REPRESENTATIONS AND WARRANTIES OF THE VENDORS. 4.1 The Non-Management Vendors severally, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that, as of the date hereof and as at the Closing Date: (a) the number of Xxxxxx Shares listed opposite each Non-Management Vendor's name below will be issued and outstanding and owned by that Non-Management Vendors Name Xxxxxx Shares Jasmine Pacific Holdings Ltd. 3,700,000 581115 BC Ltd. 1,500,000 581116 B.C Ltd. 1,000,000 581284 B.C Ltd. 1,300,000 581287 B.C Ltd. 1,200,000 Xxxx Xxx 450,000 South Rim Financial Corporation 500,000 TOTAL: 9,650,000 (b) the Xxxxxx Shares will be validly and issued and outstanding as fully paid and non-assessable with no options, contracts, calls, commitments or rights of any character relating thereto; (c) each of the Non-Management Vendors will have the full capacity and authority to sell their Xxxxxx Shares in accordance with the terms of this Agreement and all necessary corporate action, as the case may be, will have been taken; (d) this agreement and all other documents executed and delivered by the Non-Management Vendors pursuant hereto constitute legal, valid and binding obligations of the Non-Management Vendors enforceable in accordance with its terms; (e) each of the Non-Management Vendors will have legal and beneficial title to their Xxxxxx Shares, which will be free and clear of all liens , encumbrances, adverse claims and demands created by, through, or under any of them; (f) the Non-Management Vendors are not a party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations which might reasonably be expected to result in impairment or loss of the Non-Management Vendors' interests in the Xxxxxx Shares; (g) the entering into of this Agreement by the Non-Management Vendors and the completion of sale by the Non-Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof; (h) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of the constating documents of any of the Non-Management Vendors, as the case may be, or of the terms and provisions of any contract, indenture, lease or other agreement to which the respective Non-Management Vendors as a party, the breach of which could have a material adverse effect on the Xxxxxx Shares; (i) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchase by the Non-Management Vendors pursuant to this Agreement are and will be complete and correct in all material respects; (j) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Non-Management Vendors of the Xxxxxx Shares; and (k) the Non-Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchaser shall have any obligation or liability. 4.2 The Management Vendors severally, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that as of the date hereof and as at the Closing Date: (a) the number of Xxxxxx Shares listed opposite each Management Vendor's name below will be issued and outstanding and owned by that Management Vendor: Name Xxxxxx Shares Xxxxx Xxxxxx 450,000 562796 BC Ltd. 6,050,000 Xxxxx Xxxxxx & Associates 550,000 TOTAL: 7,050,000 (b) the Corporation is a private company duly incorporated, properly organized, validly existing and qualified to carry on business under the Company Act and has all necessary power, authority and capacity to own or other-wise hold its property and assets, is in good standing, and has conducted its business in accordance with applicable laws, the failure to comply with which would not have a material adverse impact on the Corporation; (c) there will be $25,000 outstanding shareholders' loans owing to three Vendors by the Corporation; (d) the Corporation holds no assets other than the Assets; (e) none of the Management Vendors or the Corporation are party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations, actual or threatened, which might reasonably be expected to result in impairment or loss of the Management Vendors' interests in the Xxxxxx Shares; (f) the entering into of this Agreement by the Management Vendors and the completion of sale by the Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof ; (g) the Corporation does not own any shares in any corporations or any beneficial interests in any other entities, nor is the Corporation a party to any agreements of any nature to acquire any such shares or beneficial interests or to acquire or lease any other business operations; (h) the entering into of this Agreement, and the transactions contemplated hereby, will not result in the violation of any of the terms and provisions of the constating documents of any of the Management Vendors, as the case may be, or of the Corporation, or of the terms and provisions of any contract, indenture, lease or other agreement to which the Management Vendors or the Corporation is a party or by which the Assets are bound, the breach of which could have a material adverse affect on the Xxxxxx Shares; (i) there will be no material adverse chance in the quality of the Assets since the Effective Date; (k) the Corporation will have good and marketable title to the Assets, free and clear of all material liens, mortgages, charges, costs, expenses, liabilities and encumbrances of every nature and kind whatsoever other than those set out in Schedule "D"; (l) there are no claims, claims for damages, actions, causes of action, suits or proceedings by or against the Corporation, or the Assets, either threatened or affecting the subject matter of this purchase and sale, nor any suits or proceedings at law or equity before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, which could adversely affect the business of the Corporation or the purchase and sale herein contemplated; (m) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in, Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchaser by the Management Vendors and the Corporation pursuant to this Agreement are and will be complete and correct in all material respects; (n) the Corporation has paid in a timely manner all liabilities owing to utilities authorities; (o) the Corporation has paid any and all material debts, liabilities, costs, charges and expenses incurred in connection with the Assets which are due and owing, except as set out in Schedules "C" and "D" hereto; (p) the Corporation is not in breach of any bylaws, statutes, regulations or ordinances in force affecting its business, whether municipal, federal or provincial, (q) neither the execution nor delivery of this Agreement nor the completion of the transactions contemplated hereby will: (i) result in any fees, duties, taxes, assessments or other amounts relating to the Assets becoming due or payable (other than sales and similar taxes payable by the Corporation or the Purchaser in connection with the transaction contemplated hereby including, without limitation, under any municipal or provincial statute or regulation); or (ii) result in acceleration of any of the dates for payment of any of the liabilities of the Corporation; (r) there has not been any material adverse change in the condition or operations of the business, assets or financial condition or prospects of the Corporation or any circumstance which might reasonably be expected to result in any such material adverse change; (s) the business of the Corporation has been carried on only in the ordinary and usual course; (t) the Corporation is not a party to or bound by any Material Contracts the result of which would have a material adverse affect on the Corporation or any of its assets and such Material Contracts will not require any consent or otherwise be affected in any material respect by the entering into of this Agreement and the performing of its terms; (u) the Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchase shall have any obligation or liability; (v) all governmental licenses, consents, permits and authorities required for the conduct in the ordinary course of the operations of the business of the Corporation and the owning of the Assets, have been obtained, are validly issued and are in good standing and such conduct and uses are not in breach or default of any statute, bylaw, regulation, covenant, restriction, plan, permit, licence or authority; (w) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Corporation of the Assets; (x) no dividends have been made or authorized by the Corporation to the Vendors or former shareholders of the Corporation; (y) the Management Vendors have no information or knowledge of any material facts relating to the Corporation's business or to the Xxxxxx Shares which, if known to the Purchaser, might reasonably be expected to deter the Purchaser from completing the transaction of purchase and sale herein contemplated, except any such information which has been disclosed in writing to the Purchaser prior to the Closing Date; (z) as of the date of this Agreement, there are no material liabilities of the Corporation of any kind whatsoever, whether or not accrued and whether or not determined or determinable, in respect of which the Corporation or the Purchaser may become liable on or after the consummation of the transaction contemplated by this Agreement other than: (i) liabilities disclosed on, reflected in or provided for in the Financial Statements; (ii) liabilities disclosed or referred to in this Agreement or otherwise disclosed in writing by the Management Vendors to the Purchaser; (iii) liabilities incurred in the ordinary course of business and attributable to the period since July 1 1999, none of which has been materially adverse to the nature of the business, results of operations, assets, financial condition or manner of conducting the business; (aa) the Financial Statements have been prepared in accordance with generally accepted accounting principles and fairly and correctly set out and disclose in all material respects the financial position of the Corporation at the time or for the period indicated therein; (bb) the Corporation has no Indebtedness to any person, firm, corporation or government or agency thereof including any Indebtedness which might by operation of law or otherwise now or hereafter constitute a material lien, charge or encumbrance upon any of the Assets other than as set out in Schedule " C " hereto; (cc) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Management Vendors of the Xxxxxx Shares or of any of the Assets; and (dd) the Corporation has duly and timely filed all returns, elections, filings and reports in respect of income and other taxes required to be filed by it by law and all such returns, elections, filings and reports are true, complete and correct in all material respects; there are no tax arrears, including income tax, goods and services tax, employee withholdings or property tax nor any related interest or penalties owing to any foreign, federal, state, territorial or municipal tax authorities; the Management Vendors' have no knowledge of any delinquent taxes or any actual or threatened assessment of deficiency or additional tax or other governmental charge or a basis for such claim against the Corporation; there has been no tax audit of the Corporation by any taxing or other authority within 12 months of the Closing Date, the Management Vendors have no knowledge of any such audit currently pending or threatened and there are no tax liens on any of the Assets or the Properties; there are no agreements, waivers, or other arrangements with any taxation authority providing for an extension of time with respect to the filing of any tax return, election or payment of any tax, governmental charges , penalty, interest or fine, by the Corporation; there are no actions, suits, proceedings, investigations or claims now threatened or pending (to the knowledge of the Management Vendors) against or affecting the Corporation in respect of taxes, governmental charges, penalties, interest or fines, or any matters under discussion with any governmental authority relating, to taxes, governmental charges, penalties, interest or fines asserted by any such authority. 4.3 All statements contained in any certificate or other instrument delivered by the Vendors pursuant hereto or in connection with the transaction contemplated hereby shall be deemed to be representations and warranties by the Vendors hereunder. 4.4 The Vendors acknowledge and agree that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions hereof and that no information which is now known or which may hereafter become known to the Purchaser or its officers, directors or professional advisors shall limit or extinguish the right to indemnity under this Agreement. 4.5 No investigations made by or on behalf of the Vendors at any time shall have the affect of waiving, diminishing the scope of or otherwise affecting any representation or warranty or covenant made by the Purchaser herein or pursuant hereto. No waiver by the Vendors of any term of this Agreement, in whole or in part, shall operate as a waiver of any other terms of this Agreement. In the event that Closing does not take place no party shall have any claim against the other for any breach of any representation or warranty contained in Articles IV and V.
Appears in 2 contracts
Samples: Share Purchase and Sale Agreement (Inouye Technologies Canada Inc), Share Purchase and Sale Agreement (Inouye Technologies Canada Inc)
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. 4.1 The Non-Management 3.01 In order to induce the Purchaser to enter into and to complete the transactions contemplated by this Agreement, the Vendors severally, in proportion represents and warrants to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that, as :
a) The Vendor is the recorded and beneficial owner of 100% of the date hereof and as at Properties described in Schedule A to this Agreement and, has the Closing Date:
(a) the number of Xxxxxx Shares listed opposite each Non-Management Vendor's name below will be issued and outstanding and owned by that Non-Management Vendors Name Xxxxxx Shares Jasmine Pacific Holdings Ltd. 3,700,000 581115 BC Ltd. 1,500,000 581116 B.C Ltd. 1,000,000 581284 B.C Ltd. 1,300,000 581287 B.C Ltd. 1,200,000 Xxxx Xxx 450,000 South Rim Financial Corporation 500,000 TOTAL: 9,650,000
(b) the Xxxxxx Shares will be validly and issued and outstanding as fully paid and non-assessable with no options, contracts, calls, commitments or rights of any character relating thereto;
(c) each of the Non-Management Vendors will have the full capacity and authority right to sell their Xxxxxx Shares in accordance with the terms of enter into this Agreement and all necessary corporate action, as to sell and assign the case may be, will have been taken;
(d) this agreement and all other documents executed and delivered by the Non-Management Vendors pursuant hereto constitute legal, valid and binding obligations of the Non-Management Vendors enforceable in accordance with its terms;
(e) each of the Non-Management Vendors will have legal and beneficial title to their Xxxxxx Shares, which will be 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 liens laws and regulations of the Province of British Columbia and there are no disputes over the title, encumbrances, adverse claims and demands created by, throughthe staking or recording of the mineral prospects on the Properties, or under outstanding agreements or options to acquire or purchase the Properties or any of them;
(f) the Non-Management Vendors are not a party to portion thereof, and no person has any actions, suits royal or other legal, administrative or arbitration proceedings or government investigations which might reasonably be expected to result interest whatsoever in impairment or loss of the Non-Management Vendors' interests in the Xxxxxx Shares;
(g) the entering into of this Agreement by the Non-Management Vendors and the completion of sale by the Non-Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof;
(h) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of production from any of the terms and provisions of crown grant claims which comprise the constating documents of any of the Non-Management Vendors, as the case may be, or of the terms and provisions of any contract, indenture, lease or other agreement to which the respective Non-Management Vendors as a party, the breach of which could have a material adverse effect on the Xxxxxx SharesProperties;
(id) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchase by the Non-Management Vendors pursuant to this Agreement The Properties are and will be complete and correct in all material respects;
(j) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Non-Management Vendors of the Xxxxxx Shares; and
(k) the Non-Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchaser shall have any obligation or liability.
4.2 The Management Vendors severally, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that as of the date hereof and as at the Closing Date:
(a) the number of Xxxxxx Shares listed opposite each Management Vendor's name below will be issued and outstanding and owned by that Management Vendor: Name Xxxxxx Shares Xxxxx Xxxxxx 450,000 562796 BC Ltd. 6,050,000 Xxxxx Xxxxxx & Associates 550,000 TOTAL: 7,050,000
(b) the Corporation is a private company duly incorporated, properly organized, validly existing and qualified to carry on business under the Company Act and has all necessary power, authority and capacity to own or other-wise hold its property and assets, is in good standing, and all necessary filings, permits and other necessary documentation has conducted its business in accordance with applicable laws, the failure to comply with which would not have a material adverse impact on the Corporation;
(c) there will be $25,000 outstanding shareholders' loans owing to three Vendors by the Corporation;
(d) the Corporation holds no assets other than the Assets;
(e) none of the Management Vendors been made or the Corporation are party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations, actual or threatened, which might reasonably be expected to result in impairment or loss of the Management Vendors' interests in the Xxxxxx Shares;
(f) the entering into of this Agreement by the Management Vendors and the completion of sale by the Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof ;
(g) the Corporation does not own any shares in any corporations or any beneficial interests in any other entities, nor is the Corporation a party to any agreements of any nature to acquire any such shares or beneficial interests or to acquire or lease any other business operations;
(h) the entering into of this Agreementreceived from all regulatory authorities, and the transactions contemplated hereby, will not result in the violation of any of the terms and provisions of the constating documents of any of the Management Vendors, as the case may be, or of the Corporation, or of the terms and provisions of any contract, indenture, lease or other agreement to which the Management Vendors or the Corporation is a party or by which the Assets properties are bound, the breach of which could have a material adverse affect on the Xxxxxx Shares;
(i) there will be no material adverse chance in the quality of the Assets since the Effective Date;
(k) the Corporation will have good and marketable title to the Assets, free and clear of all material any liens, mortgages, charges, costs, expenses, liabilities and charges or encumbrances or claims by any other party of every any nature and or kind whatsoever other than those set out in Schedule "D"whatsoever;
(le) there are no claims, claims for damages, actions, causes of action, suits or proceedings by or against Neither the Corporation, or the Assets, either threatened or affecting the subject matter of this purchase and saleVendor, nor any suits predecessor in interest or proceedings at law or equity before or by any federaltitle, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, which could adversely affect has done anything whereby the business of the Corporation or the purchase and sale herein contemplated;
(m) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in, Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchaser by the Management Vendors and the Corporation pursuant to this Agreement are and will be complete and correct in all material respects;
(n) the Corporation has paid in a timely manner all liabilities owing to utilities authorities;
(o) the Corporation has paid any and all material debts, liabilities, costs, charges and expenses incurred in connection with the Assets which are due and owing, except as set out in Schedules "C" and "D" hereto;
(p) the Corporation is not in breach of any bylaws, statutes, regulations or ordinances in force affecting its business, whether municipal, federal or provincial,
(q) neither the execution nor delivery of this Agreement nor the completion of the transactions contemplated hereby will:
(i) result in any fees, duties, taxes, assessments or other amounts relating to the Assets becoming due or payable (other than sales and similar taxes payable by the Corporation or the Purchaser in connection with the transaction contemplated hereby including, without limitation, under any municipal or provincial statute or regulation); or
(ii) result in acceleration of any of the dates for payment of any of the liabilities of the Corporation;
(r) there has not been any material adverse change in the condition or operations of the business, assets or financial condition or prospects of the Corporation or any circumstance which might reasonably be expected to result in any such material adverse change;
(s) the business of the Corporation has been carried on only in the ordinary and usual course;
(t) the Corporation is not a party to or bound by any Material Contracts the result of which would have a material adverse affect on the Corporation or any of its assets and such Material Contracts will not require any consent or otherwise be affected in any material respect by the entering into of this Agreement and the performing of its terms;
(u) the Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchase shall have any obligation or liability;
(v) all governmental licenses, consents, permits and authorities required for the conduct in the ordinary course of the operations of the business of the Corporation and the owning of the Assets, have been obtained, are validly issued and are in good standing and such conduct and uses are not in breach or default of any statute, bylaw, regulation, covenant, restriction, plan, permit, licence or authority;
(w) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Corporation of the Assets;
(x) no dividends have been made or authorized by the Corporation to the Vendors or former shareholders of the Corporation;
(y) the Management Vendors have no information or knowledge of any material facts relating to the Corporation's business or to the Xxxxxx Shares which, if known to the Purchaser, might reasonably be expected to deter the Purchaser from completing the transaction of purchase and sale herein contemplated, except any such information which has been disclosed in writing to the Purchaser prior to the Closing Date;
(z) as of the date of this Agreement, there are no material liabilities of the Corporation of any kind whatsoever, whether or not accrued and whether or not determined or determinable, in respect of which the Corporation or the Purchaser Properties may become liable on or after the consummation of the transaction contemplated by this Agreement other than:
(i) liabilities disclosed on, reflected in or provided for in the Financial Statements;
(ii) liabilities disclosed or referred to in this Agreement or otherwise disclosed in writing by the Management Vendors to the Purchaser;
(iii) liabilities incurred in the ordinary course of business and attributable to the period since July 1 1999, none of which has been materially adverse to the nature of the business, results of operations, assets, financial condition or manner of conducting the business;
(aa) the Financial Statements have been prepared in accordance with generally accepted accounting principles and fairly and correctly set out and disclose in all material respects the financial position of the Corporation at the time or for the period indicated therein;
(bb) the Corporation has no Indebtedness to any person, firm, corporation or government or agency thereof including any Indebtedness which might by operation of law or otherwise now or hereafter constitute a material lien, charge or encumbrance upon any of the Assets other than as set out in Schedule " C " hereto;
(cc) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Management Vendors of the Xxxxxx Shares or of any of the Assetsencumbered; and
(ddf) the Corporation has duly and timely filed all returns, elections, filings and reports in respect of income and other taxes required to be filed by it by law and all such returns, elections, filings and reports are true, complete and correct in all material respects; there There are no tax arrears, including income tax, goods and services tax, employee withholdings or property tax nor any related interest or penalties owing to any foreign, federal, state, territorial or municipal tax authorities; the Management Vendors' have no knowledge of any delinquent taxes or any actual or threatened assessment of deficiency or additional tax or other governmental charge or a basis for such claim against the Corporation; there has been no tax audit of the Corporation by any taxing or other authority within 12 months of the Closing Date, the Management Vendors have no knowledge of any such audit currently pending or threatened and there are no tax liens on any of the Assets or the Properties; there are no agreements, waivers, or other arrangements with any taxation authority providing for an extension of time with respect to the filing of any tax return, election or payment of any tax, governmental charges , penalty, interest or fine, by the Corporation; there are no actions, suits, proceedings, investigations claims or claims now threatened or pending (to proceedings regarding the knowledge of the Management Vendors) against or affecting the Corporation in respect of taxes, governmental charges, penalties, interest or fines, or any matters under discussion with any governmental authority relating, to taxes, governmental charges, penalties, interest or fines asserted by any such authorityProperties.
4.3 All statements contained in any certificate or other instrument delivered by 3.02 The Vendor shall indemnify and save the Vendors pursuant hereto Purchaser harmless from all loss, damage, costs, actions, and suits arising out of or in connection with the transaction contemplated hereby shall be deemed to be representations any breach of any representation, warranty, covenant, agreement or condition made by it and warranties by the Vendors hereunder.
4.4 The Vendors acknowledge and agree that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions hereof and that no information which is now known or which may hereafter become known to the Purchaser or its officers, directors or professional advisors shall limit or extinguish the right to indemnity under contained in this Agreement.
4.5 No investigations made by or on behalf 3.03 The representations and warranties contained in this paragraph are provided for the exclusive benefit of the Vendors at Purchaser, and a breach of any time shall have the affect of waiving, diminishing the scope of one or otherwise affecting any representation or warranty or covenant made more thereof may be waived by the Purchaser herein or pursuant hereto. No waiver by the Vendors of any term of this Agreement, in whole or in part, shall operate as a waiver part at any time without prejudice to its rights in respect of any other terms of this Agreement. In the event that Closing does not take place no party shall have any claim against the other for any breach of the same or any other representation or warranty warranty.
3.04 The representations and warranties contained in Articles IV and V.this Paragraph shall survive the 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 title to the Properties to the Purchaser.
Appears in 1 contract
Samples: Mining Contract (Ugods, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. 4.1 The Non-Management Vendors severally, in proportion to their respective ownership of Xxxxxx Shares, hereby jointly and severally represent and warrant to the Purchaser the following, and in favor acknowledge that the Purchaser is entitled to rely on such representations and warranties notwithstanding any due diligence investigation done by the Purchaser prior to the closing:
3.1.1 the Corporation is the corporation continuing as a result of the Purchaser thatamalgamation of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd. pursuant to the Corporate Reorganization; the Corporation has been duly organized and validly subsists 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 date hereof Corporation and as at the Closing Date:
(aii) the number of Xxxxxx Shares listed opposite each Non-Management Vendor's name below will be of the Corporation which are issued and outstanding and owned by that Non-Management Vendors Name Xxxxxx Shares Jasmine Pacific Holdings Ltd. 3,700,000 581115 BC Ltd. 1,500,000 581116 B.C Ltd. 1,000,000 581284 B.C Ltd. 1,300,000 581287 B.C Ltd. 1,200,000 Xxxx Xxx 450,000 South Rim Financial Corporation 500,000 TOTAL: 9,650,000
(b) the Xxxxxx Shares will be outstanding, which shares have been validly and issued and outstanding as fully paid and non-assessable with no options, contracts, calls, commitments or rights and registered in the names of any character relating theretothe Vendors as set forth on Schedule 2.1.1;
(c) each 3.1.3 a true and complete copy of the Non-Management Vendors will have Memorandum and Articles of the full capacity Corporation, including the rights, privileges, restrictions and authority conditions attached to sell their Xxxxxx the Shares in accordance with the terms of this Agreement and all necessary corporate action, is attached hereto as the case may be, will have been takenSchedule 3.1.3 attached hereto;
(d) this agreement and 3.1.4 the Purchased Shares constitute all other documents executed and delivered by the Non-Management Vendors pursuant hereto constitute legal, valid and binding obligations of the Non-Management Vendors enforceable in accordance with its terms;
(e) each of the Non-Management Vendors will have legal and beneficial title to their Xxxxxx Shares, which will be free and clear of all liens , encumbrances, adverse claims and demands created by, through, or under any of them;
(f) the Non-Management Vendors are not a party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations which might reasonably be expected to result in impairment or loss of the Non-Management Vendors' interests in the Xxxxxx Shares;
(g) the entering into of this Agreement by the Non-Management Vendors and the completion of sale by the Non-Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof;
(h) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of the constating documents of any of the Non-Management Vendors, as the case may be, or of the terms and provisions of any contract, indenture, lease or other agreement to which the respective Non-Management Vendors as a party, the breach of which could have a material adverse effect on the Xxxxxx Shares;
(i) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchase by the Non-Management Vendors pursuant to this Agreement are and will be complete and correct in all material respects;
(j) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Non-Management Vendors of the Xxxxxx Shares; and
(k) the Non-Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchaser shall have any obligation or liability.
4.2 The Management Vendors severally, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that as of the date hereof and as at the Closing Date:
(a) the number of Xxxxxx Shares listed opposite each Management Vendor's name below will be issued and outstanding and owned by that Management Vendor: Name Xxxxxx Shares Xxxxx Xxxxxx 450,000 562796 BC Ltd. 6,050,000 Xxxxx Xxxxxx & Associates 550,000 TOTAL: 7,050,000
(b) in the Corporation is a private company duly incorporated, properly organized, validly existing and qualified to carry on business under the Company Act and has all necessary power, authority and capacity to own or other-wise hold its property and assets, is in good standing, and has conducted its business in accordance with applicable laws, the failure to comply with which would not have a material adverse impact on capital stock of the Corporation;
(c) there will be $25,000 outstanding shareholders' loans owing to three Vendors by the Corporation;
(d) the Corporation holds no assets other than the Assets;
(e) none 3.1.5 each of the Management Vendors or is the Corporation are party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations, actual or threatened, which might reasonably be expected to result in impairment or loss beneficial and registered owner of the Management Vendors' interests in number of Purchased Shares set opposite the Xxxxxx Shares;
(f) the entering into name of this Agreement by the Management Vendors and the completion of sale by the Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof ;
(g) the Corporation does not own any shares in any corporations or any beneficial interests in any other entities, nor is the Corporation a party to any agreements of any nature to acquire any such shares or beneficial interests or to acquire or lease any other business operations;
(h) the entering into of this Agreement, and the transactions contemplated hereby, will not result in the violation of any of the terms and provisions of the constating documents of any of the Management Vendors, as the case may be, or of the Corporation, or of the terms and provisions of any contract, indenture, lease or other agreement to which the Management Vendors or the Corporation is a party or by which the Assets are bound, the breach of which could have a material adverse affect Vendor on the Xxxxxx Shares;
(i) there will be no material adverse chance in the quality of the Assets since the Effective Date;
(k) the Corporation will have good and marketable title to the AssetsSchedule 2.1.1, free and clear of all material liensLiens, mortgagesoptions and any other rights of others;
3.1.6 there is no contract, chargesoption or any other right of another binding upon or which at any time in the future may become binding upon:
(i) any of the Vendors to sell, coststransfer, expensesassign, liabilities and encumbrances or grant any Lien on or affecting, or in any other way dispose of every nature and kind whatsoever or encumber any of the Purchased Shares other than those set out pursuant to the provisions of this Agreement or any of its assets other than in Schedule "D";the ordinary course of business, or
(lii) there are no claims, claims for damages, actions, causes the Corporation to allot or issue any of action, suits the unissued shares or proceedings by or against the Corporation, or the Assets, either threatened or affecting the subject matter of this purchase and sale, nor any suits or proceedings at law or equity before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, which could adversely affect the business securities of the Corporation or the purchase and sale herein contemplatedto create any additional class of shares or securities;
(m) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in, Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchaser by the Management Vendors and the Corporation pursuant to this Agreement are and will be complete and correct in all material respects;
(n) the Corporation has paid in a timely manner all liabilities owing to utilities authorities;
(o) the Corporation has paid any and all material debts, liabilities, costs, charges and expenses incurred in connection with the Assets which are due and owing, 3.1.7 except as set out in Schedules "C" and "D" hereto;
(p) the Corporation is not in breach of any bylawsdisclosed on Schedule 3.1.7, statutes, regulations or ordinances in force affecting its business, whether municipal, federal or provincial,
(q) neither the execution entering into nor the delivery of this Agreement and the Ancillary Agreements nor the completion of the transactions contemplated hereby willby each of the Vendors will result in the violation of or require the Consent of any third party pursuant to:
(i) result in any fees, duties, taxes, assessments or other amounts relating to the Assets becoming due or payable (other than sales and similar taxes payable by the Corporation or the Purchaser in connection with the transaction contemplated hereby including, without limitation, under any municipal or provincial statute or regulation); or
(ii) result in acceleration of any of the dates for payment of any provisions of the liabilities Memorandum or Articles of Amalgamation of the Corporation;
(rii) there has not been any material adverse change in the condition agreement or operations of the business, assets or financial condition or prospects of other instrument to which the Corporation or any circumstance of the Vendors is a party or by which might reasonably be expected to result in the Corporation or any such material adverse changeof the Vendors is bound, or
(iii) any applicable Law;
3.1.8 the financial statements of each of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd., consisting of the Balance Sheet and statements of income and retained earnings for the period ended on the Balance Sheet Date, together with a notice to reader from Cinnamon Jang Xxxxxxxxxx & Company, chartered accountants, thereon and the notes thereto (shereinafter 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 business books and accounts of each of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd. as at the Balance Sheet Date,
(ii) are true and correct and present fairly the financial position of each of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd. 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 each of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd. as at the Balance Sheet Date including, without limiting the generality of the foregoing, all contingent liabilities of each of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd. as at the Balance Sheet Date;
3.1.9 since the Balance Sheet Date, the Business of each of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd. and of the Corporation has been carried on in its usual and ordinary course and in a manner consistent with prior practices and each of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd. and the Corporation has not, since the Balance Sheet Date, entered into any transaction out of the usual and ordinary course of business other than the Corporate Reorganization;
3.1.10 since the Balance Sheet Date, there has been no material change in the affairs, business, prospects, operations or condition of each of Fraser Valley Industrial Chemicals Inc. and 430639 B.C. Ltd. and 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 each of Fraser Valley Industrial Chemicals Inc., 430639 B.C. Ltd. and the Corporation, financial or otherwise;
3.1.11 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 3.1.11 of all assets shown or reflected on the Balance Sheet, except only such of the assets of each of Fraser Valley Industrial Chemicals Inc., 430639 B.C. Ltd. and 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 each of Fraser Valley Industrial Chemicals Inc., 430639 B.C. Ltd. and the Corporation since the Balance Sheet Date;
3.1.12 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;
3.1.13 Schedule 3.1.13 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, 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;
3.1.14 Schedule 3.1.14 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;
3.1.15 except for the Premises Leases, the Corporation holds no ownership or other interest in or right affecting any real estate or real property;
3.1.16 the inventory of the Corporation consist of items saleable in the ordinary course of business reasonably fit for their usual purpose, except for obsolete and usual courseslow-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 3.1.16, there is no recurring or ongoing high incidence of product failure or warranty claims against the Corporation related to the Business;
3.1.17 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;
3.1.18 except as disclosed on Schedule 3.1.18, since the Balance Sheet Date, 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 Fraser Valley Industrial Chemicals Inc., 430639 B.C. Ltd. or the Corporation;
3.1.19 except as disclosed on Schedule 3.1.19, since the Balance Sheet Date, 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 Fraser Valley Industrial Chemicals Inc., 430639 B.C. Ltd. or the Corporation and all dividends which to the date hereof have been declared or paid by Fraser Valley Industrial Chemicals Inc., 430639 B.C. Ltd. or the Corporation have been duly and validly declared and are fully paid;
3.1.20 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 Fraser Valley Industrial Chemicals Inc., 430639 B.C. Ltd. or the Corporation under the Income Tax Act (tCanada) 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 Workmen's Compensation Board of British Columbia or the Employment Standards Branch;
3.1.21 the tax accounts of the Corporation as disclosed in Schedule 3.1.21 attached hereto are true and complete in all material respects;
3.1.22 except as disclosed on Schedule 3.1.22, there are no outstanding liabilities (whether absolute or contingent) against the Corporation except trade debts incurred in the usual and ordinary course of business;
3.1.23 set forth on Schedule 3.1.23 is a true and complete list of all contracts or agreements (except for the Premises Leases, the Personal Property Leases and the employment agreement with the Vendors listed on Schedule 3.1.29) to which the Corporation is a party or is otherwise bound which are (i) outside the ordinary course of business, (ii) involve a financial commitment by the Corporation of at least $25,000, (iii) have a term in excess of 60 days or (iv) to which any Related Person of the Corporation is a party (collectively, the "Material Contracts" and individually, a "Material Contract"). Subject only to the requirement to obtain the Consents, the Corporation has not received notice of any default, and the Corporation is not in default, under any Material Contract, nor has there occurred any event which, with a lapse of time or giving of notice, or both, would constitute such a default. Subject only to the requirement to obtain the Consents, each Material Contract is in full force and effect, unamended by written or oral agreement and the Corporation is (i) entitled to the full benefit and advantage of each Material Contract in accordance with the terms thereof, (ii) each Material Contract is in good standing, and (iii) there is no currently outstanding default by the Corporation nor by any other party thereunder nor is there a dispute between the Corporation and any party thereunder;
3.1.24 the Corporation is not in default or breach of any contract or commitment to which it is a party and there exists no condition, event or act which, with the giving of notice or lapse of time or both would constitute such a default or breach and all such contracts and commitments are in good standing and in full force and effect without amendment thereto and the Corporation is entitled to all benefits thereunder;
3.1.25 the Corporation is not a party to or bound by any Material Contracts the result of which would have a material adverse affect on guarantee, indemnification, surety or similar obligation;
3.1.26 the Corporation does not have any subsidiaries or agreements, options or commitments to acquire any shares or securities of its assets and such Material Contracts will not require any consent corporation or otherwise be affected interests of or in any material respect by the entering into of this Agreement and the performing of its termsother entity or to acquire or lease any business operations, real property or assets;
(u) the Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchase shall have any obligation or liability;
(v) all governmental licenses, consents, permits and authorities required for the conduct in the ordinary course of the operations of the business of the Corporation and the owning of the Assets, have been obtained, are validly issued and are in good standing and such conduct and uses are not in breach or default of any statute, bylaw, regulation, covenant, restriction, plan, permit, licence or authority;
(w) 3.1.27 there is no written or oral agreement, option, understanding or commitment commitment, or any right or privilege capable of becoming an agreement, for the purchase from the Corporation of the AssetsBusiness or any of its assets other than in the usual and ordinary course of business;
(x) no dividends have been made or authorized by 3.1.28 the Corporation is not a party to the Vendors or former shareholders bound by any contract or commitment to pay any royalty, licence fee or management fee or which contains restrictive covenants or covenants not to compete in any line of the Corporationbusiness with any other Person;
(y) the Management Vendors have no information or knowledge of any material facts relating to the Corporation's business or to the Xxxxxx Shares which, if known to the Purchaser, might reasonably be expected to deter the Purchaser from completing the transaction of purchase and sale herein contemplated, except any such information which has been disclosed in writing to the Purchaser prior to the Closing Date;
(z) as of the date of this Agreement, there are no material liabilities of 3.1.29 the Corporation of does not have any kind whatsoeveremployment contract, whether written or oral, with any person whomsoever except contracts with the employees as are listed in Schedule 3.1.29 attached hereto, whether or not accrued and whether or not determined or determinable, such contracts are in respect of which the Corporation or the Purchaser may become liable on or after the consummation of the transaction contemplated by this Agreement other than:
(i) liabilities disclosed on, reflected in or provided for in the Financial Statements;
(ii) liabilities disclosed or referred to in this Agreement or otherwise disclosed in writing by the Management Vendors to the Purchaser;
(iii) liabilities incurred in the ordinary course of business and attributable to the period since July 1 1999, none of which has been materially adverse to the nature of the business, results of operations, assets, financial condition or manner of conducting the business;
(aa) the Financial Statements have been prepared in accordance with generally accepted accounting principles and fairly and correctly set out and disclose in all material respects the financial position of the Corporation at the time or for the period indicated therein;
(bb) the Corporation has no Indebtedness to any person, firm, corporation or government or agency thereof including any Indebtedness which might by operation of law or otherwise now or hereafter constitute a material lien, charge or encumbrance upon any of the Assets other than as set out in writing; Schedule " C " hereto;
(cc) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Management Vendors of the Xxxxxx Shares or of any of the Assets; and
(dd) the Corporation has duly and timely filed all returns, elections, filings and reports in respect of income and other taxes required to be filed by it by law and all such returns, elections, filings and reports are true, complete and correct in all material respects; there are no tax arrears, including income tax, goods and services tax, employee withholdings or property tax nor any related interest or penalties owing to any foreign, federal, state, territorial or municipal tax authorities; the Management Vendors' have no knowledge of any delinquent taxes or any actual or threatened assessment of deficiency or additional tax or other governmental charge or a basis for such claim against the Corporation; there has been no tax audit of the Corporation by any taxing or other authority within 12 months of the Closing Date, the Management Vendors have no knowledge of any such audit currently pending or threatened and there are no tax liens on any of the Assets or the Properties; there are no agreements, waivers, or other arrangements with any taxation authority providing for an extension of time with respect to the filing of any tax return, election or payment of any tax, governmental charges , penalty, interest or fine, by the Corporation; there are no actions, suits, proceedings, investigations or claims now threatened or pending (to the knowledge of the Management Vendors) against or affecting the Corporation in respect of taxes, governmental charges, penalties, interest or fines, or any matters under discussion with any governmental authority relating, to taxes, governmental charges, penalties, interest or fines asserted by any such authority3.
4.3 All statements contained in any certificate or other instrument delivered by the Vendors pursuant hereto or in connection with the transaction contemplated hereby shall be deemed to be representations and warranties by the Vendors hereunder.
4.4 The Vendors acknowledge and agree that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions hereof and that no information which is now known or which may hereafter become known to the Purchaser or its officers, directors or professional advisors shall limit or extinguish the right to indemnity under this Agreement.
4.5 No investigations made by or on behalf of the Vendors at any time shall have the affect of waiving, diminishing the scope of or otherwise affecting any representation or warranty or covenant made by the Purchaser herein or pursuant hereto. No waiver by the Vendors of any term of this Agreement, in whole or in part, shall operate as a waiver of any other terms of this Agreement. In the event that Closing does not take place no party shall have any claim against the other for any breach of any representation or warranty contained in Articles IV and V.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. 4.1 The Non-Management 3.01 In order to induce the Purchaser to enter into and to complete the transactions contemplated by this Agreement, the Vendors severally, in proportion represents and warrants to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that, as :
a) The Vendor is the recorded and beneficial owner of 100% of the date hereof and as at Properties described in Schedule A to this Agreement and, has the Closing Date:
(a) the number of Xxxxxx Shares listed opposite each Non-Management Vendor's name below will be issued and outstanding and owned by that Non-Management Vendors Name Xxxxxx Shares Jasmine Pacific Holdings Ltd. 3,700,000 581115 BC Ltd. 1,500,000 581116 B.C Ltd. 1,000,000 581284 B.C Ltd. 1,300,000 581287 B.C Ltd. 1,200,000 Xxxx Xxx 450,000 South Rim Financial Corporation 500,000 TOTAL: 9,650,000
(b) the Xxxxxx Shares will be validly and issued and outstanding as fully paid and non-assessable with no options, contracts, calls, commitments or rights of any character relating thereto;
(c) each of the Non-Management Vendors will have the full capacity and authority right to sell their Xxxxxx Shares in accordance with the terms of enter into this Agreement and all necessary corporate action, as to sell and assign the case may be, will have been taken;
(d) this agreement and all other documents executed and delivered by the Non-Management Vendors pursuant hereto constitute legal, valid and binding obligations of the Non-Management Vendors enforceable in accordance with its terms;
(e) each of the Non-Management Vendors will have legal and beneficial title to their Xxxxxx Shares, which will be 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 liens laws and regulations of the Province of British Columbia and there are no disputes over the title, encumbrances, adverse claims and demands created by, throughthe staking or recording of the mineral prospets on the Properties, or under outstanding agreements or options to acquire or purchase the Properties or any of them;
(f) the Non-Management Vendors are not a party to protion thereof, and no person has any actions, suits royal or other legal, administrative or arbitration proceedings or government investigations which might reasonably be expected to result interest whatsoever in impairment or loss of the Non-Management Vendors' interests in the Xxxxxx Shares;
(g) the entering into of this Agreement by the Non-Management Vendors and the completion of sale by the Non-Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof;
(h) the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of production from any of the terms and provisions of crown grant claims which comprise the constating documents of any of the Non-Management Vendors, as the case may be, or of the terms and provisions of any contract, indenture, lease or other agreement to which the respective Non-Management Vendors as a party, the breach of which could have a material adverse effect on the Xxxxxx SharesProperties;
(id) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchase by the Non-Management Vendors pursuant to this Agreement The Properties are and will be complete and correct in all material respects;
(j) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Non-Management Vendors of the Xxxxxx Shares; and
(k) the Non-Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchaser shall have any obligation or liability.
4.2 The Management Vendors severally, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that as of the date hereof and as at the Closing Date:
(a) the number of Xxxxxx Shares listed opposite each Management Vendor's name below will be issued and outstanding and owned by that Management Vendor: Name Xxxxxx Shares Xxxxx Xxxxxx 450,000 562796 BC Ltd. 6,050,000 Xxxxx Xxxxxx & Associates 550,000 TOTAL: 7,050,000
(b) the Corporation is a private company duly incorporated, properly organized, validly existing and qualified to carry on business under the Company Act and has all necessary power, authority and capacity to own or other-wise hold its property and assets, is in good standing, and all necessary filings, permits and other necessary documentation has conducted its business in accordance with applicable laws, the failure to comply with which would not have a material adverse impact on the Corporation;
(c) there will be $25,000 outstanding shareholders' loans owing to three Vendors by the Corporation;
(d) the Corporation holds no assets other than the Assets;
(e) none of the Management Vendors been made or the Corporation are party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations, actual or threatened, which might reasonably be expected to result in impairment or loss of the Management Vendors' interests in the Xxxxxx Shares;
(f) the entering into of this Agreement by the Management Vendors and the completion of sale by the Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof ;
(g) the Corporation does not own any shares in any corporations or any beneficial interests in any other entities, nor is the Corporation a party to any agreements of any nature to acquire any such shares or beneficial interests or to acquire or lease any other business operations;
(h) the entering into of this Agreementreceived from all regulatory authorities, and the transactions contemplated hereby, will not result in the violation of any of the terms and provisions of the constating documents of any of the Management Vendors, as the case may be, or of the Corporation, or of the terms and provisions of any contract, indenture, lease or other agreement to which the Management Vendors or the Corporation is a party or by which the Assets properties are bound, the breach of which could have a material adverse affect on the Xxxxxx Shares;
(i) there will be no material adverse chance in the quality of the Assets since the Effective Date;
(k) the Corporation will have good and marketable title to the Assets, free and clear of all material any liens, mortgages, charges, costs, expenses, liabilities and charges or encumbrances or claims by any other party of every any nature and or kind whatsoever other than those set out in Schedule "D"whatsoever;
(le) there are no claims, claims for damages, actions, causes of action, suits or proceedings by or against Neither the Corporation, or the Assets, either threatened or affecting the subject matter of this purchase and saleVendor, nor any suits or proceedings at law or equity before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, which could adversely affect the business of the Corporation or the purchase and sale herein contemplated;
(m) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in, Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchaser by the Management Vendors and the Corporation pursuant to this Agreement are and will be complete and correct in all material respects;
(n) the Corporation has paid in a timely manner all liabilities owing to utilities authorities;
(o) the Corporation has paid any and all material debts, liabilities, costs, charges and expenses incurred in connection with the Assets which are due and owing, except as set out in Schedules "C" and "D" hereto;
(p) the Corporation is not in breach of any bylaws, statutes, regulations or ordinances in force affecting its business, whether municipal, federal or provincial,
(q) neither the execution nor delivery of this Agreement nor the completion of the transactions contemplated hereby will:
(i) result in any fees, duties, taxes, assessments or other amounts relating to the Assets becoming due or payable (other than sales and similar taxes payable by the Corporation or the Purchaser in connection with the transaction contemplated hereby including, without limitation, under any municipal or provincial statute or regulation); or
(ii) result in acceleration of any of the dates for payment of any of the liabilities of the Corporation;
(r) there has not been any material adverse change predecessor in the condition interest or operations of title, has done anything whereby the business, assets or financial condition or prospects of the Corporation or any circumstance which might reasonably be expected to result in any such material adverse change;
(s) the business of the Corporation has been carried on only in the ordinary and usual course;
(t) the Corporation is not a party to or bound by any Material Contracts the result of which would have a material adverse affect on the Corporation or any of its assets and such Material Contracts will not require any consent or otherwise be affected in any material respect by the entering into of this Agreement and the performing of its terms;
(u) the Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchase shall have any obligation or liability;
(v) all governmental licenses, consents, permits and authorities required for the conduct in the ordinary course of the operations of the business of the Corporation and the owning of the Assets, have been obtained, are validly issued and are in good standing and such conduct and uses are not in breach or default of any statute, bylaw, regulation, covenant, restriction, plan, permit, licence or authority;
(w) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Corporation of the Assets;
(x) no dividends have been made or authorized by the Corporation to the Vendors or former shareholders of the Corporation;
(y) the Management Vendors have no information or knowledge of any material facts relating to the Corporation's business or to the Xxxxxx Shares which, if known to the Purchaser, might reasonably be expected to deter the Purchaser from completing the transaction of purchase and sale herein contemplated, except any such information which has been disclosed in writing to the Purchaser prior to the Closing Date;
(z) as of the date of this Agreement, there are no material liabilities of the Corporation of any kind whatsoever, whether or not accrued and whether or not determined or determinable, in respect of which the Corporation or the Purchaser Properties may become liable on or after the consummation of the transaction contemplated by this Agreement other than:
(i) liabilities disclosed on, reflected in or provided for in the Financial Statements;
(ii) liabilities disclosed or referred to in this Agreement or otherwise disclosed in writing by the Management Vendors to the Purchaser;
(iii) liabilities incurred in the ordinary course of business and attributable to the period since July 1 1999, none of which has been materially adverse to the nature of the business, results of operations, assets, financial condition or manner of conducting the business;
(aa) the Financial Statements have been prepared in accordance with generally accepted accounting principles and fairly and correctly set out and disclose in all material respects the financial position of the Corporation at the time or for the period indicated therein;
(bb) the Corporation has no Indebtedness to any person, firm, corporation or government or agency thereof including any Indebtedness which might by operation of law or otherwise now or hereafter constitute a material lien, charge or encumbrance upon any of the Assets other than as set out in Schedule " C " hereto;
(cc) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Management Vendors of the Xxxxxx Shares or of any of the Assetsencumbered; and
(ddf) the Corporation has duly and timely filed all returns, elections, filings and reports in respect of income and other taxes required to be filed by it by law and all such returns, elections, filings and reports are true, complete and correct in all material respects; there There are no tax arrears, including income tax, goods and services tax, employee withholdings or property tax nor any related interest or penalties owing to any foreign, federal, state, territorial or municipal tax authorities; the Management Vendors' have no knowledge of any delinquent taxes or any actual or threatened assessment of deficiency or additional tax or other governmental charge or a basis for such claim against the Corporation; there has been no tax audit of the Corporation by any taxing or other authority within 12 months of the Closing Date, the Management Vendors have no knowledge of any such audit currently pending or threatened and there are no tax liens on any of the Assets or the Properties; there are no agreements, waivers, or other arrangements with any taxation authority providing for an extension of time with respect to the filing of any tax return, election or payment of any tax, governmental charges , penalty, interest or fine, by the Corporation; there are no actions, suits, proceedings, investigations claims or claims now threatened or pending (to proceedings regarding the knowledge of the Management Vendors) against or affecting the Corporation in respect of taxes, governmental charges, penalties, interest or fines, or any matters under discussion with any governmental authority relating, to taxes, governmental charges, penalties, interest or fines asserted by any such authorityProperties.
4.3 All statements contained in any certificate or other instrument delivered by 3.02 The Vendor shall indemnify and save the Vendors pursuant hereto Purchaser harmless from all loss, damage, costs, actions, and suits arising out of or in connection with the transaction contemplated hereby shall be deemed to be any breach of any representation, warranty, covenant, agreement or condition made by it and contained in this agreement.
3.03 The representations and warranties by contained in this paragraph are provided for the Vendors hereunder.
4.4 The Vendors acknowledge and agree that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions hereof and that no information which is now known or which may hereafter become known to the Purchaser or its officers, directors or professional advisors shall limit or extinguish the right to indemnity under this Agreement.
4.5 No investigations made by or on behalf exclusive benefit of the Vendors at Purchaser, and a breach of any time shall have the affect of waiving, diminishing the scope of one or otherwise affecting any representation or warranty or covenant made more thereof may be waived by the Purchaser herein or pursuant hereto. No waiver by the Vendors of any term of this Agreement, in whole or in part, shall operate as a waiver part at any time without prejudice to its rights in respect of any other terms of this Agreement. In the event that Closing does not take place no party shall have any claim against the other for any breach of the same or any other representation or warranty warranty.
3.04 The representations and warranties contained in Articles IV and V.this Paragraph shall survive the 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 title to the Properties to the Purchaser.
Appears in 1 contract
Samples: Mining Contract (Ugods, Inc.)
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. 4.1 (1) The Non-Management Vendors severallycovenant, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that, as follows as of the date hereof and as at of the Closing DateDate and it acknowledges that the Purchaser is relying upon such covenants, representations and warranties in connection with the purchase by the Purchaser of the Purchased Shares:
(a2) The authorized capital of the Corporation consists of an unlimited number of Xxxxxx non-voting Class "A" Preference Shares, an unlimited number of non-voting Class "B" Preference Shares, an unlimited number of Special Shares listed opposite each Non-Management Vendor's name below will be and an unlimited number of Common Shares without par value of which 928 Common Shares have been issued for an aggregate purchase price of Dollars and outstanding and owned by that Non-Management Vendors Name Xxxxxx Shares Jasmine Pacific Holdings Ltd. 3,700,000 581115 BC Ltd. 1,500,000 581116 B.C Ltd. 1,000,000 581284 B.C Ltd. 1,300,000 581287 B.C Ltd. 1,200,000 Xxxx Xxx 450,000 South Rim Financial Corporation 500,000 TOTAL: 9,650,000
(b) the Xxxxxx Shares will be validly and issued and are outstanding as fully paid and non-assessable with no options, contracts, calls, commitments or rights of any character relating thereto;assessable.
(c3) each The shareholders of the Non-Management Vendors will have the full capacity record are as follows: XXXXXX XXXXXX - 464 common shares XXXXXX XXXXXXXXX - 464 common shares and authority to sell their Xxxxxx Shares in accordance with the terms of this Agreement and all necessary corporate action, as the case may be, will have been taken;
(d) this agreement and all other documents executed and delivered such shares are owned by the Non-Management Vendors pursuant hereto constitute legalVendors, valid are held with good and binding obligations of the Non-Management Vendors enforceable in accordance with its terms;
(e) each of the Non-Management Vendors will have legal and beneficial title to their Xxxxxx Sharesmarketable title, which will be free and clear of all liens mortgages, encumbrancesliens, charges, security interests, adverse claims claims, pledges, encumbrances and demands created by, through, or under any of them;whatsoever.
(f4) No person, firm or corporation has any agreement or option or any right (whether by law, pre-emptive or contractual and including convertible securities, warrants or convertible obligations of any nature) for the Nonpurchase or the issue of either the Purchased Shares or any un-Management Vendors are not a party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations which might reasonably be expected to result issued shares in impairment or loss the capital stock of the Non-Management Vendors' interests in the Xxxxxx Shares;Corporation or of Island.
(g5) the The entering into of this Agreement by the Non-Management Vendors and the completion of sale by the Non-Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof;
(h) the entering into of this Agreement agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of the constating documents or by-laws of the Vendors or of any of the Non-Management Vendors, as the case may be, or of the terms and provisions of any contract, indenture, lease indenture or other agreement agreement, written or oral, to which the respective Non-Management Vendors as may be a party, the breach of which could have a material adverse effect on the Xxxxxx Shares;.
(i6) the copies of all instruments, agreements, other documents This agreement has been duly executed and written information set forth as, or referred to in Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchase by the Non-Management Vendors pursuant to this Agreement are and will be complete is a valid and correct in all material respects;
(j) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Non-Management Vendors binding obligation of the Xxxxxx Shares; and
(k) the Non-Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchaser shall have any obligation or liability.
4.2 The Management Vendors severally, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that as of the date hereof and as at the Closing Date:
(a) the number of Xxxxxx Shares listed opposite each Management Vendor's name below will be issued and outstanding and owned by that Management Vendor: Name Xxxxxx Shares Xxxxx Xxxxxx 450,000 562796 BC Ltd. 6,050,000 Xxxxx Xxxxxx & Associates 550,000 TOTAL: 7,050,000
(b) the Corporation is a private company duly incorporated, properly organized, validly existing and qualified to carry on business under the Company Act and has all necessary power, authority and capacity to own or other-wise hold its property and assets, is in good standing, and has conducted its business enforceable in accordance with applicable laws, the failure to comply with which would not have a material adverse impact on the Corporation;its terms.
(c7) there will be $25,000 outstanding shareholders' loans owing to three The Vendors by are not non-residents within the Corporation;meaning of s.116 of the Income Tax Act.
(d) 8) To the Vendors' knowledge, there are no existing or threatened legal actions or claims against the Corporation holds no assets other than the Assets;
(e) none of the Management Vendors or the Corporation are party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations, actual or threatened, which might reasonably be expected to result in impairment or loss of the Management Vendors' interests in the Xxxxxx Shares;
(f) the entering into of this Agreement by the Management Vendors and the completion of sale by the Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof ;
(g) the Corporation does not own any shares in any corporations or any beneficial interests in any other entities, nor is the Corporation a party to any agreements of any nature to acquire any such shares or beneficial interests or to acquire or lease any other business operations;
(h) the entering into of this Agreement, and the transactions contemplated hereby, will not result in the violation of any of the terms and provisions of the constating documents of any of the Management Vendors, save as the case may be, or of the Corporation, or of the terms and provisions of any contract, indenture, lease or other agreement to which the Management Vendors or the Corporation is a party or by which the Assets are bound, the breach of which could have a material adverse affect on the Xxxxxx Shares;
(i) there will be no material adverse chance in the quality of the Assets since the Effective Date;
(k) the Corporation will have good and marketable title to the Assets, free and clear of all material liens, mortgages, charges, costs, expenses, liabilities and encumbrances of every nature and kind whatsoever other than those set out in Schedule "D";H" hereto.
(l9) As at January 9, 2006, there will be approximately Cdn $200,000.00 in Island's bank accounts and no monies in the Corporation's bank accounts.
(10) There are no claimsliens, claims for damages, actions, causes charges or encumbrances of action, suits or proceedings by or against any kind whatsoever on the assets of the Corporation, or the Assets, either threatened or affecting the subject matter of this purchase save and sale, nor any suits or proceedings at law or equity before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, which could adversely affect the business except as are listed in Schedule "B" annexed hereto.
(11) All material tangible Assets of the Corporation used in or the purchase and sale herein contemplated;
(m) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in, Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchaser by the Management Vendors and the Corporation pursuant to this Agreement are and will be complete and correct in all material respects;
(n) the Corporation has paid in a timely manner all liabilities owing to utilities authorities;
(o) the Corporation has paid any and all material debts, liabilities, costs, charges and expenses incurred in connection with the Assets which are due and owing, except as set out in Schedules "C" and "D" hereto;
(p) the Corporation is not in breach of any bylaws, statutes, regulations or ordinances in force affecting its business, whether municipal, federal or provincial,
(q) neither the execution nor delivery of this Agreement nor the completion of the transactions contemplated hereby will:
(i) result in any fees, duties, taxes, assessments or other amounts relating to the Assets becoming due or payable (other than sales and similar taxes payable by the Corporation or the Purchaser in connection with the transaction contemplated hereby including, without limitation, under any municipal or provincial statute or regulation); or
(ii) result in acceleration of any of the dates for payment of any of the liabilities of the Corporation;
(r) there has not been any material adverse change in the condition or operations of the business, assets or financial condition or prospects of the Corporation or any circumstance which might reasonably be expected to result in any such material adverse change;
(s) the business of the Corporation has been carried on only in the ordinary and usual course;
(t) the Corporation is not a party to or bound by any Material Contracts the result of which would have a material adverse affect on the Corporation or any of its assets and such Material Contracts will not require any consent or otherwise be affected in any material respect by the entering into of this Agreement and the performing of its terms;
(u) the Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchase shall have any obligation or liability;
(v) all governmental licenses, consents, permits and authorities required for the conduct in the ordinary course of the operations of the business of the Corporation and the owning of the Assets, have been obtained, are validly issued and Business are in good standing condition and such conduct repair and, where applicable, in good working order, having regard to the use and uses are not age thereof. A list of all material fixed assets is shown in breach or default of any statute, bylaw, regulation, covenant, restriction, plan, permit, licence or authority;Schedule "B".
(w12) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable The unaudited financial statements of becoming an agreement, for the purchase from the Corporation of the Assets;
(x) no dividends have been made or authorized by the Corporation to the Vendors or former shareholders of the Corporation;
(y) the Management Vendors have no information or knowledge of any material facts relating to the Corporation's business or to the Xxxxxx Shares which, if known to the Purchaser, might reasonably be expected to deter the Purchaser from completing the transaction of purchase and sale herein contemplated, except any such information which has been disclosed in writing to the Purchaser prior to the Closing Date;
(z) as of the date of this Agreement, there are no material liabilities of the Corporation of any kind whatsoever, whether or not accrued and whether or not determined or determinable, in respect Island dated October 31,2005 a copy of which the Corporation or the Purchaser may become liable on or after the consummation of the transaction contemplated is attached hereto as Schedule "A", prepared by this Agreement other than:
(i) liabilities disclosed onXxxxxxxx Xxxxxxx, reflected in or provided for in the Financial Statements;
(ii) liabilities disclosed or referred to in this Agreement or otherwise disclosed in writing by the Management Vendors to the Purchaser;
(iii) liabilities incurred in the ordinary course of business and attributable to the period since July 1 1999Chartered Accountants, none of which has been materially adverse to the nature of the business, results of operations, assets, financial condition or manner of conducting the business;
(aa) the Financial Statements have been prepared in accordance with generally accepted accounting principles and fairly and correctly set out and disclose in all material respects represent the financial position of the Corporation as at the time or for the period indicated therein;
(bb) the Corporation has no Indebtedness to any personOctober 31, firm, corporation or government or agency thereof including any Indebtedness which might by operation of law or otherwise now or hereafter constitute a material lien, charge or encumbrance upon any of the Assets other than as set out in Schedule " C " hereto;
(cc) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Management Vendors of the Xxxxxx Shares or of any of the Assets; and
(dd) the Corporation has duly and timely filed all returns, elections, filings and reports in respect of income and other taxes required to be filed by it by law and all such returns, elections, filings and reports are true, complete and correct in all material respects; there are no tax arrears, including income tax, goods and services tax, employee withholdings or property tax nor any related interest or penalties owing to any foreign, federal, state, territorial or municipal tax authorities; the Management Vendors' have no knowledge of any delinquent taxes or any actual or threatened assessment of deficiency or additional tax or other governmental charge or a basis for such claim against the Corporation; there has been no tax audit of the Corporation by any taxing or other authority within 12 months of the Closing Date, the Management Vendors have no knowledge of any such audit currently pending or threatened and there are no tax liens on any of the Assets or the Properties; there are no agreements, waivers, or other arrangements with any taxation authority providing for an extension of time with respect to the filing of any tax return, election or payment of any tax, governmental charges , penalty, interest or fine, by the Corporation; there are no actions, suits, proceedings, investigations or claims now threatened or pending (to the knowledge of the Management Vendors) against or affecting the Corporation in respect of taxes, governmental charges, penalties, interest or fines, or any matters under discussion with any governmental authority relating, to taxes, governmental charges, penalties, interest or fines asserted by any such authority.
4.3 All statements contained in any certificate or other instrument delivered by the Vendors pursuant hereto or in connection with the transaction contemplated hereby shall be deemed to be representations and warranties by the Vendors hereunder.
4.4 The Vendors acknowledge and agree that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions hereof and that no information which is now known or which may hereafter become known to the Purchaser or its officers, directors or professional advisors shall limit or extinguish the right to indemnity under this Agreement.
4.5 No investigations made by or on behalf of the Vendors at any time shall have the affect of waiving, diminishing the scope of or otherwise affecting any representation or warranty or covenant made by the Purchaser herein or pursuant hereto. No waiver by the Vendors of any term of this Agreement, in whole or in part, shall operate as a waiver of any other terms of this Agreement. In the event that Closing does not take place no party shall have any claim against the other for any breach of any representation or warranty contained in Articles IV and V.2005..
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF THE VENDORS. 4.1 The Non-Management Vendors severallycovenant, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor as follows:
(1) As of the Purchaser thatdate hereof, and as of the date hereof and as at the Closing Date:, and the Vendors acknowledge that the Purchaser is relying upon such covenants, representations and warranties in connection with the purchase by the Purchaser of the Purchased Shares.
(2) The number of shares in Forest Glade that have been duly issued for valuable consideration are 120 Class A.
(a) the number The shareholders of Xxxxxx Shares listed opposite each Non-Management Vendor's name below will be issued and outstanding and owned by that Non-Management Vendors Name Xxxxxx Shares Jasmine Pacific Holdings Ltd. 3,700,000 581115 BC Ltd. 1,500,000 581116 B.C Ltd. 1,000,000 581284 B.C Ltd. 1,300,000 581287 B.C Ltd. 1,200,000 Xxxx record are as follows: Wayne Loftus 20; Frank Denis 40; Mike Jenks 20; Stan Polson 20; xxx Xxx 450,000 South Rim Financial Corporation 500,000 TOTAL: 9,650,000Xxxier 20 = 000 Class X
(b) The shareholders xx xxx Xxrchaser after the exchange of 120 Class A shares are as follows: Wayne Loftus - 1,283,333; Frank Denis - 2,566,668; Mike Xxxks - 1,283,333; Xxxx Xxxxon - 1,283,333; Xxx Xxxxxx Shares will be validly - 1,283,333 = 0,000,000
(4) Xx xxxxxx, firm or corporation has any agreement or option or any right (whether by law, pre-emptive or contractual and issued and outstanding as fully paid and non-assessable with no optionsincluding convertible securities, contracts, calls, commitments warrants or rights convertible obligations of any character relating thereto;nature) for the purchase or the issue of either the Purchased Shares or any unissued shares in the capital stock of Forest Glade.
(c5) each of the Non-Management Vendors will have the full capacity and authority to sell their Xxxxxx Shares in accordance with the terms of this Agreement and all necessary corporate action, as the case may be, will have been taken;
(d) this agreement and all other documents executed and delivered by the Non-Management Vendors pursuant hereto constitute legal, valid and binding obligations of the Non-Management Vendors enforceable in accordance with its terms;
(e) each of the Non-Management Vendors will have legal and beneficial title to their Xxxxxx Shares, which will be free and clear of all liens , encumbrances, adverse claims and demands created by, through, or under any of them;
(f) the Non-Management Vendors are not a party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations which might reasonably be expected to result in impairment or loss of the Non-Management Vendors' interests in the Xxxxxx Shares;
(g) the The entering into of this Agreement by the Non-Management Vendors and the completion of sale by the Non-Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof;
(h) the entering into of this Agreement agreement and the transactions contemplated hereby will not result in the violation of any of the terms and provisions of the constating documents or by-laws of the Vendors or of any of the Non-Management Vendors, as the case may be, or of the terms and provisions of any contract, indenture, lease indenture or other agreement agreement, written or oral, to which the respective Non-Management Vendors as may be a party, the breach of which could have a material adverse effect on the Xxxxxx Shares;.
(i6) the copies of all instruments, agreements, other documents This agreement has been duly executed and written information set forth as, or referred to in Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchase by the Non-Management Vendors pursuant to this Agreement are and will be complete is a valid and correct in all material respects;
(j) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Non-Management Vendors binding obligation of the Xxxxxx Shares; and
(k) the Non-Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchaser shall have any obligation or liability.
4.2 The Management Vendors severally, in proportion to their respective ownership of Xxxxxx Shares, hereby represent and warrant to and in favor of the Purchaser that as of the date hereof and as at the Closing Date:
(a) the number of Xxxxxx Shares listed opposite each Management Vendor's name below will be issued and outstanding and owned by that Management Vendor: Name Xxxxxx Shares Xxxxx Xxxxxx 450,000 562796 BC Ltd. 6,050,000 Xxxxx Xxxxxx & Associates 550,000 TOTAL: 7,050,000
(b) the Corporation is a private company duly incorporated, properly organized, validly existing and qualified to carry on business under the Company Act and has all necessary power, authority and capacity to own or other-wise hold its property and assets, is in good standing, and has conducted its business enforceable in accordance with applicable laws, the failure to comply with which would not have a material adverse impact on the Corporation;its terms.
(c7) there will be $25,000 outstanding shareholders' loans owing to three The Vendors by are non-resident within the Corporation;meaning of the International Revenue Code of the United States.
(d) 8) To the Corporation holds no assets other than the Assets;
(e) none of the Management Vendors or the Corporation are party to any actions, suits or other legal, administrative or arbitration proceedings or government investigations, actual or threatened, which might reasonably be expected to result in impairment or loss of the Management Vendors' interests in the Xxxxxx Shares;
(f) the entering into of this Agreement by the Management Vendors and the completion of sale by the Management Vendors of the Xxxxxx Shares pursuant hereto will not result in the violation of any law of Canada or in any province thereof ;
(g) the Corporation does not own any shares in any corporations or any beneficial interests in any other entities, nor is the Corporation a party to any agreements of any nature to acquire any such shares or beneficial interests or to acquire or lease any other business operations;
(h) the entering into of this Agreement, and the transactions contemplated hereby, will not result in the violation of any of the terms and provisions of the constating documents of any of the Management Vendors, as the case may be, or of the Corporation, or of the terms and provisions of any contract, indenture, lease or other agreement to which the Management Vendors or the Corporation is a party or by which the Assets are bound, the breach of which could have a material adverse affect on the Xxxxxx Shares;
(i) there will be no material adverse chance in the quality of the Assets since the Effective Date;
(k) the Corporation will have good and marketable title to the Assets, free and clear of all material liens, mortgages, charges, costs, expenses, liabilities and encumbrances of every nature and kind whatsoever other than those set out in Schedule "D";
(l) there are no claims, claims for damages, actions, causes of action, suits or proceedings by or against the Corporation, or the Assets, either threatened or affecting the subject matter of this purchase and sale, nor any suits or proceedings at law or equity before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, which could adversely affect the business of the Corporation or the purchase and sale herein contemplated;
(m) the copies of all instruments, agreements, other documents and written information set forth as, or referred to in, Schedules to this Agreement, delivered to the Purchaser prior to the date of this Agreement, or specifically required to be furnished to the Purchaser by the Management Vendors and the Corporation pursuant to this Agreement are and will be complete and correct in all material respects;
(n) the Corporation has paid in a timely manner all liabilities owing to utilities authorities;
(o) the Corporation has paid any and all material debts, liabilities, costs, charges and expenses incurred in connection with the Assets which are due and owing, except as set out in Schedules "C" and "D" hereto;
(p) the Corporation is not in breach of any bylaws, statutes, regulations or ordinances in force affecting its business, whether municipal, federal or provincial,
(q) neither the execution nor delivery of this Agreement nor the completion of the transactions contemplated hereby will:
(i) result in any fees, duties, taxes, assessments or other amounts relating to the Assets becoming due or payable (other than sales and similar taxes payable by the Corporation or the Purchaser in connection with the transaction contemplated hereby including, without limitation, under any municipal or provincial statute or regulation); or
(ii) result in acceleration of any of the dates for payment of any of the liabilities of the Corporation;
(r) there has not been any material adverse change in the condition or operations of the business, assets or financial condition or prospects of the Corporation or any circumstance which might reasonably be expected to result in any such material adverse change;
(s) the business of the Corporation has been carried on only in the ordinary and usual course;
(t) the Corporation is not a party to or bound by any Material Contracts the result of which would have a material adverse affect on the Corporation or any of its assets and such Material Contracts will not require any consent or otherwise be affected in any material respect by the entering into of this Agreement and the performing of its terms;
(u) the Management Vendors have incurred no obligations or liabilities, contingent or otherwise, for brokers' or finders' fees in respect of this transaction for which the Purchase shall have any obligation or liability;
(v) all governmental licenses, consents, permits and authorities required for the conduct in the ordinary course of the operations of the business of the Corporation and the owning of the Assets, have been obtained, are validly issued and are in good standing and such conduct and uses are not in breach or default of any statute, bylaw, regulation, covenant, restriction, plan, permit, licence or authority;
(w) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Corporation of the Assets;
(x) no dividends have been made or authorized by the Corporation to the Vendors or former shareholders of the Corporation;
(y) the Management Vendors have no information or knowledge of any material facts relating to the CorporationVendor's business or to the Xxxxxx Shares which, if known to the Purchaser, might reasonably be expected to deter the Purchaser from completing the transaction of purchase and sale herein contemplated, except any such information which has been disclosed in writing to the Purchaser prior to the Closing Date;
(z) as of the date of this Agreementknowledge, there are no material liabilities existing or threatened legal actions or claims against Forest Glade.
(9) The audited financial statements of the Corporation of any kind whatsoeverForest Glade dated September 30, whether or not accrued and whether or not determined or determinable1998, in respect a copy of which the Corporation or the Purchaser may become liable on or after the consummation of the transaction contemplated by this Agreement other than:
(i) liabilities disclosed onis attached hereto as "Schedule A", reflected in or provided for in the Financial Statements;
(ii) liabilities disclosed or referred to in this Agreement or otherwise disclosed in writing by the Management Vendors to the Purchaser;
(iii) liabilities incurred in the ordinary course of business and attributable to the period since July 1 1999, none of which has been materially adverse to the nature of the business, results of operations, assets, financial condition or manner of conducting the business;
(aa) the Financial Statements have been prepared in accordance with generally accepted accounting principles and fairly and correctly set out and disclose in all material respects represent the financial position of the Corporation Forest Glade as at the time or for the period indicated therein;
(bb) the Corporation has no Indebtedness to any person, firm, corporation or government or agency thereof including any Indebtedness which might by operation of law or otherwise now or hereafter constitute a material lien, charge or encumbrance upon any of the Assets other than as set out in Schedule " C " hereto;
(cc) there is no written or oral agreement, option, understanding or commitment or any right or privilege capable of becoming an agreement, for the purchase from the Management Vendors of the Xxxxxx Shares or of any of the Assets; and
(dd) the Corporation has duly and timely filed all returns, elections, filings and reports in respect of income and other taxes required to be filed by it by law and all such returns, elections, filings and reports are true, complete and correct in all material respects; there are no tax arrears, including income tax, goods and services tax, employee withholdings or property tax nor any related interest or penalties owing to any foreign, federal, state, territorial or municipal tax authorities; the Management Vendors' have no knowledge of any delinquent taxes or any actual or threatened assessment of deficiency or additional tax or other governmental charge or a basis for such claim against the Corporation; there has been no tax audit of the Corporation by any taxing or other authority within 12 months of the Closing Date, the Management Vendors have no knowledge of any such audit currently pending or threatened and there are no tax liens on any of the Assets or the Properties; there are no agreements, waivers, or other arrangements with any taxation authority providing for an extension of time with respect to the filing of any tax return, election or payment of any tax, governmental charges , penalty, interest or fine, by the Corporation; there are no actions, suits, proceedings, investigations or claims now threatened or pending (to the knowledge of the Management Vendors) against or affecting the Corporation in respect of taxes, governmental charges, penalties, interest or fines, or any matters under discussion with any governmental authority relating, to taxes, governmental charges, penalties, interest or fines asserted by any such authoritydates indicated.
4.3 All statements contained in any certificate or other instrument delivered by the Vendors pursuant hereto or in connection with the transaction contemplated hereby shall be deemed to be representations and warranties by the Vendors hereunder.
4.4 The Vendors acknowledge and agree that the Purchaser has entered into this Agreement relying on the warranties and representations and other terms and conditions hereof and that no information which is now known or which may hereafter become known to the Purchaser or its officers, directors or professional advisors shall limit or extinguish the right to indemnity under this Agreement.
4.5 No investigations made by or on behalf of the Vendors at any time shall have the affect of waiving, diminishing the scope of or otherwise affecting any representation or warranty or covenant made by the Purchaser herein or pursuant hereto. No waiver by the Vendors of any term of this Agreement, in whole or in part, shall operate as a waiver of any other terms of this Agreement. In the event that Closing does not take place no party shall have any claim against the other for any breach of any representation or warranty contained in Articles IV and V.
Appears in 1 contract
Samples: Share Purchase Agreement (Forest Glade International Inc)
