REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations and Warranties 3.01 The Vendors hereby represent and warrant to the Purchaser, with the intent that the Purchaser shall rely thereon in entering into this Agreement and in concluding the transactions contemplated hereby, that to the best of the Vendors' knowledge, information and belief: (a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accrued, contingent or otherwise) exceeding $10,000 in the aggregate; (b) no person has any agreement or option, present or future, contingent, absolute or capable of becoming an agreement or option or which with the passage of time or the occurrence of any event could become an agreement or option to acquire the KAS Shares; (c) the Vendors are the registered holders and beneficial owners of and have good marketable title to the KAS Shares, free and clear of all liens, charges and encumbrances whatsoever; (d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares in the capital of KAS; (e) the Vendors have good and sufficient right and authority to enter into this Agreement on the terms and conditions herein contained and to transfer the legal and beneficial title of the KAS Shares to the Purchaser; (f) assuming this Agreement is a valid, binding and enforceable obligation of the Purchaser and assuming satisfaction or waiver of the conditions precedent in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the Vendors. On Closing, the Vendors will not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by or under which any default would occur as a result of the execution and delivery by the Vendors of this Agreement or the performance by the Vendors of any of the terms hereof; and (g) at Closing KAS will not be indebted to the Vendors or any employees or directors of the Vendors or the Vendors' general partner or any affiliate or associate of the Vendors, on any account whatsoever. 3.02 The representations and warranties contained in section 3.01 shall survive the completion of the transactions contemplated by this Agreement and shall continue in full force and effect for the benefit of the Purchaser until the earlier of three (3) years from the date of this Agreement or dissolution of the Vendors, whichever occurs first, notwithstanding any independent enquiry or investigation by the Purchaser.
Appears in 1 contract
Samples: Share Purchase Agreement (Fidelity Capital Concepts LTD)
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations and Warranties
3.01 The Vendors hereby represent and warrant In order to the Purchaser, with the intent that induce the Purchaser shall rely thereon in entering to enter into this Agreement and in concluding to complete the transactions contemplated herebyby this Agreement, that the Vendors represents and warrants to the best Purchaser that:
a) The Vendor is the recorded and beneficial owner of 100% of the Vendors' knowledgeProperties described in Schedule A to this Agreement and, information and belief:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accrued, contingent or otherwise) exceeding $10,000 in has the aggregate;
(b) no person has any agreement or option, present or future, contingent, absolute or capable of becoming an agreement or option or which with the passage of time or the occurrence of any event could become an agreement or option to acquire the KAS Shares;
(c) the Vendors are the registered holders and beneficial owners of and have good marketable title to the KAS Shares, free and clear of all liens, charges and encumbrances whatsoever;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares in the capital of KAS;
(e) the Vendors have good and sufficient right and authority to enter into this Agreement and to sell and assign the Properties free and clear of any liens or encumbrances;
b) The Vendor has the right to enter into this Agreement to sell and assign the Properties free and clear of any liens and encumbrances and to become the recipient of the consideration to be paid for Properties;
c) The Mineral Claim comprising the Properties have been property staked and recorded in compliance with all laws and regulations of the Province of British Columbia and there are no disputes over the title, the staking or recording of the mineral prospects on the terms Properties, or outstanding agreements or options to acquire or purchase the Properties or any portion thereof, and conditions herein contained and to transfer the legal and beneficial title of the KAS Shares to the Purchaser;
(f) assuming this Agreement is a valid, binding and enforceable obligation of the Purchaser and assuming satisfaction no person has any royal or waiver of the conditions precedent other interest whatsoever in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the Vendors. On Closing, the Vendors will not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by or under which any default would occur as a result of the execution and delivery by the Vendors of this Agreement or the performance by the Vendors of production from any of the terms hereofcrown grant claims which comprise the Properties;
d) The Properties are in good standing, and all necessary filings, permits and other necessary documentation has been made or received from all regulatory authorities, and the properties are free and clear of any liens, charges or encumbrances or claims by any other party of any nature or kind whatsoever;
e) Neither the Vendor, nor any predecessor in interest or title, has done anything whereby the Properties may become encumbered; and
(gf) at Closing KAS will not be indebted to There are no pending or threatened actions, suits, claims or proceedings regarding the Vendors or any employees or directors of the Vendors or the Vendors' general partner or any affiliate or associate of the Vendors, on any account whatsoeverProperties.
3.02 The Vendor shall indemnify and save the Purchaser harmless from all loss, damage, costs, actions, and suits arising out of or in connection with any breach of any representation, warranty, covenant, agreement or condition made by it and contained in this Agreement.
3.03 The representations and warranties contained in section 3.01 this paragraph are provided for the exclusive benefit of the Purchaser, and a breach of any one or more thereof may be waived by the Purchaser in whole or in part at any time without prejudice to its rights in respect of any other breach of the same or any other representation or warranty.
3.04 The representations and warranties contained in this Paragraph shall survive the completion execution hereof.
3.05 On Closing, the Vendor shall deliver duly executed transfer forms to the Purchaser so that The Purchaser can make all required filings to record the transfer of the transactions contemplated by this Agreement and shall continue in full force and effect for title to the benefit of the Purchaser until the earlier of three (3) years from the date of this Agreement or dissolution of the Vendors, whichever occurs first, notwithstanding any independent enquiry or investigation by Properties to the Purchaser.
Appears in 1 contract
Samples: Mining Contract (Ugods, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations and Warranties
3.01 The Vendors hereby represent and warrant 3.1 In order to the Purchaser, with the intent that induce the Purchaser shall rely thereon in entering to enter into this Agreement and in concluding to consummate the transactions contemplated herebyby this Agreement, that Xxxx represents and warrants to the best of the Vendors' knowledge, information and beliefPurchaser as follows:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accruedMetasun Software is duly incorporated, contingent or otherwise) exceeding $10,000 validly existing, and in good standing with respect to the aggregatefiling of annual reports under the Company Act, and has all necessary corporate power, authority and capacity to own its Assets and to carry on its business as presently conducted;
(b) Xxxx owns and has good and marketable title to all the Metasun Shares as the legal and beneficial owner thereof, free of all Encumbrances and all such shares have been duly and validly issued and are outstanding as fully paid and non-assessable shares in the capital of Metasun Software;
(c) The Metasun Shares represent all of the issued and outstanding shares in the capital of Metasun Software and no person Person has any agreement agreement, right or option, present or future, contingent, absolute or capable of becoming an agreement agreement, right or option or which with the passage of time or the occurrence of any event could become an agreement agreement, right or option option:
(i) to require Metasun Software to issue any further or other shares in its capital or any other security convertible or exchangeable into shares in its capital or to convert or exchange any securities into or for shares in the capital of Metasun Software;
(ii) for the issue or allotment of any unissued shares in Metasun Software's capital; or
(iii) to acquire the KAS Shares;
(c) the Vendors are the registered holders issued and beneficial owners outstanding shares in Metasun Software or any of and have good marketable title to the KAS Shares, free and clear of all liens, charges and encumbrances whatsoeverthem;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares in the capital of KAS;
(e) the Vendors have good Xxxx has due and sufficient right and authority to enter into this Agreement on the terms and conditions herein contained set forth and to transfer the legal and beneficial title and ownership of the KAS Shares to the Purchaser;
(e) Xxxx is not a "non-resident" of Canada within the meaning of s. 116 of the Income Tax Act; and
(f) assuming this This Agreement is constitutes a valid, valid and binding and enforceable obligation of the Purchaser and assuming satisfaction or waiver of the conditions precedent in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the VendorsXxxx. On Closing, the Vendors will Xxxx is not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by by, or under which any default would occur as a result of of, the execution and delivery by the Vendors Xxxx of this Agreement or the performance by the Vendors Xxxx of any of the terms hereof; and.
(g) at Closing KAS will Metasun Software has good and marketable title to all of its Assets free and clear of all Encumbrances and none of Metasun Software's Assets are in the possession of or under the control of any other person;
(h) Schedule E sets forth a true and complete list of all equipment and other personal property owned by Metasun Software and all such equipment and other personal property are owned free and clear of any Encumbrances;
(i) Except for the contracts and agreements listed in Schedule B, Metasun Software is not be indebted party to or bound by any Material Contract, whether oral or written, and the contracts and agreements listed in Schedule B are all valid and subsisting, in full force and effect and un-amended, no material default exists in respect thereof on the part of Metasun Software or, to the Vendors or any employees or directors best of the Vendors or the Vendors' general partner or any affiliate or associate knowledge of either of the Vendors, on the part of any account whatsoever.
3.02 The representations and warranties contained in section 3.01 shall survive the completion of the transactions contemplated by this Agreement and shall continue in full force and effect for other parties thereto, the benefit Vendors are not aware of any intention on the part of any of the Purchaser until other parties thereto to terminate or materially alter any such contracts or agreements, and Schedule B list all the earlier present outstanding Material Contracts entered into by Metasun Software in the course of three carrying on its business;
(3j) years from Metasun Software is not party to, bound by or subject to any indenture, mortgage, lease, agreement, license, permit, authorization, certification, instrument, statute, regulation, order, judgment, decree or law that would be violated or breached by, or under which default would occur or which could be terminated, cancelled or accelerated, in whole or in part, as a result of the date execution and delivery of this Agreement or dissolution the consummation of any of the Vendorstransactions provided for in this Agreement;
(k) there is no action, whichever occurs firstsuit, notwithstanding litigation, arbitration proceeding, governmental proceeding, investigation or claim, including appeals and applications for review, in progress, threatened or pending against, or relating to Metasun Software or affecting their Assets or business which might materially and adversely affect the Assets, business, future prospects or financial condition of Metasun Software, and there is no judgment, decree, injunction, rule or order of any independent enquiry court, governmental department, commission, agency, instrumentality or investigation by the Purchaser.arbitrator outstanding against Metasun Software;
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations and Warranties
3.01 The Vendors hereby represent and warrant In order to the Purchaser, with the intent that induce the Purchaser shall rely thereon in entering to enter into this Agreement and in concluding to complete the transactions contemplated herebyby this Agreement, that the Vendors represents and warrants to the best Purchaser that:
a) The Vendor is the recorded and beneficial owner of 100% of the Vendors' knowledgeProperties described in Schedule A to this Agreement and, information and belief:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accrued, contingent or otherwise) exceeding $10,000 in has the aggregate;
(b) no person has any agreement or option, present or future, contingent, absolute or capable of becoming an agreement or option or which with the passage of time or the occurrence of any event could become an agreement or option to acquire the KAS Shares;
(c) the Vendors are the registered holders and beneficial owners of and have good marketable title to the KAS Shares, free and clear of all liens, charges and encumbrances whatsoever;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares in the capital of KAS;
(e) the Vendors have good and sufficient right and authority to enter into this Agreement and to sell and assign the Properties free and clear of any liens or encumbrances;
b) The Vendor has the right to enter into this Agreement to sell and assign the Properties free and clear of any lends and encumbrances and to become the recipient of the consideration to be paid for Properties;
c) The Mineral Claim comprising the Properties have been property staked and recorded in compliance with all laws and regulations of the Province of British Columbia and there are no disputes over the title, the staking or recording of the mineral prospets on the terms Properties, or outstanding agreements or options to acquire or purchase the Properties or any protion thereof, and conditions herein contained and to transfer the legal and beneficial title of the KAS Shares to the Purchaser;
(f) assuming this Agreement is a valid, binding and enforceable obligation of the Purchaser and assuming satisfaction no person has any royal or waiver of the conditions precedent other interest whatsoever in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the Vendors. On Closing, the Vendors will not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by or under which any default would occur as a result of the execution and delivery by the Vendors of this Agreement or the performance by the Vendors of production from any of the terms hereofcrown grant claims which comprise the Properties;
d) The Properties are in good standing, and all necessary filings, permits and other necessary documentation has been made or received from all regulatory authorities, and the properties are free and clear of any liens, charges or encumbrances or claims by any other party of any nature or kind whatsoever;
e) Neither the Vendor, nor any predecessor in the interest or title, has done anything whereby the Properties may become encumbered; and
(gf) at Closing KAS will not be indebted to There are no pending or threatened actions, suits, claims or proceedings regarding the Vendors or any employees or directors of the Vendors or the Vendors' general partner or any affiliate or associate of the Vendors, on any account whatsoeverProperties.
3.02 The Vendor shall indemnify and save the Purchaser harmless from all loss, damage, costs, actions, and suits arising out of or in connection with any breach of any representation, warranty, covenant, agreement or condition made by it and contained in this agreement.
3.03 The representations and warranties contained in section 3.01 this paragraph are provided for the exclusive benefit of the Purchaser, and a breach of any one or more thereof may be waived by the Purchaser in whole or in part at any time without prejudice to its rights in respect of any other breach of the same or any other representation or warranty.
3.04 The representations and warranties contained in this Paragraph shall survive the completion execution hereof.
3.05 On Closing, the Vendor shall deliver duly executed transfer forms to the Purchaser so that The Purchaser can make all required filings to record the transfer of the transactions contemplated by this Agreement and shall continue in full force and effect for title to the benefit of the Purchaser until the earlier of three (3) years from the date of this Agreement or dissolution of the Vendors, whichever occurs first, notwithstanding any independent enquiry or investigation by Properties to the Purchaser.
Appears in 1 contract
Samples: Mining Contract (Ugods, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations and Warranties
3.01 The Vendors hereby represent and warrant 3.1 In order to the Purchaser, with the intent that induce the Purchaser shall rely thereon in entering to enter into this Agreement and in concluding to consummate the transactions contemplated herebyby this Agreement, that Suave represents and warrants to the best of the Vendors' knowledge, information and beliefPurchaser as follows:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accruedWestside is duly incorporated, contingent or otherwise) exceeding $10,000 validly existing, and in good standing with respect to the aggregatefiling of annual reports under the Company Act, and has all necessary corporate power, authority and capacity to own its Assets and to carry on its business as presently conducted;
(b) Suave owns and has good and marketable title to all the Westside Shares as the legal and beneficial owner thereof, free of all Encumbrances and all such shares have been duly and validly issued and are outstanding as fully paid and non- assessable shares in the capital of Westside Software;
(c) The Westside Shares represent all of the issued and outstanding shares in the capital of Westside and no person Person has any agreement agreement, right or option, present or future, contingent, absolute or capable of becoming an agreement agreement, right or option or which with the passage of time or the occurrence of any event could become an agreement agreement, right or option option:
(i) to require Westside to issue any further or other shares in its capital or any other security convertible or exchangeable into shares in its capital or to convert or exchange any securities into or for shares in the capital of Westside Software;
(ii) for the issue or allotment of any unissued shares in Westside Software’s capital; or
(iii) to acquire the KAS Shares;
(c) the Vendors are the registered holders issued and beneficial owners outstanding shares in Westside or any of and have good marketable title to the KAS Shares, free and clear of all liens, charges and encumbrances whatsoeverthem;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares in the capital of KAS;
(e) the Vendors have good Suave has due and sufficient right and authority to enter into this Agreement on the terms and conditions herein contained set forth and to transfer the legal and beneficial title and ownership of the KAS Shares to the Purchaser;
(e) Suave is not a “non-resident” of Canada within the meaning of s. 116 of the Income Tax Act; and
(f) assuming this This Agreement is constitutes a valid, valid and binding and enforceable obligation of the Purchaser and assuming satisfaction or waiver of the conditions precedent in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the VendorsSuave. On Closing, the Vendors will Suave is not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by by, or under which any default would occur as a result of of, the execution and delivery by the Vendors Suave of this Agreement or the performance by the Vendors Suave of any of the terms hereof; and.
(g) at Closing KAS will Westside has good and marketable title to all of its Assets free and clear of all Encumbrances and none of Westside’s Assets are in the possession of or under the control of any other person;
(h) Schedule E sets forth a true and complete list of all equipment and other personal property owned by Westside and all such equipment and other personal property are owned free and clear of any Encumbrances;
(i) Except for the contracts and agreements listed in Schedule B, Westside is not be indebted party to or bound by any Material Contract, whether oral or written, and the contracts and agreements listed in Schedule B are all valid and subsisting, in full force and effect and un-amended, no material default exists in respect thereof on the part of Westside or, to the Vendors or any employees or directors best of the Vendors or the Vendors' general partner or any affiliate or associate knowledge of either of the Vendors, on the part of any account whatsoever.
3.02 The representations and warranties contained in section 3.01 shall survive the completion of the transactions contemplated by this Agreement and shall continue in full force and effect for other parties thereto, the benefit Vendors are not aware of any intention on the part of any of the Purchaser until other parties thereto to terminate or materially alter any such contracts or agreements, and Schedule B list all the earlier present outstanding Material Contracts entered into by Westside in the course of three carrying on its business;
(3j) years from Westside is not party to, bound by or subject to any indenture, mortgage, lease, agreement, license, permit, authorization, certification, instrument, statute, regulation, order, judgment, decree or law that would be violated or breached by, or under which default would occur or which could be terminated, cancelled or accelerated, in whole or in part, as a result of the date execution and delivery of this Agreement or dissolution the consummation of any of the Vendorstransactions provided for in this Agreement;
(k) there is no action, whichever occurs firstsuit, notwithstanding litigation, arbitration proceeding, governmental proceeding, investigation or claim, including appeals and applications for review, in progress, threatened or pending against, or relating to Westside or affecting their Assets or business which might materially and adversely affect the Assets, business, future prospects or financial condition of Westside, and there is no judgment, decree, injunction, rule or order of any independent enquiry court, governmental department, commission, agency, instrumentality or investigation by the Purchaser.arbitrator outstanding against Westside Software;
Appears in 1 contract
Samples: Share Purchase Agreement (Technology Publishing, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations and Warranties
3.01 The Vendors hereby jointly and severally represent and warrant to the PurchaserPurchaser the following, with the intent and acknowledge that the Purchaser shall is entitled to rely thereon in entering into this Agreement on such representations and in concluding warranties notwithstanding any due diligence investigation done by the transactions contemplated hereby, that Purchaser prior to the best closing:
3.1.1 the Corporation is a corporation duly incorporated, organized and subsisting under the laws of British Columbia as a private issuer as that term is defined in the Securities Act (British Columbia) with the corporate power to own its assets and to carry on the Business and has made all necessary filings under all applicable corporate, securities and taxation Laws or any other Laws to which the Corporation is subject and is qualified to own its properties and assets and to carry on the Business as presently carried on by it;
3.1.2 Schedule 2.1.1 sets out (i) the authorized capital of the Vendors' knowledgeCorporation and (ii) the number of Shares of the Corporation which are issued and outstanding, information which shares have been validly issued as fully paid and belief:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accrued, contingent or otherwise) exceeding $10,000 non-assessable and registered in the aggregatenames of the Vendors as set forth on Schedule 2.1.1;
(b) no person has any agreement or option3.1.3 a true and complete copy of the Memorandum and Articles of the Corporation, present or futureincluding the rights, contingentprivileges, absolute or capable of becoming an agreement or option or which with restrictions and conditions attached to the passage of time or the occurrence of any event could become an agreement or option to acquire the KAS SharesShares are attached hereto as Schedule 3.1.3;
(c) 3.1.4 the Purchased Shares constitute all of the issued and outstanding Shares in the capital stock of the Corporation;
3.1.5 each of the Vendors are is the beneficial and registered holders and beneficial owners owner of and have good marketable title to the KAS Sharesnumber of Purchased Shares set opposite the name of such Vendor on Schedule 2.1.1, free and clear of all liensLiens, charges options and encumbrances whatsoeverany other rights of others;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares 3.1.6 there is no contract, option or any other right of another binding upon or which at any time in the capital of KAS;future may become binding upon:
(ei) any of the Vendors have good and sufficient right and authority to enter into this Agreement sell, transfer, assign, or grant any Lien on the terms and conditions herein contained and to transfer the legal and beneficial title or affecting, or in any other way dispose of or encumber any of the KAS Purchased Shares other than pursuant to the Purchaser;
(f) assuming this Agreement is a valid, binding and enforceable obligation of the Purchaser and assuming satisfaction or waiver of the conditions precedent in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the Vendors. On Closing, the Vendors will not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by or under which any default would occur as a result of the execution and delivery by the Vendors provisions of this Agreement or any of its assets other than in the performance by ordinary course of business, or
(ii) the Vendors of Corporation to allot or issue any of the terms hereof; and
(g) at Closing KAS will not be indebted to the Vendors unissued shares or any employees or directors securities of the Vendors Corporation or to create any additional class of shares or securities;
3.1.7 except as disclosed on Schedule 3.1.7, neither the Vendors' general partner or any affiliate or associate entering into nor the delivery of this Agreement and the Vendors, on any account whatsoever.
3.02 The representations and warranties contained in section 3.01 shall survive Ancillary Agreements nor the completion of the transactions contemplated hereby by this Agreement each of the Vendors will result in the violation of or require the Consent of any third party pursuant to:
(i) any of the provisions of the Memorandum or Articles, as amended, of the Corporation;
(ii) any agreement or other instrument to which the Corporation or any of the Vendors is a party or by which the Corporation or any of the Vendors is bound, or
(iii) any applicable Law;
3.1.8 the financial statements of the Corporation, consisting of the Balance Sheet and shall continue statements of income, retained earnings and changes in financial position for the period ended on the Balance Sheet Date, together with the review engagement report of Cinnamon Jang Xxxxxxxxxx & Xompany, chartered accountants, thereon and the notes thereto (hereinafter collectively referred to as the "Financial Statements"), a copy of which is attached hereto as Schedule 3.1.8:
(i) are in accordance with the books and accounts of the Corporation as at the Balance Sheet Date,
(ii) are true and correct and present fairly the financial position of the Corporation as at the Balance Sheet Date,
(iii) have been prepared in accordance with GAAP consistently applied, and
(iv) present fairly all of the assets and liabilities of the Corporation as at the Balance Sheet Date including, without limiting the generality of the foregoing, all contingent liabilities of the Corporation as at the Balance Sheet Date;
3.1.9 the interim financial statements of the Corporation, consisting of a balance sheet and statement of income, for the period ended on May 31, 1998 (hereinafter collectively referred to as the "Interim Financial Statements"), a copy of which is attached hereto as Schedule 3.1.9:
(i) are in accordance with the books and accounts of the Corporation as at May 31, 1998,
(ii) are true and correct and present fairly the financial position of the Corporation as at May 31, 1998, subject only to usual and proper adjustments, which will not exceed, in aggregate, $30,000 and without provision for income or capital taxes, the disposition of a loan receivable from Midway Purnel Sanitary Supply (PG) Ltd. in the amount of $136,965 and the disposal or cancellation of life insurance policies and the associated cash surrender values;
(xxx) xxxsent fairly all of the assets and liabilities of the Corporation as at May 31, 1998; and
(iv) have been prepared in accordance with accounting principles consistent with the principles of GAAP used in the preparation of the Balance Sheet;
3.1.10 since the Balance Sheet Date, the Business of the Corporation has been carried on in its usual and ordinary course and in a manner consistent with prior practices and, the Corporation has not, since the Balance Sheet Date, entered into any transaction out of the usual and ordinary course of business;
3.1.11 since the Balance Sheet Date, there has been no material change in the affairs, business, prospects, operations or condition of the Corporation, financial or otherwise, whether arising as a result of any legislative or regulatory change, revocation of any Permit or right to do business, fire, explosion, accident, casualty, labour dispute, flood, drought, riot, storm, expropriation, condemnation, act of God, public force or otherwise, except changes occurring in the usual and ordinary course of business which have not adversely affected the affairs, business, prospects, operations or condition of the Corporation, financial or otherwise;
3.1.12 the Corporation is the owner with a good and marketable title, free and clear of all Liens, options and any other rights of others, except for the Liens described on Schedule 3.1.12 of all assets shown or reflected on the Balance Sheet, except only such of the assets of the Corporation as have been disposed of in the usual and ordinary course of business since the Balance Sheet Date, and of all assets acquired by the Corporation since the Balance Sheet Date;
3.1.13 all machinery, equipment and automotive equipment owned or used by the Corporation has been properly maintained and is in good working order for the purposes of ongoing operation, subject to ordinary wear and tear for machinery and equipment of comparable age;
3.1.14 Schedule 3.1.14 sets forth a true and complete list of all premises leased by the Corporation ("Leased Premises") and any lease in respect thereof to which the Corporation is a party ("Premises Leases") and:
(i) each Premises Lease is in full force and effect effect, unamended by oral or written agreement, and the Corporation is entitled to the full benefit and advantage of such Premises Lease in accordance with the terms thereof, (ii) each Premises Lease is in good standing, all rental and other payments payable by the Corporation under the leases have been duly paid, (iii) there is currently no outstanding default by the Corporation under the Premises Leases nor is there currently any outstanding default by any landlord thereunder or dispute between the Corporation and any landlord under any of the Premises Leases; (iv) the Corporation has not sublet, assigned or transferred any of its interests in such Premises Lease and (v) the Leased Premises are the only premises used by the Corporation;
3.1.15 Schedule 3.1.15 sets forth a true and complete list of all lease agreements concerning personal property leased by the Corporation ("Personal Property Leases") and:
(i) each Personal Property Lease is in full force and effect, unamended by oral or written agreement, and the Corporation is entitled to the full benefit and advantage of each Personal Property Lease in accordance with the terms thereof, (ii) each Personal Property Lease is in good standing, all rental and other payments payable by the Corporation under the Personal Property Leases have been duly paid, (iii) there is currently no outstanding default by the Corporation thereunder nor of the other parties thereunder nor dispute between the Corporation and any other party thereunder, and (iv) the Corporation has treated all Personal Property Leases as operating leases for Canadian income tax purposes;
3.1.16 except for the benefit Premises Leases, the Corporation holds no ownership or other interest in or right affecting any real estate or real property;
3.1.17 the inventory of the Purchaser until Corporation consist of items saleable in the earlier ordinary course of three business reasonably fit for their usual purpose, except for obsolete and slow-moving items and materials below standard quality which have been written down on the books of account of the Business to net realizable value, or adequate reserves having been provided therefor, all in accordance with GAAP. Except as disclosed in Schedule 3.1.17, there is no recurring or ongoing high incidence of product failure or warranty claims against the Corporation related to the Business;
3.1.18 there are no outstanding orders, notices or similar requirements relating to the Corporation issued by any Governmental Authority, including building, environmental, fire, health, labour or police authorities, and there are no matters under discussion with any such Governmental Authority relating to orders, notices or similar requirements;
3.1.19 except as disclosed on Schedule 3.1.19, no single capital expenditure in excess of $25,000 or capital expenditures in the aggregate in excess of $50,000 have been made or authorized by the Corporation since the Balance Sheet Date;
3.1.20 except as disclosed on Schedule 3.1.20, no dividends have been declared or paid on or in respect of the Shares and no other distribution on any of its securities or shares has been made by the Corporation since the Balance Sheet Date and all dividends which to the date hereof have been declared or paid by the Corporation have been duly and validly declared and are fully paid;
3.1.21 the Corporation does not have any liability, obligation or commitment for the payment of Taxes of whatever nature or kind, or interest or penalties with respect thereto, except such as are disclosed in the Financial Statements or such Taxes not yet due as have arisen since the Balance Sheet Date in the usual and ordinary course of business and for which adequate provision in the accounts of the Corporation has been made, and the Corporation is not in arrears with respect to any required withholdings or instalment payments or other payments of any Tax or duty of any kind or any penalty or interest thereon and has not filed any waiver for a taxation year of the Corporation under the Income Tax Act (3Canada) years or any other legislation imposing Tax on the Corporation; all obligations of the Corporation with respect to its employees for withholding Taxes, Canada Pension Plan contributions, unemployment insurance contributions and workers compensation remittances or contributions of any kind which are due as of the Closing Date will have been paid by the Corporation prior to the Closing Date; there are no outstanding disputes with or assessments from the date Workmen's Compensation Board of this Agreement British Columbia or dissolution the Employment Standards Branch;
3.1.22 the tax accounts of the VendorsCorporation as disclosed in Schedule 3.1.22 attached hereto are true and complete in all material respects;
3.1.23 except as disclosed on Schedule 3.1.23, whichever occurs firstthere are no outstanding liabilities (whether absolute or contingent) against the Corporation except trade debts incurred in the usual and ordinary course of business;
3.1.24 set forth on Schedule 3.1.24 is a true and complete list of all contracts or agreements (except for the Premises Leases, notwithstanding any independent enquiry or investigation by the PurchaserPersonal Property Leases and the employment agreement with the Vendors listed on Schedule 3.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations and Warranties
3.01 The Vendors hereby jointly and severally represent and warrant to the PurchaserPurchaser the following, with the intent and acknowledge that the Purchaser shall is entitled to rely thereon in entering into this Agreement on such representations and in concluding warranties notwithstanding any due diligence investigation done by the transactions contemplated hereby, that Purchaser prior to the best closing:
3.1.1 the Corporation is a corporation duly incorporated, organized and subsisting under the laws of British Columbia as a private issuer as that term is defined in the Securities Act (British Columbia) with the corporate power to own its assets and to carry on the Business and has made all necessary filings under all applicable corporate, securities and taxation Laws or any other Laws to which the Corporation is subject and is qualified to own its properties and assets and to carry on the Business as presently carried on by it;
3.1.2 Schedule 2.1.1 sets out (i) the authorized capital of the Vendors' knowledgeCorporation and (ii) the number of Shares of the Corporation which are issued and outstanding, information which shares have been validly issued as fully paid and belief:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accrued, contingent or otherwise) exceeding $10,000 non-assessable and registered in the aggregatenames of the Vendors as set forth on Schedule 2.1.1;
(b) no person has any agreement or option3.1.3 the rights, present or futureprivileges, contingent, absolute or capable of becoming an agreement or option or which with restrictions and conditions attached to the passage of time or the occurrence of any event could become an agreement or option to acquire the KAS SharesShares are as set out in Schedule 3.1.3 attached hereto;
(c) 3.1.4 the Purchased Shares constitute all of the issued and outstanding Shares in the capital stock of the Corporation;
3.1.5 each of the Vendors are is the beneficial and registered holders and beneficial owners owner of and have good marketable title to the KAS Sharesnumber of Purchased Shares set opposite the name of such Vendor on Schedule 2.1.1, free and clear of all liensLiens, charges options and encumbrances whatsoeverany other rights of others;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares 3.1.6 there is no contract, option or any other right of another binding upon or which at any time in the capital of KAS;future may become binding upon:
(ei) any of the Vendors have good and sufficient right and authority to enter into this Agreement sell, transfer, assign, or grant any Lien on the terms and conditions herein contained and to transfer the legal and beneficial title or affecting, or in any other way dispose of or encumber any of the KAS Purchased Shares other than pursuant to the Purchaser;
(f) assuming this Agreement is a valid, binding and enforceable obligation of the Purchaser and assuming satisfaction or waiver of the conditions precedent in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the Vendors. On Closing, the Vendors will not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by or under which any default would occur as a result of the execution and delivery by the Vendors provisions of this Agreement or any of its assets other than in the performance by ordinary course of business, or
(ii) the Vendors of Corporation to allot or issue any of the terms hereof; and
(g) at Closing KAS will not be indebted to the Vendors unissued shares or any employees or directors securities of the Vendors Corporation or to create any additional class of shares or securities;
3.1.7 except as disclosed on Schedule 3.1.7, neither the Vendors' general partner or any affiliate or associate entering into nor the delivery of this Agreement and the Vendors, on any account whatsoever.
3.02 The representations and warranties contained in section 3.01 shall survive Ancillary Agreements nor the completion of the transactions contemplated hereby by this Agreement each of the Vendors will result in the violation of or require the Consent of any third party pursuant to:
(i) any of the provisions of the Memorandum or Articles, as amended, of the Corporation;
(ii) any agreement or other instrument to which the Corporation or any of the Vendors is a party or by which the Corporation or any of the Vendors is bound, or
(iii) any applicable Law;
3.1.8 the financial statements of the Corporation, consisting of the Balance Sheet and shall continue statements of income, retained earnings and changes in financial position for the period ended on the Balance Sheet Date, together with the review engagement report of Yule & Associates, chartered accountants, thereon and the notes thereto (hereinafter collectively referred to as the "Financial Statements"), a copy of which is attached hereto as Schedule 3.1.8:
(i) are in accordance with the books and accounts of the Corporation as at the Balance Sheet Date,
(ii) are true and correct and present fairly the financial position of the Corporation as at the Balance Sheet Date,
(iii) have been prepared in accordance with GAAP consistently applied, and
(iv) present fairly all of the assets and liabilities of the Corporation as at the Balance Sheet Date including, without limiting the generality of the foregoing, all contingent liabilities of the Corporation as at the Balance Sheet Date;
3.1.9 the interim financial statements of the Corporation, consisting of a balance sheet and statement of income, for the period ended on June 25, 1998 (hereinafter collectively referred to as the "Interim Financial Statements"), a copy of which is attached hereto as Schedule 3.1.9:
(i) are in accordance with the books and accounts of the Corporation as at June 25, 1998,
(ii) are true and correct and present fairly the financial position of the Corporation as at June 25, 1998, subject only to usual and proper adjustments, which will not exceed, in aggregate, $15,000 and without provision for income or capital taxes, the disposition of a loan receivable from Midway Purnel Sanitary Supply (PG) Ltd. in the amount of $20,000,
(iii) present fairly all of the assets and liabilities of the Corporation as at June 25, 1998, and
(iv) have been prepared in accordance with GAAP consistent with the principles of GAAP used in the preparation of the Balance Sheet;
3.1.10 since the Balance Sheet Date, the Business of the Corporation has been carried on in its usual and ordinary course and in a manner consistent with prior practices and, the Corporation has not, since the Balance Sheet Date, entered into any transaction out of the usual and ordinary course of business;
3.1.11 since the Balance Sheet Date, there has been no material change in the affairs, business, prospects, operations or condition of the Corporation, financial or otherwise, whether arising as a result of any legislative or regulatory change, revocation of any Permit or right to do business, fire, explosion, accident, casualty, labour dispute, flood, drought, riot, storm, expropriation, condemnation, act of God, public force or otherwise, except changes occurring in the usual and ordinary course of business which have not adversely affected the affairs, business, prospects, operations or condition of the Corporation, financial or otherwise;
3.1.12 the Corporation is the owner with a good and marketable title, free and clear of all Liens, options and any other rights of others, except for the Liens described on Schedule 3.1.12 of all assets shown or reflected on the Balance Sheet, except only such of the assets of the Corporation as have been disposed of in the usual and ordinary course of business since the Balance Sheet Date, and of all assets acquired by the Corporation since the Balance Sheet Date;
3.1.13 all machinery, equipment and automotive equipment owned or used by the Corporation has been properly maintained and is in good working order for the purposes of ongoing operation, subject to ordinary wear and tear for machinery and equipment of comparable age;
3.1.14 Schedule 3.1.14 sets forth a true and complete list of all premises leased by the Corporation ("Leased Premises") and any lease in respect thereof to which the Corporation is a party ("Premises Leases") and: (i) each Premises Lease is in full force and effect effect, unamended by oral or written agreement, and the Corporation is entitled to the full benefit and advantage of such Premises Lease in accordance with the terms thereof, (ii) each Premises Lease is in good standing, all rental and other payments payable by the Corporation under the leases have been duly paid, (iii) there is currently no outstanding default by the Corporation under the Premises Leases nor is there currently any outstanding default by any landlord thereunder or dispute between the Corporation and any landlord under any of the Premises Leases; (iv) the Corporation has not sublet, assigned or transferred any of its interests in such Premises Lease and (v) the Leased Premises are the only premises used by the Corporation;
3.1.15 Schedule 3.1.15 sets forth a true and complete list of all lease agreements concerning personal property leased by the Corporation ("Personal Property Leases") and:
(i) each Personal Property Lease is in full force and effect, unamended by oral or written agreement, and the Corporation is entitled to the full benefit and advantage of each Personal Property Lease in accordance with the terms thereof, (ii) each Personal Property Lease is in good standing, all rental and other payments payable by the Corporation under the Personal Property Leases have been duly paid, (iii) there is currently no outstanding default by the Corporation thereunder nor of the other parties thereunder nor dispute between the Corporation and any other party thereunder, and (iv) the Corporation has treated all Personal Property Leases as operating leases for Canadian income tax purposes;
3.1.16 except for the benefit Premises Leases, the Corporation holds no ownership or other interest in or right affecting any real estate or real property;
3.1.17 the inventory of the Purchaser until Corporation consist of items saleable in the earlier ordinary course of three business reasonably fit for their usual purpose, except for obsolete and slow-moving items and materials below standard quality which have been written down on the books of account of the Business to net realizable value, or adequate reserves having been provided therefor, all in accordance with GAAP. Except as disclosed in Schedule 3.1.17, there is no recurring or ongoing high incidence of product failure or warranty claims against the Corporation related to the Business;
3.1.18 there are no outstanding orders, notices or similar requirements relating to the Corporation issued by any Governmental Authority, including building, environmental, fire, health, labour or police authorities, and there are no matters under discussion with any such Governmental Authority relating to orders, notices or similar requirements;
3.1.19 except as disclosed on Schedule 3.1.19, no single capital expenditure in excess of $25,000 or capital expenditures in the aggregate in excess of $50,000 have been made or authorized by the Corporation since the Balance Sheet Date;
3.1.20 except (3i) years as disclosed on Schedule 3.1.20 and (ii) a dividend in the amount of $30,500 paid to Lorexxx xx the date hereof, no dividends have been declared or paid on or in respect of the Shares and no other distribution on any of its securities or shares has been made by the Corporation since the Balance Sheet Date and all dividends which to the date hereof have been declared or paid by the Corporation have been duly and validly declared and are fully paid;
3.1.21 the Corporation does not have any liability, obligation or commitment for the payment of Taxes of whatever nature or kind, or interest or penalties with respect thereto, except such as are disclosed in the Financial Statements or such Taxes not yet due as have arisen since the Balance Sheet Date in the usual and ordinary course of business and for which adequate provision in the accounts of the Corporation has been made, and the Corporation is not in arrears with respect to any required withholdings or instalment payments or other payments of any Tax or duty of any kind or any penalty or interest thereon and has not filed any waiver for a taxation year of the Corporation under the Income Tax Act (Canada) or any other legislation imposing Tax on the Corporation; all obligations of the Corporation with respect to its employees for withholding Taxes, Canada Pension Plan contributions, unemployment insurance contributions and workers compensation remittances or contributions of any kind which are due as of the Closing Date will have been paid by the Corporation prior to the Closing Date; there are no outstanding disputes with or assessments from the date Workmen's Compensation Board of this Agreement British Columbia or dissolution the Employment Standards Branch;
3.1.22 the tax accounts of the VendorsCorporation as disclosed in Schedule 3.1.22 attached hereto are true and complete in all material respects;
3.1.23 except as disclosed on Schedule 3.1.23, whichever occurs firstthere are no outstanding liabilities (whether absolute or contingent) against the Corporation except trade debts incurred in the usual and ordinary course of business;
3.1.24 set forth on Schedule 3.1.24 is a true and complete list of all contracts or agreements (except for the Premises Leases, notwithstanding any independent enquiry or investigation by the PurchaserPersonal Property Leases and the employment agreement with the Vendors listed on Schedule 3.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations Each of the Vendors severally represents and Warranties
3.01 The Vendors warrants (and not jointly and severally) to Xxxx, and only as to such Vendor’s own separate beneficial interest in the 116 Common Shares as indicated in Schedule A, and hereby represent acknowledges that Xxxx is relying upon such representations and warrant to the Purchaser, warranties in connection with the intent that the Purchaser shall rely thereon in entering into this Agreement and in concluding agreeing to complete the transactions contemplated hereby, that to the best of the Vendors' knowledge, information and beliefShare Exchange as follows:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations the Vendor is, as at the date hereof and prior to the completion of the Corporate Reorganization, the sole and legal beneficial holder of, and has complete and unrestricted right, power and authority to transfer legal and beneficial title that number of securities of a 116 SubCo set out opposite such Vendor’s name in Schedule A, free and clear of all Encumbrances (whether accruedother than those restrictions on transfer, contingent or otherwise) exceeding $10,000 if any, contained in the aggregateconstating documents of the applicable 116 SubCo);
(b) following the completion of the Corporate Reorganization, the Vendor shall be, at the Closing Time, the sole legal and beneficial holder of, and will have complete and unrestricted right, power and authority to transfer legal and beneficial title to Xxxx in the number of 116 Common Shares set out opposite such Vendor’s name in Schedule A, free and clear of all Encumbrances (other than those restrictions on transfer, if any, contained in the constating documents of 116) and has no person has right, title or interest in or to any agreement additional shares or option, present or future, contingent, absolute or capable other securities of becoming an agreement or option or which with the passage of time or the occurrence of any event could become an agreement or option to acquire the KAS Shares116;
(c) the Vendors are Vendor has the registered holders and beneficial owners of and have good marketable title to the KAS Shares, free and clear of all liens, charges and encumbrances whatsoever;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares in the capital of KAS;
(e) the Vendors have good and sufficient right power and authority to enter into into, deliver, and perform this Agreement on the terms and conditions herein contained set out in this Agreement and to transfer the legal and beneficial title and ownership of the KAS Shares securities of a 116 SubCo owned by it to 116 pursuant to the PurchaserCorporate Reorganization;
(d) the Vendor has the power and authority to enter into, deliver, and perform this Agreement on the terms and conditions set out in this Agreement and to transfer the legal and beneficial title and ownership of the 116 Common Shares owned by the Vendor to Xxxx;
(e) except pursuant to the Corporate Reorganization, no Person has any agreement, option or a right capable of becoming an agreement for the purchase of any securities of a 116 SubCo owned by the Vendor;
(f) assuming except for this Agreement is Agreement, no Person has any agreement, option or a valid, binding and enforceable obligation right capable of becoming an agreement for the purchase of the Purchaser and assuming satisfaction or waiver of the conditions precedent in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the Vendors. On Closing, the Vendors will not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by or under which any default would occur as a result of the execution and delivery 116 Common Shares owned by the Vendors of this Agreement or the performance by the Vendors of any of the terms hereof; andVendor;
(g) at Closing KAS will not be indebted to if the Vendors or any employees or directors Vendor is:
(i) a corporation, it is a valid and subsisting corporation duly incorporated under the laws of the Vendors jurisdiction in which it is incorporated or formed and has taken all necessary corporate action to permit and authorize the Vendors' general partner or any affiliate or associate signing, delivery and performance of the Vendorsthis Agreement, on any account whatsoever.
3.02 The representations and warranties contained in section 3.01 shall survive the completion of the transactions contemplated by this Agreement and shall continue in full force and effect for the benefit completion of the Purchaser until Corporate Reorganization; or
(ii) an individual, the earlier Subscriber is of three the full age of majority and is legally competent to execute this Agreement and to observe and perform his or her covenants and obligations hereunder;
(3h) years from this Agreement constitutes a legal, valid and binding obligation of the date Vendor enforceable against the Vendor in accordance with its terms, except as may be limited by laws of general application affecting the rights of creditors;
(i) the entering into and performance of this Agreement and the transactions contemplated herein, including the Corporate Reorganization, by the Vendor do not and will not:
(i) if the Vendor is a corporation, result in a violation, contravention or dissolution breach of or constitute a default under its constating documents;
(ii) will not result in the creation or imposition of any Encumbrance or restriction of any nature whatsoever in favour of a third Person upon or against the 116 Common Shares owned by it or any securities of a 116 SubCo owned by it; or
(iii) any Laws by which it is bound, except for such violations which would not have a Material Adverse Effect on the Vendor;
(j) the Vendor is resident in the jurisdiction indicated on Schedule A;
(k) the Vendor acknowledges and agrees to be bound by any restrictions on the resale of the VendorsResulting Issuer Shares issued to it in connection with the Share Exchange that may be imposed by applicable Laws and/or the TSXV; and
(l) the Vendor has been advised and is responsible for obtaining such independent legal and tax advice as it considers appropriate in connection with the execution, whichever occurs firstdelivery and performance of this Agreement and the transactions contemplated under this Agreement, notwithstanding any independent enquiry or investigation by the Purchaserand has done so to its satisfaction.
Appears in 1 contract
Samples: Share Exchange Agreement
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations 3.1 In order to induce the Purchaser to enter into and Warranties
3.01 The to consummate the transactions contemplated by this Agreement, the Vendors hereby represent and warrant to the Purchaser, with the intent that the Purchaser shall rely thereon in entering into this Agreement and in concluding the transactions contemplated hereby, that to the best of the Vendors' knowledge, information and beliefas follows:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accruedAudiyo is duly incorporated, contingent or otherwise) exceeding $10,000 validly existing, and in good standing with respect to the aggregatefiling of annual reports under the Company Act, and has all necessary corporate power, authority and capacity to own its Assets and to carry on its business as presently conducted;
(b) The Vendors own and have good and marketable title to all the Audiyo Shares as the legal and beneficial owner thereof, free of all Encumbrances and all such shares have been duly and validly issued and are outstanding as fully paid and non-assessable shares in the capital of Audiyo;
(c) The Audiyo Shares represent all of the issued and outstanding shares in the capital of Audiyo and no person Person has any agreement agreement, right or option, present or future, contingent, absolute or capable of becoming an agreement agreement, right or option or which with the passage of time or the occurrence of any event could become an agreement agreement, right or option option:
(i) to require Audiyo to issue any further or other shares in its capital or any other security convertible or exchangeable into shares in its capital or to convert or exchange any securities into or for shares in the capital of Audiyo;
(ii) for the issue or allotment of any unissued shares in Audiyo's capital; or
(iii) to acquire the KAS Shares;
(c) the Vendors are the registered holders issued and beneficial owners outstanding shares in Audiyo or any of and have good marketable title to the KAS Shares, free and clear of all liens, charges and encumbrances whatsoeverthem;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares in the capital of KAS;
(e) the The Vendors have good due and sufficient right and authority to enter into this Agreement on the terms and conditions herein contained set forth and to transfer the legal and beneficial title and ownership of the KAS Shares to the Purchaser;
(e) The Vendors are not "non-residents" of Canada within the meaning of s. 116 of the Income Tax Act; and
(f) assuming this This Agreement is constitutes a valid, valid and binding and enforceable obligation of the Purchaser and assuming satisfaction or waiver of the conditions precedent in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the Vendors. On Closing, the The Vendors will are not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by by, or under which any default would occur as a result of of, the execution and delivery by the Vendors of this Agreement or the performance by the Vendors of any of the terms hereof; and.
(g) at Closing KAS will Audiyo has good and marketable title to all of its Assets free and clear of all Encumbrances and none of Audiyo's Assets are in the possession of or under the control of any other person;
(h) Schedule E sets forth a true and complete list of all equipment and other personal property owned by Audiyo and all such equipment and other personal property are owned free and clear of any Encumbrances;
(i) Except for the contracts and agreements listed in Schedule B, Audiyo is not be indebted party to or bound by any Material Contract, whether oral or written, and the contracts and agreements listed in Schedule B are all valid and subsisting, in full force and effect and un-amended, no material default exists in respect thereof on the part of Audiyo or, to the Vendors or any employees or directors best of the Vendors or the Vendors' general partner or any affiliate or associate knowledge of either of the Vendors, on the part of any account whatsoeverof the other parties thereto, the Vendors are not aware of any intention on the part of any of the other parties thereto to terminate or materially alter any such contracts or agreements, and Schedule B list all the present outstanding Material Contracts entered into by Audiyo in the course of carrying on its business;
(j) Audiyo is not party to, bound by or subject to any indenture, mortgage, lease, agreement, license, permit, authorization, certification, instrument, statute, regulation, order, judgment, decree or law that would be violated or breached by, or under which default would occur or which could be terminated, cancelled or accelerated, in whole or in part, as a result of the execution and delivery of this Agreement or the consummation of any of the transactions provided for in this Agreement;
(k) there is no action, suit, litigation, arbitration proceeding, governmental proceeding, investigation or claim, including appeals and applications for review, in progress, threatened or pending against, or relating to Audiyo or affecting their Assets or business which might materially and adversely affect the Assets, business, future prospects or financial condition of Audiyo, and there is no judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, instrumentality or arbitrator outstanding against Audiyo;
(l) Audiyo:
(i) has duly filed in a timely manner:
A. all federal and provincial income tax returns and election forms and the tax returns of any other jurisdiction required to be filed and all such returns and forms have been completed accurately and correctly in all respects; and
B. all Workers' Compensation Board returns, corporation capital tax returns, goods and services tax returns, provincial sales tax returns, and other reports and information required to be filed with all applicable government authorities, agencies or regulatory bodies;
(ii) has paid all taxes (including all federal, provincial and local taxes, assessments or other imposts in respect of its income, business, or Assets) and all interest and penalties thereon with respect to Audiyo, for all previous years and all required quarterly instalments due for the current fiscal year have been paid;
(iii) has provided adequate reserves for all taxes for the periods covered by, and such reserves are reflected in, the Year End Financial Statements; and there is no agreement, waiver or other arrangement 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 Audiyo, nor is there any action, suit, litigation, arbitration, proceeding, governmental proceeding, investigation or claim, including appeals and applications for review, in progress, threatened or pending against or relating to Audiyo or its Assets or business in respect of, or discussions underway with any governmental authority relating to, any such tax or governmental charge or deficiency;
(m) There are no contingent tax liabilities nor any grounds which could prompt a reassessment against Audiyo;
(n) With respect to the goods and services tax under the Excise Tax Act ("GST"):
(i) Audiyo is registered for GST purposes;
(ii) Audiyo does not have any deferred obligations or liabilities under any section of the Excise Tax Act;
(iii) Audiyo has not made a supply of property or service to a Person with whom Audiyo was not dealing at arm's length for proceeds less than the fair market value thereof;
(iv) all GST required to be collected by Audiyo has been collected and all GST amounts required to be remitted to the Receiver General for Canada have been remitted; and
(v) all GST returns and reports of Audiyo required by law to be filed have been filed in a timely manner and are true, complete and correct in all respects.
3.02 The representations (o) Audiyo does not have and warranties does not use any service marks, trade names, design marks or trade marks in connection with its business;
(p) Schedule D contains a complete and accurate list of all of the domain names owned by Audiyo and a complete and accurate list of all of the web sites operated by Audiyo;
(q) Schedule E contains a complete and accurate list of all of the computer systems software used by Audiyo in connection with its business;
3.2 All statements contained in section 3.01 shall survive any certificate or other instrument delivered by or on behalf of the completion of Vendors pursuant hereto or in connection with the transactions contemplated by this Agreement shall be deemed to be representations and shall continue in full force and effect for the benefit of the Purchaser until the earlier of three (3) years from the date of this Agreement or dissolution of the Vendors, whichever occurs first, notwithstanding any independent enquiry or investigation warranties by the PurchaserVendors hereunder.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. Representations and Warranties
3.01 The Vendors hereby jointly and severally represent and warrant to the PurchaserPurchaser the following, with the intent and acknowledge that the Purchaser shall is entitled to rely thereon in entering into this Agreement on such representations and in concluding warranties notwithstanding any due diligence investigation done by the transactions contemplated hereby, that Purchaser prior to the best closing:
3.1.1 the Corporation is a corporation duly incorporated, organized and subsisting under the laws of British Columbia as a private issuer as that term is defined in the Securities Act (British Columbia) with the corporate power to own its assets and to carry on the Business and has made all necessary filings under all applicable corporate, securities and taxation Laws or any other Laws to which the Corporation is subject and is qualified to own its properties and assets and to carry on the Business as presently carried on by it;
3.1.2 Schedule 2.1.1 sets out (i) the authorized capital of the Vendors' knowledgeCorporation and (ii) the number of Shares of the Corporation which are issued and outstanding, information which shares have been validly issued as fully paid and belief:
(a) KAS does not have any material outstanding indebtedness or any liabilities or obligations (whether accrued, contingent or otherwise) exceeding $10,000 non-assessable and registered in the aggregatenames of the Vendors as set forth on Schedule 2.1.1;
(b) no person has any agreement or option3.1.3 the rights, present or futureprivileges, contingent, absolute or capable of becoming an agreement or option or which with restrictions and conditions attached to the passage of time or the occurrence of any event could become an agreement or option to acquire the KAS SharesShares are as set out in Schedule 3.1.3 attached hereto;
(c) 3.1.4 the Purchased Shares constitute all of the issued and outstanding Shares in the capital stock of the Corporation;
3.1.5 each of the Vendors are is the beneficial and registered holders and beneficial owners owner of and have good marketable title to the KAS Sharesnumber of Purchased Shares set opposite the name of such Vendor on Schedule 2.1.1, free and clear of all liensLiens, charges options and encumbrances whatsoeverany other rights of others;
(d) the KAS Shares have been duly and validly allotted and issued and are outstanding as a fully paid and non-assessable shares 3.1.6 there is no contract, option or any other right of another binding upon or which at any time in the capital of KAS;future may become binding upon:
(ei) any of the Vendors have good and sufficient right and authority to enter into this Agreement sell, transfer, assign, or grant any Lien on the terms and conditions herein contained and to transfer the legal and beneficial title or affecting, or in any other way dispose of or encumber any of the KAS Purchased Shares other than pursuant to the Purchaser;
(f) assuming this Agreement is a valid, binding and enforceable obligation of the Purchaser and assuming satisfaction or waiver of the conditions precedent in section 4.01 and 4.04, this Agreement shall constitute a valid, binding and enforceable obligation of the Vendors. On Closing, the Vendors will not be a party to, bound by or subject to any indenture, mortgage, lease, agreement, instrument, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by or under which any default would occur as a result of the execution and delivery by the Vendors provisions of this Agreement or any of its assets other than in the performance by ordinary course of business, or
(ii) the Vendors of Corporation to allot or issue any of the terms hereof; and
(g) at Closing KAS will not be indebted to the Vendors unissued shares or any employees or directors securities of the Vendors Corporation or to create any additional class of shares or securities;
3.1.7 except as disclosed on Schedule 3.1.7, neither the Vendors' general partner or any affiliate or associate entering into nor the delivery of this Agreement and the Vendors, on any account whatsoever.
3.02 The representations and warranties contained in section 3.01 shall survive Ancillary Agreements nor the completion of the transactions contemplated hereby by this Agreement each of the Vendors will result in the violation of or require the Consent of any third party pursuant to:
(i) any of the provisions of the Memorandum or Articles, as amended, of the Corporation;
(ii) any agreement or other instrument to which the Corporation or any of the Vendors is a party or by which the Corporation or any of the Vendors is bound, or
(iii) any applicable Law;
3.1.8 the financial statements of the Corporation, consisting of the Balance Sheet and shall continue statements of income, retained earnings and changes in financial position for the period ended on the Balance Sheet Date, together with the review engagement report of Cinnamon Jang Xxxxxxxxxx & Xompany, chartered accountants, thereon and the notes thereto (hereinafter collectively referred to as the "Financial Statements"), a copy of which is attached hereto as Schedule 3.1.8:
(i) are in accordance with the books and accounts of the Corporation as at the Balance Sheet Date,
(ii) are true and correct and present fairly the financial position of the Corporation as at the Balance Sheet Date,
(iii) have been prepared in accordance with GAAP consistently applied, and
(iv) present fairly all of the assets and liabilities of the Corporation as at the Balance Sheet Date including, without limiting the generality of the foregoing, all contingent liabilities of the Corporation as at the Balance Sheet Date;
3.1.9 the interim financial statements of the Corporation, consisting of a balance sheet and statement of income, for the period ended on April 30, 1998 (hereinafter collectively referred to as the "Interim Financial Statements"), a copy of which is attached hereto as Schedule 3.1.9:
(i) are in accordance with the books and accounts of the Corporation as at Aprix 00, 0000,
(xx) xxx true and correct and present fairly the financial position of the Corporation as at April 30, 1998, subject only to usual and proper adjustments, which will not exceed, in aggregate, $15,000 and without provision for income or capital taxes;
(iii) present fairly all of the assets and liabilities of the Corporation as at April 30, 1998, and
(iv) have been prepared in accordance with accounting principles consistent with the principles of GAAP used in the preparation of the Balance Sheet;
3.1.10 since the Balance Sheet Date, the Business of the Corporation has been carried on in its usual and ordinary course and in a manner consistent with prior practices and, the Corporation has not, since the Balance Sheet Date, entered into any transaction out of the usual and ordinary course of business;
3.1.11 since the Balance Sheet Date, there has been no material change in the affairs, business, prospects, operations or condition of the Corporation, financial or otherwise, whether arising as a result of any legislative or regulatory change, revocation of any Permit or right to do business, fire, explosion, accident, casualty, labour dispute, flood, drought, riot, storm, expropriation, condemnation, act of God, public force or otherwise, except changes occurring in the usual and ordinary course of business which have not adversely affected the affairs, business, prospects, operations or condition of the Corporation, financial or otherwise;
3.1.12 the Corporation is the owner with a good and marketable title, free and clear of all Liens, options and any other rights of others, except for the Liens described on Schedule 3.1.12 of all assets shown or reflected on the Balance Sheet, except only such of the assets of the Corporation as have been disposed of in the usual and ordinary course of business since the Balance Sheet Date, and of all assets acquired by the Corporation since the Balance Sheet Date;
3.1.13 all machinery, equipment and automotive equipment owned or used by the Corporation has been properly maintained and is in good working order for the purposes of ongoing operation, subject to ordinary wear and tear for machinery and equipment of comparable age;
3.1.14 Schedule 3.1.14 sets forth a true and complete list of all premises leased by the Corporation ("Leased Premises") and any lease in respect thereof to which the Corporation is a party ("Premises Leases") and: (i) each Premises Lease is in full force and effect effect, unamended by oral or written agreement, and the Corporation is entitled to the full benefit and advantage of such Premises Lease in accordance with the terms thereof, (ii) each Premises Lease is in good standing, all rental and other payments payable by the Corporation under the leases have been duly paid, (iii) there is currently no outstanding default by the Corporation under the Premises Leases nor is there currently any outstanding default by any landlord thereunder or dispute between the Corporation and any landlord under any of the Premises Leases; (iv) the Corporation has not sublet, assigned or transferred any of its interests in such Premises Lease and (v) the Leased Premises are the only premises used by the Corporation;
3.1.15 Schedule 3.1.15 sets forth a true and complete list of all lease agreements concerning personal property leased by the Corporation ("Personal Property Leases") and:
(i) each Personal Property Lease is in full force and effect, unamended by oral or written agreement, and the Corporation is entitled to the full benefit and advantage of each Personal Property Lease in accordance with the terms thereof, (ii) each Personal Property Lease is in good standing, all rental and other payments payable by the Corporation under the Personal Property Leases have been duly paid, (iii) there is currently no outstanding default by the Corporation thereunder nor of the other parties thereunder nor dispute between the Corporation and any other party thereunder, and (iv) the Corporation has treated all Personal Property Leases as operating leases for Canadian income tax purposes;
3.1.16 except for the benefit Premises Leases, the Corporation holds no ownership or other interest in or right affecting any real estate or real property;
3.1.17 the inventory of the Purchaser until Corporation consist of items saleable in the earlier ordinary course of three business reasonably fit for their usual purpose, except for obsolete and slow-moving items and materials below standard quality which have been written down on the books of account of the Business to net realizable value, or adequate reserves having been provided therefor, all in accordance with GAAP. Except as disclosed in Schedule 3.1.17, there is no recurring or ongoing high incidence of product failure or warranty claims against the Corporation related to the Business;
3.1.18 there are no outstanding orders, notices or similar requirements relating to the Corporation issued by any Governmental Authority, including building, environmental, fire, health, labour or police authorities, and there are no matters under discussion with any such Governmental Authority relating to orders, notices or similar requirements;
3.1.19 except as disclosed on Schedule 3.1.19, no single capital expenditure in excess of $25,000 or capital expenditures in the aggregate in excess of $50,000 have been made or authorized by the Corporation since the Balance Sheet Date;
3.1.20 except as disclosed on Schedule 3.1.20, no dividends have been declared or paid on or in respect of the Shares and no other distribution on any of its securities or shares has been made by the Corporation since the Balance Sheet Date and all dividends which to the date hereof have been declared or paid by the Corporation have been duly and validly declared and are fully paid;
3.1.21 the Corporation does not have any liability, obligation or commitment for the payment of Taxes of whatever nature or kind, or interest or penalties with respect thereto, except such as are disclosed in the Financial Statements or such Taxes not yet due as have arisen since the Balance Sheet Date in the usual and ordinary course of business and for which adequate provision in the accounts of the Corporation has been made, and the Corporation is not in arrears with respect to any required withholdings or instalment payments or other payments of any Tax or duty of any kind or any penalty or interest thereon and has not filed any waiver for a taxation year of the Corporation under the Income Tax Act (3Canada) years or any other legislation imposing Tax on the Corporation; all obligations of the Corporation with respect to its employees for withholding Taxes, Canada Pension Plan contributions, unemployment insurance contributions and workers compensation remittances or contributions of any kind which are due as of the Closing Date will have been paid by the Corporation prior to the Closing Date; there are no outstanding disputes with or assessments from the date Workmen's Compensation Board of this Agreement British Columbia or dissolution the Employment Standards Branch;
3.1.22 the tax accounts of the VendorsCorporation as disclosed in Schedule 3.1.22 attached hereto are true and complete in all material respects;
3.1.23 except as disclosed on Schedule 3.1.23, whichever occurs firstthere are no outstanding liabilities (whether absolute or contingent) against the Corporation except trade debts incurred in the usual and ordinary course of business;
3.1.24 set forth on Schedule 3.1.24 is a true and complete list of all contracts or agreements (except for the Premises Leases, notwithstanding any independent enquiry or investigation by the PurchaserPersonal Property Leases and the employment agreement with the Vendors listed on Schedule 3.
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