LIMITED PARTNERSHIP UNIT PURCHASE AGREEMENT
Exhibit
10.18.1
LIMITED PARTNERSHIP UNIT PURCHASE
AGREEMENT (this "Agreement") dated as of
November 30, 2010, by and among MDC PARTNERS INC., a Canadian corporation (the
"Purchaser"), NEWPORT
PARTNERS HOLDINGS LP, an Ontario limited partnership ("Newport"), CAP C LP HOLDCO
INC., an Ontario corporation ("Communications Holdco"),
2265178 ONTARIO LIMITED ("Capital C Holdco"), an Ontario
corporation, XXXX XXXXXXX and XXXXXXXX XXXXXXXXX, each an individual resident in
the Province of Ontario (collectively, the "Cap C Principals" and
each a "Cap C
Principal").
WITNESSETH:
WHEREAS, in order to
facilitate a sale to the Purchaser, each of Newport and the Cap C Principals
have caused Capital C Partners LP ("CLP") to be formed for the
purpose of demerging the businesses of Capital C Communications LP ("Cap C LP"), which consisted of
a technology based, customer relationship business and related database
marketing services business (the "Kenna Business") and the
separate business of rendering advertising, customer relationship, marketing or
communications services (the "Cap C Business") (see
reorganization chart attached as Exhibit A (the "Reorganization");
AND WHEREAS immediately prior
to the execution and delivery of this Agreement, Newport, Communications Holdco,
the Cap C Principals and Xxxxx Xxxxxxx and Xxxx Xxxxxxx (the "Xxxxx Principals") consummated
the transactions contemplated by the Reorganization. In connection
with such Reorganization, Newport and the Cap C Principals caused Cap C LP to
transfer all of the assets utilized as part of the Cap C Business (the "Acquired Cap C Assets") and
certain disclosed liabilities and obligations of the Cap C Business to CLP,
pursuant to an Assignment and Assumption Agreement, and certain ancillary
documents (collectively, the "Conveyance Documents")
following which Cap C LP was dissolved;
AND WHEREAS, immediately
following the Reorganization, Newport holds 67.13% of the limited partnership
units of CLP (the "Purchased
Units"), and the Purchaser wishes to purchase the Purchased Units from
Newport, such that after giving effect to such purchase, the Purchaser will own
67.13% of CLP and the Cap C Principals will own 32.87% of CLP, indirectly
through their equity interest in Communications Holdco;
AND WHEREAS simultaneous with
the execution and delivery of this Agreement, the Purchaser, Capital C Holdco,
the Cap C Principals and CLP are executing and delivering an amended and
restated limited partnership agreement in respect of CLP;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
ARTICLE I
SALE
OF THE PURCHASED UNITS
Section
1.1 Sale of the Purchased
Units. Subject to the terms and conditions herein stated,
Newport agrees to sell, assign, transfer and deliver to the Purchaser on the
Closing Date (as defined in Section 2.2), and the
Purchaser agrees to purchase from Newport on the Closing Date, the Purchased
Units.
ARTICLE II
PURCHASE
PRICE AND CLOSING
Section
2.1 Purchase
Price.
2.1.1
Purchase
Price. In full consideration for the purchase by the Purchaser
of the Purchased Units, the purchase price (the "Purchase Price") shall be
calculated and paid by the Purchaser to Newport, as set forth
below.
(a) Closing
Payment. At the Closing, the Purchaser shall pay to Newport an
amount equal to CDN $10,000,000.
(b) Payment of Purchase
Price. At the Closing, the Purchaser shall pay the Purchase
Price by wire transfer of immediately available funds as follows:
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(i)
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$9,440,000
to the order of DB Newport LLC (as successor to Fortress Credit Corp.);
and
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(ii)
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an
amount equal to $560,000 to
Newport.
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(c) For
the purposes of any wire transfers contemplated in this Agreement, the following
particulars of accounts into which funds are to be issued:
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(i)
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in
respect of Fortress Credit Corp.:
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Destination
Bank:
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TD
Canada Trust
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00
Xxxx Xxxxxx Xxxx, Xxxxxxx, XX
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Bank
No.:
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004
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Transit
No.:
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10202
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Account
No.:
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0690-0000000
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SWIFT
Code:
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XXXXXXXXXXX
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Beneficiary:
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Torys
LLP, in Trust
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Client
Contact:
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Xxxxxx
Xxxxxxxxxxxxxxx
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(000)
000-0000
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(ii)
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in
respect of Newport:
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Destination
Bank:
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Royal
Bank of Canada
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Main
Branch Royal Bank Plaza
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000
Xxx Xxxxxx, Xxxxxxx, XX
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Bank
No.:
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003
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Transit
No.:
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00002
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Account
No.:
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000-000-0
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SWIFT
Code:
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XXXXXXX0
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Beneficiary:
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Newport
Partners Holdings LP
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Client
Contact:
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Xxxxxxx
Xxxxxxx
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(000)
000-0000
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Section
2.2 Closing. The
closing of the transactions contemplated by this Agreement (the "Closing") shall take place
simultaneously with the execution and delivery of this Agreement on the date
hereof, at the offices of Fogler, Xxxxxxxx LLP, 95 Wellington Street West, Suite
1200, Xxxxxxx, Xxxxxxx, X0X 0X0, or by the exchange of documents and instruments
by mail, courier, telecopy and wire transfer to the extent mutually acceptable
to the parties hereto (such date is herein referred to as the "Closing Date").
Section
2.3 Third Party Consents.
Anything in this Agreement to the contrary notwithstanding, in the event an
assignment or purported assignment to CLP of any of the agreements, contracts or
commitments of the Cap C Business pursuant to the Conveyance Documents or any
claim, right or benefit arising thereunder or resulting therefrom, without the
consent of other parties thereto, would constitute a breach thereof or would not
result in CLP receiving all of the rights thereunder, such agreement, contract
or commitment shall be deemed not to have been assigned to CLP. In
those circumstances, if requested by the Purchaser, after the Closing, each Cap
C Principal will use their best efforts to obtain any such consent (excluding
the payment of any fees). If such consent is not obtained and is
required to effectively assign any agreement, contract or commitment to CLP, the
Cap C Principals will cooperate to provide CLP with the full claims, rights and
benefits thereunder, including enforcement at the cost and for the benefit of
CLP of any and all rights of Communications Holdco, against a third party
thereto arising out of the breach or cancellation by such third party or
otherwise, and any amount received by Communications Holdco in respect thereof
shall be held for and paid over to CLP.
Section
2.4 Further Assurance;
Post-Closing Cooperation. Newport and the Cap C Indemnitors (as defined
in Article III.B) will, from time to time, at the reasonable request of the
Purchaser, whether at or after the Closing Date, execute and deliver such other
and further instruments of conveyance, assignment, transfer and consent
reasonably required for the conveyance, assignment and transfer of the Assets
(as defined in the Conveyance Documents) pursuant to the Conveyance
Documents. Following the Closing, upon reasonable advance notice,
each party will afford each other party, its counsel and its accountants, during
normal business hours, reasonable access to the books, records and other data
relating to Newport or the Cap C Indemnitors or any of the Cap C Indemnitors'
respective subsidiary entities, if any, in its possession with respect to
periods prior to the Closing and the right to make copies and extracts
therefrom, to the extent that such access may be reasonably required by the
requesting party strictly in connection with (i) the preparation of tax returns,
(ii) the determination and enforcement of rights and obligations under this
Agreement, (iii) compliance with the requirements of any Governmental or
Regulatory Authority (as defined in Section 3.1.2), (iv)
any actual or threatened action or proceeding, and (v) the verification of the
"Assets" and "Assumed Liabilities" (as such terms are defined in the Conveyance
Documents), in each case only to the extent relating to the Cap C
Business.
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ARTICLE III
REPRESENTATIONS
OF NEWPORT, COMMUNICATIONS HOLDCO,
CAPITAL
C HOLDCO AND THE CAP C PRINCIPALS
A. Newport
represents and warrants to the Purchaser, as follows:
Section
3.1 Execution and Validity of
Agreements; Restrictive Documents.
3.1.1 Execution and
Validity. Newport has the full legal right and capacity to
enter into this Agreement and to perform its obligations
hereunder. This Agreement has been duly and validly executed and
delivered by Newport and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a legal, valid and binding obligation of
Newport, enforceable against Newport in accordance with its terms.
3.1.2 No
Restrictions. There is no suit, action, claim, investigation
or inquiry by any court, tribunal, arbitrator, authority, agency, commission,
official or other instrumentality of Canada, any foreign country or any domestic
or foreign state, county, city or other political subdivision ("Governmental or Regulatory
Authority"), and no legal, administrative or arbitration proceeding is
pending or, to Newport's knowledge, threatened against Newport with respect to
the execution, delivery and performance of this Agreement or the transactions
contemplated hereby or any other agreement entered into by Newport in connection
with the transactions contemplated hereby.
3.1.3 Non-Contravention. The
execution, delivery and performance by Newport of its obligations hereunder and
the consummation of the transactions contemplated hereby, will not as of the
Closing Date: (a) result in the violation by Newport of any statute, law, rule,
regulation or ordinance (collectively, "Laws"), or any judgment,
decree, order, writ, permit or license (collectively, "Orders"), of any Governmental
or Regulatory Authority, applicable to Newport, or (b) conflict with, result in
a violation or breach of, constitute (with or without notice or lapse of time or
both) a default under, or require Newport to obtain any consent, approval or
action of, make any filing with or give any notice to, or result in or give to
any Person any right of payment or reimbursement, termination, cancellation,
modification or acceleration of, or result in the creation or imposition of any
Lien upon any of the assets or properties of Newport, under any of the terms,
conditions or provisions of any agreement, commitment, lease, license, evidence
of indebtedness, letter of credit, mortgage, indenture, security agreement,
instrument, note, bond, franchise, permit, concession, or other instrument,
obligation or agreement of any kind, written or oral (collectively, the "Newport Contracts"), to which
Newport is a party or by which Newport or any of its assets or properties are
bound.
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3.1.4 Approvals and
Consents. Other than the consents required pursuant to the
Credit Agreement (as defined below) to the Reorganization and any corporate or
partnership consents required for the Reorganization, no consent, approval or
action of, filing with or notice to any Governmental or Regulatory Authority or
Person is necessary or required under any of the terms, conditions or provisions
of any Law or Order of any Governmental or Regulatory Authority or any Newport
Contract for the execution and delivery of this Agreement by Newport, the
performance by Newport of its obligations hereunder or the consummation of the
transactions contemplated hereby. For the purposes of this Agreement, the term
"Credit Agreement" means
that certain Credit Agreement dated as of December 7, 2006 by and among Newport
Finance Corp., as borrower, Newport, Newport Private Yield LP, NPY GP Trust,
Newport Partners Commercial Trust, Newport Partners Trustee Inc., Newport
Partners GP Inc. and NPY Beneficiary Inc., as parent obligors, DB Newport LLC
(as successor to Fortress Credit Corp.), as administrative agent and the lenders
from time to time party thereto (as amended by the First Amendment to Credit
Agreement dated as of May 9, 2007, the Second Amendment to the Credit Agreement
dated as of July 5, 2007, the Third Amendment to Credit Agreement and Consent
dated as of January 7, 2008 and the Fourth Amendment to Credit Agreement and
Consent dated September 30, 2008).
3.1.5 Limited Partnership Units;
Equity Ownership; No Options or Restrictions. Newport owns of
record and beneficially has valid title to 67.13% of the limited partnership
units of the CLP, which constitute the Purchased Units, and such ownership shall
be free and clear of all Liens except for those Liens in respect of which the
personal property security registrations set out on Schedule 3.1.5 have
been filed, which Liens shall not apply in respect of the Purchased Units, as
confirmed by evidence to be delivered pursuant to Section 5.10
hereof.
B. Communications
Holdco, Capital C Holdco and the Cap C Principals (the "Cap C Indemnitors"),
jointly and severally, represent and warrant to the Purchaser, as
follows:
Section
3.2 Existence and Good
Standing.
3.2.1 Full
Power. Each of Communications Holdco, Capital C Holdco and the
Cap C Principals has the full power and authority to enter into this Agreement
and the Conveyance Documents and to perform their respective obligations
hereunder and thereunder. The execution and delivery of this
Agreement and the Conveyance Documents by Communications Holdco, and the
consummation by such parties of the transactions contemplated hereby and thereby
have been duly authorized by all required company action on behalf of such
parties. This Agreement and the Conveyance Documents have been duly
and validly executed and delivered by Communications Holdco and constitute a
legal, valid and binding obligation of Communications Holdco, enforceable
against it in accordance with their terms. Communications Holdco,
Capital C Holdco and the CLP are each duly organized and are each validly
existing under the laws of the Province of Ontario, with the full power and
authority to own their respective properties and to carry on their respective
businesses, including the Cap C Business, all as and in the places where such
properties are now owned or operated or such businesses are now being conducted
except where such failure to qualify would not have a material adverse effect on
the respective businesses. The CLP, Capital C Holdco and
Communications Holdco are each duly qualified, licensed or admitted to do
business and each of them is in good company and tax standing in the
jurisdictions set forth on Schedule 3.2.1, which
are the only jurisdictions in which the ownership, use or leasing of their
respective assets and properties, or the conduct or nature of their respective
businesses, makes such qualification, licensing or admission
necessary.
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3.2.2 Capital Stock; Equity
Ownership; No Options or Restrictions; Subsidiaries and
Investments. There are no outstanding subscriptions, options,
warrants, rights (including "phantom stock rights"), calls, commitments,
understandings, conversion rights, rights of exchange, plans or other agreements
of any kind providing for the purchase, issuance or sale of any equity or
ownership or proprietary interest of the CLP, or which grants any Person other
than the Cap C Principals and Newport the right to share in the earnings of the
CLP. The CLP does not, directly or indirectly, own any equity
interest in or have any voting rights with respect to any
Person. There are no outstanding subscriptions, options, rights,
warrants, calls, commitments or arrangements of any kind to acquire any of the
Purchased Units and there are no agreements or understandings with respect to
the sale or transfer of any of the Purchased Units other than this Agreement.
There is no suit, action, claim, investigation or inquiry by any Governmental or
Regulatory Authority, and no legal, administrative or arbitration proceeding
pending or threatened, against Communications Holdco, the CLP, the Cap C
Principals or any of the Purchased Units, with respect to the execution,
delivery and performance of this Agreement or the Conveyance Documents or the
transactions contemplated hereby or thereby or any other agreement entered into
by Newport in connection with the transactions contemplated hereby or
thereby.
3.2.3 Litigation. Except
as set forth on Schedule 3.2.3, there
is no action, suit, proceeding at law or in equity by any Person, or any
arbitration or any administrative or other proceeding by or before (or to the
knowledge of the Cap C Principals, Capital C Holdco or Communications Holdco,
any investigation by) any Governmental or Regulatory Authority, pending or, to
the knowledge of the Cap C Principals, Capital C Holdco or Communications
Holdco, threatened, against the Cap C Principals, Capital C Holdco or
Communications Holdco with respect to this Agreement or the transactions
contemplated hereby or by the Conveyance Documents, or any other agreement
entered into by the CLP, Capital C Holdco or Communications Holdco in connection
with the transactions contemplated hereby, or against or affecting the Cap C
Business or the assets transferred to the CLP pursuant to the Conveyance
Documents; and no acts, facts, circumstances, events or conditions occurred or
exist which are a basis for any such action, proceeding or
investigation. None of the Cap C Principals, Capital C Holdco or
Communications Holdco is subject to any Order entered in any lawsuit or
proceeding.
3.2.4 Compliance with
Laws. Each of the Cap C Principals, Capital C Holdco and
Communications Holdco is in compliance with all applicable Laws and Orders,
except in each case where the failure to so comply would not reasonably be
expected to have a Material Adverse Effect (as defined below). Each of the Cap C
Principals, Capital C Holdco and Communications Holdco has all Required Permits,
except where the failure to have such Required Permits would not reasonably be
expected to have a Material Adverse Effect. All of such Required
Permits are in full force and effect and no action or claim is pending, nor to
the knowledge of Communications Holdco, the Cap C Principals or Capital C Holdco
threatened, to revoke or terminate any such Required Permit or declare any such
Required Permit invalid in any respect. For the purposes of this Agreement, (a)
the term "Material Adverse
Effect" means, in respect of any Person, any effect or effects that are
materially adverse to the operations, business, prospects, assets or financial
condition of such Person, and (b) the term "Required Permits" means,
collectively, in respect of any Person, all permits, licenses, and other
government certificates, authorizations and approvals required by any
Governmental or Regulatory Authority for the operation of such Person's
business.
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3.2.5 Non-Contravention; Approvals
and Consents. The execution, delivery and performance by the
Cap C Principals, Communications Holdco and Capital C Holdco of their respective
obligations under this Agreement and the Conveyance Documents and the
consummation of the transactions contemplated hereby and thereby, as applicable,
will not (a) violate, conflict with or result in the breach of any provision of
the declaration and limited partnership agreement (or other comparable
documents) of Communications Holdco or Capital C Holdco; (b) result in the
violation by Communications Holdco, the Cap C Principals and Capital C Holdco of
any Laws or Orders of any Governmental or Regulatory Authority, or (c) if the
consents and notices set forth in Schedule 3.2.5 are
obtained, conflict with, result in a violation or breach of, constitute (with or
without notice or lapse of time or both) a default under, or require
Communications Holdco, the Cap C Principals or Capital C Holdco to obtain any
consent, approval or action of, make any filing with or give any notice to, or
result in or give to any Person any right of payment or reimbursement,
termination, cancellation, modification or acceleration of, or result in the
creation or imposition of any Lien upon any of their respective assets or
properties, or under any of the terms, conditions or provisions of any Contract
(as defined in Section
3.2.12) to which Communications Holdco, the Cap C Principals or Capital C
Holdco is a party or by which Communications Holdco, the Cap C Principals or
Capital C Holdco or any of their respective assets or properties are or were
bound. Except as set forth in Schedule 3.2.5, no
consent, approval or action of, filing with or notice to any Governmental or
Regulatory Authority or other Person is necessary or required under any of the
terms, conditions or provisions of any Law or Order of any Governmental or
Regulatory Authority or any Contract to which Communications Holdco, the Cap C
Principals or Capital C Holdco is a party, or by which their respective assets
or properties were or are bound, for the execution and delivery of this
Agreement or the Conveyance Documents, the performance by Communications Holdco,
the Cap C Principals or Capital C Holdco of their respective obligations
hereunder or thereunder or the consummation of the transactions contemplated
hereby or thereby.
C. Each
of Newport and the Cap C Indemnitors (jointly and severally as among the Cap C
Indemnitors) and severally between Newport and the Cap C Indemnitors, represent
and warrant to the Purchaser, as follows:
3.2.6 Financial Statements and No
Material Changes.
(a) Schedule 3.2.6(a)(i)
sets forth (i) the unaudited balance sheets of the Cap C Business as at December
31, 2008 and December 31, 2009 and the related unaudited statements of
operations for the fiscal years then ended, and (ii) the unaudited balance
sheets of the Cap C Business as at October 31, 2010 (the "Balance Sheet") and the
related unaudited statements of operations for the ten months then
ended. Such financial statements have been prepared in accordance
with GAAP throughout the periods indicated except as set forth on Schedule
3.2.6(a)(ii). Each balance sheet fairly presents the financial
condition of the entity or entities included within such balance sheet, at the
respective date thereof, and reflects all claims against and all debts and
liabilities of such entities, fixed or contingent, as at the respective date
thereof, required to be shown thereon under GAAP and the related statements of
operations fairly present the results of operations for the respective period
indicated. Except for the transactions consummated pursuant to the
Conveyance Documents, since October 31, 2010 (the "Balance Sheet Date"), there
has been no material adverse change in the assets or liabilities, or in the
business or condition, financial or otherwise, or in the results of operations
or prospects of Cap C LP and the Cap C Business.
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(b) Schedule 3.2.6(b)(i)
sets forth (i) the unaudited consolidated balance sheets for Cap C LP as at
December 31, 2008 and December 31, 2009, and the related unaudited consolidated
statements of operations for the fiscal years then ended, and (ii) the unaudited
consolidated balance sheet of Cap C LP as at September 30, 2010 (the "Current Balance Sheet") and
the related unaudited consolidated statements of operations for the nine months
then ended. Such financial statements have been prepared in
accordance with GAAP throughout the periods indicated except as set forth on
Schedule
3.2.6(b)(ii). Each balance sheet fairly presents the financial
condition of the entity or entities included within such balance sheet, at the
respective date thereof, and reflects all claims against and all debts and
liabilities of such entities, fixed or contingent, as at the respective date
thereof, required to be shown thereon under GAAP and the related statements of
operations fairly present the results of operations for the respective period
indicated. Except for the transactions consummated pursuant to the
Conveyance Documents, since September 30, 2010 (the "Current Balance Sheet Date"), there
has been no material adverse change in the assets or liabilities, or in the
business or condition, financial or otherwise, or in the results of operations
or prospects of Cap C LP and the Cap C Business.
3.2.7 Books and
Records. The Cap C Principals have delivered to the Purchaser
complete and correct copies of the partnership declaration and the partnership
agreement of the CLP in effect immediately prior to the execution of this
Agreement.
3.2.8 Title to Properties;
Encumbrances. The CLP has good and valid title to, or
enforceable leasehold interests in or valid rights under contract to use, all
the properties and assets owned or used in the Cap C Business, including,
without limitation: (a) all the properties and assets reflected in the Balance
Sheet; (b) all the properties and assets purchased or otherwise contracted for
by the CLP since the Balance Sheet Date (except for properties and assets
reflected in the Balance Sheet or acquired or otherwise contracted for since the
Balance Sheet Date that have been sold or otherwise disposed of in the ordinary
course of business); and (c) all monies received from clients of the Cap C
Business (including, without limitation, all monies received in connection with
the Cap C Business' media purchase obligations on behalf of its clients), in
each case free and clear of all Liens, except for Liens set forth on Schedule
3.2.8.
3.2.9 No Prior
Activities. The CLP was created in order to facilitate a sale
to the Purchaser and solely for the purpose of engaging in the transactions
contemplated by the Conveyance Documents and this Agreement. The CLP
has not engaged in any activities other than in connection with its formation,
the negotiation, execution and delivery of this Agreement, the Conveyance
Documents and the CLP partnership agreement, and the consummation of the
transactions contemplated hereby and thereby. Except for liabilities
incurred in connection with its formation and the consummation of the
transactions contemplated by this Agreement, the Conveyance Documents and the
CLP partnership agreement, the CLP has not incurred any liabilities or entered
into any agreements or arrangements with any Person.
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3.2.10 Owned Real
Property. The CLP does not own any real property (including
ground leases) or hold a freehold interest in any real property or any option or
right of first refusal or first offer to acquire any real property.
3.2.11 Leased Real
Property. Schedule 3.2.11
contains an accurate and complete list of all real property leases, subleases,
real property licenses and other occupancy agreements, including without
limitation, any modification, amendment or supplement thereto and any other
related document or agreement executed or entered into by the CLP, or by Cap C
LP in relation to the Cap C Business and assigned to the CLP pursuant to the
Conveyance Documents, to which the CLP is a party (as lessee, sublessee, lessor,
sublessor, licensor or licensee) (each individually, a "Real Property Lease" and
collectively, the "Real
Property Leases"). Each Real Property Lease is valid, binding
and in full force and effect; all rents and additional rents and other sums,
expenses and charges due thereunder to date on each Real Property Lease have
been paid; and the lessee has been in peaceable possession since the
commencement of the original term of each Real Property Lease and no waiver,
indulgence or postponement of the lessee's obligations thereunder has been
granted by the lessor. There exists no default or event of default by
Cap C LP or the CLP or to the knowledge of Newport or the Cap C Principals by
any other party to any Real Property Lease; and there exists no occurrence,
condition or act (including the purchase of the Purchased Units hereunder)
which, with the giving of notice, the lapse of time or the happening of any
further event or condition, would become a default or event of default by Cap C
LP or the CLP under any Real Property Lease, and there are no outstanding claims
of breach or indemnification or notice of default or termination of any Real
Property Lease. Cap C LP held and the CLP now holds the leasehold
estate on all the Real Property Leases free and clear of all Liens except as set
forth on Schedule
3.2.11. The real property leased by Cap C LP and/or the CLP is
in a state of good maintenance and repair (ordinary wear and tear excepted),
adequate and suitable for the purposes for which it is presently being used, and
there are no material repair or restoration works likely to be required in
connection with any of the leased real properties. Cap C LP was, and
the CLP now is, in physical possession and actual and exclusive occupation of
the whole of each of its leased properties. No environmental claim
has been made against Cap C LP or the CLP with respect to any Real Property
Lease. Neither Cap C LP nor the CLP owes any brokerage commission
with respect to any of the Real Property Leases.
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3.2.12 Contracts. For
purposes of this Agreement, the term "Contract" shall mean any
written agreement, commitment, lease, license, evidence of indebtedness, letter
of credit, mortgage, indenture, security agreement, instrument, note, bond,
franchise, permit, concession, or other instrument, obligation or agreement of
any kind. Schedule
3.2.12 hereto contains an accurate and complete list of the following
Contracts to which the CLP is currently a party or Cap C LP was a party prior to
the assignment of the same to the CLP pursuant to the Conveyance Documents (and
Schedule 3.2.12
indicates if a listed item has not been assigned as of the Closing Date (in
which case, Section
2.3 shall apply) to and assumed by the CLP pursuant to the Conveyance
Documents): (a) all Plans (as such term is defined in Section 3.2.24), (b)
any personal property lease with a fixed annual rental of $10,000 or more, (c)
any Contract relating to capital expenditures which involves payments of $50,000
or more in any single transaction or series of related transactions, (d) any
Contract relating to the making of a loan or advance to or investment in, any
other Person, (e) any agreement, instrument or arrangement evidencing or
relating in any way to indebtedness for money borrowed or to be borrowed,
whether directly or indirectly, by way of loan, purchase money obligation,
guarantee (other than the endorsement of negotiable instruments for collection
in the ordinary course of business), conditional sale, purchase or otherwise,
(f) any management service, employment, consulting or similar type of Contract
which is not cancelable by the CLP or Cap C LP without penalty or other
financial obligation within 30 days, (g) any Contract
limiting the CLP's freedom to engage in any line of business or to compete with
any other Person, including, without limitation, any agreement limiting the
ability of the CLP or Cap C LP or any of their respective affiliates to take on
competitive accounts during or after the term thereof, (h) any collective
bargaining or union agreement, (i) any Contract between the CLP, on the one
hand, and any officer or director thereof, on the other hand, not covered by
subsection (f) above (including indemnification agreements), (j) any secrecy or
confidentiality agreement (other than standard confidentiality agreements in
computer software license agreements or agreements with clients entered into in
the ordinary course of business), (k) any agreement with respect to any
Intellectual Property (as defined in Section 3.2.17) other
than "shrink-wrap" and similar end-user licenses, (l) any agreement with a
client required to be listed on Schedule 3.2.21, (m)
any agreement, indenture or other instrument which restricts the ability of the
CLP or any of its subsidiaries to make distributions in respect of its equity,
(n) any joint venture agreement involving a sharing of profits not covered by
clauses (a) through (m) above, (o) any Contract (not covered by another
subsection of this Section 3.2.12) which
involves $50,000 or more over the unexpired term thereof and is not cancelable
by the CLP, without penalty or other financial obligation within 30 days;
provided, however, Contracts of a similar nature which individually do not
involve $50,000 but in the aggregate involve $50,000 or more over the unexpired
terms shall also be set forth on Schedule 3.2.12, (p)
any Contract with a media buying service; provided, however, commitments to
purchase media in the ordinary course of business do not have to be set forth on
Schedule
3.2.12, and (q) any agreement (not covered by another subsection of this
Section 3.2.12)
between the CLP, on the one hand, and any member of the CLP, on the other hand.
Notwithstanding anything to the contrary contained above, (x) commitments to
media and production expenses which are fully reimbursable from clients, and (y)
estimates or purchase orders given in the ordinary course of business relating
to the execution of projects, do not have to be set forth on Schedule 3.2.12. Each
Contract which has been assigned to and assumed by the CLP pursuant to the
Conveyance Documents, including without limitation, those required to be set
forth on Schedule
3.2.12, is in full force and effect, and there exists no default or event
of default by the CLP or Cap C LP or, to the knowledge of Newport or the Cap C
Principals, by any other party, or occurrence, condition, or act (including the
purchase of the Purchased Units hereunder) which, with the giving of notice, the
lapse of time or the happening of any other event or condition, would become a
default or event of default thereunder by the CLP, and there are no outstanding
claims of breach or indemnification or notice of default or termination of any
such Contract.
3.2.13 Litigation. Except as
set forth on Schedule
3.2.13, there is no action, suit, proceeding at law or in equity by any
Person, or any arbitration or any administrative or other proceeding by or
before (or to the knowledge of Newport, the Cap C Principals, Capital C Holdco
or Communications Holdco, any investigation by) any Governmental or Regulatory
Authority, pending or, to the knowledge of the Cap C Principals, Capital C
Holdco or Communications Holdco, threatened, against the CLP, the Cap C Business
or Cap C LP with respect to this Agreement or the transactions contemplated
hereby or by the Conveyance Documents, or any other agreement entered into by
the Cap C Business in connection with the transactions contemplated hereby, or
against or affecting the Cap C Business, and no acts, facts, circumstances,
events or conditions occurred or exist which are a basis for any such action,
proceeding or investigation. The Cap C Business is not subject to any
Order entered in any lawsuit or proceeding.
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3.2.14 Taxes. Cap
C LP has timely filed, or caused to be filed, taking into account any valid
extensions of due dates, completely and accurately, all federal and provincial
tax or information returns required under the statutes, rules or regulations of
such jurisdictions to be filed by it for all fiscal periods of Cap C LP. The
term "Taxes" means
taxes, duties, charges or levies of any nature imposed by any taxing or other
Governmental or Regulatory Authority, including without limitation income,
gains, capital gains, surtax, capital, franchise, capital stock, value-added
taxes, taxes required to be deducted from payments made by the payor and
accounted for to any tax authority, employees' income withholding, back-up
withholding, withholding on payments to foreign Persons, social security,
national insurance, unemployment, worker's compensation, payroll, disability,
real property, personal property, sales, use, goods and services or other
commodity taxes, business, occupancy, excise, customs and import duties,
transfer, stamp, and other taxes (including interest, penalties or additions to
tax in respect of the foregoing), and includes all taxes payable by Cap C LP
pursuant to the Income Tax
Act (Canada) (the "ITA") or any similar provision
of provincial or foreign law, but only to the extent that such Taxes relate to
or are in connection with the Cap C Business which has been heretofore carried
on by Cap C LP. All Taxes shown on said returns to be due and all
other Taxes due and owing (whether or not shown on any Tax return) have been
paid and all additional assessments received prior to the date hereof have been
paid or are being contested in good faith, in which case, such contested
assessments are set forth on Schedule
3.2.14. Cap C LP has collected all sales, use, goods and
services, harmonized or other commodity Taxes required to be collected and
remitted or will remit the same to the appropriate taxing authority within the
prescribed time periods. Cap C LP has withheld all amounts required
to be withheld on account of Taxes from amounts paid to employees, former
employees, directors, officers, members, residents and non-residents and
remitted or will remit the same to the appropriate taxing authorities within the
prescribed time periods. Newport and/or the Cap C Principals have
delivered or caused to be delivered to the Purchaser correct and complete copies
of all federal or provincial income tax returns or information returns filed
with respect to Cap C LP that were requested by the Purchaser. Except
as set forth on Schedule 3.2.14, none
of the federal or provincial income tax returns or information returns of Cap C LP have, to the
knowledge of Newport, Communications Holdco or the Cap C Principals, ever been
audited by the Canada Revenue Agency or any other Governmental or Regulatory
Authority. None of Newport, the Cap C Principals or Communications
Holdco are non-residents of Canada within the meaning of the ITA.
3.2.15 Liabilities. Except
as incurred in the ordinary course since October 31, 2010 or as set forth in the
Conveyance Documents, the Balance Sheet, the Current Balance Sheet or on Schedule 3.2.15,
neither the Cap C Business, the CLP nor Cap C LP has any outstanding claims,
liabilities or indebtedness of any nature whatsoever as to which the Cap C
Business, the CLP or Cap C LP is or may become responsible (collectively in this
Section 3.2.15,
"Liabilities"), whether
accrued, absolute or contingent, determined or undetermined, asserted or
unasserted, and whether due or to become due.
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3.2.16 Insurance. Schedule 3.2.16
contains a true and complete list (including the names and addresses of the
insurers, the names of the Persons to whom such insurance policies have been
issued, the expiration dates thereof, the annual premiums and payment terms
thereof, whether it is a "claims made" or an "occurrence" policy and a brief
description of the interests insured thereby) of all liability, property,
workers' compensation and other insurance policies currently in effect that
insure the property, assets and employees of the Cap C Business, including but
not limited to the property, assets, business and employees of Cap C LP that
were transferred to the CLP pursuant to the Conveyance Documents (other than
self-obtained insurance policies by such employees). Each such insurance policy
is valid and binding and in full force and effect, all premiums due thereunder
have been paid and neither Cap C LP, the Cap C Business nor the CLP has received
any notice of cancellation or termination in respect of any such policy or
default thereunder. Neither Cap C LP, the Cap C Business nor the CLP,
or to the knowledge of Newport, the Cap C Principals or Communications Holdco,
the Person to whom such policy has been issued, has received notice that any
insurer under any policy referred to in this Section 3.2.16 is
denying liability with respect to a claim thereunder or defending under a
reservation of rights clause. Within the last two years neither Cap C
LP, the Cap C Business nor the CLP has filed for any claims exceeding $25,000
against any of its insurance policies, exclusive of automobile and health
insurance policies. None of such policies shall lapse or terminate by reason of
the transactions contemplated by this Agreement or the Conveyance Documents and
all such policies shall continue in effect after the Closing Date for the
benefit of the CLP. Neither Cap C LP, the Cap C Business nor the CLP
has received any notice of cancellation of any such policy. Neither
Cap C LP, the Cap C Business nor the CLP has received written notice from any of
its insurance carriers that any premiums will be materially increased in the
future or that any insurance coverage listed on Schedule 3.2.16 will
not be available in the future on substantially the same terms now in effect,
unless as a result of the Reorganization or the change of control contemplated
herein. Neither Cap C LP, the Cap C Business nor the CLP has been refused any
insurance or required to pay higher than normal or customary premiums, nor has
its coverage been limited by any insurance carrier to which it has applied for
insurance during the last three years.
3.2.17 Intellectual
Property.
Definitions.
For purposes of this Agreement, the following terms have the following
definitions:
(a) "Intellectual Property" shall
include, without limitation, any or all of the following and all rights
associated therewith: (a) all domestic and foreign patents, and applications
therefor, and all reissues, re-examinations, divisions, renewals, extensions,
continuations and continuations-in-part thereof; (b) all inventions (whether
patentable or not), invention disclosures, improvements; (c) trade secrets,
confidential and proprietary information, know how, technology, technical data
and customer lists, financial and marketing data, pricing and cost information,
business and marketing plans, databases and compilations of data, rights of
privacy and publicity, and all documentation relating to any of the foregoing;
(d) all copyrights, copyright registrations and applications therefor,
unregistered copyrights, the content of all World Wide Web sites of a Person and
all other rights corresponding thereto throughout the world; (e) all mask works,
mask work registrations and applications therefor; (f) all industrial designs
and any registrations and applications therefor; (g) all trade names, corporate
names, logos, trade dress, common law trademarks and service marks, trademark
and service xxxx registrations and applications therefor and all goodwill
associated therewith; (h) any and all Internet domain names and Web sites
(including all software and applications, and all components and/or modules
thereof), used in connection therewith; and (i) all computer software including
all source code, object code, firmware, development tools, files, records and
data, all media on which any of the foregoing is recorded, and all documentation
related to any of the foregoing.
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(b) "Intellectual Property of the
CLP" shall mean any Intellectual Property that is owned by the CLP
(including Intellectual Property transferred by Cap C LP to the CLP pursuant to
the Conveyance Documents), including Registered IP and Unregistered
IP.
(c) "Licensed Intellectual
Property" means any Intellectual Property owned by another Person that is
used by the CLP in the operation of the Cap C Business, including Off-the-Shelf
Software (as defined below), but excluding rights in or to materials created for
clients of the Cap C Business, to the extent to which such (x) client of the Cap
C Business is the first owner of copyright in such materials or (y) the
materials are subject to a written assignment of copyright in favour of clients
of the Cap C Business.
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3.2.18 Representations.
Except as set forth on Schedule 3.2.18, all
of the Intellectual Property of Cap C LP used in the Cap C Business was
transferred to the CLP pursuant to the Conveyance Documents. Schedule 3.2.18
hereto contains an accurate and complete list of all the Intellectual Property
of the CLP and the Licensed Intellectual Property including, without limitation,
(a) patents, patent applications, registered trademarks, applications for
registered trademarks, registered service marks, domain names, applications for
registered service marks, logos, registered copyrights and applications for
registered copyrights, and all registered design rights and applications thereto
which are owned by the CLP (the "Registered IP"), (b) all
unregistered trademarks, unregistered service marks and material unregistered
copyrights and all designs which are owned by the CLP (the "Unregistered IP") and (c) all
Licensed Intellectual Property that is material to the operation of the Cap C
Business, other than widely distributed off-the-shelf applications subject to
shrink-wrap and similar non-negotiated end-user license agreements ("Off-the-Shelf Software").
Except as set forth on Schedule 3.2.18, the
registrations and applications of the Registered IP listed on Schedule 3.2.18, are
in the name of Cap C LP, and are valid, in proper form, enforceable and
subsisting, all necessary registration and renewal fees in connection with such
registrations have been made and all necessary documents and certificates in
connection with such registrations have been filed with the relevant patent and
Internet domain names, copyrights and trademark authorities in the United States
or other jurisdictions where the Cap C Business is conducted for the purposes of
maintaining such Intellectual Property registrations, and applications therefor,
and no actions (including filing of documents or payments of fees) are due
within ninety (90) days after the Closing. No registration, or
application therefor, for any of the Registered IP has lapsed, expired, or been
abandoned, and no such registrations, or applications therefor, are the subject
of any opposition, interference, cancellation, or other legal, quasi-legal, or
governmental proceeding pending before any governmental, registration, or other
authority in any jurisdiction. Except as set forth on Schedule 3.2.18, (i)
the CLP is the sole and exclusive owner of all rights, title and interest in and
to the Intellectual Property of the CLP, free and clear of all Liens, (ii) no
Person has any rights to use any of the Intellectual Property of the CLP, (iii)
neither Cap C LP nor the CLP has granted to any Person, or authorized any Person
to retain, any ownership in the Intellectual Property of the CLP, and (iv) all
Licensed Intellectual Property in the CLP's possession or used in the operation
of the Cap C Business has been properly licensed from the owner of such
Intellectual Property, and the CLP possesses all license agreements,
certificates or documentation sufficient to substantiate such rights, and the
CLP is in compliance with, and Cap C LP has not in the past violated, such
license agreements. Except as set forth on Schedule 3.2.18, the
consummation of the transactions contemplated hereby will not result in any loss
or impairment of the CLP's rights to own or use any Intellectual Property, nor
will such consummation require the consent of any third party in respect of any
Intellectual Property. To the knowledge of Newport, the Cap C Principals or
Communications Holdco, the operation of the Cap C Business and use of all
Intellectual Property therein does not infringe the Intellectual Property of any
other Person. There are no proceedings pending or, to the knowledge of Newport,
the Cap C Principals or Communications Holdco, threatened against Cap C LP, the
Cap C Business or the CLP with respect to the Intellectual Property, or with
respect to any other Intellectual Property, alleging the infringement or
misappropriation by Cap C LP, the Cap C Business or the CLP of any Intellectual
Property of any Person, and neither Cap C LP, the Cap C Business nor the CLP has
received notice from any Person that the operation of the Cap C Business
infringes the Intellectual Property of any Person. There are no
claims pending or, to the knowledge of Newport, the Cap C Principals or
Communications Holdco, threatened challenging the validity of any Intellectual
Property of the CLP or any Intellectual Property used by the CLP in the conduct
of the Cap C Business. Neither Cap C LP, the Cap C Principals nor the CLP has
entered into or is otherwise bound by any consent, forbearance or any settlement
agreement which limits the rights of the CLP to use the Intellectual Property of
the Cap C Business. To the knowledge of Newport, the Cap C Principals
or Communications Holdco, no Person is infringing or misappropriating any of the
Intellectual Property of the Cap C Business. All Intellectual Property of the
Cap C Business was either developed (a) by employees of Cap C LP within the
scope of such employee's employment duties; or (b) by independent contractors or
other third parties who have assigned all of their rights therein to Cap C LP
pursuant to a written agreement, and all such employees, independent
contractors, and other third parties have waived, pursuant to a written
agreement, their moral rights in all such Intellectual Property in favour of the
CLP or Cap C LP. Except as set forth on Schedule 3.2.18, the
Intellectual Property of the CLP does not contain any software licensed under
terms which require, as a condition of the use, modification, or distribution of
such software, that other software incorporated into, derived from, or
distributed with such software: (x) be disclosed or distributed in source code
form; (y) be licensed under terms that permit making derivative works; or (z) be
redistributable at no charge to subsequent licensees.
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3.2.19 Privacy and
Security. All information or data of any kind relating to the
Cap C Business possessed by the CLP, including but not limited to, personally
identifiable information collected from consumers ("PII"), aggregate or anonymous
information collected from consumers ("Non-PII") and employee data
relating to the Cap C Business or possessed by the CLP (collectively, "Data"), has been collected, by
Cap C LP, the Cap C Business or the CLP, and is being maintained, stored,
processed and used by the CLP in connection with the Cap C Business, in
compliance with all Laws and Orders. Cap C LP and the CLP have at all
times presented a privacy policy ("Privacy Policy") to consumers
prior to the collection of any PII or Non-PII online. The Privacy
Policy, and any other representations, marketing materials and advertisements
that address privacy issues and the treatment of PII and Non-PII, accurately and
completely describe Cap C LP, the Cap C Business and the CLP's respective
information collection and use practices, and no such notices or disclosures
have been inaccurate, misleading or deceptive. Neither Cap C LP nor
the CLP has collected or received any PII from children under the age of 13
without verifiable parental consent or directed any of its websites to children
under the age of 13 through which such PII could be obtained. Cap C
LP and the CLP have stored and maintained all Data in a secure manner, using
commercially reasonable technical measures, to assure the integrity and security
of the Data and to prevent loss, alteration, corruption, misuse and unauthorized
access to such Data. There has been no unauthorized use, access to or
disclosure of any Data. Neither Cap C LP nor the CLP has received any
claims, notices or complaints regarding its information practices or use of
Data. The consummation of the transactions contemplated hereby will
not result in any loss or impairment of the rights to own and use any Data, nor
will such consummation require the consent of any third party in respect of any
Data.
3.2.20 Compliance with Laws.
The Cap C Business (including the business conducted by Cap C LP) has been
conducted, in compliance with all applicable Laws and Orders, except in each
case where the failure to so comply would not reasonably be expected to have a
Material Adverse Effect. The Cap C Business has all Required Permits except
where the failure to have such Required Permits would not reasonably be expected
to have a Material Adverse Effect. All of such Required Permits are
in full force and effect and no action or claim is pending, nor to the knowledge
of Newport or Communications Holdco, threatened, to revoke or terminate any such
Required Permit or declare any such Required Permit invalid in any
respect.
3.2.21 Client
Relations. Schedule 3.2.21 sets
forth (a) the ten (10) largest clients of the Cap C Business (measured by
revenues), and the revenues from each such client and from all clients (in the
aggregate) for the calendar year ended December 31, 2009 and (b) the clients
projected to be the ten (10) largest clients (measured by revenues) of the Cap C
Business based on its current profit plan for the twelve months ending December
31, 2010 and 2011, together with the estimated revenues from each such client
and all clients (in the aggregate) for such periods. Communications
Holdco represents that the estimated revenues set forth on Schedule 3.2.21 were
made in good faith and on a reasonable basis. Except as set forth on
Schedule
3.2.21, no client of the Cap C Business has advised Communications
Holdco, the CLP or any Cap C Principal in writing that it is (x) terminating or
considering terminating the handling of its business by Cap C LP or the CLP or
in respect of any particular product, project or service or (y) planning to
reduce its future spending with Cap C LP, the Cap C Business or the CLP in any
material manner; and no client has orally advised the CLP, Communications
Holdco, the Cap C Business or any Cap C Principal of any of the foregoing
events.
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3.2.22 Accounts Receivable;
Work-in-Process; Accounts Payable. The amount of all
work-in-process, accounts receivable, unbilled invoices (including without
limitation unbilled invoices for services and out-of-pocket expenses) and other
debts due or recorded in the records and books of account of the Cap C Business
and which was transferred to the CLP pursuant to the Conveyance Documents, as
being due to the Cap C Business and reflected on the Balance Sheet and the
Closing Balance Sheet represent or will represent valid obligations arising from
sales actually made or services actually performed in the ordinary course of
business and will be good and collectible in full (less the amount of any
provision, reserve or similar adjustment therefor reflected on the Balance Sheet
and the Closing Balance Sheet) in the ordinary course of business, and none of
the accounts receivable or other debts (or accounts receivable arising from any
such work-in-process or unbilled invoices) is or will be subject to any
counterclaim or set-off except to the extent of any such provision, reserve or
adjustment. The accounts payable set forth on the Balance Sheet, and
the accounts payable incurred since the Balance Sheet Date through the Closing
Date, represent trade payables resulting from bona fide transactions incurred in
the ordinary course of business. There has been no change since the Balance
Sheet Date in the amount or aging of the work-in-process, accounts receivable,
unbilled invoices, or other debts due to the Cap C Business, or the reserves
with respect thereto, or accounts payable of the Cap C Business which would have
a Material Adverse Effect.
3.2.23 Employment
Relations. (a) No unfair labour practice complaint against Cap
C LP, the Cap C Business or the CLP is pending before any Governmental or
Regulatory Authority; (b) there is no organized labour strike, dispute, slowdown
or stoppage pending or to the knowledge of Newport or Communications Holdco,
threatened against or involving the Cap C Business; (c) there are no labour
unions representing or, to the knowledge of Newport or Communications Holdco,
attempting to represent the employees of the Cap C Business who became employees
of the CLP; (d) no claim or grievance nor any arbitration proceeding arising out
of or under any collective bargaining agreement is pending against any of the
Cap C Business, the CLP or Communications Holdco and to the knowledge of Newport
or Communications Holdco, no such claim or grievance has been threatened; (e) no
collective bargaining agreement is currently being negotiated by Cap C LP or the
CLP; and (f) Cap C LP did not experience any work stoppage or similar organized
labour dispute during the last three years. Except as set forth on Schedule 3.2.23,
there is no legal action, suit, proceeding or claim pending or, to the knowledge
of Newport, Capital C Holdco or the Cap C Principals or Communications Holdco,
threatened between the Cap C Business, the CLP or Cap C LP and any employees or
former employees of Cap C LP or the Cap C Business.
3.2.24 Pension and Other Benefit
Plans.
(a) Schedule 3.2.24 sets
forth a true and complete list of all employee benefit plans, including, without
limitation, pension/benefit plans maintained by Cap C LP and/or the CLP (each a
"Plan").
(b) Except
as disclosed in Schedule 3.2.24 each
Plan is, and has been, established, registered, qualified, administered and
invested, in compliance with (i) the terms thereof, and (ii) all applicable
Laws.
(c) All
obligations under the Plans (whether pursuant to the terms thereof or applicable
Law) have been satisfied.
(d) All
contributions or premiums required to be paid to or in respect of each Plan have
been paid in a timely fashion in accordance with the terms thereof and all
applicable Law, and no Taxes, penalties or fees are owing or exigible under any
Plan.
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(e) There
are no going concern unfunded actuarial liabilities, past service unfunded
liabilities or solvency deficiencies respecting any of the Plans.
(f) No
material changes have occurred in respect of any Plan since the date of the most
recent financial, accounting or actuarial report, as applicable, issued in
connection with any Plan, which could reasonably be expected to adversely affect
the relevant report (including rendering it misleading in any material
respect).
(g) There
have been no improper withdrawals or transfer of assets from any
Plan.
(h) None
of the Plans require or permit a retroactive increase in premiums or payments,
and the level of insurance reserves, if any, under any insured Plan is
reasonable and sufficient to provide for all incurred but unreported
claims.
3.2.25 Interests in Customers,
Suppliers, etc. Except as set forth on Schedule 3.2.25,
neither Newport nor to the knowledge of Newport or Communications Holdco
(without making any inquiry of any member of the Related Group, as hereinafter
defined), any officer, director, or employee of Cap C LP or the CLP immediately
prior to the Closing Date, any parent, brother, sister, child or spouse of any
such officer, director, key executive or employee of the CLP, Communications
Holdco or Newport (collectively, the "Related Group"), or any Person
controlled by anyone in the Related Group:
(a) owns,
directly or indirectly, any interest in (excepting for ownership, directly or
indirectly, of less than 1/4 of 1% of the issued and outstanding shares of any
class of securities of a publicly held and traded company), or received or has
any right to receive payments from, or is an officer, director, employee, agent
or consultant of, any Person which is, or is engaged in business as, a
competitor, lessor, lessee, supplier, distributor, sales agent, customer or
client of Cap C LP or the CLP;
(b) owns,
directly or indirectly (other than through the ownership of Limited Partnership
Units), in whole or in part, any tangible or intangible property that the CLP
used in the conduct of the Cap C Business, other than immaterial personal items
owned and used by employees at their work stations; or
(c) has
any cause of action or other claim whatsoever against, or owes any amount to,
Cap C LP or the CLP, except for claims in the ordinary course of business such
as for accrued vacation pay, accrued benefits under employee benefit plans, and
similar matters and agreements existing on the date hereof.
3.2.26 Bank Accounts and Powers of
Attorney. Set forth in Schedule 3.2.26 is an
accurate and complete list showing (a) the name and address of, and account
information for, each bank in which Cap C LP had immediately prior to the
transfer of the Cap C Business to the CLP, or the CLP has, an account, credit
line or safe deposit box and the names of all Persons authorized to draw thereon
or to have access thereto, and (b) the names of all Persons, if any, holding
powers of attorney from Cap C LP or the CLP and a summary statement of the terms
thereof.
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3.2.27 Compensation of
Employees. Schedule 3.2.27 is an
accurate and complete list showing: (a) the names and positions of all employees
and exclusive consultants of the Cap C Business, or Cap C LP immediately prior
to the transfer of the Cap C Business by Cap C LP to the Cap C Business, who
are, or were being, compensated at an annualized rate of $50,000 or more,
together with a statement of the current annual salary, and the annual salary,
bonus and incentive compensation paid or payable with respect to calendar years
2008 and 2009, and a statement of the projected annual salary, bonus and
incentive compensation payable with respect to the calendar year ended December
31, 2010, and the material fringe benefits of such employees and exclusive
consultants not generally available to all employees of Cap C LP or the Cap C
Business; (b) all bonus and incentive compensation paid or payable (whether by
agreement, custom or understanding) to any employee of Cap C LP or the Cap C
Business not listed in clause (a) above for services rendered or to be rendered
during calendar years 2008 and 2009; (c) the names of all retired employees, if
any, of Cap C LP or the Cap C Business who are receiving or entitled to receive
any healthcare or life insurance benefits or any payments from Cap C LP or the
Cap C Business not covered by any pension plan to which Cap C LP or the Cap C
Business is a party, their ages and current unfunded pension rate, if any; and
(d) a description of the current severance and vacation policy of Cap C LP and
the Cap C Business. Neither Cap C LP nor the Cap C Business has,
because of past practices or previous commitments with respect to its employees,
established any rights on the part of any of its employees to additional
compensation with respect to any period after the Closing Date (other than wage
increases in the ordinary course of business). Each of Cap C LP and
the Cap C Business has properly classified and compensated all employees and
consultants in accordance with all applicable Laws and Orders of any
Governmental and Regulatory Authority.
3.2.28 Non-Contravention; Approvals
and Consents. The execution, delivery and performance by the
CLP and Cap C LP of their respective obligations under this Agreement and the
Conveyance Documents, as the case may be, and the consummation of the
transactions contemplated hereby and thereby, as the case may be, will not (a)
violate, conflict with or result in the breach of any provision of the
declaration and limited partnership agreement (or other comparable documents) of
the CLP and Cap C LP, (b) result in the violation by the CLP or Cap C LP of any
Laws or Orders of any Governmental or Regulatory Authority, or (c) if the
consents and notices set forth in Schedule 3.2.28 are
obtained, conflict with, result in a violation or breach of, constitute (with or
without notice or lapse of time or both) a default under, or require the CLP or
Cap C LP to obtain any consent, approval or action of, make any filing with or
give any notice to, or result in or give to any Person any right of payment or
reimbursement, termination, cancellation, modification or acceleration of, or
result in the creation or imposition of any Lien upon any of their respective
assets or properties, or under any of the terms, conditions or provisions of any
Contract to which the CLP or Cap C LP is a party or by which the CLP or Cap C LP
or any of their respective assets or properties are or were bound. Except as set
forth in Schedule
3.2.28, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other Person is necessary or required
under any of the terms, conditions or provisions of any Law or Order of any
Governmental or Regulatory Authority or any Contract to which the CLP or Cap C
LP is a party, or by which their respective assets or properties were or are
bound, for the execution and delivery of this Agreement or the Conveyance
Documents, the performance by the CLP or Cap C LP of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby.
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3.2.29 No Changes Since the Balance
Sheet Date. From the Balance Sheet Date through the date
hereof, except as specifically stated on Schedule 3.2.29,
neither Cap C LP nor the CLP (i) incurred any liability or obligation of any
nature (whether accrued, absolute, contingent or otherwise), except in the
ordinary course of business, (ii) permitted any of its assets to be subjected to
any Lien, (iii) sold, transferred or otherwise disposed of any assets except in
the ordinary course of business, (iv) made any capital expenditure or commitment
therefor which individually or in the aggregate exceeded $50,000; (v) made any
distributions or dividend payments on any shares of its capital stock or equity
participation rights, or redeemed, purchased or otherwise acquired any shares of
its capital stock, or any option, warrant or other right to purchase or acquire
any shares of capital stock or equity participation rights of Cap C LP or the
CLP, (vi) made any bonus or profit sharing distribution, (vii) increased or
prepaid its indebtedness for borrowed money, except current borrowings under
credit lines, or made any loan to any Person other than to any employee for
normal travel and expense advances, (viii) wrote down the value of any
work-in-process, or wrote off as uncollectible any notes or accounts receivable,
except write-downs and write-offs in the ordinary course of business, none of
which individually or in the aggregate, were material to Cap C LP or the CLP,
(ix) granted any increase in the rate of wages, salaries, bonuses or other
remuneration of any employee who, whether as a result of such increase or prior
thereto, received aggregate compensation from Cap C LP or the CLP at an annual
rate of $100,000 or more, or except in the ordinary course of business to any
other employees, (x) entered into any employment or exclusive consulting
agreement which is not cancelable by Cap C LP or the CLP (and will not be
cancelable by the CLP) without penalty or other financial obligation within 30
days, (xi) canceled or waived any claims or rights of material value, (xii) made
any change in any method of accounting procedures, (xiii) otherwise conducted
Cap C LP's business or the Cap C Business or entered into any transaction,
except in the usual and ordinary manner and in the ordinary course of its
business, (xiv) amended or terminated any agreement which is material to their
businesses, (xv) renewed, extended or modified any lease of real property or any
lease of personal property, except in the ordinary course of business, or (xvi)
agreed, whether or not in writing, to do any of the actions set forth in any of
the above clauses.
3.2.30 Corporate
Controls. To the knowledge of the Cap C Principals, no
officer, authorized agent, employee, consultant or any other Person while acting
on behalf of Cap C LP, the Cap C Business or the CLP, has, directly or
indirectly: used any corporate fund for unlawful contributions, gifts, or other
unlawful expenses relating to political activity; made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; established or maintained
any unlawful or unrecorded fund of corporate monies or other assets; made any
false or fictitious entry on its books or records; participated in any
racketeering activity; or made any bribe, rebate, payoff, influence payment,
kickback, or other unlawful payment, or other payment of a similar or comparable
nature, to any Person, private or public, regardless of form, whether in money,
property, or services, to obtain favourable treatment in securing business or to
obtain special concessions, or to pay for favourable treatment for business
secured or for special concessions already obtained, and neither Communications
Holdco, the Cap C Business nor the CLP have participated in any illegal boycott
or other similar illegal practices affecting any of its actual or potential
customers.
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3.2.31 Brokers. No
broker, finder, agent or similar intermediary has acted on behalf of Newport,
Communications Holdco or the CLP in connection with this Agreement or the
transactions contemplated hereby, and no brokerage commissions, finder's fees or
similar fees or commissions are payable by Communications Holdco, Capital C
Holdco, the CLP or Newport in connection therewith based on any agreement,
arrangement or understanding with any of them.
3.2.32 Repayment of
Loans. Except as set forth on Schedule 3.2.32, as
of the Closing, all (i) intercompany indebtedness and (ii) indebtedness
(including unpaid distributions) of the CLP or Capital CEK LP to Communications
Holdco or Newport has been repaid in full, other than routine travel expense
advances in the ordinary course of business and consistent in amount with past
practice.
3.2.33 Disclosure. No
representation or warranty of Newport, Communications Holdco, Capital C Holdco
or the Cap C Principals contained in this Agreement contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements herein or therein, in the light of the
circumstances under which they were made, not misleading.
3.2.34 Copies of
Documents. Communications Holdco and/or the Cap C Principals
have caused to be made available for inspection and copying by the Purchaser and
its advisers, true, complete and correct copies of all documents referred to in
this Article III.C or in any Schedule.
ARTICLE IV
REPRESENTATIONS
OF THE PURCHASER
The Purchaser represents and warrants
to Newport, the Cap C Principals, Capital C Holdco and Communications Holdco as
follows:
Section
4.1 Existence and Good
Standing. The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of Canada with full
corporate power and authority to enter into this Agreement, to perform its
obligations hereunder and to own its property and to carry on its business all
as and in the places where such properties are now owned or operated or such
business is now being conducted.
Section
4.2 Execution and Validity of
Agreement. The Purchaser has the full corporate power and
authority to make, execute, deliver and perform this Agreement and the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Purchaser and the consummation of the transactions contemplated
hereby have been duly authorized by all required corporate action on behalf of
the Purchaser. This Agreement has been duly and validly executed and
delivered by the Purchaser and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms.
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Section
4.3 Litigation. There
is no action, suit, proceeding at law or in equity by any Person, or any
arbitration or any administrative or other proceeding by or before (or to the
knowledge of the Purchaser, any investigation by), any Governmental or
Regulatory Authority pending or, to the knowledge of the Purchaser, threatened
against the Purchaser or any of its properties or rights with respect to this
Agreement. The Purchaser is not subject to any Order entered in any
lawsuit or proceeding with respect to this Agreement or the transactions
contemplated hereby.
Section
4.4 Non-Contravention; Approvals
and Consents. The execution, delivery and performance by the
Purchaser of its obligations hereunder and the consummation of the transactions
contemplated hereby will not (a) violate, conflict with or result in the breach
of any provision of the certificate of incorporation and bylaws of the
Purchaser, (b) result in the violation by the Purchaser of any Laws or Orders of
any Governmental or Regulatory Authority applicable to the Purchaser or any of
its assets or properties, or (c) result in a violation or breach of, constitute
(with or without notice or lapse of time or both) a default under, or require
the Purchaser to obtain any consent, approval or action of, make any filing with
or give any notice to, or result in or give to any Person any right of payment
or reimbursement, termination, cancellation, modification or acceleration of,
or, except for such Liens as may be created in connection with an MDC financing
post-Closing, result in the creation or imposition of any Lien upon any of the
respective assets or properties of the Purchaser, under any of the terms,
conditions or provisions of any Contract to which the Purchaser is a party or by
which the Purchaser or any of its assets or properties are bound. No consent,
approval or action of, filing with or notice to any Governmental or Regulatory
Authority or other Person is necessary or required under any of the terms,
conditions or provisions of any Law or Order of any Governmental or Regulatory
Authority or any Contract to which the Purchaser is a party or by which the
Purchaser or any of its assets or properties are bound for the execution and
delivery of this Agreement by the Purchaser, the performance by the Purchaser of
its obligations hereunder or the consummation by the Purchaser of the
transactions contemplated hereby.
Section
4.5 Brokers. No
broker, finder, agent or similar intermediary has acted on behalf of the
Purchaser in connection with this Agreement or the transactions contemplated
hereby, and no brokerage commissions, finder's fees or similar fees or
commissions are payable by the Purchaser in connection therewith based on any
agreement, arrangement or understanding with either of them.
Section
4.6 Investment
Canada. The Purchaser is not a “non-Canadian" within the
meaning of the Investment
Canada Act (Canada).
Section
4.7 Status. The Purchaser
is not a person exempt from tax under section 149 of the ITA.
ARTICLE V
ACTIONS
AT CLOSING
Simultaneously
herewith:
Section
5.1 Pre-Closing Restructuring
Proceedings. All proceedings taken in connection with the Reorganization
and the Conveyance Documents and all documents incident thereto shall have been
completed in form and substance satisfactory to the Purchaser and Newport and
their respective counsel, and the Purchaser shall have received copies of all
such documents and other evidences as it or its counsel reasonably requested in
order to establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
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Section
5.2 Resolutions. Each
of Newport, Capital C Holdco and Communications Holdco shall have delivered to
the Purchaser a copy of the resolutions of their respective partners, or board
of directors, as the case may be, authorizing the execution, delivery and
performance of this Agreement and the Conveyance Documents to which it is a
party, and the transactions contemplated hereby and thereby. The Purchaser shall
have delivered to the other parties hereto a copy of the resolutions of its
board of directors authorizing the execution, delivery and performance of this
Agreement and the transactions contemplated hereby.
Section
5.3 Required Approvals and
Consents. Newport and the Cap C Principals shall have obtained
or given, at no expense to the Purchaser, and there shall not have been
withdrawn or modified, any consents or approvals or other actions listed on
Schedule 3.2.5
hereof (including without limitation, obtaining all such consents, approvals
and/or waivers required under the Contracts listed on Schedule 3.2.12).
Each such consent or approval shall be in a form satisfactory to counsel for the
Purchaser, acting reasonably.
Section
5.4 Limited Partnership
Agreement. The Cap C Principals and the Purchaser shall have
entered into the Amended and Restated CLP Agreement.
Section
5.5 Employment
Agreements. The Cap C Principals shall have entered into an Employment
Agreement with the CLP on terms and conditions satisfactory to the
Purchaser.
Section
5.6 Non-Competition.
Newport shall have entered into a Non-Competition Agreement with the Purchaser,
and the Cap C Principals shall have entered into a Non-Competition Agreement
with the Purchaser and CLP in the form and to the effect of Exhibit D
hereto.
Section
5.7 Xxxxx XX Purchase
Agreement. Cap C LP, Communications Holdco, the Kenna Principals, Newport
and the Purchaser shall have entered into and delivered a purchase agreement
pursuant to which Newport sells to the Purchaser its interests in Kenna Communications
LP.
Section
5.8 Conveyance
Documents. Communications Holdco and the CLP shall have
entered into the Conveyance Documents.
Section
5.9 Mutual
Release. Newport, the Cap C Principals and Communications
Holdco, among others, shall have entered into a mutual release in the form of
Exhibit E hereto, and the parties thereto shall have dismissed with prejudice
the related pending litigation matters.
Section
5.10 Fortress Release of
Liens. Newport shall have delivered to the Purchaser evidence
reasonably satisfactory to the Purchaser of the release of all security
interests encumbering the Purchased Units and the Acquired Cap C
Assets.
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ARTICLE VI
OTHER
AGREEMENTS
Section
6.1 Tax
Matters.
6.1.1 Tax
Returns. Communications Holdco, Newport, CLP and/or the Cap C
Principals, as applicable, shall timely and properly prepare or cause to be
prepared, execute, file and deliver all (i) Tax returns, information returns,
Tax elections or other tax filings required to be filed by CLP, Cap C LP and
Capital CEK LP in connection with the Reorganization (each a "LP Tax Filing"),
and (ii) all Tax elections required to be filed by Communications
Holdco or Newport in connection with the Reorganization (each, a "Tax Election"), and shall
permit the Purchaser to review and comment on each such LP Tax Filing or Tax
Election prior to filing. Each of Communications Holdco and Newport shall
include their respective share of any taxable income allocated to them in
respect of their partnership interest in Cap C LP for the fiscal period ending
on the dissolution of Cap C LP in their return filed under the ITA for the
taxation year that includes the end of such fiscal period.
6.1.2 Tax
Cooperation. The Purchaser, Newport, Communications Holdco and
the Cap C Principals shall cooperate fully as and to the extent reasonably
requested by the other party, in connection with any Tax Filing pursuant to
Section 6.1.1
or other Tax returns relating to the operations of the Cap C Business and any
audit, litigation or other proceeding with respect to Taxes.
Section
6.2 Change of
Name. At the Closing or as soon as practicable after the
Closing Date, Capital C Holdco shall execute appropriate documents to change its
name to a name dissimilar to "Capital C", and promptly thereafter shall file any
necessary documents to reflect the name change with the appropriate governmental
authorities.
Section
6.3 Pre-Closing
Distribution.
6.3.1 Return of Capital; Repayment
of Loans. Immediately prior to the commencement of the
Reorganization: Newport and Communications Holdco shall have caused (i) Capital
CEK LP to distribute to Newport $1,990,453 as a return of capital on the limited
partnership units of Capital CEK LP held by Newport at October 31, 2010; and
(ii) Capital CEK LP to repay in full Newport’s outstanding loans (including all
accrued interest) to Capital CEK LP in the amount of $1,787,229.33 owing as of
the Closing Date.
6.3.2 Return of Capital. As
soon as reasonably practicable but not later than forty-five (45) days of the Closing, the
Purchaser shall ensure that CLP and/or Kenna Communications LP distribute to
Newport an amount equal to the amount due as a return of capital on the limited
partnership units of Capital CEK LP held by Newport from November 1, 2010 until
the Closing Date (the "November
Capital Distribution"). The amount of the November Capital Distribution
shall be determined by the Purchaser's auditor in accordance with GAAP based on
the financial statements relating to the Kenna Business and the Cap C Business,
and allocated in a manner consistent with the allocations from January 1, 2010
to October 31, 2010; provided, however, that any controversy, dispute, question
or difference between the parties hereto regarding the determination of the
November Capital Distribution shall be resolved by a senior officer of the
Purchaser and a senior officer of Newport working in good faith to come to a
mutually acceptable determination of the November Capital Distribution within 10
days of notice from Newport of such controversy, dispute, question or
difference.
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Section
6.4 Key Man
Insurance. Newport shall cause Newport Partners Income Fund to
assign all current
key man insurance policies relating to Xxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxx
Xxxxxxx effective as of the Closing Date.
ARTICLE VII
SURVIVAL;
INDEMNITY
Section
7.1 Survival. Notwithstanding
any right of any party hereto fully to investigate the affairs of any other
party, and notwithstanding any knowledge of facts determined or determinable
pursuant to such investigation or right of investigation, each party hereto
shall have the right to rely fully upon the representations, warranties,
covenants and agreements of the other parties contained in this Agreement and
the Schedules, if any, furnished by any other party pursuant to this
Agreement. Subject to the limitations set forth in Section 7.6, the
respective representations, warranties, covenants and agreements of Newport,
Communications Holdco, the Cap C Principals, Capital C Holdco and the Purchaser
contained in this Agreement shall survive the Closing for sixteen (16) months
following the Closing Date.
Section
7.2 Obligation of Newport,
Communications Holdco, Capital C Holdco and the Cap C Principals to
Indemnify.
7.2.1 Newport
Indemnity. Subject to the limitations contained in Sections
7.2.3, 7.6.1 and 7.6.2, Newport hereby
agrees to indemnify the Purchaser and its affiliates, stockholders, officers,
directors, employees, agents, representatives and successors, permitted
assignees of the Purchaser and their affiliates (individually, a "Purchaser Indemnified Party"
and collectively, the "Purchaser Indemnified
Parties") against, and to protect, save and keep harmless the Purchaser
Indemnified Parties from, and to pay on behalf of or reimburse the Purchaser
Indemnified Parties as and when incurred for, any and all liabilities (including
liabilities for Taxes), obligations, losses, damages, penalties, demands,
claims, actions, suits, judgments, settlements, penalties, interest,
out-of-pocket costs, expenses and disbursements (including reasonable costs of
investigation, and reasonable attorneys', accountants' and expert witnesses'
fees) of whatever kind and nature (collectively, "Losses"), that may be imposed
on or incurred by any Purchaser Indemnified Party as a consequence of, in
connection with, incident to, resulting from or arising out of or in any way
related to or by virtue of: (a) any misrepresentation, inaccuracy or breach of
any warranty or representation contained in Article III.A or Article III.C
hereof; (b) any action, demand, proceeding, investigation or claim by any third
party (including any Governmental or Regulatory Authority) against or affecting
any Purchaser Indemnified Party which may give rise to or evidence the existence
of or relate to a misrepresentation or breach of any of the representations and
warranties of Newport contained in Article III.A or Article III.C hereof; (c)
any breach or failure by Newport to comply with, perform or discharge any
obligation, agreement or covenant by Newport contained in this Agreement; (d)
any liability or obligation or any assertion against any Purchaser Indemnified
Party, arising out of or relating, directly or indirectly, to any Excluded Asset
or any Retained Liability (as such terms are defined in the Conveyance
Documents) or other liability arising, in whole or in part, out of the conduct
of the business of Cap C LP or any of its subsidiaries or successors, if any,
prior to the Closing except for the Assumed Liabilities (as such term is defined
in the Conveyance Documents); (e) any litigation or claim disclosed on Schedule 3.2.3 to
this Agreement; and (f) any liability or obligation arising out of or relating,
directly or indirectly, to the classification of any individual performing
services for Cap C LP as an independent contractor, as a freelancer, as a
consultant or in any other capacity other than as an employee.
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7.2.2 Indemnity by Cap C
Indemnitors. Subject to the limitations contained in Sections 7.2.3, 7.6.1 and 7.6.2, the Cap C
Indemnitors hereby agree, jointly and severally, to indemnify the Purchaser
Indemnified Parties against, and to protect, save and keep harmless the
Purchaser Indemnified Parties from, and to pay on behalf of or reimburse the
Purchaser Indemnified Parties as and when incurred for, any and all Losses that
may be imposed on or incurred by any Purchaser Indemnified Party as a
consequence of, in connection with, incident to, resulting from or arising out
of or in any way related to or by virtue of: (a) any misrepresentation,
inaccuracy or breach of any warranty or representation contained in Article
III.B or Article III.C hereof; (b) any action, demand, proceeding, investigation
or claim by any third party (including any Governmental or Regulatory Authority)
against or affecting any Purchaser Indemnified Party which may give rise to or
evidence the existence of or relate to a misrepresentation or breach of any of
the representations and warranties of Communications Holdco, Capital C Holdco or
the applicable Cap C Principals contained in Article III.B or Article III.C
hereof; (c) any breach or failure by Communications Holdco, Capital C Holdco or
the applicable Cap C Principals to comply with, perform or discharge any
obligation, agreement or covenant by Communications Holdco, Capital C Holdco or
the applicable Cap C Principals contained in this Agreement; (d) any liability
or obligation or any assertion against any Purchaser Indemnified Party, arising
out of or relating, directly or indirectly, to any Excluded Asset or any
Retained Liability (as such terms are defined in the Conveyance Documents) or
other liability arising, in whole or in part, out of the conduct of the business
of Cap C LP or any of its subsidiaries or successors, if any, prior to the
Closing except for the Assumed Liabilities (as such term is defined in the
Conveyance Documents); (e) any litigation or claim disclosed on Schedule 3.2.3 to
this Agreement; and (f) any liability or obligation arising out of or relating,
directly or indirectly, to the classification of any individual performing
services for Cap C LP as an independent contractor, as a freelancer, as a
consultant or in any other capacity other than as an employee.
7.2.3 Notwithstanding
anything to the contrary contained herein, Newport's obligation to indemnify the
Purchaser Indemnified Parties under this Agreement shall only occur after the
aggregate amount of all Losses claimed by the Purchaser Indemnified Parties
against the Cap C Indemnitors (including Losses previously claimed by the
Purchaser Indemnified Parties against the Cap C Indemnitors) exceeds
$750,000. Any such claims made against the Cap C Indemnitors may be
made against Newport if such claims remain unpaid by the Cap C Indemnitors or
any of them after sixty (60) days from the date of claim; provided that the Cap
C Indemnitors have acted in good faith in response to such claim and that the
Purchaser shall have exercised its commercially reasonable efforts to recover
against such claim (including exercising its right to offset any claim for
indemnity against payments due and/or payable to Capital C Holdco or the Cap C
Principals in accordance with Section 7.5).
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7.2.4 Losses. The
term "Losses" as used in
this Article VII is not limited to matters asserted by third parties against any
Purchaser Indemnified Party but includes Losses incurred or sustained by a
Purchaser Indemnified Party in the absence of Third Party Claims (as defined in
Section 7.4.2
hereof).
Section
7.3 Obligation of the Purchaser
to Indemnify.
7.3.1 Subject
to the limitations set forth in Section 7.6.3 hereof,
the Purchaser hereby agrees to indemnify Newport (together with its affiliates,
partners, officers, directors, employees, agents, representatives, successors
and permitted assigns, collectively, the "Newport Indemnified Parties"),
Communications Holdco, Capital C Holdco and the Cap C Principals (individually a
"Seller Indemnified
Party" and collectively, the "Seller Indemnified Parties")
against, and to protect, save and keep harmless the Seller Indemnified Parties
from, and to pay on behalf of or reimburse the Seller Indemnified Parties as and
when incurred for, any and all Losses that may be imposed on or incurred by the
Seller Indemnified Parties as a consequence of, in connection with, incident to,
resulting from or arising out of or in any way related to or by virtue of: (a)
any misrepresentation, inaccuracy or breach of any warranty or representation of
the Purchaser contained in Article IV hereof; or (b) any action, demand,
proceeding, investigation or claim by any third party (including any
Governmental or Regulatory Authority) against or affecting any Seller
Indemnified Party which may give rise to or evidence the existence of or relate
to a misrepresentation or breach of any of the representations and warranties of
the Purchaser contained in Article IV hereof; or (c) any breach or failure by
the Purchaser to comply with, perform or discharge any obligation, agreement or
covenant by the Purchaser contained in this Agreement.
7.3.2 The
Purchaser shall indemnify the Newport Indemnified Parties against, and protect,
save and keep harmless the Newport Indemnified Parties from, any Taxes (within
the meaning of Section
3.2.14 hereof) incurred by the Newport Indemnified Parties solely as a
result of the Reorganization (including any of the individual transactions
forming part thereof), without duplication, in an aggregate amount not to exceed
$1 million (the "Newport
Reorganization Indemnity"). For greater certainty, the Newport
Reorganization Indemnity shall exclude any Taxes which would, but for the
Reorganization, have been incurred by Newport in connection with the sale of its
partnership interest in Capital CEK LP or Cap C LP. Notwithstanding
anything to the contrary, the Purchaser shall not indemnify the Newport
Indemnified Parties in respect of any Taxes imposed on Newport which were
existing liabilities of Capital CEK LP or its affiliates at the time of, or
arising in connection with any matter or omission occurring prior to, the
commencement of the Reorganization.
Section
7.4 Indemnification
Procedures.
7.4.1
Non-Third Party
Claims.
(a) In
the event that any Person entitled to indemnification under this Agreement (an
"Indemnified Party")
asserts a claim for indemnification which does not involve a Third Party Claim
(as defined in Section
7.4.2) (a "Non-Third
Party Claim"), against which a Person is required to provide
indemnification under this Agreement (an "Indemnifying Party"), the
Indemnified Party shall give written notice to the Indemnifying Party (the
"Non-Third Party Claim
Notice"), which Non-Third Party Claim Notice shall (i) describe the claim
in reasonable detail, and (ii) indicate the amount (estimated, if necessary, and
to the extent feasible) of the Losses that have been or may be suffered by the
Indemnified Party.
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(b) The
Indemnifying Party may acknowledge and agree by written notice (the "Non-Third Party Acknowledgement of
Liability") to the Indemnified Party to satisfy the Non-Third Party Claim
within 30 days of receipt of the Non-Third Party Claim Notice. In the
event that the Indemnifying Party disputes the Non-Third Party Claim, the
Indemnifying Party shall provide written notice of such dispute (the "Non-Third Party Dispute
Notice") to the Indemnified Party within 30 days of receipt of the
Non-Third Party Claim Notice (the "Non-Third Party Dispute
Period"), setting forth a reasonable basis of such dispute. In
the event that the Indemnifying Party shall fail to deliver the Non-Third Party
Acknowledgement of Liability or Non-Third Party Dispute Notice within the
Non-Third Party Dispute Period, the Indemnifying Party shall be deemed to have
acknowledged and agreed to pay the Non-Third Party Claim in full and to have
waived any right to dispute the Non-Third Party Claim. Once the
Indemnifying Party has acknowledged and agreed to pay any Non-Third Party Claim
pursuant to this Section 7.4.1, or
once any dispute under this Section 7.4.1 has
been finally resolved in favour of indemnification by a court or other tribunal
of competent jurisdiction, subject to the provisions of Section 7.6.1, the
Indemnifying Party shall pay the amount of such Non-Third Party Claim to the
Indemnified Party within 10 days of the date of acknowledgement or resolution,
as the case may be, to such account and in such manner as is designated in
writing by the Indemnified Party.
7.4.2
Third-Party
Claims.
(a) In
the event that any Indemnified Party asserts a claim for indemnification or
receives notice of the assertion of any claim or of the commencement of any
action or proceeding by any Person who is not a party to this Agreement or an
affiliate of a party to this Agreement in respect of which such Indemnified
Party is entitled to indemnification by an Indemnifying Party under this
Agreement (a "Third Party
Claim"), the Indemnified Party shall give written notice to the
Indemnifying Party (the "Third
Party Claims Notice") within 20 days after asserting or learning of such
Third Party Claim (or within such shorter time as may be necessary to give the
Indemnifying Party a reasonable opportunity to respond to such claim), together
with a statement specifying the basis of such Third Party Claim. The
Third Party Claim Notice shall (i) describe the claim in reasonable detail, and
(ii) indicate the amount (estimated, if necessary, and to the extent feasible)
of the Losses that have been or may be suffered by the Indemnified Party. The
Indemnifying Party must provide written notice to the Indemnified Party that it
is either (i) assuming responsibility for the Third Party Claim or (ii)
disputing the claim for indemnification against it (the "Indemnification
Notice") The Indemnification Notice must be provided by the
Indemnifying Party to the Indemnified Party within 15 days after receipt of the
Third Party Claims Notice or within such shorter time as may be necessary to
give the Indemnified Party a reasonable opportunity to respond to such Third
Party Claim (the "Indemnification Notice
Period").
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(b) If
the Indemnifying Party provides an Indemnification Notice to the Indemnified
Party within the Indemnification Notice Period that it assumes responsibility
for the Third Party Claim (the "Defense Notice"), the
Indemnifying Party shall conduct at its expense the defense against such Third
Party Claim in its own name, or if necessary in the name of the Indemnified
Party. The Defense Notice shall specify the counsel the Indemnifying
Party will appoint to defend such claim ("Defense Counsel"); provided, however, that the
Indemnified Party shall have the right to approve the Defense Counsel, which
approval shall not be unreasonably withheld or delayed, except that such
approval may be withheld if the defense is to be in the name of the Indemnified
Party. In the event that the Indemnifying Party fails to give the
Indemnification Notice within the Indemnification Notice Period, the Indemnified
Party shall have the right to conduct the defense and to compromise and settle
such Third Party Claim without the prior consent of the Indemnifying Party and
subject to the provisions of Section 7.6.1, the
Indemnifying Party will be liable for all costs, expenses, settlement amounts or
other Losses paid or incurred in connection therewith.
(c) In
the event that the Indemnifying Party provides in the Indemnification Notice
that it disputes the claim for indemnification against it, the Indemnified Party
shall have the right to conduct the defense and to compromise and settle such
Third Party Claim, without the prior consent of the Indemnifying Party. Once
such dispute has been finally resolved in favour of indemnification by a court
or other tribunal of competent jurisdiction or by mutual agreement of the
Indemnified Party and Indemnifying Party, subject to the provisions of Section 7.6.1, the
Indemnifying Party shall within 10 days of the date of such resolution or
agreement, pay to the Indemnified Party all Losses paid or incurred by the
Indemnified Party in connection therewith.
(d) In
the event that the Indemnifying Party delivers an Indemnification Notice
pursuant to which it elects to conduct the defense of the Third Party Claim, the
Indemnifying Party shall be entitled to have the exclusive control over the
defense of the Third Party Claim and the Indemnified Party will cooperate in
good faith with and make available to the Indemnifying Party such assistance and
materials as it may reasonably request, all at the expense of the Indemnifying
Party. The Indemnified Party shall have the right at its expense to
participate in the defense assisted by counsel of its own
choosing. The Indemnifying Party will not settle the Third Party
Claim or cease to defend against any Third Party Claim as to which it has
delivered an Indemnification Notice (as to which it has assumed responsibility
for the Third Party Claim), without the prior written consent of the Indemnified
Party, which consent will not be unreasonably withheld or delayed; provided, however, such consent
may be withheld if, among other reasons, as a result of such settlement or
cessation of defense, (i) injunctive relief or specific performance would be
imposed against the Indemnified Party, or (ii) such settlement or cessation
would lead to liability or create any financial or other obligation on the part
of the Indemnified Party for which the Indemnified Party is not entitled to
indemnification hereunder.
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(e) If
an Indemnified Party refuses to consent to a bona fide offer of settlement which
the Indemnifying Party wishes to accept, which provides for a full release of
the Indemnified Party and its affiliates relating to the Third Party Claims
underlying the offer of settlement and solely for a monetary payment, the
Indemnified Party may continue to pursue such matter, free of any participation
by the Indemnifying Party, at the sole expense of the Indemnified Party. In such
an event, the obligation of the Indemnifying Party shall be limited to the
amount of the offer of settlement which the Indemnified Party refused to accept
plus the reasonable costs and expenses of the Indemnified Party incurred prior
to the date the Indemnifying Party notified the Indemnified Party of the offer
of settlement.
(f) Notwithstanding
clause (d) above, the Indemnifying Party shall not be entitled to control, but
may participate in, and the Indemnified Party shall be entitled to have sole
control over, the defense or settlement of (x) that part of any Third Party
Claim that (i) seeks a temporary restraining order, a preliminary or permanent
injunction or specific performance against the Indemnified Party, (ii) involves
criminal allegations against the Indemnified Party or (iii) may lead to
liability or create any financial or other obligation on the part of the
Indemnified Party for which the Indemnified Party is not entitled to
indemnification hereunder and (y) the entire Third Party Claim if such Third
Party Claim would impose liability on the part of the Indemnified Party in an
amount which is greater than the amount as to which the Indemnified Party is
entitled to indemnification under this Agreement.
(g) A
failure by an Indemnified Party to give timely, complete or accurate notice as
provided in this Section 7.4.2 will
not affect the rights or obligations of any party hereunder except and only to
the extent that, as a result of such failure, any party entitled to receive such
notice was deprived of its right to recover any payment under its applicable
insurance coverage or was otherwise directly and materially damaged as a result
of such failure to give timely notice.
Section
7.5 Right of
Offset. Without limiting any other rights or remedies
available to it, the Purchaser shall be entitled to offset any claim for
indemnity made pursuant to Section 7.2 and in
accordance with Section 7.4, against
any payments due and/or payable to Capital C Holdco or the Cap C Principals,
including, without limitation, up to $2,750,000 of any payments made pursuant to
the limited partnership unit purchase agreement (the "13% Purchase Agreement") of
even date made among Capital C Holdco, the Cap C Principals and the Purchaser
pursuant to which the Purchaser indirectly acquired an additional approximately
13% limited partnership interest in CLP, provided, however, the Purchaser may
only exercise such right of offset in respect of claims relating to Losses
actually incurred by a Purchaser Indemnified Party (in which case the amount of
such offset shall be the amount of such actual Loss) or claims actually asserted
by a third party (in which case the amount of the offset shall not exceed the
Purchaser's good faith estimate of the amount of indemnifiable Losses that will
ultimately be payable to a Purchaser Indemnified Party in respect of such
claims).
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Section
7.6 Limitations On and Other
Matters Regarding Indemnification.
7.6.1 Indemnity Cushion and
Cap. Subject to Section 7.6.5,
neither Newport, nor the Cap C Indemnitors shall have any liability to any
Purchaser Indemnified Party with respect to Losses arising out of any of the
matters referred to in Section 7.2 until
such time as the amount of such liability shall exceed $100,000 in the aggregate
(in which case Newport and the Cap C Indemnitors shall be severally liable for
all Losses). Notwithstanding anything to the contrary herein, subject
to Section
7.6.5 below, (a) the maximum aggregate liability of Newport for indemnity
payments under Section
7.2.1 shall be an aggregate amount equal to $3,500,000; and (b) the
maximum aggregate joint and several liability of the Cap C Indemnitors for
indemnity payments under Section 7.2.2 shall
be an aggregate amount equal to the sum of $750,000 plus a right of setoff of
all "Contingent Payments" (as defined in the 13% Purchase Agreement) payable
pursuant to the 13% Purchase Agreement, subject to a maximum aggregate of such
Contingent Payments of $2,750,000.
7.6.2 Termination of
Indemnification Obligations of Newport and the Cap C
Principals. Subject to Section 7.6.5, the
obligation of Newport, Capital C Holdco and the Cap C Principals to indemnify
under Section
7.2 hereof shall terminate sixteen (16) months following the Closing
Date, except as to matters as to which the Purchaser Indemnified Party has made
a claim for indemnification on or prior to such date, in which case the right to
indemnification with respect thereto shall survive the expiration of such period
until such claim for indemnification is finally resolved and any obligations
with respect thereto are fully satisfied.
7.6.3 Termination of
Indemnification Obligations of the Purchaser; Purchaser Indemnity
Cap. Subject to Section 7.6.5, the
obligation of the Purchaser to indemnify under Section 7.3 hereof
shall terminate sixteen (16) months following the Closing Date, except as to
matters as to which any Seller Indemnified Party has made a claim for
indemnification on or prior to such date, in which case the right to
indemnification with respect thereto for such party shall survive the expiration
of such period until such claim for indemnification is finally resolved and any
obligations with respect thereto are fully satisfied. The Purchaser shall have
no liability to the Seller Indemnified Parties with respect to Losses arising
out of any of the matters referred to in Section 7.3 until
such time as the amount of such liability shall exceed $100,000 in the
aggregate. Notwithstanding anything to the contrary herein, the
maximum aggregate liability of the Purchaser for indemnity payments under this
Agreement shall be an aggregate amount equal to $6,000,000.
7.6.4 Treatment. Any
indemnity payments by an Indemnifying Party to an Indemnified Party under this
Article VII shall be treated by the parties as an adjustment to the Purchase
Price.
7.6.5 Exceptions. Each
of the limitations set forth above in this Section 7.6 shall in
no event (a) apply to any Losses incurred by a Purchaser Indemnified Party which
relate, directly or indirectly, to (i) any fraudulent acts committed by Newport,
Communications Holdco, Capital C Holdco or the Cap C Principals; (ii) any breach
of a representation or warranty contained in Sections 3.1.1, 3.1.3, 3.1.5, 3.2.1, 3.2.5, 3.2.9 or 3.2.14, and (iii) any
indemnification obligation under Sections 7.2.1(d),
7.2.2(c) and
(d); and (iv)
the obligations of Newport, Communications Holdco, Capital C Holdco and the Cap
C Principals set forth in Section 8.1 to pay
certain expenses; or (b) apply to any Losses incurred by a Seller Indemnified
Party which relate, directly or indirectly, to (i) any fraudulent acts committed
by the Purchaser and (ii) the Purchaser's obligations set forth in Section 8.1 to pay
certain expenses.
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7.6.6 Indemnification Sole
Remedy. Except as otherwise expressly provided in this Agreement or as it
relates to any claim for fraud or intentional misrepresentation, the
indemnifications provided for in this Article VII constitute the sole remedy
available to an Indemnified Party hereunder with respect to any and all breaches
or failures of representations, warranties, covenants, conditions, agreements or
obligations contained in this Agreement. In furtherance of the
foregoing, each of the parties hereby waives to the fullest extent permitted
under applicable Law, any and all other rights, claims and causes of action it
may have against the other parties relating to the subject matter of this
Agreement.
ARTICLE VIII
MISCELLANEOUS
Section
8.1 Expenses. Except
as otherwise provided in this Agreement, each of the parties hereto shall pay
its or his own expenses relating to the transactions contemplated by this
Agreement, including, without limitation, the fees and expenses of its
respective counsel, financial advisors and accountants and any brokerage
commissions, finder's fees, consulting fees, break-up or termination fees, or
similar fees or commissions.
Section
8.2 Governing Law; Service of
Process and Consent to Jurisdiction. The interpretation and
construction of this Agreement, and all matters relating hereto (including,
without limitation, the validity or enforceability of this Agreement), shall be
governed by the laws of the Province of Ontario and the laws of Canada
applicable therein.
Section
8.3 "Person"
Defined. "Person" shall mean and include
an individual, a company, a joint venture, a corporation (including any
non-profit corporation), an estate, an association, a trust, a general or
limited partnership, a limited liability company, a limited liability
partnership, an unincorporated organization and a government or other department
or agency thereof.
Section
8.4 "Knowledge"
Defined. Where any representation and warranty contained in
this Agreement is expressly specified by reference to the knowledge of Newport,
Capital C Holdco or any Cap C Principal, such term shall be limited to the
actual knowledge of the executive officers of Newport, Capital C Holdco or the
Cap C Principals, respectively, and unless otherwise stated, such knowledge that
would have been discovered by the executive officers of Newport, Capital C
Holdco or the applicable Cap C Principal, respectively, after reasonable
inquiry. Where any representation and warranty contained in this
Agreement is expressly specified by reference to the knowledge of the Purchaser,
as the case may be, such term shall be limited to the actual knowledge of the
executive officers of such entity and unless otherwise stated, such knowledge
that would have been discovered by such executive officers after reasonable
inquiry.
Section
8.5 "Affiliate"
Defined. As used in this Agreement, an "affiliate" of any Person,
shall mean any Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
such Person.
Section
8.6 Captions. The
Article and Section headings used herein are for reference purposes only, and
shall not in any way affect the meaning or interpretation of this
Agreement.
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Section
8.7 Publicity. Subject
to the provisions of the next sentence, no party to this Agreement shall, and
Newport and Capital C Holdco shall use their reasonable efforts to ensure that
no representative of either of them shall, issue any press release or other
public document or make any public statement relating to this Agreement or the
matters contained herein without obtaining the prior approval of the
Purchaser. Notwithstanding the foregoing, the foregoing provision
shall not apply to the extent that the Purchaser or Newport is required to make
any announcement relating to or arising out of this Agreement by virtue of the
securities laws of the United States or Canada or the rules and regulations
promulgated thereunder or other rules of the NASDAQ Stock Market, Toronto Stock
Exchange or the United States Securities and Exchange Commission or any
announcement by any party hereto pursuant to applicable law or
regulations.
Section
8.8 Notices. Unless
otherwise provided herein, any notice, request, instruction or other document to
be given hereunder by any party to any other party shall be in writing and shall
be deemed to have been given (a) upon personal delivery, if delivered by hand or
courier, (b) three days after the date of deposit in the mail, postage prepaid,
or (c) the next business day if sent by a prepaid overnight courier service, and
in each case at the respective addresses set forth below or such other address
as such party may have fixed by notice:
(a) If
to the Purchaser, addressed to:
c/o MDC
Partners Inc.
00
Xxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx
Xxxxxx
X0X 0X0
Attention: Xxxxx
Xxxxxxxxx
with
a copy to (which shall not constitute notice):
c/o MDC
Partners Inc.
000 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: General
Counsel
(b) If
to Newport, to:
000 Xxxx
Xxxxxx Xxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxxx
Xxxxxxx
Facsimile: (000)
000-0000
with
a copy to (which shall not constitute notice):
Xxxxxx
Xxxxxxx LLP
Xxxxx
Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxx 0000
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000 Xxx
Xxxxxx, X.X. Xxx 00
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxxxx
Xxxxxxx
Facsimile: (000)
000-0000
(c) If
to Capital C Holdco, to:
000 Xxxx
Xxxxxx Xxxx, 0xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxx
Xxxxxxx
Facsimile: (000)
000-0000
with
a copy to (which shall not constitute notice):
Hughes,
Dorsch, Garland, Coles LLP
000 Xxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxxxx
X. Xxxxxxx
Facsimile: (000)
000-0000
(d) If
to the Cap C Principals, to:
Xxxxxxxx
Xxxxxxxxx
00000
Xxxxxxxx Xxxxxx, X.X. #0
Xxxxxxxxx,
Xxxxxxx X0X 0X0
and
Xxxx
Xxxxxxx
000
Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
with
a copy to (which shall not constitute notice):
Hughes,
Dorsch, Garland, Coles LLP
000 Xxx
Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxxxx
X. Xxxxxxx
Facsimile: (000)
000-0000
Any party
may change the address to which notices are to be sent by giving notice of such
change of address to the other parties in the manner herein provided for giving
notice.
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Section
8.9 Parties in
Interest. This Agreement may not be transferred, assigned,
pledged or hypothecated by any party hereto, other than by operation of
law. Any purported transfer, assignment, pledge, or hypothecation
(other than by operation of law) of this Agreement shall be void and
ineffective. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
Section
8.10 Severability. In
the event any provision of this Agreement is found to be void and unenforceable
by a court of competent jurisdiction, the remaining provisions of this Agreement
shall nevertheless be binding upon the parties with the same effect as though
the void or unenforceable part had been severed and deleted.
Section
8.11 Counterparts. This
Agreement may be executed in two or more counterparts or by facsimile
transmission, all of which taken together shall constitute one
instrument.
Section
8.12 Entire
Agreement. This Agreement, together with the Schedules and
Exhibits hereto, constitutes the sole, exclusive and only agreements of the
parties hereto pertaining to the subject matter hereof, contains all of the
covenants, conditions and agreements between the parties, express or implied,
whether by statute or otherwise, and sets forth the respective rights, duties
and obligations of each party to the other party as of the date hereof. No oral
understandings, oral statements, oral promises or oral inducements relating to
the subject matter hereof exist.
Section
8.13 Amendments. This
Agreement may not be amended, supplemented or modified orally, but only by an
agreement in writing signed by each of the parties hereto.
Section
8.14 Third Party
Beneficiaries. Each party hereto intends that this Agreement
shall not benefit or create any right or cause of action in or on behalf of any
Person other than the parties hereto and their respective successors and assigns
as permitted under Section
8.9.
Section
8.15 Use of
Terms. Whenever the context so requires or permits, all
references to the masculine herein shall include the feminine and neuter, all
references to the neuter herein shall include the masculine and feminine, all
references to the plural shall include the singular and all references to the
singular shall include the plural. Whenever used in this Agreement,
the terms "Dollars" and "$" shall mean Canadian Dollars.
Section
8.16 "Liens"
Defined. With respect to any asset, a "Lien" shall mean (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement (other than an operating lease) (or any financial lease having
substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
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Section
8.17 No Strict Construction;
Representation by Counsel. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of law or contract interpretation that provides that
in the case of ambiguity or uncertainty a provision should be construed against
the draftsman will be applied against any party hereto. The
provisions of this Agreement shall be construed according to their fair meaning
and neither for nor against any party hereto irrespective of which party caused
such provisions to be drafted. Each of the parties acknowledges that
it has been represented by legal counsel in connection with the preparation and
execution of this Agreement.
[Remainder
of page intentionally left blank.]
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IN WITNESS WHEREOF, the
parties hereto have executed this Limited Partnership Unit Purchase Agreement,
on the day and year first above written.
|
Per:
|
/s/
Xxxxxxxx Xxxxxx
|
||
|
Name: Xxxxxxxx
Xxxxxx
|
|||
|
Title: General
Counsel
|
|||
|
NEWPORT
PARTNERS HOLDINGS LP, by its general
partner NPY GP TRUST, by its
trustee NEWPORT PARTNERS GP INC.
|
|||
|
Per:
|
/s/
Xxxxxx Xxxxxxxxxx
|
||
|
Name: Xxxxxx
Xxxxxxxxxx
|
|||
|
Title: Vice
President
|
|||
|
CAP
C LP HOLDCO INC.
|
|||
|
Per:
|
/s/
Xxxx Xxxxxxx
|
||
|
Name: Xxxx
Xxxxxxx
|
|||
|
Title: President
|
|||
|
2265178
ONTARIO LIMITED
|
|||
|
Per:
|
/s/
Xxxx Xxxxxxx
|
||
|
Name: Xxxx
Xxxxxxx
|
|||
|
Title: Authorized
Signatory
|
|||
|
/s/
|
/s/ Xxxx Xxxxxxx
|
|
|
Witness
|
Xxxx
Xxxxxxx
|
|
|
/s/
|
/s/ Xxxxxxxx Xxxxxxxxx
|
|
|
Witness
|
Xxxxxxxx
Xxxxxxxxx
|
