THE GARDA SECURITY GROUP INC. / LE GROUPE DE SECURITE GARDA INC.
- and -
MANARIS CORPORATION
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SHARE PURCHASE AND SALE AGREEMENT
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AGREEMENT entered into in the city of Laval, Province of Quebec, on this 8th day
of February, 2006.
BY AND BETWEEN: THE GARDA SECURITY GROUP INC. / LE GROUPE DE SECURITE
GARDA INC., a legal person duly incorporated according
to the laws of Canada, having a place of business
located at 0000, Xxxxx Xxxxxx, in Xxxxxxxx, Xxxxxx, X0X
0X0, herein acting and represented by its President, Xx.
Xxxxxxx Xxxxxxx duly authorized as he so declares;
(hereinafter referred to as "GARDA" or the
"PURCHASER")
AND: MANARIS CORPORATION, a foreign publicly traded
Corporation constituted under the laws of Nevada having
its head office at 5844, South Pacos Road, suite D, in
Xxx Xxxxx, Xxxxxx, 00000, U.S.A., herein acting and
represented by its Chief Executive Officer, Mr. Xxxx
Xxxxxx duly authorized as he so declares;
(hereinafter referred to as "MANARIS" or "VENDOR")
(Garda and Vendor hereinafter collectively
referred to as the "PARTIES")
WITH THE 6327915 CANADA INC., a legal person duly incorporated
INTERVENTION OF: according to the laws of Canada having its registered
head office at 0000 Xxxx-Xxxxxxxx Xxxxxxxxx West, suite
2720, in Montreal, province of Xxxxxx, X0X 0X0, herein
acting and represented by its President Xxxx Xxxxxx,
duly authorized as he so declares; (hereinafter referred
to as "HOLDING")
AND: GARDA WORLD SECURITY CORPORATION, a legal person duly
incorporated according to the laws of Canada having its
head office at 0000, Xxxxx Xxxxxx, in Xxxxxxxx, Xxxxxx,
X0X 0X0, herein acting and represented by its President,
Xx. Xxxxxxx Xxxxxxx duly authorized as he so declares;
(hereinafter referred to as "GARDA WORLD")
AND: XX. XXXXX XXXXXXXXXXX, residing at 000, xxx Xxxxxxxxx,
Xxxxxxxx, xxxxxxxx of Quebec, J7A 4G9;
(hereinafter referred to as "XXXXXXXXXXX")
XX. XXXX XXXXXX, residing at 0000, Xxxxx xx Xxxxxxx,
Xxxxx, xxxxxxxx xx Xxxxxx, X0X 0X0;
(hereinafter referred to as "TALBOT")
(hereinafter referred to as the "INTERVENERS")
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PREAMBLE:
WHEREAS CLI (to be defined) is a corporation specialized in the provision of
security services and namely private investigation;
WHEREAS BCC (to be defined) is a corporation specialized in the provision of
security consulting services;
WHEREAS the Vendor is the legal and beneficial owner of all the issued and
outstanding securities in the capital stock of BCC and CLI;
WHEREAS the Vendor is the legal and beneficial owner of all of the issued and
outstanding securities in the capital stock of Holding;
WHEREAS each of Xxxxxxxxxxx and Xxxxxx is the beneficial owner of a debenture
issued by Vendor in the amount of US$697,000;
WHEREAS Garda, the Vendor, Holding, CLI and BCC have signed a letter of intent
dated December 15, 2005 setting forth the proposed terms of a purchase and sale
agreement involving such persons (hereinafter referred to as "LETTER OF
INTENT");
WHEREAS Garda has agreed to purchase from the Vendor and the Vendor has agreed
to sell, transfer and convey to Garda, all of the issued and outstanding shares
in the share capital of Holding (hereinafter referred to as the "ACQUIRED
Shares"), in accordance with the provisions hereof;
AND WHEREAS it is the intention of the Parties that, by virtue of the
consummation of the Transaction, Garda shall become the owner of the Acquired
Shares;
NOW THEREFORE in consideration of the mutual covenants, preamble and agreements
hereinafter set forth, the sufficiency and adequacy of which is hereby
acknowledged by each of the Parties, the Parties hereto covenant and agree as
follows:
ARTICLE 1 - INTERPRETATION
1.1 DEFINITION
Where used herein, including the Preamble, in Disclosure Schedule and in
any amendments hereto, the following terms shall have the following
meanings respectively:
1.1.1 "ACCOUNTS RECEIVABLE" shall mean all accounts receivable,
employee advances, notes receivable, trade accounts receivable
and book debts, holdbacks receivable, deposits or other trade
debts due or accruing due to Holding, BCC or CLI;
3
1.1.2 "ADJUSTMENTS" means sums which may be payable by Vendor to
Purchaser as adjustments based upon (i) any incorrect cut off
of the Business operations of Holding, BCC or CLI as of the
Effective Date (namely but not limited to fringe benefits,
employees claims and expenses); (ii) a minimum amount of
Working Capital; and (iii) uncollected Accounts Receivable,
which are payable within ninety (90) days of the Effective
Date; the whole as more fully detailed in ARTICLE 2 hereof;
1.1.3 "ADVANCES" means the amounts that are owed to Holding, BCC or
CLI by the Persons described in Section 1.1.3 of the
Disclosure Schedule; as at Effective Date;
1.1.4 "ADVERSE EFFECT" shall mean the occurrence or the failure to
occur of any event or series of events which either alone or
in the aggregate would have an adverse effect upon the assets,
liabilities, responsibilities, Business, insurance program,
work relations, financial position, results of operations or
prospects of any of Holding, BCC or CLI or on its capacity to
conduct its Business;
1.1.5 "AFFILIATED ADVANCES" means the amounts that are owed by
Holding, BCC or CLI to the Persons described in Section 1.1.5
of the Disclosure Schedule as at the Closing Date.
1.1.6 "AGREEMENT" means this agreement, as it may hereafter be
supplemented, amended or otherwise modified from time to time;
the terms "hereof", "herein", "hereunder", "hereby" and other
similar terms refer to this agreement as a whole and not to
any particular paragraph, Section, article, schedule, or other
provision hereof, and the term "disposition" and "Section"
followed by a number or by a number and letter mean and refer
to the specified disposition or Section of this agreement,
except as otherwise specifically provided herein;
1.1.7 "ASSETS" shall mean all assets of Holding, CLI or BCC, whether
movable or immovable, corporeal or incorporeal, tangible or
intangible, directly or indirectly related to the operations
of the Business, and namely those described in Sections 3.2.3,
3.2.4 of this Agreement and Sections 3.2.7, 3.2.14, 3.2.22,
3.2.25, 3.2.35and 3.2.36 of the Disclosure Schedule
1.1.8 "ASSOCIATE" shall have the meaning set forth in the Securities
Act (Quebec);
1.1.9 "BCC" shall mean BUREAU DE CREDIT COMMERCIAL INC., a legal
person duly incorporated according to the Companies Act
(Quebec) having its registered head office at 2, Place Laval,
Suite 350, in Laval, province of Xxxxxx, X0X 0X0;
1.1.10 "BENEFIT PLANS" shall have the meaning ascribed thereto in
Subsection 3.2.34 hereof;
1.1.11 "BUSINESS" means all services provided by Holding, BCC and CLI
relating directly or indirectly to security consulting and
specialized investigation services;
1.1.12 "BUSINESS DAY" shall mean any day of the year, except
Saturdays, Sundays or any day on which Canadian chartered
banks are required or authorized to close in Montreal
(Canada);
1.1.13 "CLI" shall mean XXXXXXXXX, XXXXXXXXXXX INC., a legal person
duly incorporated according to the Canada Business
Corporations Act having its registered head office at 0 Xxxxx
Xxxxx, Xxxxx 000, in Laval, province of Xxxxxx, X0X 0X0
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1.1.14 "CLOSING" shall mean the completion of the Transaction at the
Closing Date;
1.1.15 "CLOSING FINANCIAL STATEMENTS" mean the unaudited
unconsolidated balance sheets and statements of income of each
of Holding, BCC and CLI as at the Effective Date prepared in
accordance with Canadian GAAP determined in accordance with
Section 2.6. hereof, which shall be prepared and delivered to
the Purchaser by Manaris no later than forty-five (45) days
after the Closing Date. The fees, costs and disbursements of
the Vendor's auditors shall be borne by Manaris.
1.1.16 "CLOSING BALANCE SHEET" means the unaudited unconsolidated
balance Sheet of Holding, CLI and BCC included in the Closing
Financial Statements which balance sheet shall include all
Accounts Receivable which as at the Effective Date are over
one hundred twenty (120) days due in the provision for
doubtful accounts.
1.1.17 "CLOSING DATE" shall mean February 17, 2006 or such other
date, within seven (7) Business Days from the date hereof,
when all of the conditions set out in Sections 7.3, 7.4 and
7.5 are fulfilled or waived;
1.1.18 "CORPORATE APPROVALS" means any and all approvals by the Board
of directors of the corporate entities that are Party to the
present Agreement as may be required for the Transaction;
1.1.19 "CUSTOMER" shall mean any Person to whom Holding, BCC and CLI
provide services in the course of Business;
1.1.20 "DISCLOSURE SCHEDULE" means the Schedule dated the Effective
Date addressed by the Vendor to Purchaser;
1.1.21 "DOLLARS" and "$" shall mean the lawful currency of Canada;
1.1.22 "EFFECTIVE DATE" shall mean the Sunday (0:01 a.m.) following
the Closing Date;
1.1.23 "FINANCIAL STATEMENTS" means collectively, (i) the unaudited
unconsolidated annual financial statements of CLI and BCC for
the period ended October 31, 2003 and October 2004 prepared in
accordance with Canadian GAAP; (ii) the audited consolidated
financial statements of CLI, BCC, 9151-3929 Quebec Inc.,
3826961 Canada Inc., and 3428249 Canada Inc. for the periods
ended October 31, 2003 and October 31, 2004 prepared in
accordance with US GAAP, (iii) the unaudited consolidated
financial statements of the companies described in (ii) for
the period ended February 28, 2005 prepared in accordance with
US GAAP, (iv) the unaudited unconsolidated financial
statements of Holding, CLI and BCC for the period ended June
30, 2005 prepared in accordance with Canadian GAAP and (v) the
unaudited unconsolidated financial statements of CLI and BCC
for the four month period ended October 31, 2005 prepared for
internal purposes, the whole as attached to Section 1.1.23 of
the Disclosure Schedule
1.1.24 "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "CANADIAN GAAP"
shall mean all principles stated in the handbook of the
Canadian Institute of Chartered Accountants then in force as
of the date those principles were or are used to prepare the
relevant Financial Statements and Closing Balance Sheet;
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1.1.25 "INCORPORATING DOCUMENTS" shall represent the certificates of
incorporation, amendment and amalgamation, as the case may be,
delivered by the competent authorities in favour of Holding,
BCC and CLI, the whole as attached to Section 3.2.6 of the
Disclosure Schedule;
1.1.26 "INTELLECTUAL PROPERTY RIGHTS" means: (i) all domestic and
foreign trademarks, trade names, service marks, copyrights,
industrial designs, trade secrets, processes, inventions,
know-how, recipes, manuals, technology, customer and supplier
lists, formulas, franchises, licenses, rights-to-use,
drawings, specifications for products, materials and
equipment, process development, manufacturing information,
quality control information, performance data, plant service
information, computer software, operating systems and other
intellectual property, in each case whether registered or
unregistered and used to related to the Business, including
trademarks listed in Section 3.2.22 of the Disclosure
Schedule; and (ii) all registrations and applications for
registration of the aforesaid Intellectual Property Rights;
1.1.27 "LAWS" shall mean:
1) all constitutions, treaties, statutes, codes,
ordinances, orders, decrees, rules and regulations and
municipal by-laws, whether domestic or international;
and
2) all judgments, orders, writs, injunctions, decisions,
rulings, decrees, and awards of any governmental
authority or body;
3) all policies, practices and guidelines of any
governmental authority or body which, although not
actually having the force of law, are considered by such
governmental authority or body as requiring compliance
as if having the force of law;
in each case binding on or affecting the Party or Person
referred to in the context in which such word is used; and
"LAW" shall mean any one of them;
1.1.28 "LICENSE" and "LICENSES" shall have the respective meanings
ascribed thereto in Subsection 3.2.7 hereof;
1.1.29 "LIENS" shall mean any liens, hypothecs, mortgages, prior
claims, servitude, pledges, charges, security interests,
options, easements, encumbrances and any other right belonging
to an individual or a company; and "Lien" shall mean either
one of them;
1.1.30 "MATERIAL ADVERSE EFFECT" shall mean the occurrence or the
failure to occur of any event or series of events which either
alone or in the aggregate would have a material adverse effect
upon the assets, liabilities, Business, financial position,
results of operations or prospects of any of Holding, BCC or
CLI or on its capacity to conduct its Business;
1.1.31 "PARTIES" shall mean the Purchaser, the Vendor and all
intervening Parties hereto; and "Party" shall mean any one of
them;
1.1.32 "PERSON" shall mean any individual, partnership, limited
partnership, joint venture, syndicate, sole proprietorship,
company or corporation, with or without share capital,
unincorporated association, trust, trustee, executor,
administrator or other legal person, representative,
regulatory body or agency, government or governmental agency,
authority or entity however designated or constituted;
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1.1.33 "PURCHASE PRICE" has the meaning ascribed thereto in Section
2.2 hereof;
1.1.34 "TAX ACT" means the Income Tax Act (Canada) and the Taxation
Act (Quebec) and all acts related to taxes in the province of
Quebec as in effect as at the date hereof;
1.1.35 "TAXES" or "TAX" means all taxes, including, without
limitation, income tax, provincial health insurance plan
premiums, employer health taxes, Canada and provincial pension
plan contributions, employment insurance premiums, xxxxxxx'x
compensation and other payroll taxes, deductions at source,
non-resident withholding, immoveable or real property,
municipal, corporation, capital, sales, retail, excise,
profits, gross receipts, customs duties, transfer, business,
provincial sales and goods and services taxes, including any
related penalties, interest and fines; 1.1.36 "TERRITORY"
means the Province of Quebec and any other province, state or
wherever Holding, BCC or CLI may have contracts relating to
the Business, business relations relating to the Business, may
operate Business, or hold Assets relating to the Business in
its name or on behalf of someone else;
1.1.37 "TRANSACTION" means the acquisition by Garda of all the
Acquired Shares for an aggregate acquisition price of five
million dollars ($5,000,000), subject to Adjustments and to
the terms and conditions as are more fully detailed in this
Agreement;
1.1.38 "TRUSTEE" means the XxXxxxxx Xxxxxxxx LLP;
1.1.39 "US GAAP" shall mean all principles adopted by the Financial
Accounting Standards Board then in force as of the date those
principles were or are used to prepare the relevant Financial
Statements;
1.1.40 "WORKING CAPITAL" means the current assets (cash, net income
Tax, Accounts Receivable, prepaid expenses, work in progress,
employee Advances and other short term Assets) less current
liabilities (operating line of credit, accounts payable and
other short term liabilities) as per Canadian GAAP.
1.2 HEADINGS
The headings used in this Agreement are inserted for convenience or
reference purposes only and shall not affect the construction or
interpretation of this Agreement.
1.3 NUMBER AND GENDER
All words importing the singular number shall include the plural and vice
versa, and all words importing gender shall include the masculine,
feminine and neuter gender.
1.4 TIME OF ESSENCE
Time shall be of the essence thereof.
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ARTICLE 2 PURCHASE AND SALE
2.1 PURCHASE AND SALE
Upon and subject to the terms and conditions hereof, Garda hereby
covenants and agrees to purchase from Vendor and Vendor hereby covenants
and agrees to sell, assign and transfer to Garda all Acquired Shares in
the capital stock of Holding, namely 4,700,000 class "A" shares.
2.2 PURCHASE PRICE
In consideration of the sale and transfer to Garda of the Acquired Shares
at Closing, the Purchaser will pay the Vendor the Purchase Price of five
million dollars ($5,000,000), subject to Reduction of the Purchase Price
and Adjustments as more fully detailed in Sections 2.4 and 2.5 herein.
2.3 PAYMENT OF PURCHASE PRICE
Subject to the terms and conditions hereof, and the Adjustments, the
Purchase Price shall be paid hereto as follows:
2.3.1 the sum of three million six hundred fifty thousand dollars
($3,650,000) shall be paid upon the execution of the present
Agreement, by certified cheque drawn on an account with a bank
listed in Schedule I of the Bank Act and made out to the
Trustee "In trust"
2.3.2 the sum of two hundred fifty thousand dollars ($250,000) shall
be deposited with the Trustee "In trust" at the Closing Date
(hereinafter the "HOLDBACK"), to be paid to the Vendor,
subject to Adjustments, in accordance with the terms and
conditions of this Agreement, in one (1) instalment (the
"INSTALMENT") as described in the table below. The Instalment
payment shall be hereinafter referred to as the "BALANCE of
PAYMENT" and shall be subject to the complete and perfect
execution of all and any obligations subscribed by the Vendor
in section 2.4:
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DATE INSTALMENT
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10 days after Final Closing $250, 000
Balance Sheet
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In all situations provided for under this Agreement where the Trustee has
to issue amounts from the Balance of Payment to the Vendor, Trustee shall
notify Purchaser five (5) Business Days prior to disbursing and retain all
amounts of non collected Accounts Receivable disclosed in the Closing
Balance Sheet.
2.3.3 the sum of one million one hundred thousand dollars
($1,100,000), in settlement of the Vendor's debentures
outstanding in favor of Talbot and Xxxxxxxxxxx (the
"DEBENTURES") payable as follows:
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1) five hundred and fifty thousand dollars ($550,000), that
is two hundred and seventy-five thousand dollars
($275,000) to each of Talbot and Xxxxxxxxxxx, payable by
certified cheque upon the signature of the present
Agreement;
2) five hundred and fifty thousand dollars ($550,000), that
is two hundred and seventy-five thousand dollars
($275,000) to each of Talbot and Xxxxxxxxxxx, by the
issuance, on the Closing Date, of a number of Class "A"
shares (common shares) (the "GARDA SHARES") of Garda
World at a the price per share established at the
closing of the markets on the day prior to the date of
execution of the present Agreement.
2.4 REDUCTION OF THE PURCHASE PRICE
The Adjustments, pursuant to Section 2.5, will be applied to the Purchase
Price that shall be automatically and directly reduced accordingly. The
payment of the Adjustments, if any, shall be remitted to the Purchaser
from the Balance of Payment, within five (5) days of receipt by the
Trustee of a notice to this effect from the Purchaser and the Vendor in
accordance with Section 2.5. Should the Adjustments be greater than, two
hundred fifty thousand dollars ($250,000) the amount of Adjustments in
excess of two hundred fifty thousand dollars ($250,000) Balance of Payment
shall be due and payable to the Purchaser by the Vendor within five (5)
days of the receipt by the Vendor of a notice to this effect.
2.5 ADJUSTMENTS
2.5.1 Upon receipt of the Closing Balance Sheet and in the event
where the Working Capital is less than five hundred thousand
dollars ($500,000), as more fully established in said Closing
Balance Sheet, the Purchase Price shall be reduced by an
amount equal to the difference between five hundred thousand
dollars ($500,000) and the amount of the Working Capital
established on the basis of the Closing Balance Sheet
determined in accordance with Section 2.6. Should the Closing
Balance Sheet indicate a Working Capital of over five hundred
thousand dollars ($500,000) the exceeding amount shall be the
sole property of the Purchaser.
For the purposes of this Section, the Adjustments on the
Purchase Price are based on the Working Capital of Holding,
CLI and BCC. The Purchase Price shall be reduced on a
dollar-for-dollar basis, by the amount, if any, by which the
Working Capital as calculated in the Closing Balance Sheet for
the period ended at the Effective Date, is less than the
amount of five hundred thousand dollars ($500,000). The
purchase price reduction will be automatically and directly
deducted from Purchase Price.
2.5.2 If Accounts Receivable not included in the provision for
doubtful accounts on the Closing Balance Sheet are not
collected within ninety (90) days of the Closing Date, the
Purchase Price shall be reduced automatically and directly by
the shortfall and Vendor would forthwith pay the shortfall in
cash to the Purchaser. Title to the accounts not collected
within ninety (90) days would be transferred to Vendor but
Garda would continue to collect the accounts as Vendor's
agent, using its reasonable best efforts, and any amount
collected would be remitted to the Vendor in the ten (10)
days.
2.5.3 Any Accounts Receivable included in the provision for doubtful
accounts shall continue to be collected by Garda using its
reasonable best efforts as Vendor's agent and any amount
collected shall be remitted to Vendor by Garda within ten (10)
days
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2.6 CALCULATION OF CLOSING PURCHASE PRICE ADJUSTMENTS CLOSING BALANCE SHEET
For calculating the Adjustments Closing Balance Sheet provided for under
Sections 2.4 and 2.5, the Vendor shall prepare and deliver to the
Purchaser the Closing Balance Sheet of Holding, CLI and BCC as of the
Effective Date and a notice containing the amount of proposed Adjustments,
if any, (the "NOTICE OF PAYMENT").
Upon receipt of the Notice of Payment, the Purchaser may reduce in the
interim the Purchase Price accordingly. Notwithstanding the foregoing, the
Purchaser does not waive its right to further examine the files of
Holding, CLI and BCC, namely the Vendor's Closing Balance Sheet and to
reduce the Purchase Price pursuant to Section 2.4. Holding, CLI and BCC's
auditors fees shall be paid by the Vendor. From the date of delivery of
the Vendor's Closing Balance Sheet, the Purchaser's auditors will have the
right to examine the files of Holding, CLI and BCC, as well as their work
files regarding said financial statements as well as other files and
information in possession of Holding, CLI and BCC's auditors necessary to
render an opinion on the Vendor's Closing Balance Sheet. The Closing
Balance Sheet shall be prepared in accordance with Generally Accepted
Accounting Principles in Canada, applied on a basis consistent with prior
periods and consistent throughout the periods involved.
Should the Purchaser wish to dispute any matter contained in the Vendor's
Closing Balance Sheet or the Notice of Payment, it may do so by giving a
notice ("NOTICE OF DISPUTE") to the Vendor within forty-five (45) days of
the delivery of the Vendor's Closing Balance Sheet to the Purchaser. A
Notice of Dispute shall specify the basis for each objection and the
dollar amount involved. The Parties shall use their best efforts to
amicably resolve any matters identified in a Notice of Dispute as promptly
as practicable. If any such dispute has not been resolved within thirty
(30) calendar days following the date on which the Notice of Dispute is
given, then either Party may refer such unresolved matters to independent
chartered accountants firms (hereinafter, the "THIRD PARTY AUDITORS") for
resolution. The determination of the Third Party Auditors shall be made
within thirty (30) calendar days after the matter has been referred to
them. Should the Parties fail to agree upon the determination of the Third
Party Auditors within such thirty (30) day period, the Parties agree to
refer the matter to the Superior Court of Quebec.
If no Notice of Dispute is given within the delay prescribed above, then
the Vendor's Closing Balance Sheet, as prepared by the Vendor and
unaudited by Holding, CLI and BCC's auditors, shall be final and binding
on the Parties with respect to any requested Adjustments, as the case may
be, upon the expiry of such forty-five (45) day delay. If a Notice of
Dispute is given in accordance with this Section 2.6 then the Vendor's
Closing Balance Sheet, as amended by mutual agreement of the Parties or
decision of the Third Party Auditors, shall be final and binding on the
Parties with respect to any Purchase Price Reduction, as of and from the
date of such agreement of the Parties or the decision of the Third Party
Auditors, as the case may be.
The fees, costs and disbursements of the Purchaser's auditors shall be
borne by the Purchaser. The fees, costs and disbursements of the Third
Party Auditors shall be paid by the Party whose calculation is furthest
from the Third Party Auditors' final determination. For greater certainty,
it is understood that the Vendor's Closing Balance Sheets shall be
considered to be the Vendor's calculation for purposes of determining who
will bear the fees, costs and disbursements of the Third Party Auditors.
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF GARDA
Garda represents and warrants to the Vendor as follows and acknowledges
that the Vendor is relying upon such representations and warranties:
3.1.1 Due Incorporation - Garda is duly incorporated, organized and
a subsisting corporation under the laws of Canada;
3.1.2 Due Authorization - Garda has the corporate power and
authority to execute, deliver and perform its obligations
under this Agreement;
3.1.3 Enforceability - This Agreement when duly executed and
delivered by Garda, will constitute a legal, valid and binding
obligation of Garda enforceable against Garda in accordance
with their terms and conditions.
3.2 REPRESENTATIONS AND WARRANTIES OF THE VENDOR
As of the Closing Date, the Vendor represents and warrants to the
Purchaser and acknowledges that the Purchaser is relying on the following
representations and warranties and that the Purchaser would not have
entered into this Agreement without such representations and warranties:
3.2.1 Due Authorization - The Vendor has the requisite corporate
power and authority to execute this Agreement and to perform
its obligations hereunder. The executions of this Agreement
and the performance by the Vendor of its obligations hereunder
have been duly authorized by all necessary actions on its
part. Such execution and performance by the Vendor do not
require any action or consent of, any registration with, or
notification to, any Person, except as disclosed in Section
3.2.1. of the Disclosure Schedule, or any action or consent
under any Laws to which Vendor is subject that has not already
been obtained or made.
3.2.2 Beneficial Ownership of the Acquired Shares - The Vendor is
the sole legal and beneficial owner of and has good and
marketable title to the Acquired Shares described in Section
2.1 hereof, free and clear except as disclosed in Section
3.2.2. of the Disclosure Schedule from all liens, rights and
other encumbrances of any kind or nature whatsoever, whether
arising by agreement, operation of law or otherwise (other
than the rights of Garda hereunder). There are no
shareholders' agreements, except as disclosed in Section
3.2.2. of the Disclosure Schedule, agreements restricting sale
or transfer of the Acquired Shares, repurchase or redemption
agreements, buy-sell agreements, option agreements, proxy
agreements, voting or similar agreements or any other
agreement, contract, option, commitment, right of privilege or
other right of another kind to which Vendor is a party and
binding upon, or which at any time in the future may become
binding upon Vendor to sell, transfer, assign, pledge, subject
to lien, charge, grant a security interest in, mortgage or in
any other way dispose of or encumber any of the Acquired
Shares or which would preclude or require the consent of any
person to any of the transactions contemplated by this
Agreement, other than pursuant to this Agreement.
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3.2.3 Beneficial Ownership of the CLI shares - Holding is the sole
legal and beneficial owner of and has good and marketable
title to all the issued and outstanding shares of CLI
(hereinafter the "CLI SHARES"), free and clear except as
disclosed in Section3.2.3. of the Disclosure Schedule from all
liens, rights and other encumbrances of any kind or nature
whatsoever, whether arising by agreement, operation of law or
otherwise. There are no shareholders' agreements, except as
disclosed in Section 3.2.3. of the Disclosure Schedule,
agreements restricting sale or transfer of the CLI Shares,
repurchase or redemption agreements, buy-sell agreements,
option agreements, proxy agreements, voting or similar
agreements or any other agreement, contract, option,
commitment, right of privilege or other right of another kind
to which Vendor or Holding is a party and binding upon, or
which at any time in the future may become binding upon either
of them to sell, transfer, assign, pledge, subject to lien,
charge, grant a security interest in, mortgage or in any other
way dispose of or encumber any of the CLI Shares or which
would preclude or require the consent of any person to any of
the transactions contemplated by this Agreement, other than
pursuant to this Agreement.
3.2.4 Beneficial Ownership of the BCC shares - Holding is the sole
legal and beneficial owner of and has good and marketable
title to all the issued and outstanding shares of BCC
(hereinafter the "BCC SHARES"), free and clear except as
disclosed in Section 3.2.4. of the Disclosure Schedule from
all liens, rights and other encumbrances of any kind or nature
whatsoever, whether arising by agreement, operation of law or
otherwise. There are no shareholders' agreements, except as
disclosed in Section 3.2.4 of the Disclosure Schedule,
agreements restricting sale or transfer of the BCC Shares,
repurchase or redemption agreements, buy-sell agreements,
option agreements, proxy agreements, voting or similar
agreements or any other agreement, contract, option,
commitment, right of privilege or other right of another kind
to which Vendor or Holding is a party and binding upon, or
which at any time in the future may become binding upon either
of them to sell, transfer, assign, pledge, subject to lien,
charge, grant a security interest in, mortgage or in any other
way dispose of or encumber any of the BCC Shares or which
would preclude or require the consent of any person to any of
the transactions contemplated by this Agreement, other than
pursuant to this Agreement.
3.2.5 No Conflict - Except for the consents described in Sections
3.2.2, 3.2.3, 3.2.4 and 3.2.26 of the Disclosure Schedule, the
execution or the delivery of this Agreement, the transfer of
the Acquired Shares, the consummation of the Transaction
contemplated herein, the performance, observance or compliance
by the Vendor of its obligations hereunder and the compliance
by the Vendor with this Agreement do not:
1) violate, breach, or constitute a default under, the
articles of incorporation or by-laws of Vendor or
Holding;
2) violate, breach, or constitute a default under, any
contract, agreement, indenture, instrument, or
commitment to which the Vendor, Holding, BCC and CLI may
be party, or their properties may be subject, or by
which either of them is bound or affected, which
violation, breach or default would constitute an Adverse
Effect;
3) violate, constitute a default under, conflict with or
give rise to any requirement for a waiver or consent
under any applicable judgment, writ, decree, order, law,
statute, rule or regulation applicable to Vendor,
Holding, BCC and CLI;
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4) result in, or give any Person the right to seek, or to
cause (i) the termination, cancellation, modification,
amendment or renegotiations of any contract, agreement,
indenture or instrument to which Vendor, Holding, BCC
and CLI or any of its properties may be a Party or
subject or by which it is bound or affected, or (ii) the
acceleration or forfeiture of any term of payment;
5) result in, or require the creation of any Lien upon any
of the Acquired Shares or any property of Holding; or
6) violate or breach any Laws, which violation or breach
would constitute an Adverse Effect.
3.2.6 Due Incorporation - Each of Vendor, Holding, BCC and CLI:
1) is duly incorporated, organized, and is validly
operating under the laws governing its existence,
validly existing and in good standing under the Laws
governing its existence; and
2) has full corporate power to own or lease properties, to
operate its Business as currently conducted and is duly
licensed and registered to carry on business in each
jurisdiction in which it currently conducts any material
Business operations and has made all necessary filings
under all applicable corporate, securities and taxation
laws, or other laws to which it is subject, which had
such filings not been made, would have an Adverse Effect
on its Business operations.
Section 3.2.6 of the Disclosure Schedule contains a true and
complete copy of the constating documents and by-laws of each
of Holding, CLI and BCC.
3.2.7 Licenses, Permits - Subject to breaches that are not material
or that do not have nor may have a Material Adverse Effect,
BCC and CLI are the sole legal and beneficial owner or holder
and are in compliance with and entitled to all of the benefits
under, all permits, licenses, accreditations, certificates of
compliance, consents, approvals and authorizations of, or
registrations with, any governmental, judicial or public
authority or regulatory authority or body (collectively, the
"LICENSES", and individually, a "LICENSE") necessary or
required for the lawful operation and conduct of their
Business as it is now presently operated and conducted
pursuant to all applicable Laws and other requirements of all
authorities and their Business is being operated and conducted
in accordance with and consistent with the terms and
conditions thereof, a list of which is attached to Section
3.2.7 of the Disclosure Schedule, and each such License has
been validly issued and is in full force and effect.
Vendor, Holding, BCC and CLI have not received notice that any
such Licenses have lapsed or been revoked or terminated, and
no proceeding is pending or threatened to revoke or limit any
such Licenses.
Since their last renewal, no fact, condition or circumstance
has occurred to create, and the execution of this Agreement
and its performance shall not create, any right to terminate,
cancel, modify, amend, revoke or expire any License.
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Section 3.2.7 of the Disclosure Schedule contains a complete
list of all BCC and CLI employees or principals who hold a
private investigator Licence or any personally held licence to
the same effect.
3.2.8 Share Capital - The authorized share capital of Holding, BCC
and CLI is as follows:
1) Holding - an unlimited number of class X, X, X, X, X, X,
X, X and I Shares without par value, of which only four
million seven hundred thousand (4,700,000) class "A"
shares, and no more, have been validly issued and are
outstanding as fully paid and non-assessable and no
other shares have been issued and are outstanding as
fully paid and non-assessable shares as at the date
hereof. The Vendor is the sole beneficial owner and
holder of record of the Holding Shares and, at the
Closing Date, shall transfer to the Purchaser a good and
marketable title to the Acquired Shares, free and clear
of any and all Liens.
2) BCC - Class A, B, C and D shares without par value, of
which only one hundred (100) class "A" shares, and no
more, have been validly issued and are outstanding as
fully paid and non-assessable and no other shares have
been issued and are outstanding as fully paid and
non-assessable shares as at the date hereof. Holding is
the sole beneficial owner and holder of record of the
BCC shares, and except as disclosed in Section 3.2.4 of
the Disclosure Schedule free and clear of any and all
Liens.
3) CLI - an unlimited number of Class "A" common shares and
20,000 Class "B" preferred shares without par value, of
which only thirty-five thousand one hundred thirty-three
(35,133) class "A" shares, and no more, have been
validly issued and are outstanding as fully paid and
non-assessable and no other shares have been issued and
are outstanding as fully paid and non-assessable shares
as at the date hereof. Holding is the sole beneficial
owner and holder of record of the CLI Shares, and except
as disclosed in Section 3.2.3 of the Disclosure Schedule
free and clear of all Liens.
3.2.9 Enforceability - This Agreement constitute legal, valid and
binding obligations of Vendor and Holding enforceable against
each of them in accordance with its terms and conditions.
3.2.10 Third Party Acquisition - Other than pursuant to this
Agreement, neither Vendor, Holding, BCC and CLI is party to
any contract that would permit a third party to acquire the
shares or assets of Vendor, Holding, BCC and CLI.
3.2.11 No Options - Other than the Transaction contemplated by this
Agreement, there is no:
1) outstanding security of Holding, BCC or CLI convertible
or exchangeable into any share or shares in the capital
stock of Holding, BCC or CLI;
2) outstanding subscription, option, warrant, call put,
commitment or agreement obligating Holding, BCC or CLI
to issue any share or shares of its capital stock or any
security or securities of any class or kind which relate
to the authorized or issued capital stock of Holding,
BCC or CLI;
3) agreement which grants to any Person the right to
purchase or otherwise acquire any share or shares issued
and outstanding in the capital stock of Holding, BCC or
CLI;
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4) voting trust or voting agreement or pooling agreement or
proxy with respect to any issued and outstanding shares
in the capital stock of Holding, BCC or CLI; or
5) other than as disclosed in Sections 3.2.2, 3.2.3, 3.2.4
and 3.2.7 of the Disclosure Schedule, agreement,
contract, option, commitment, right of privilege or
other right of another binding upon, or which at any
time in the future may become binding upon each of the
Vendor, Holding, BCC and CLI to sell, transfer, assign,
pledge, subject to lien, charge, grant a security
interest in, mortgage or in any other way dispose of or
encumber the shares of, Holding, BCC and CLI or which
would preclude or require the consent of any Person to
any of the transactions contemplated by this Agreement,
other than pursuant to this Agreement.
3.2.12 Material Adverse Change - Since October 31, 2005, there has
been no change in the Business, operations, affairs or
condition or prospects of any of Holding, CLI and BCC,
financial or otherwise, or arising as a result of any
legislative or regulatory change, revocation of any license or
right to do business, fire, explosion, accident, casualty,
labor trouble, act of God, which changes have had a Material
Adverse Effect on the organization, Business, properties,
prospects and financial condition of Holding, CLI and BCC.
3.2.13 Closed Issuer - Each of Holding, CLI and BCC was a closed
company within the meaning of the Securities Act (Quebec) .
3.2.14
Other Investments - Other than as disclosed in Section 3.2.14
of the Disclosure Schedule, Holding, BCC and CLI do not have
any agreements of any nature to acquire any other entity or
shares of any other corporation or to acquire or lease any
other business, nor do Holding, BCC and CLI have any
investments in any other person, firm, corporation or any
other business.
3.2.15 Litigation - Except as disclosed in Section 3.2.15 of the
Disclosure Schedule, there are (i) no actions, claims, suits,
mediation, arbitrations, administrative or regulatory
measures, investigations or other proceedings pending; or to
the best of the knowledge of the Vendor, threatened against,
with respect to, or affecting in any manner, Holding, BCC and
CLI or their properties, in law or in equity, or involving
them or related to any of their property before any court or
law, or by any federal, provincial, municipal or other
governmental department, commission, board, bureau, agency,
domestic or foreign (for purpose of this section 3.2.15
"Claim") (ii) to the best of the knowledge of the Vendor, no
threat of such Claim (iii) no outstanding judgments, orders,
decrees, writs, injunctions, decisions, rulings or awards
against, with respect to, or in any manner affecting, any of
Holding, BCC and CLI or their properties and the Acquired
Shares.
3.2.16 Advances - Except as disclosed in Section 1.1.3 of the
Disclosure Schedule, Holding, BCC and CLI are not owed any
sums of money resulting from loans or advances from any of
their directors, officers shareholders, employees or their
respective Associates, as such sums will all be paid off
before the Closing Date..
3.2.17 Affiliated Advances - Holding, BCC and CLI do not owe any
loans or advances to any of their directors, officers,
shareholders, employees or their respective Associates
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3.2.18 Commitment - Holding, except as disclosed in Section 3.2.18 of
the Disclosure Schedule, BCC and CLI have not given or agreed
to give, or are a party to or bound by, any guarantee of
indebtedness, indemnity, bond or suretyship or other
obligation of any Person, or any other commitment by which or
to which they are contingently responsible.
Holding, except as disclosed in Section 3.2.18 of the
Disclosure Schedule, BCC and CLI are not party to or bound,
either absolutely or on a contingent basis by any comfort
letter, understanding or agreement of guarantee, warranty,
indemnification, assumption or endorsement, performance bond
or any like commitment with respect to the liabilities or
obligations of any Person (whether accrued, absolute or
otherwise contingent). Except as disclosed in Section 3.2.18
of the Disclosure Schedule, any and all past commitments of
this type have been terminated.
3.2.19 Books and Records - Holding, BCC and CLI's minute books and
ledgers of shareholders, transfers and directors contain
complete and accurate copies of their Incorporating Documents
instruments and copies of all minutes of meetings (where
applicable), consent resolutions of the directors and
shareholders of Holding, BCC and CLI held since incorporation
and the registers therein are current, complete and accurate
and such by-laws and resolutions have been duly passed, and
there are no other minutes of meetings of directors, of all
committees thereof and of all meetings of shareholders than
those included in those minute books. All records are
maintained, in all material aspects, in accordance with
applicable legal requirements.
The share certificate books, registers of shareholders,
registers of transfers and registers of directors of Holding,
BCC and CLI are complete and accurate;
The financial books and records of Holding, BCC and CLI
(including customer lists, operating data, files, books and
records, correspondence, credit information, research
materials, contract documents, records of past sales, supplier
lists, employee documents, inventory data, accounts receivable
data, financial statements and other similar records) have
been maintained in accordance with sound business practices
and fairly, accurately and completely in all material respects
present and disclose in accordance with Canadian GAAP
consistently applied (i) the financial position of Holding,
BCC and CLI, and (ii) all transactions of Holding, BCC and
CLI.
3.2.20 LIABILITIES - Except as disclosed in the financial statements
for the period ended June 30, 2005 of Holding, BCC and CLI,
Holding, BCC and CLI do not have any other unpaid
indebtedness, liability or obligations of any nature (whether
direct, indirect, contingent, accrued, absolute, eventual or
other) which should be reflected in the financial statements
for the period ended June 30, 2005 of Holding, BCC and CLI or
with respect to which a reserve is ordinarily set aside in a
balance sheet (including the notes attached to the financial
statements of Holding and CLI) prepared in accordance with
Canadian GAAP.
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3.2.21 Title to Property - Except as disclosed in the Financial
Statements and Section 3.2.21 of the Disclosure Schedule,
Holding, BCC and CLI are the exclusive owner of, and have a
good and marketable title to, all of their respective assets
(whether tangible or intangible) reflected in the Financial
Statements or which have been acquired since (other than such
assets consumed or disposed of in the ordinary course of
business), free and clear of all Liens. There is no agreement,
contract, option, commitment, right or privilege or any other
right binding upon or which at any time in the future may
become binding upon Holding, except as disclosed in Section
3.2.21 of the Disclosure Schedule, BCC and CLI to sell,
transfer, assign, subject to Liens or in any other way dispose
of or encumber any of their assets other than in the ordinary
and normal course of Business. There is not now any basis upon
which the assets of Holding, BCC and CLI might become subject
to any Liens other than in the ordinary and normal course of
Business.
3.2.22 Intellectual Property Rights - Section 3.2.22 of the
Disclosure Schedule contains a description of all Intellectual
Property Rights used by Holding, BCC and CLI. Such
Intellectual Property Rights are valid, subsisting and
enforceable.
Each of Holding, BCC and CLI is the absolute owner and has the
sole and exclusive right to hold and use the Intellectual
Property Rights listed as owned by it in Section 3.2.22 of the
Disclosure Schedule, including the right to transfer the same,
without making any payment to others or granting rights to
others in exchange. Except as disclosed in Section 3.2.22 of
the Disclosure Schedule, the title of Holding, BCC and CLI to
such Intellectual Property Rights is free and clear of any
Lien and is not the subject of any conditional sale agreement.
There are no assertions or claims challenging the validity of
the Intellectual Property Rights of Holding, BCC and CLI and
no Person has requested that any of the foregoing execute a
license in favour of such third Person to enable Holding, BCC
and CLI to use such Intellectual Property Rights and to the
best of the knowledge of Vendor and Interveners, no Person is
infringing the Intellectual Property Rights of Holding, BCC
and CLI.
The conduct of the Business by Holding, BCC and CLI to the
best of the knowledge of Vendor and Interveners does not
infringe upon the patents, trade names or copyrights, or
similar rights or property, domestic or foreign, of any
Person. As at Closing Date, each of Holding, BCC and CLI will
be entitled to the property rights and the use of all
trademarks, registered trademarks, brand names or any other
Intellectual Property Rights, without having to disburse any
amount for said utilization.
3.2.23 Condition and Sufficiency of Assets - All of Holding, BCC and
CLI's tangible assets are of good quality and are (i) in good
operating condition and repair, ordinary wear and tear
excepted, (ii) not in need of maintenance or repairs (except
ordinary or routine maintenance or repairs), (iii) used in
connection with the Business, and (iv) adequate and sufficient
for the continuing conduct of the Business as it is now
conducted.
3.2.24 Tax Matters - Each of Holding, BCC and CLI has duly and timely
filed all tax returns, or other reports on taxes on income,
taxes on capital, taxes levied upon corporations or employers
or pertaining to any duty payable, to sales or to withholdings
required to be filed by it and has paid all Taxes due and
payable by it on or prior to the Effective Date hereof and
such tax returns or other reports are complete and accurate
and disclose all Taxes (and other charges) required to be paid
for the periods covered thereby.
17
More particularly, but without limiting the generality of the
foregoing:
1) There is no agreement, waiver or other arrangement
providing for an extension of the period fixed to file a
tax return, to pay or remit any Tax or of the period
during which the taxation authorities may assess or
reassess any of Holding, BCC and CLI.
2) Adequate provision has been made in the Financial
Statements and the Closing Balance Sheet for all such
Taxes payable for the current year up to the Effective
Date for which tax returns or other reports are not yet
required to be filed;
3) There are no actions, suits, proceedings, claims, audits
or any administrative procedures against any of Holding,
BCC and CLI in respect of any of the Taxes, nor are
there any matters under discussion with any federal,
state, provincial, local or foreign government or taxing
authority, relating to any of the Taxes imposed, levied
or assessed by any such government or authority. None of
the tax returns of Holding, BCC and CLI has been audited
by tax authorities in the last five (5) years;
4) Holding, BCC and CLI, with respect to any periods for
which tax returns have not yet been required to be filed
or for which Taxes are not yet due and payable, have
only incurred liabilities for Taxes in the ordinary
course of their Business and in a manner and at a level
consistent with prior periods.
5) All Tax returns of each of Holding, BCC and CLI have
been assessed by the Canada Revenue Agency or the Quebec
taxation authority or the taxation authority of any
other jurisdiction where Holding, BCC and CLI is
required to file Tax return, as the case may be, and
there are no outstanding waivers of any limitation
periods or agreements providing for an extension of time
for the filing of any tax return or the payment of any
Tax or reassessment of Taxes. Holding, BCC and CLI are
not subject to any assessments, levies, penalties or
interest with respect to Taxes which will result in any
liability on their part in respect of any period ending
on or prior to the Closing Date, in excess of the amount
to be provided for in their respective Financial
Statements.
6) Holding, BCC and CLI have never received a refund of
Taxes that they were not entitled to receive.
7) There are no contingent Tax liabilities or any grounds
that could prompt an assessment or reassessment of
Holding, BCC and CLI, including, without limitation,
aggressive treatment of income, expenses, deductions,
credits or other amounts in the filing of earlier or
current tax returns, reports, elections, designations or
any other related filings.
8) Holding, BCC and CLI have withheld from each payment
made to any of their past and present shareholders,
directors, officers, employees, agents or other persons
rendering services to them, whether or not resident in
Canada, the amount of all Taxes and other deductions
required to be withheld and have paid such amounts when
due, in the form required under the appropriate
legislation, or made adequate provision for the payment
of such amounts to the proper receiving authorities.
18
9) Holding, BCC and CLI have collected from each receipt of
their past and present customers (or other persons
paying amounts to it) the amount of all Taxes required
to be collected and have remitted such Taxes (including,
for greater certainty, any amount to be collected and
remitted under the Excise Tax Act (Canada) and any sales
Tax under any applicable provincial Laws) when due, in
the form required under the appropriate legislation or
made adequate provision for the payment of such amounts
to the proper receiving authorities.
10) Holding, BCC and CLI do not have and have not had,
within seven (7) years of the date hereof, a "permanent
establishment" within the meaning of Section 400 of the
Income Tax Regulations (Canada) outside Quebec.
11) Holding, BCC and CLI have not been and are not currently
required to file any returns, reports, elections,
designations or other filings with any taxation
authority located in any jurisdiction outside Canada.
There are no pending, proposed or threatened claim by
any governmental body in any jurisdiction in which
Holding, BCC and CLI do not pay Taxes or file tax
returns to the effect that Holding, BCC or CLI are
required to pay Taxes or file tax returns in such
jurisdiction.
12) Within the applicable limitation period under the Tax
Act, Holding, BCC and CLI have not acquired or had the
use of property for proceeds greater than the fair
market value thereof from, or disposed of property for
proceeds less than the fair market value thereof to, or
received or performed services for other than the fair
market value from or to, or paid or received interest or
any other amount other than at a fair market rate to or
from, any person with whom it does not deal at arm's
length within the meaning of the Tax Act.
13) Within the applicable limitation period under the Tax
Act, Holding, BCC and CLI have not benefited at any time
from a forgiveness of debt or entered into any
transaction or arrangement (including conversion of debt
into shares) which would have resulted in the
application of Sections 80 to 80.04 of the Income Tax
Act (Canada).
14) Holding, BCC and CLI have not made any elections or
designations for purposes of the Act including, for
greater certainty, any election under Sections 83 or 85
of the Income Tax Act (Canada) or any relevant similar
provision of any provincial taxing statute, or for
purposes of any administrative ruling or notices or
administrative practices pursuant to the Tax Act or any
such statute.
15) Holding, BCC and CLI represent and warrant that they are
not "non-resident of Canada" within the meaning of the
Taxation Act (Quebec) or the Income Tax Act (Canada);
16) There are no actions, suits or other proceedings or
audits, by any governmental authority, or claims in
progress, pending or, to the best knowledge of the
Vendor, threatened against Holding, BCC and CLI in
respect of any Taxes, governmental charges or
assessments and, in particular, there are no currently
outstanding reassessments which have been issued by any
governmental authority relating to any such Taxes,
governmental charges and assessments.
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3.2.25 Commercial Contracts - Section 3.2.25 of the Disclosure
Schedule contains a true and complete (list of all current
customers for each of BCC and CLI. All contracts with such
customers have been concluded in accordance with the Laws
applicable to BCC and CLI.
None of the commercial contracts to which BCC and CLI
respectively are a party or by which they are bound contain
any provisions providing for rebates or discounts on fees or
commissions which would entitle a customer to a refund or
credit for services rendered prior to the Closing Date.
To the best knowledge of the Vendor, there are no performance
related criteria included in any customer contract of BCC and
CLI.
The Vendor guarantees to the Purchaser that there will be no
written cancellation notices in hand or relating to any
commercial contracts as of the Effective Date. The Vendor
further guarantees to the Purchaser that to the best of its
knowledge, there is no threat of such written cancellation
notices or relating to any commercial contracts as of the
Effective Date. While the Purchaser acknowledges and accepts
the risk related to the keeping in force of Holding, BCC and
CLI accounts after the Effective Date, the Vendor, Talbot and
Xxxxxxxxxxx shall exercise its best efforts to ensure the
smooth transition of the BCC and CLI accounts.
3.2.26 Material Contracts - Section 3.2.26 of the Disclosure Schedule
contains a complete list of all written and verbal material
contracts, agreements, indentures, instruments and commitments
to which Holding, BCC and CLI are a party or by which they are
bound, other than employment agreements with key personnel
listed in Section 3.2.33 of the Disclosure Schedule
(collectively the "MATERIAL CONTRACTS").
For the purpose of Section 3.2.26 of the Disclosure Schedule,
a contract is material if, under said Material Contract, the
aggregate value of the contract exceeds ten thousand dollars
($10,000) or if Holding, BCC and CLI have to fulfil
obligations that will cost over ten thousand dollars ($10,000)
within any twelve (12) month period.
Without limitation to the foregoing, Holding, BCC and CLI
shall have obtained, prior to the Closing Date, the approval
of the persons listed in Section 3.2.1of the Disclosure
Schedule, if required under any Material Contract.
Upon Closing or in a reasonable delay thereafter, no new
Material Contract shall bind Holding, BCC and CLI to the
Vendor and/or any of its affiliates which is not entered in
the ordinary course of business.
Except as disclosed in Section 3.2.26 of the Disclosure
Schedule, Holding, BCC and CLI (i) have performed all
obligations required to be performed under any Material
Contract; (ii) are not in default or in breach of any Material
Contract or commitment to which they are a party or by which
they are bound and there exists no condition, event or act
which, with the giving of notice or lapse of time or both
would constitute such a default or breach, and (iii) all
contracts and commitments are in good standing and in full
force and effect and Holding, BCC and CLI are entitled to all
benefits thereunder.
3.2.27 Compensation - Holding, BCC and CLI have not incurred any
obligation or liability, contingent or otherwise, for finder's
fees, brokerage fees or other similar forms of compensation
with respect to the Transaction herein contemplated.
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3.2.28 Indebtedness - Except as disclosed in Section 3.2.28 of the
Disclosure Schedule, Holding, BCC and CLI have no outstanding
bonds, debentures, mortgages, notes, shareholder's loans or
other evidence of indebtedness other than trade payables and
Holding, BCC and CLI are not bound under any agreement to
create or issue any bonds, debentures, mortgages, notes,
shareholder's loans or other indebtedness.
3.2.29 Leases - Section 3.2.29 of the Disclosure Schedule is a true
and complete list of all leases of premises to which Holding,
BCC and CLI are party. All such leases are in good standing
and in full force and effect without amendment thereto and the
premises subject to said leases are in good condition and are
fully and entirely useable for the purposes for which they
were primarily leased, and CLI is entitled to all benefits
under such leases. Vendor represents to the Purchaser that the
lease of the Boulevard Xxxx-Xxxxxxxx office shall be cancelled
prior to the Closing Date, the whole as evidenced in the
comfort letter attached in section 3.2.29 of the Disclosure
Schedule.
3.2.30 Insurance - All insurance policies and insurance coverage
maintained during the last three (3) years by Holding, BCC and
CLI including all insurance policies and insurance coverage
that are currently maintained for Holding, BCC and CLI, the
coverage under such policies being in full force and effect
and Holding, BCC and CLI are in good standing under such
policies and a list of all claims, pending or not, covered by
such insurance policies or insurance coverage are listed in
Section 3.2.30 of the Disclosure Schedule.
The coverage under each such policy is in full force and
effect, Holding, BCC and CLI are in good standing under such
policies and have not received any notice of breach,
cancellation or non-renewal of such policies.
Holding, BCC and CLI have not received written notice of any
fact, condition or circumstance which might reasonably form
the basis of any claim against Holding, BCC and CLI which (i)
are not fully covered by insurance (subject to deductibles)
maintained by or for Holding, BCC or CLI, or (ii) would result
in any increase in insurance premiums payable by Holding, BCC
or CLI.
3.2.31 Environmental Matters - Each of Holding, BCC or CLI has at all
time conducted, held and used and are continuing to conduct,
hold and use its affairs and properties and the Business in
accordance with all applicable Laws relating in whole or in
part to the environment or its protection.
At no time have any contaminants or hazardous materials been
released, emitted, discharged, deposited, issued, sprayed,
injected, abandoned, buried, spilled, incinerated, disposed,
leaked, poured, emptied, dumped, or placed on, in, under or
adjacent to any immoveable, real property, including storage
tanks owned or used by Holding, BCC or CLI.
3.2.32 Laws - Since incorporation, Holding, BCC or CLI have conducted
and are conducting their Business in compliance with all Laws,
and are not in breach of any such Laws.
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3.2.33 Employee Matters - Holding, BCC and CLI are in compliance with
all applicable Laws relating to employment matters, including,
without limitation, an Act respecting Labour Standards, the
Canada Labour Code, if applicable, the Quebec Charter of Human
Rights and Freedoms and an Act respecting Occupational Health
and Safety as well as any provisions thereof relating to
wages, hours, holiday reserve fund, illness reserve fund, and
provincial and collective bargaining. Section 3.2.33 of the
Disclosure Schedule states the names of all Holding, BCC and
CLI employees and subcontractors, their status (part-time,
full time, worker's compensation, long-term disability,
short-term disability), their hiring date and term of
employment. The employee files of each of CLI and BCC contain
each employee's social insurance numbers and correct and
complete details of each employee's annual and hourly wages.
There has never been and there is not presently pending or
existing any strike, slowdown, picketing, work stoppage,
labour arbitration or proceeding threatening Holding, BCC or
CLI in respect of any employee grievance or any past employee
or other labour dispute against or affecting Holding, BCC or
CLI. No fact, condition or circumstance exists which could
provide the basis for any legal work stoppage or other labour
dispute. There is no lockout of any employee by Holding, BCC
and CLI, nor is any such action contemplated by Holding, BCC
or CLI, there is currently no association of employees or
certified association or union representing any or all
employees of Holding, BCC or CLI and none of these parties is
currently part of or party to any collective bargaining
agreement with any of their employees nor is there any labour
union certification or pending union certification as per the
applicable Laws.
Holding, BCC and CLI have valid employment agreements with all
of their key management personnel and said personnel are not
and have not in the past been inaccurately deemed or treated
as consultants of Holding, BCC or CLI.
3.2.34 Benefit Plans - Other than as listed in Section 3.2.34 of the
Disclosure Schedule, Holding, BCC and CLI are not party to or
bound by any pension, retirement, bonus, profit sharing,
compensation, incentive, stock purchase, stock option, stock
appreciation, severance, change-of-control, savings, thrift,
insurance, medical, hospitalization, disability, death or
other similar program, or practice providing directors,
officers, shareholders or employee benefits (the "BENEFIT
PLANS").
3.2.35 Bank Accounts and Powers of Attorney - Holding, BCC and CLI
have no bank accounts or accounts at any trust companies or
similar institutions, except those listed in Section 3.2.35 of
the Disclosure Schedule, which is a true and complete list of
such accounts showing, where applicable: (i) the name of each
bank, trust company or similar institution in which Holding,
BCC and CLI have accounts or safety deposit boxes and the
names of all persons authorized to draw thereon or to have
access thereto; (ii) the name of each Person with whom each of
Holding, BCC and CLI maintain an account or safety deposit box
and the names of all Persons authorized to draw thereon or to
have access thereto; and (iii) the name of each Person holding
a general or special power of attorney from Holding, BCC or
CLI and a summary of the terms thereof.
3.2.36 Equipment and motor vehicles - The list of equipment and motor
vehicles disclosed in Section 3.2.36 of the Disclosure
Schedule is a true and complete list of all equipment and
motor vehicles owned or leased by Holding, BCC or CLI.
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3.2.37 Insolvency - Holding, BCC and CLI are not insolvent and have
not (i) committed an act of bankruptcy, (ii) proposed a
compromise or arrangement to their creditors, (iii) had any
petition for a receiving order in bankruptcy filed against
either of them, (iv) taken any proceeding to have themselves
declared bankrupt or wound-up, (v) taken any proceeding to
have a receiver appointed with respect to any part of their
assets, (vi) had any Person holding an encumbrance take
possession of any part of their property, and (vii) had any
execution or distress become enforceable or become levied upon
any of their property or assets;
3.2.38 Financial Statements - The Financial Statements, other than
the Financial Statements described in item (v) of the
definition of Financial Statements, fairly, accurately and
completely in all material respects present and disclose, in
accordance with Canadian GAAP or US GAAP, as the case may be,
on a basis consistent with prior fiscal years and accurately
represent the financial conditions, as the case may be, (i)
the assets, liabilities and obligations (whether direct,
indirect, accrued, contingent, absolute or otherwise), income,
losses, retained earnings, reserves and financial position of
Holding, BCC and CLI, and (ii) the results of their
operations, and (iii) the changes in their financial position,
all as at the dates and for the periods therein specified.
3.2.39 Accounts Receivable - Provided that the representation under
this section 3.2.39 have not already been addressed under
ARTICLE 2 hereof, all Accounts Receivable of Holding, BCC and
CLI are bona fide, result from their Business and have been
properly recorded in the ordinary course of business and,
subject to allowance for doubtful accounts to be reflected on
Financial Statements and Closing Balance Sheet, one hundred
percent (100%) of the Accounts Receivable will be good and
collectible in full within ninety (90) days from the Closing
Date.
3.2.40 Credit Cards - Section 3.2.40 of the Disclosure Schedule lists
any and all corporate credit cards issued in the name of BCC
and CLI. The Vendor undertakes to cancel all credit cards of
Holding, BCC and CLI issued to Vendor before the Effective
Date as required by the Purchaser.
3.2.41 Suppliers - Section 3.2.41 of the Disclosure Schedule contains
a complete list of all written and verbal supplier contracts,
agreements and commitments to which Holding, BCC and CLI are
Parties or by which they are bound. Except as disclosed in
Section 3.2.41 of the Disclosure Schedule, Holding, BCC and
CLI, (i) are in good standing, (ii) have performed all of
their respective obligations, and (iii) are not in default
under, or in breach of, any of such contracts, agreements and
commitments except for a default or breach which would not
have a an Adverse Effect on any such agreements and
commitments.
3.2.42 No Unusual Transactions - Other than a dividend to be declared
and paid by Holding to the Vendor as of the day before the
Closing Date in an amount equal to the excess of the Working
Capital of Holding, CLI and BCC above $500,000 (as well as an
equivalent dividend that may be declared and paid by CLI
and/or BCC to Holding on such date), since October 31, 2005,
Holding, BCC and CLI have conducted their Business in the
ordinary course and, without limiting the generality of the
foregoing, have not, other than as disclosed in Section 3.2.42
of the Disclosure Schedule;
Except as otherwise stipulated herein, made or assumed any
commitment, obligation or liability which is outside the usual
and ordinary course of its business;
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1) ceased to operate their activities and to carry on their
Business as heretofore carried on nor have Holding, BCC
and CLI failed to maintain all of their properties,
rights and assets consistently with past practices or to
do any and all things reasonably necessary and within
their power to retain and preserve the goodwill of their
Business;
2) except as otherwise stipulated herein, sold or otherwise
in any way alienated or disposed of any of their assets
other than in the ordinary course of business and in an
manner consistent with past practices;
3) split, combined or reclassified any of their shares, or
redeemed, retired, repurchased or otherwise acquired
shares in Holding, BCC and CLI's capital stock or other
corporate security, or reserved, declared, made or paid
any dividend, or made any other distributions or
appropriations of profits or capital;
4) discharged any secured or unsecured obligation or
liability (whether accrued, absolute, contingent or
otherwise), other than obligations and liabilities
discharged in the ordinary course of business and in a
manner consistent with past practices;
5) waived or cancelled any material claim, account
receivable, trade account, or right outside the ordinary
course of business;
6) made any change, outside of the ordinary course of their
Business, in the rate or form of compensation or
remuneration payable or to become payable to any of
their shareholders, directors, officers, employees or
agent, or taken or suffered any actions with respect to
unionization of their employees;
7) made any capital expenditure, other than in the ordinary
course of Business;
8) made any change in their accounting principles and
practices as utilized in the preparation of the
Financial Statements and Closing Balance Sheet, or
granted to any customer any special allowance or
discount, or changed its pricing, credit or payment
policies, other than in the ordinary course of Business;
9) made any loan or advance except in the ordinary course
of Business, or assumed, guaranteed or otherwise became
liable with respect to the liabilities or obligations of
any Person;
10) suffered any extraordinary losses whether or not covered
by insurance;
11) except as otherwise stipulated herein, modified their
constitutive instruments, by-laws or capital structure,
except as otherwise disclosed herein;
12) suffered any material shortage or any cessation or
interruption of inventory shipments, supplies or
ordinary services;
13) discharged any director or auditor or terminated any
officer;
14) incurred any indebtedness (including off-balance sheet
indebtedness) other than to trade creditors in the
ordinary course of business and in a manner consistent
with past practices;
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15) purchased or otherwise acquired any corporate security
or proprietary, participatory or profit interest in any
entity;
16) issued, sold or otherwise disposed of any shares of
their capital stock or any warrants, rights, bonds,
debentures, notes or other corporate security;
17) paid or made payable to any of their shareholders,
directors, officers or employees any amount,
compensation, fees, extraordinary salary or wage, or
profit sharing plan or granted to such Persons any
incentive, revenue or profit participation, or other
benefit over and above the base salary, if any, of such
Persons;
18) purchased or otherwise acquired any corporate security
or proprietary, participatory or profit interest in any
Person;
19) modified or changed in any material manner their
Business organization or their relationship with their
suppliers, customers or others having business relations
with Holding, BCC and CLI;
20) authorized, agreed or otherwise committed to any of the
foregoing; or
21) entered into new debts, charges or any other liabilities
except in the ordinary course of business and is free of
such debts. To the best knowledge of the Vendor,
Holding, BCC and CLI are not aware of any legislation,
regulations or probable legislative regulatory changes
which would have a Adverse Effect on the Business,
prospects or operations of Holding, BCC and CLI;
3.2.43 Miscellaneous The Vendor has disclosed and provided Garda all
material information and material facts relating to Holding,
BCC and CLI and its assets, Business, liabilities, financial
situation and undertakings and such material information and
material facts are true, complete and correct as at the time
disclosed. None of the representations or warranties made by
the Vendor under this Section 3.2 and the Disclosure Schedule,
contains, any false representation or declaration.
The Vendor has made or caused to be made due inquiry with
respect to (i) each representation and warranty contained in
this Agreement, (ii) the Disclosure Schedule, and (iii) any
certificates or other documents referred to herein or
furnished to Purchaser pursuant hereto, and none of the
aforesaid representations and warranties contains, any untrue
statement of a lack or omits to state a fact necessary to make
such representation or warranty, not misleading.
3.3 REPRESENTATIONS AND WARRANTIES OF GARDA WORLD
Garda World represents and warrants to the Vendor as follows and
acknowledges that the Vendor is relying upon such representations and
warranties:
3.3.1 Due Incorporation - Garda World is duly incorporated,
organized and a subsisting corporation under the laws of
Canada;
3.3.2 Due Authorization - Garda World has the corporate power and
authority to execute and deliver this Agreement and to perform
its obligations hereunder, particularly to issue the Garda
Shares;
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3.3.3 Enforceability - This Agreement when duly executed and
delivered by Garda World, will constitute a legal, valid and
binding obligation of Garda World enforceable against Garda
World in accordance with their terms and conditions.
3.3.4 Garda Shares - subject to the conditions contained in the
present Agreement, the Garda Shares shall be issued in
compliance with securities law. All governmental and stock
exchange authorities' approvals required have been obtained.
Notwithstanding any provisions to the contrary in this
Agreement, half the Garda Shares issued in accordance with the
second paragraph of Section 2.3.3, shall be liberated and
freely tradeable, at the earliest, on the first one-year
anniversary date hereof and the second half on the second
one-year anniversary date hereof.
ARTICLE 4 COVENANTS
4.1 NON-COMPETITION
Each of the Vendor and Talbot shall not, for a period of five (5) years
from the Closing Date on their own behalf or on behalf of any Person,
whether directly or indirectly, in any capacity whatsoever, alone, through
or in connection with any Person, carry on or be engaged in or have any
financial or other interest in or be otherwise commercially involved in
any endeavour, activity or business in all or part of the Territory which
is directly or indirectly in competition, in whole or in part, with the
Business and the consultation (security) and investigations, physical
security, employment background check and cash handling services of Garda.
Xxxxxxxxxxx shall not, for a period of three (3) years from the Closing
Date on their own behalf or on behalf of any Person, whether directly or
indirectly, in any capacity whatsoever, alone, through or in connection
with any Person, carry on or be engaged in or have any financial or other
interest in or be otherwise commercially involved in any endeavour,
activity or business in all or part of the Territory which is directly or
indirectly in competition, in whole or in part, with the Business and the
consultation and investigations, physical security, employment background
check and cash handling services of Garda.
4.2 NON-SOLICITATION OF CUSTOMERS
Each of the Vendor and the Interveners shall not, for a period of five (5)
years from the Closing Date, on his own behalf or on behalf of any Person,
whether directly or indirectly, in any capacity whatsoever, alone, through
or in connection with any Person, for any purpose which is directly or
indirectly in competition, in whole or in part, with the Business, solicit
or assist in the soliciting of any part, any Person which prior to the
Closing Date was a customer of BCC or CLI.
4.3 NON-SOLICITATION OF EMPLOYEES
Each of the Vendor and the Interveners shall not in the Territory, for a
period of five (5) years from the Closing Date, on his own behalf or on
behalf of any other Person, whether directly or indirectly, in any
capacity whatsoever, alone, through or in connection with any Person:
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1) employ, offer employment to or solicit the employment or
engagement of or otherwise entice away from the
employment of Holding, BCC and CLI or Garda or any
successor to the Business, any individual who is
employed by Holding, BCC and CLI at the time of the
termination of his employment or who was employed by
Holding, BCC and CLI at any time within twelve (12)
months of the termination of the employment;
2) assist any person to employ, offer employment or solicit
the employment or engagement of or otherwise entice away
from the employment of Holding, BCC and CLI , any
individual who is employed by Holding, BCC and CLI at
any time during the twelve (12) months following the
Closing Date.
4.4 CONFIDENTIAL INFORMATION
4.4.1 For purposes of this Section, "CONFIDENTIAL INFORMATION" means
any information concerning the Business, including but without
limiting the generality of the foregoing, any customer list,
price list, supplier list or agent list, research report,
market study and plan, any protectable technology, know-how
and copyrightable material, products design and development,
trade secret, invention, improvement, and enhancement (whether
patentable or not), patent or patent application, or any other
information concerning the Business, its manner of operation,
its plans, policies, processes, strategies, or other data,
provided that such information is specifically marked or
identified as being confidential.
4.4.2 Each of the Vendor and the Interveners undertake and shall
cause its officers, directors and representatives, as the case
may be, for a period of five (5) years from the execution of
this Agreement, to hold in strict confidence and will not use
any Confidential Information with respect to the Business
unless said information (i) is or has been generally available
to the public by any means, through no fault of the
Interveners and the Vendor or their employees, officers,
directors or representatives and without breach of this
Agreement, or (ii) is currently in the possession of the
recipient without restriction and prior to any disclosure
hereunder, as appropriately evidenced, or (iii) is lawfully
received by the recipient from a third Party without an
obligation of confidentiality upon the recipient, or (iv) is
developed independently by employees, consultants or
contractors of the recipient without use of confidential
information disclosed hereunder, or (v) is required to be
disclosed by an order of a court or governmental agency
(provided however that the recipient shall first have given
notice to the Interveners and the Vendor and allow it to make
a reasonable effort to obtain a protective order or other
confidential treatment for the Confidential Information) or
(vi) is already in the public domain or (vii) required to be
disclosed pursuant to applicable securities legislation or any
other Law.
4.4.3 If a court of competent jurisdiction would otherwise determine
all or any portion of the terms of ARTICLE 4 to be invalid or
unenforceable in the circumstances, the portions which would
otherwise be held invalid or unenforceable shall,
automatically and without further act on the part of the
Parties, but only as regards to those matters before said
court, be reduced in scope or duration of time to such an
extent that said court would hold the same to be enforceable
in the circumstances before said court.
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4.5 ACCESS TO BOOKS AND RECORDS AND FINANCIAL STATEMENTS
Upon written request to the Purchaser, the Purchaser shall provide the
Vendor and its representatives with reasonable access to the books and
records and financial statements of Holding, CLI and BCC (before the
Transaction) and all related files and information in Holding, CLI and
BCC's possession or in the work files of the auditors of the Purchaser as
required to allow the Vendor to prepare financial statements and to permit
the Vendor's auditors to render an opinion on such financial statements
and to permit the Vendor to comply with any filing or other requirement
applicable under securities legislation.
4.6 PENALTY
Any breach of the non-competition or non-solicitation clauses at 4.1 to
4.3 by any of the Vendor will result in the Offender being liable for a
penalty of two hundred and fifty thousand dollars ($250,000) (the
"PENALTY") on the offender without prejudice to any other proceedings or
recourses available to Garda. The Penalty will be paid upon the expiry of
a five (5) day delay following the receipt of a notice of default if such
default is not remedied within such delay. In the latter case, Penalty
will be increased by imposing another penalty (the "OTHER PENALTY") amount
of five thousand dollars ($5,000) per day of default that the breach of
the non-competition or non-solicitation or confidentiality clauses at 4.1
to 4.3 lasts. The Penalty and Other Penalty shall not be considered as
stipulated penalties.
Such Penalty and Other Penalty are payable to the Purchaser by the Vendor
or the Interveners at the latest five (5) Business Days from the receipt
by the offender of a notice of default, and such Penalty and Other Penalty
bear interest from such receipt at Prime Rate increased by five (5)
points, calculated on a daily basis.
The Vendor and the Interveners acknowledge that there is a direct link
between the Purchase Price and the clauses of non-competition and of
non-solicitation mentioned above. Therefore, the Vendor and the
Interveners acknowledge that any breach to anyone of these clauses will
allow Garda to claim a reduction of the Purchase Price and the
reimbursement of any exceeding amount paid to the offender, without
prejudice to the rights of Garda, Holding, BCC and CLI to claim the
payment of the Penalty and of the Other Penalty.
ARTICLE 5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF GARDA AND GARDA WORLD
The representations and warranties of Garda and Garda World contained in
this Agreement or in any certificate delivered or given pursuant to this
Agreement or in the Disclosure Schedule shall survive the completion of
the Transaction contemplated by this Agreement, and notwithstanding such
completion or any investigation made by or on behalf of the Vendor or any
knowledge by the Vendor of any incorrectness in, or breach of, such
representations or warranties, shall continue in full force and effect for
the benefit of the Vendor for a period of three (3) years from the Closing
Date, except for any representation and warranty in respect of which a
claim based on fraud is made which shall, in each case, be unlimited as to
duration.
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5.2 REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The representations and warranties of the Vendor contained in this
Agreement or in any certificate delivered or given pursuant to this
Agreement or in the Disclosure Schedule shall survive the completion of
the Transaction contemplated by this Agreement, and notwithstanding such
completion or any investigation made by or on behalf of Garda or any
knowledge of Garda of any incorrectness in, or breach of, such
representations or warranties, shall continue in full force and effect for
the benefit of Garda, Holding, BCC and CLI for a period of three (3) years
from the Closing Date, (i) except for any representation and warranty in
respect of which a claim based on fraud is made which shall, in each case,
be unlimited as to duration; (ii) except for any representations and
warranties relating to any Tax matters which shall survive until the last
date on which the relevant tax authority is entitled to assess or reassess
Holding, BCC and CLI with respect to such Tax matters.
ARTICLE 6 INDEMNIFICATIONS
6.1 INDEMNIFICATION BY VENDOR
The Vendor covenants and agrees to indemnify and save harmless Garda,
Holding, BCC and CLI of and from any losses, debts, damages, liabilities,
expenses, claims, demands or costs (including all legal costs on a
solicitor-client basis) suffered or incurred by Garda, Holding, BCC and
CLI directly or indirectly, as a result of or arising out of any breach of
their respective representations, warranties, covenants or agreements
contained in this Agreement, in any certificate delivered pursuant to this
Agreement or document included in the Disclosure Schedules. (collectively,
the "LOSS").
6.2 NOTIFICATION BY GARDA, HOLDING, BCC AND CLI
Promptly upon obtaining knowledge thereof, Garda, Holding, BCC and CLI
(the "Indemnified Party"), as the case may be, shall forthwith notify the
Vendor and the Trustee of any Loss for which the Vendor may be liable
under Section 6.1 hereof and the Vendor shall have the right to undertake
or to participate in any negotiations with respect thereto
The Indemnified Party, as the case may be, shall forthwith notify the
Vendor of any cause which has given or could give rise to indemnification
under this ARTICLE 6. The omission to so notify the Vendor shall not
relieve the Vendor from any duty to indemnify and hold harmless which
otherwise might exist with respect to such cause unless (and only to that
extent) the omission to notify materially prejudices the ability of the
Vendor to exercise its right to defend provided in this ARTICLE 6.
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6.3 COMPENSATION BY THE VENDOR
Subject to the provisions of Xxxxxxx 0.0, Xxxxx, Xxxxxxx, XXX and CLI
shall have the right to claim from the Vendor any Loss incurred according
to the procedure set forth in Section 6.4 herein, and receive as a result
compensation for the Loss and other related damages incurred as a result
of the breach. Notwithstanding the foregoing, upon reception of a notice
as contemplated in Section 6.2, the Vendor shall compensate Garda,
Holding, BCC and CLI, as the case may be, in accordance with the procedure
described in 6.4 herein.
6.4 PROCEDURE
6.4.1 Should the Loss or the amount claimed, other than a
third-party claim, be contested by the Vendor the following
procedure shall apply:
1) within ten (10) days of receipt by Vendor of the notice
provided under Section 6.2, the Vendor shall notify
Garda, Holding, BCC and CLI, as the case may be, of
Vendor's intention to dispute the Loss. Said notice
shall specify the basis for each objection and the
dollar amount involved.
2) If any such dispute has not been resolved within fifteen
(15) calendar days following the date on which the
Vendor's notice is received by Garda, Holding, BCC and
CLI, as the case may be, then either Party may refer
such unresolved matters to independent arbitration for
resolution. The determination of the independent
arbitrator shall be made within ten (10) calendar days
after all concerned parties have received the initial
notice. The decision of the arbitrator shall be final
and binding on all Parties. Should the Parties fail to
agree upon the determination of the independent
arbitrator within such ten (10) day period, the Parties
agree to refer the matter to the competent Courts of
Quebec.
3) All fees, costs and disbursements of the arbitration
shall be borne by the succumbing Party.
6.4.2 Should the Loss or amount claimed be a third-party claim, the
following procedure shall apply:
1) If any legal proceeding shall be instituted or any claim
or demand shall be asserted by a third party against the
Indemnified Party (each a "Third Party Claim"), then the
Vendor shall have the right, after receipt of the
Indemnified Party's notice under Section 6.2 and upon
giving notice to the Indemnified Party within ten (10)
calendar days of such receipt, to defend the Third Party
Claim at its own cost and expense with counsel of its
own selection, but satisfactory to the Indemnified
Party, provided that:
a) the Indemnified Party shall at all times have the
right to fully participate in the defense;
b) the Third Party Claim seeks only monetary damages
and does not seek any injunctive or other relief
against the Indemnified Party;
c) the Vendor shall take all steps necessary in the
defense or settlement thereof and shall at all
times diligently and promptly pursue the
resolution thereof; and
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d) the Vendor, with respect to such Third Party
Claim, acknowledges in writing to the Indemnified
Party the Indemnified Party's right to
indemnification pursuant hereto to the extent
provided herein and provides assurances,
reasonably satisfactory to such Indemnified Party,
that the Vendor will be financially able to
satisfy such claim and all related costs to the
extent provided herein if such Third Party Claim
is decided adversely.
e) Amounts payable by the Vendor pursuant to a Third
Party Claim shall be paid in accordance with the
terms of the settlement or, the judgment, as
applicable, but in any event prior to the expiry
of any delay for a judgment to become executory.
2) The Indemnifying Party shall not compromise and settle
or cause a compromise and settlement of any Third Party
Claim without the prior written consent of the
Indemnified Party, unless
a) the terms of the compromise and settlement require
only the payment of money and do not require the
Indemnified Party to admit any wrongdoing or take
or refrain from taking any action; and
b) the Indemnified Party receives, as part of the
compromise and settlement, a legally binding and
enforceable unconditional satisfaction or release,
which is in form and substance satisfactory to the
Indemnified Party, acting reasonably, from any and
all obligations or liabilities it may have with
respect to the Third Party Claim.
3) If the Indemnifying Party fails:
a) within thirty (30) calendar days from receipt of
the notice of a Third Party Claim to give notice
of its intention to defend the Third Party Claim
in accordance with Section 6.4; or
b) to comply at any time with Sections 6.4.2 1) d) or
e),
then the Indemnifying Party shall be deemed to have waived its right to
defend the Third Party Claim and the Indemnified Party shall have the
right (but not the obligation) to undertake the defense of the Third Party
Claim and to compromise and settle the Third Party Claim on behalf, for
the account and at the risk and expense, of the Indemnifying Party.
If the Indemnifying Party does not or cannot assume the defense of any
Third Party Claim in accordance with the terms of this Section 6, the
Indemnified Party may defend against such Third Party Claim in such manner
as it may deem appropriate, including settling such Third Party Claim
after giving notice of the same to the Indemnifying Party, on such terms
as such Indemnified Party may deem appropriate.
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6.6 DEFENSE
The Vendor at all times has the right at its sole and only expense to
dispute and contest any Loss for which it may be liable hereunder
provided, however, that with respect to any reassessment for income,
corporate, sales, excise or other tax, Vendor's right to so contest shall
only apply after the payment of any such reassessment, if such payment is
required by applicable law. The payment of any such reassessment by any of
the Vendor on behalf of Holding, BCC and CLI, as the case may be, shall be
repaid to the Vendor if repaid by the taxing authority, and the Vendor
shall execute any instruction of payment in that connection. Garda,
Holding, BCC and CLI, as the case may be, shall reasonably cooperate with
the Vendor and its counsel in any proceeding with respect to any such
Loss.
6.7 LIMITATION OF LIABILITY
Notwithstanding any provision of this Agreement, the Vendor's liability
for indemnification hereunder with respect to any misrepresentations,
breaches of warranty or failure to fulfill any covenants or agreement
hereunder shall be limited three million nine hundred thousand dollars
($3,900,000).
The Purchaser shall not instigate proceedings under section 6.4 hereof,
until Losses have reached the aggregate amount of twenty-five thousand
dollars ($25,000). Should Losses exceed twenty-five thousand dollars
($25,000), Vendor shall indemnify the Purchaser for the full and total
Losses amount.
6.8 CALCULATION OF LIABILITY
The liability of the Vendor hereunder shall in all cases be calculated
after taking into account (i) any tax benefit actually received by any
indemnified Party, each such indemnified Party hereby agreeing to avail
itself of any available tax benefits to the extent reasonably practicable,
(ii) any taxes payable by the indemnified Party as a result of the
indemnification of such indemnify Party.
In the event that the Vendor shall make a payment pursuant to this Section
to an indemnified Party with respect to a claim as to which said
indemnified Party would have a claim for recovery against one or more
third parties, then the Vendor shall be subrogated to the extent of such
payment to all the rights of the indemnified Party against said third
party or parties and said indemnified Party shall execute such documents
and take such action as may be requested by the Vendor to secure such
rights, including without limitation, the execution of documents necessary
to enable the Vendor effectively to bring suit to enforce such rights.
6.9 CUMULATIVE
The rights of indemnification contained in this Agreement are cumulative
and are in addition to every right or remedy of the Parties available
under the Law or otherwise.
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ARTICLE 7 CLOSING
7.1 CLOSING ARRANGEMENTS
The Closing shall take place at the offices of attorneys Seguin Racine,
0000, Xx Xxxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxx, Xxxxxx at the Closing
Date or at such other time or place as the Parties hereto may mutually
agree in writing.
7.2 DELIVERIES BY GARDA AND GARDA WORLD
At or before the Closing Date, the Vendor, Talbot and Xxxxxxxxxxx, as the
case may be, shall execute, or cause to be executed, and shall deliver, or
cause to be delivered, to Garda and Garda World all documents, instruments
and things which are to be delivered by the Vendor, Talbot and
Xxxxxxxxxxx, as the case may be, pursuant to the provisions of this
Agreement, and Garda and Garda World shall execute, or cause to be
executed, and shall deliver, or cause to be delivered, to the Vendor,
Talbot and Xxxxxxxxxxx, as the case may be, all documents, instruments and
things which Garda and Garda World are to deliver or to cause to be
delivered pursuant to the provisions of this Agreement.
7.3 DELIVERIES BY THE VENDOR
In addition to conditions stipulated elsewhere in this Agreement, the
obligations of Garda and Garda World hereunder shall be subject to the
performance by Vendor and Holding, as the case may be, of their
obligations hereunder and the following:
1) At the Closing Date, upon fulfillment of all of the
conditions set out herein, the Vendor shall deliver to
Garda certificates representing the Acquired Shares to
be transferred to Garda pursuant to Section 2.1 hereof,
duly endorsed for transfer and shall have delivered to
Garda certified resolutions of the directors of each of
the Vendor and Holding approving the Transaction
contemplated herein;
2) At the Closing Date, the Vendor shall deliver proof
satisfactory to Garda that the Working Capital of
Holding, BCC and CLI is no less than five hundred
thousand dollars ($500,000);
3) Garda shall have received a certificate, dated the
Closing Date and signed by any two officers of the
Vendor and Talbot and Xxxxxxxxxxx for CLI certifying
that (i) the Vendor has complied with all terms and
conditions of this Agreement to be complied with by the
Vendor at or prior to the Closing Date; (ii) the
representations and warranties of the Vendor contained
in this Agreement are true and correct in all material
respects as of the Closing Date but immediately prior to
Closing with the same force and effect as if made at
such time; (iv) there has been no actual, contemplated
or threatened Material Adverse Effect with respect to
Holding, BCC and CLI;
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4) Garda shall have received at the Closing Date favourable
legal opinions from counsel for Holding, BCC and CLI,
dated the Closing Date and in a form and of scope to the
satisfaction of Garda and Garda's counsel, it being
understood that such opinion shall include customary
corporate and legal representations regarding Holding,
BCC and CLI as well as confirmation of the legal binding
effect of this Agreement no later than the Closing Date;
5) Vendor shall have delivered proof to Garda, in form and
substance satisfactory to Garda, of the effective
termination of the employment agreements between CLI and
each of Xxxxxxxxxxx and Talbot and general releases
[BCC/CLI] therefrom by Xxxxxxxxxxx and Xxxxxx;
6) Vendor shall have delivered proof to Garda, in form and
substance satisfactory to Garda, of the effective
settlement of the debentures issued by Vendor to each of
Talbot and Xxxxxxxxxxx including release regarding said
debentures; and
7) Directors of Holding, BCC and CLI then resign from such
office, effective on the Closing Date and sign a release
regarding any and all proceedings, action, lawsuit or
any other claim that they may have against Holding, BCC
and CLI.
7.4 CLOSING CONDITIONS OF GARDA AND GARDA WORLD
The obligation of Garda and Garda World to complete the purchase of the
Acquired Shares is subject to the following conditions, each and every one
of which shall be performed or satisfied to Garda and Garda World's
reasonable satisfaction:
1) The Vendor shall assume, until the end of the current
term, and transfer to its name the lease for the
premises located at 2, Place Laval, suite 350, in the
city of Laval, Province of Quebec, entered into by CLI
and deliver to Garda a letter from landlord, in form and
substance satisfactory to Garda, approving the transfer
and releasing CLI of all and any obligations under the
lease as at Closing Date;
2) at the Closing Date, the conditional approval of the
Toronto Stock Exchange for the listing of the Garda
Shares in partial payment by Garda World of the purchase
price;
3) at the Closing Date, the representations and warranties
contained in the Agreement shall be true and correct in
all material respects and Vendor and CLI's officersshall
have delivered to Garda an officer's certificate dated
the Closing Date stating that the representations and
warranties are true and correct in all material
respects;
4) at the Closing Date, the Vendor shall have delivered to
Garda, the share certificates referred to in Section 7.3
hereof, and the Vendor shall have delivered to Garda
certified resolutions of its directors and the directors
of Holding approving the Transaction contemplated
herein; and
5) the obtaining of the consents described in Sections
3.2.2, 3.2.3, 3.2.4 and 3.2.26 of the Disclosure
Schedule at the Closing Date;
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7.5 CLOSING CONDITIONS OF THE VENDOR
The obligations of the Vendor to complete the sale of the Acquired Shares
are subject to the following conditions, each and every one of which shall
be performed or satisfied to the Vendor's reasonable satisfaction:
1) at the Closing Date, the representations and warranties
of Garda and Garda World contained in the Agreement
shall be true and correct in all material respects as of
the Closing Date but immediately prior to closing with
the same force and effect as if made at such time and
Garda and Garda World's president shall have delivered
to the Vendor a certificate dated the Closing Date
stating that the representations and warranties given by
Garda are true and correct in all material respects and
that the covenants have been duly completed;
2) at the Closing Date, Garda and Garda World shall have
received all necessary Corporate Approvals; and
3) at the Closing Date, Garda shall obtain the conditional
approval of the Toronto Stock Exchange for the listing
of the Garda Shares in partial payment by Garda World of
the purchase price.
ARTICLE 8 TERMINATION OF AGREEMENT
8.1 TERMINATION
Notwithstanding anything contained herein to the contrary, this Agreement
may be terminated any time prior to the Closing Date :
1) by mutual written consent of the Parties;
2) by the Vendor if any of the conditions set forth in
Section 7.5 hereof are not satisfied or waived by no
later than the Closing Date; and
3) by Garda if any of the conditions set forth in Sections
7.3 and 7.4 hereof are not satisfied or waived by no
later than the Closing Date.
8.2 CONSEQUENCES OF TERMINATION
In the event that the Vendor does not finalize and execute the transaction
herein described for whatever reason other than from circumstances falling
within the Purchaser's control or force majeure within ten (10) Business
Days from the date hereof, the Vendor and Holding, jointly and severally,
shall pay forthwith to the Purchaser, all without further notice or demand
from the Purchaser, the sum of two hundred and fifty thousand dollars
($250,000) by certified cheque as liquidated damages to indemnify the
Purchaser for the trouble, inconvenience, costs, fees and other
opportunity costs incurred by the Purchaser as a result of the Vendor's
breach. The Vendor and Holding expressly acknowledge that such damages are
reasonable with regard to amount, nature and scope.
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In the event that this Agreement is terminated as aforementioned, the
Vendor, Holding, BCC and CLI, on the first part, and Garda, on the second
part, shall each be responsible for their respective expenses incurred in
connection with the preparation, negotiation and execution of this
Agreement, including for all accounting and legal services. The
Interveners shall be responsible for their own attorney's fees.
8.3 SURVIVAL OF RIGHTS
No termination shall be deemed to release any Party from any liability for
any breach by such Party of the terms and provisions of this Agreement and
nothing in this Agreement shall be deemed to preclude a Party from
asserting any and all remedies available to it in law or in equity.
Provided however that the Vendor's liability for its representations and
warranties in Section 3.2 shall be limited to the amount specified in
Section 6.7 and for the time period mentioned in ARTICLE 5 .
ARTICLE 9 INTERVENTION
9.1 PRINCIPLE
Xxxxxxxxxxx and Talbot having read the Agreement as well as the Disclosure
Schedules, intervene to attest, jointly and severally with the Vendor and
for the benefit only of the Purchaser, to the veracity and respect of the
representations and warranties in subsection 3.2.9, 3.2.12, 3.2.24, 3.2.33
and 3.2.38 made by the Vendor.
9.2 SCOPE
Notwithstanding any provisions to the contrary contained in this
Agreement, the Interveners covenants and agrees to indemnify and save
harmless Garda, Holding, BCC and CLI of and from any losses, debts,
damages, liabilities, expenses, claims, demands or costs (including all
legal costs on a solicitor-client basis) suffered or incurred by Garda,
Holding, BCC and CLI directly or indirectly, as a result of or arising out
of any breach of (i) their respective covenants or agreements contained in
this Agreement; and (ii) Vendor's representations in regards of
subsections 3.2.9, 3.2.12, 3.2.24, 3.2.33 and 3.2.38, with respect to BCC
and CLI exclusively, but in the case of 3.2.38 to the exception of US
GAAP.
9.3 INDEMNIFICATION AND LIMITATIONS
The Interveners shall have any liability for indemnification hereunder
with respect to any misrepresentations, breaches of warranty or failures
to fulfill any covenants or agreements set forth in section 9.2 each up to
a maximum aggregate amount of one hundred thirty seven thousand and five
hundred dollars ($137,500), namely one hundred thirty seven thousand and
five hundred dollars ($137,500) for Talbot and one hundred thirty seven
thousand and five hundred dollars ($137,500) for Xxxxxxxxxxx.
Each of the Interveners shall be jointly but not severally liable.
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Should any amount be received from or returned by any tax authority to BCC
or CLI, as the case may be, for matters that originate prior to February
1, 2005, then Garda, Holding, BCC or CLI, as the case may be, shall first
set-off any amount owed by the Interveners to Garda, Holding, BCC or CLI,
as the case may be, and then return any balance thereof to the
Interveners, without further any obligation or justification on Garda,
Holding, BCC or CLI's part.
The Purchaser shall not instigate any claim or take any proceedings under
section 6.4 hereof, until Losses have reached the aggregate amount of
twenty-five thousand dollars ($25,000). Should Losses exceed twenty-five
thousand dollars ($25,000), Interveners shall indemnify the Purchaser for
the full and total Losses amount to the extent of the maximum non several
liability of one hundred thirty-seven thousand five hundred dollars
($137,500) for each of Talbot and Xxxxxxxxxxx and within the scope of such
liability as described in section 9.1 hereof.
9.4 APPLICABLE PROVISIONS OF THIS AGREEMENT TO XXXXXXXXXXX AND TALBOT
The following provisions shall benefit to Xxxxxxxxxxx and Xxxxxx, mutatis
mutandis: subsection 3.3.4, sections 6.2, 6.6 and 6.8.
ARTICLE 10 MISCELLANEOUS
10.1 PARTIAL INVALIDITY
If any provision of this Agreement is held to be invalid, illegal and
unenforceable, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, and this Agreement shall
nonetheless be construed as if the invalid, illegal or unenforceable
provision had never been contained herein, unless such deletion of the
provision would result in a fundamental change to the as contemplated
hereby.
10.2 FURTHER ASSURANCES
Each of the Parties hereto will, from time to time and at all times,
hereafter, without further consideration, do such further acts and deliver
all such further assurances, deeds and documents as shall be reasonably
required in order to fully perform and carry out the terms of this
Agreement.
10.3 ENTIRE AGREEMENT
This Agreement, together with the agreements, certificates and instruments
delivered pursuant hereto, constitutes the entire agreement between the
Parties hereto and supersedes and terminates any and all pre-existing
agreements and understandings relating thereto particularly the Letter of
Intent dated December 15, 2005 by and between Garda, the Vendor, Holding,
BCC and CLI.
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10.4 GOVERNING LAW/CHOICE OF FORUM
This Agreement shall be governed by and construed in accordance with the
Laws applicable in the Province of Quebec, Canada. The Parties, Talbot and
Xxxxxxxxxxx agree that the exclusive place of jurisdiction for any action,
suit or proceeding relating to this Agreement shall be in the courts of
the Province of Quebec, district of Montreal (including the Supreme Court
of Canada) and each such Party, Talbot and Xxxxxxxxxxx hereby irrevocably
and unconditionally agrees to submit to the jurisdiction of such courts
for purposes of any such action, suit or proceeding. Each Party, Talbot
and Xxxxxxxxxxx irrevocably waives any objection it may have to the venue
of any action, suit or proceeding brought in such courts or to the
convenience of the forum. Final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment, a certified or true copy of which shall be
conclusive evidence of the fact and the amount of any indebtedness or
liability of any Party, Talbot and Xxxxxxxxxxx therein described.
10.5 AMENDMENTS
The Parties hereto may, by written agreement signed by the Parties, modify
any of the covenants or agreements or extend the time for the performance
of any of the obligations contained in this Agreement or in any document
delivered pursuant to this Agreement. Any Party hereto may waive, by
written instrument signed by such Party, any inaccuracies in the
representations and warranties of another Party or compliance by another
Party with any of its obligations contained in this Agreement or in any
document delivered pursuant to this Agreement. This Agreement may be
amended only by written instrument signed by all the Parties hereto.
Notwithstanding anything to the contrary in this Agreement the Purchaser's
senior officers are the only one authorized to bind the Purchaser under
this Agreement, including but not limited to, the provisions of this
Section.
10.6 NO WAIVER
The failure of any Party hereto to insist upon strict performance of a
covenant hereunder or of any obligation hereunder, irrespective of the
length of time for which such failure continues, shall not be a waiver of
such Party's right to demand strict compliance in the future. No consent
or waiver, express or implied, to or of any breach or default in the
performance of any obligation hereunder shall constitute a consent or
waiver to or of any other breach or default in the performance of the same
or of any other obligation hereunder.
10.7 PARTIES IN INTEREST
Nothing in this Agreement, express or implied, is intended to confer on
any Person other than the Parties and their respective successors and
permitted assigns any rights or remedies under or by virtue of this
Agreement, and no Person shall assert any rights as a third party
beneficiary hereunder.
10.8 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the Parties hereto and their
respective successors and assignees, if any, and, except as otherwise
provided herein, shall inure to the benefit of the Parties hereto and
their respective successors and assignees, if any.
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10.9 TRANSFERABILITY
The respective rights and obligations of each Party hereto shall be
assignable by either such Party with the written consent of all the other
Parties hereto.
10.10 EXPENSES
Each Party, Talbot and Xxxxxxxxxxx will pay its own expenses incident to
this Agreement and the Transactions contemplated hereby, including legal
and accounting fees and disbursements.
10.11 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
Parties to it on separate counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.
10.12 NOTICES
Any notice which is necessary or which may be given pursuant hereto or for
the purposes hereof shall be in writing and shall be duly given if
remitted to its addressee by messenger, registered mail or facsimile
machine, to the following address:
THE PURCHASER:
The Garda Security Group Inc.
0000 Xxxxx xxxxxx
Xxxxxxxx, Xx X0X 0X0
fax number: (000) 000-0000
Care of : Xx. Xxxxxxx Xxxxxxx, President and Chief Executive
Officer Xx. Xxxxx Xxxxxx, Vice-President and Chief
Financial Officer
with a copy to:
Seguin Racine, Attorney, Ltd.
0000 Xx Xxxxxxxxx Xxxx., xxxxx 0000
Xxxxx, Xx X0X 0X0
Fax number: (000) 000-0000
Care of: Me Pierre-Xxxxxx Xxxxxx, Partner
Garda World Security Corporation
0000 Xx Xxxxxxxxx Xxxx., xxxxx 0000
Xxxxx, Xx X0X 0X0
Fax number: (000) 000-0000
Care of: Secretary
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VENDOR :
Manaris Corporation
1155 Xxxx Xxxxxxxx Blvd., suite 2720
Xxxxxxxx, XX X0X 0X0
Fax number: (000) 000-0000
Care of: Mr. Xxxx Xxxxxx, Chief Executive Officer
with a copy to:
---------------
XxXxxxxx Xxxxxxxxx LLP
0000 Xxxx Xxxxxx,
Xxxxxxxx, XX X0X 0X0
Facsimile : (000) 000-0000
Care of: Me Xxxxx Xxxxxxxxx, Partner
Any of the Parties hereto may from time to time change its or their
address for service herein by giving written notice to the other Parties
hereto. Any notice may be served by personal delivery or by facsimile
transmission, or forwarded by registered prepaid mail in a properly
addressed envelope addressed to the other Party or Parties hereto at such
person or persons address for service hereunder. Any notice so served
shall be deemed to be delivered on the day of delivery provided that in
the event or disruption of threatened disruption of mail service, all such
notices shall be deemed to have been given only if personally delivered or
transmitted by facsimile.
10.13 PUBLICITY
The Vendor, , the Purchaser and Garda World undertake not to disclose to
anyone, other than their respective authorized representatives the
contents of the Letter of Intent and of this Agreement except in order to
fulfill its obligations pursuant to this Agreement or as required by law.
Vendor shall inform Garda of the contents of any press release he may be
required by Law to produce.
10.14 LANGUAGE
The Parties have required that this agreement and all notices, deeds,
documents, and other instruments to be given pursuant hereto be drawn in
the English language. Les Parties ont convenu que la presente convention
et tous xxx xxxx, contrats, documents ou autres instruments donnes en
vertu des presentes soient rediges en langue anglaise.
10.15 DISCLOSURE
The information set forth in the Disclosure Schedules is intended to
constitute and shall be construed as constituting representations and
warranties of the Party to which such Disclosure Schedules relate.
EXECUTION PAGE FOLLOWS
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IN WITNESS WHEREOF this Agreement has been executed by the Parties hereto as of
8th day of February 2006.
THE GARDA SECURITY GROUP INC. / LE GROUPE DE SECURITE MANARIS CORPORATION
GARDA INC.
Per: /s/ Xxxxxxx Xxxxxxx Per: /s/ Xxxx Xxxxxx
---------------------------- ------------------------------
Xxxxxxx Xxxxxxx, President Xxxx Xxxxxx
/s/ Xxxxx XxXxxxxxxxx
------------------------------
CORPORATION DE SECURITE GARDA WORLD XXXXX XXXXXXXXXXX In his
personal capacity, as an
Intervener
/s/ Xxxxxxx Xxxxxxx /s/ Xxxx Xxxxxx
---------------------------- ------------------------------
Per: Xxxxxxx Xxxxxxx, President XXXX XXXXXX In his personal
capacity, as an Intervener
6327915 CANADA INC.
Per: /s/ Xxxx Xxxxxx
------------------------------
Xxxx Xxxxxx
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