBENGINE TECHNOLOGIES INTERNATIONAL INC.
per: /s/ ▇▇▇▇ ▇▇▇▇
---------------------------------
Mr. ▇▇▇▇ ▇▇▇▇
PRESIDENT
CALLMATE TELECOM INTERNATIONAL INC.
per: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CEO
20
SCHEDULE "A"
FINANCIALS OF WEBENGINE,
AUDITED
21