SHARE EXCHANGE AGREEMENT
THIS AGREEMENT made the 30th day of November, 2000
BETWEEN:
OPTIMA GLOBAL CORPORATION, 000 Xxxxx Xxxxxx, Xxxxx
000, Xxxx Xxxxx, XX 00000, a corporation governed by
the laws of Delaware
(hereinafter referred to as the "Parent")
- AND -
INTERNATIONAL DART CORPORATION, 00 Xxxx Xx. Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0, a
corporation governed by the laws of Ontario
(hereinafter referred to as the "Company")
WHEREAS the Boards of Directors of Parent and Company have each
determined that it is advisable and in the best interests of their
respective shareholders for Parent to acquire control of the Company
through an exchange of all of the issued and outstanding Shares of the
Company for shares in Parent upon the terms and conditions set forth
herein (the "Acquisition");
WHEREAS, pursuant to the Acquisition, by means of the transaction
described herein, each Company Common Share shall be exchanged for
eight (8) share(s) of Parent Common Shares;
WHEREAS, pursuant to the Acquisition, by means of the transaction
described herein, all issued Company Common Shares shall be returned to
treasury, and Company shall issue one (1) share of its Common Stock to
Optima Global Corporation;
AND WHEREAS the Company wishes to exchange and the Parent wishes to
exchange the shares of International Dart Corporation owned by the
Company;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in
consideration of the mutual covenants contained herein, in an exchange
of shares by each of the parties to each other as hereinafter set out,
and other good and valuable consideration (the receipt and sufficiency
of which is being hereby acknowledged), the parties hereto agree as
follows:
ARTICLE I
DEFINED TERMS AND INTERPRETATION
1.1 Definitions. Whenever used in this Agreement, unless there is something
in the subject matter or context inconsistent therewith, the following words and
terms shall have the following meanings, respectively:
(1) "Parent Common Shares" means the common shares in the capital of the
Parent, as constituted on the Closing Date;
(2) "Assets" means all the undertaking, property and assets of the Company
whether owned licensed or leased, of every kind and description wheresoever
situated;
(3) "Business" means the business carried on the Company;
(4) "Business Day" means a day other than a Saturday, Sunday or any day
other than Saturday or Sunday on which the principal commercial banks located at
Toronto, Ontario are not open for business during normal banking hours;
(5) "Closing" means the completion of the sale to and purchase by the
Parent of the Purchased Shares contemplated herein;
(6) "Closing Date" means effective November 30, 2000, or such earlier or
later date as may be mutually acceptable to the Parties;
(7) "Company" means International Dart Corporation;
(8) "Consents" means consents, approvals, authorizations, order,
registrations and filings;
(9) "Contractual or Other Right or Obligation" means any form of agreement,
contract, instrument, license, permit, registration, judgment, order, decree,
indenture, lease, engagement, commitment and franchise;
(10) "Documentation: means manuals and all other information necessary to
support the Software, including the written materials relating to the Software;
(11) "Effective Date: means the date first above written;
(12) "Encumbrance" means any form of agreement, option, understanding,
commitment, equity, covenant, mortgage, charge, security interest, lien, adverse
claim, pledge, restriction, encumbrance or right to privilege affecting or
capable of affecting the title or right of ownership or ability to transfer or
convey any property or asset;
(13) "Extraordinary Business Combination" means, with respect to any
corporation, the acquisition or disposition of all or any substantial amount of
its issued share capital, or any amalgamation, merger, sale of all or any
substantial part of its assets, takeover bid, reorganization, re-capitalization,
liquidation, winding-up or, or other business combination or similar
transaction, involving such corporation;
(14) "Interim Period" means the period between the close of business on the
Effective Date and Time of Closing on the Closing Date;
(15) "ITA" means the Income Tax Act (Canada);
(16) "Parties" means, collectively, the parties to this Agreement and
"Party" means any one of them;
(17) "Person" means an individual, corporation, partnership, unincorporated
syndicate, unincorporated organization, trust, trustee, executor, administrator,
or other legal representative, government or governmental agency, department or
instrumentality, or any group or combination thereof;
(18) "Purchase Price" has the meaning ascribed thereto in Section 2.2;
(19) "Exchange Shares" means: shares to be exchanged pursuant to this
acquisition.
(20) "Company Common Shares" means the common shares in the capital of the
Company, as presently constituted;
(21) "International Dart Corporation" means the company which owns or
licences the hardware, software, firmware or intellectual property developed by
or for International Dart Corporation or owned or licensed by International Dart
Corporation, and including related design documentation, and any software tools
or similar materials that are necessary to use, modify, manufacture and
understand the Software and that are not generally available from third party
companies;
(22) "Taxes" means any and all income, profits, use, occupancy, transfer,
franchise, withholding, payroll, employment, corporate, capital, stamp,
business, realty, sales, fuel, excise or other taxes, duties, fees, surtaxes,
assessments, levies, imports or charges payable to or exigible by any
governmental agency, authority or instrumentality, domestic or foreign;
(23) "Technology" means any and all technologies, procedures, processes,
designs, inventions, discoveries, know-how, show-how and works of authorship,
including with limitation the Software, the Documentation and trademarks, and
all (i) issued Canadian, United States and foreign patents, utility models and
the like, an applications therefore pending before any relevant authority
worldwide; (ii) copyrights and other rights in works of authorship, whether
registered or not; (iii) mask work rights; (iv) trade secrets; (v) trademarks
and service marks, whether registered or not; and (vi) confidential information,
and any other intellectual property rights in existence as of the date hereof in
or relating to the Software;
(24) "This agreement", "herein", "hereto", "hereby", "hereunder", "hereof"
and similar expressions refer to this agreement and not to any particular
clause, sub clause, section, subsection or paragraph or other portion hereon,
and include amendments hereto, any agreement which is supplementary to or in
amendment or confirmation of this Agreement and any schedules hereto or thereto;
(25) "Time of Closing" means 2:30 p.m. (Toronto time) on the Closing Date
or such other item as may be mutually acceptable to the Parties; and
(26) "Trademarks" means all the trademarks and service marks, whether or
not registered, used by International Dart Corporation including "International
Dart Corporation".
1.2 Gender and Number. Any reference in this Agreement to gender shall
include all genders and words used herein importing the singular number only
shall include the plural and vice versa.
1.3 Headings, Etc. The division of this Agreement into Articles, Sections,
Subsections and other subdivisions and the insertion of headings are for
convenience of reference only and shall not affect or be utilized in the
construction or interpretation hereof.
1.4 Currency. All references in this Agreement to dollars, unless otherwise
specifically indicated, are expressed in Canadian currency.
1.5 Governing Law. This agreement shall be construed, interpreted and the
rights of the Parties determined in accordance with the laws, other than the
conflicts of laws rules, of the State of Delaware and the laws of the United
States of America applicable therein and shall be treated in all respects as a
Delaware contract. The Parties hereby irrevocably atone to the jurisdiction of
the courts of the State of Delaware, and arbitration in the State of New York.
ARTICLE II
TRANSFER OF EXCHANGE SHARES
2.1 Exchange Shares. Subject to the terms and conditions hereof, the
Company covenants and agrees to exchange, assign and transfer to the Parent its
shares free and clear of all encumbrances, in a one (1) for-eight (8)exchange.
Parent covenants and agrees to exchange, assign and transfer to the Company its
shares free and clear of all encumbrances, in a one (1)-for-eight (8) exchange.
2.2 Exchange of Shares. The Exchange to each Company in respect of the
International Dart Corporation Common Shares to be sold by the Company
hereunder, shall be paid and satisfied by the issuance to the Company at the
Time of Closing of eight(8) Optima Global Corporation Common Share(s) for each
International Dart Corporation Common Shares so sold. Subsequent to this
exchange, International Dart Corporation shall issue One (1) Share Common Stock
to Optima Global Corporation.
2.3 Company and Parent Election. The Company and the Parent agree
jointly to file elections pursuant to subsection 85(1) of the ITA in the
prescribed form and within the prescribed time whereby the proceeds of
disposition to Company of the Exchanged Shares transferred by Company and the
cost thereof to the Parent shall be deemed to be the "cost amount" (within the
meaning of the ITA) of such Exchanged Shares to Company. Company and the Parent
agree to jointly file corresponding elections pursuant to any relevant
provincial taxing statutes.
2.4 Adjustments. If the taxing authority disputes any elected amount
provided for in Section 2.4 hereof, the Parent agrees to adjust such disputed
elected amount, in accordance with the provisions of the relevant taxing
statute, to an amount that is mutually agreeable to theaffected Company and such
taxing authority.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of the Company. The Company represents and
warrants to the Parent as follows and acknowledges that the Parent is relying
upon such representations and warranties in connection with the entering into of
this Agreement and the consummation of the transactions contemplated hereby;
3.1 Incorporation and Good Standing of the Company. The Company is a
corporation duly incorporated, organized and validly subsisting and in good
standing under the laws of its jurisdiction of incorporation. The Company has
all necessary corporate power and authority to own or lease its property and
assets and to carry on the business as now being conducted and is in good
standing in all jurisdictions in which the nature of the business conducted by
it or the property owned or leased by it makes such qualification, licensing or
registration necessary.
3.2 Authorized Capital of the Company. The authorized capital of the
Company consists of an unlimited number of Common Shares of which One Million,
One Hundred Thousand, Two Hundred and Sixty-One (1,100,261) Common Shares of
International Dart Corporation have been validly issued and are outstanding as
fully paid and non- assessable, and no Person has any agreement or option or any
right or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, including convertible shares, warrants or
convertible obligations of any nature for the purchase, subscription, allotment
or issuance of any of the unissued shares or shares convertible into unmissed
shares in the capital of the Company except as otherwise noted. There shall be
issued and outstanding ONE SHARE after the completion of the EXCHANGE.
3.3 Capacity of the Company.
(27) If the Company is a corporation, it is duly incorporated and validly
subsisting and in good standing under the laws of the jurisdiction of its
incorporation.
(28) If the Company is an individual, the Company has attained the age of
majority and has the legal capacity and competence to execute this Agreement and
to take all actions required pursuant hereto.
(29) If the Company is a corporation, the Company has the legal capacity
and competence to execute this Agreement and to take all actions required
pursuant hereto and all necessary approvals by directors and shareholders of the
Company, or otherwise, have been given to authorize it to execute and deliver
this Agreement and to take all actions required pursuant hereto.
3.4 Resident of Canada. Company is not a "non-resident" of Canada within
the meaning of the ITA and is not a "non-Canadian" within the meaning of the
Investment Canada Act.
3.5 Title to Purchased Shares. Each shareholder of the Company is the
registered owner of the International Dart Corporation Common Shares and has
good and marketable title thereto, as beneficial owner or trustee for the
beneficiary owner(s) of such shares, free and clear of any and all Encumbrances
of any kind whatsoever. Except for those shares held in trust, no Person, other
that it, has any interest, direct or indicated, beneficial or otherwise, in such
Purchased Shares.
3.6 Litigation Affecting the Purchased Shares. There are no suits, actions
or other legal proceedings or any sort of claims or demands pending or
threatened which would refrain or otherwise prevent it, in any manner, from
effectively and legally transferring the Purchased Shares owned by it to the
Parent free and clear of any and all Encumbrances nor are there any suits,
actions or other legal proceedings pending or threatened the effect of which
would be to cause an Encumbrance to attach to such Purchased Shares, to divest
title to such Purchased Shares or make any of the Parties liable for damages and
it has no knowledge of any claims which should give rise to such a suit, action
or legal proceeding.
3.7 Books and Records. All accounts, books, ledgers and other financial and
accounting records of the Company have been fully, properly and accurately kept
and completed and are up-to-date and there are no material inaccuracies or
discrepancies of any kind contained or eflected therein. The Company does not
have any of its records, systems, controls, data or information recorded,
stored, maintained, operated or otherwise wholly or partly dependent upon or
held by any means (including any electronic, mechanical or photographic process,
whether omputerized or not) which (including all means of access thereto the
there from) are not under the exclusive ownership and direct control of the
Company.
3.8 Assets.
(1) The Company has good and marketable title to all or its Assets (real
and personal, tangible and intangible, including leasehold interests) in each
case subject to no encumbrance or any kind or character.
(2) The Assets are adequate and sufficient for the conduct of the Business
substantially in the manner presently carried on and include all proprietary
rights, trade secrets and other property and assets, real and personal,
applicable to or used in connection with the Business.
3.9 Real Property. The Company is not the owner of, or under any agreement
or option to own, any real property or any interest therein.
Leased Premises. The Company is not the party to the lease of any
real property or any interest therein.
3.10 Leases of Personal Property. The Company is not a party to any lease,
sublease, conditional sales contract, franchise, license or other agreement,
under which the Company is the lessee or lessor of or holds, uses or claims any
interest in any personal property of the Business, other than the Licence
Agreement with High Flyte International Ltd. referred to in this Agreement.
3.11 No Breach of Contracts. Each contract or agreement to which the
Company is a party is in full force and effect and unamended, the Company is
entitled to all rights and benefits hereunder (including the right to receive
royalties and other payments hereunder) and there exists no default or event of
default or event, occurrence, condition or act (including the purchase of the
Purchased Shares hereunder) which, with the giving of notice, the lapse of time
or the happening of any other event or condition, would become a default of
event of default hereunder and the terms and conditions of such contracts and
agreements will not be affected by the completion of the transactions
contemplated hereunder. The Company has not violated or breached, in any
material respect, any of the terms or conditions of any contract or agreement
and, to the best of the knowledge of the Company, the covenants to be performed
by any other party thereto have been fully performed.
3.12 Restrictive Documents. It is not subject to, or a party to, any
charter or by-law restriction, Encumbrance, Contractual or Other Right or
Obligation, law, rule, ordinance, regulation, or any other restriction of any
kind or character which would prevent the consummation of the transactions
contemplated by the Agreement or compliance by it with the terms, conditions and
provisions hereof.
3.13 Taxes. For all periods prior to the date of this Agreement;
(a) all federal, provincial and foreign tax returns and tax
reports required to be filed by the Company have been timely filed
with the appropriate governmental agencies in all jurisdictions
in which such returns and reports are required to be filed,
an all of the foregoing are true, correct and complete;
(b) all Taxes (including interest and penalties) due from the
Company have been fully paid or, adequate provisions made
therefore; and
(3) to the best knowledge of the Company, no claim or liability is pending
or has been assessed or asserted or threatened against the Company in connection
with any such Taxes, and the Company knows of no basis for any such claim or
liability.
3.14 Patented Technology. The patented Technology is exclusively licenced
by the Company from High Flyte International Ltd., pursuant to a Licence
Agreement which is in good standing, and the Company has the sole and exclusive
right to use the same free and clear of any right or claim of any Person or
Corporation, save and except its obligations under the Licence Agreement with
High Flyte International Ltd. All registrations and filings necessary to
preserve the rights of the company in the Patented Technology have been made and
are in good standing. The ownership, use, licensing, sale, distribution and/or
commercial exploitation of the Patented Technology and/or any product or service
containing, using or otherwise incorporating any of the Patented Technology and
the conduct of the Business, to the best of the Company's knowledge, do not
infringe upon, breach, or in any way violate the patents, licenses, trade marks,
trade names, service marks, copyrights or any applications therefore or similar
intangible or proprietary rights of any other Person or Corporation. To the best
of each of the Company's knowledge, there are no disputes, suits, actions,
arbitrations, proceedings, claims or investigations of any sort pending,
threatened or contemplated affecting any of the Patented Technology or against
the Company or any customer, mediate or intermediate, privy, supplier, officer
or agent of the Company regarding the ownership, use licensing, sale,
distribution and/or commercial exploitation of the Patented Technology or
otherwise relating to the Patented Technology. No Person has any agreement or
option, or any right or privilege capable of becoming an agreement or option,
for the purchase or sub-licensing of any of the Patented Technology from the
Company.
3.15 Subsidiaries. The Company has no subsidiaries, nor are there any
agreements of any nature to acquire any agreement or option or to acquire or
lease any other business operations.
3.16 Corporate Records. The minute books and corporate records of the
Company from its date of incorporation to the date hereof are the original
minute books and corporate records of the Company, are true, correct and
complete in all respects, and contain all minutes and resolutions of all
proceedings of the shareholders and the board of directors (including all
committees thereof) of the Company or certified copies thereof from the date of
incorporation to the date hereof which are true and correct in form and
substance and, to the best of the knowledge of any of the Company, there have
been no other meetings, resolutions or proceedings of the shareholders or of the
board of directors (including any committees thereof) of the Company from its
date of incorporation to the date hereof, not reflected in such minute books and
the corporate records. All such meetings were duly called and held. The share
certificate books, register of shareholders, register of transfers and register
of directors of the Company are true, correct and complete.
3.17 Powers of Attorney. There are no Persons holding a general or special
power of attorney from the Company.
3.18 Liabilities. The Company has no material liabilities except
liabilities contemplated by this Agreement and costs associated with the
transactions contemplated hereby.
3.19 Insolvency. The Company is not insolvent, nor has it committed an act
of bankruptcy, proposed a compromise or arrangement to its creditors generally,
taken any proceeding with respect to a compromise or arrangement, taken any
proceeding to have itself declared bankrupt or wound-up, taken any proceeding to
have a receiver appointed over any part of its assets, had any encumbrance or
receiver take possession of any of its property, had an execution or distress
become enforceable or levied upon any of its property or had any petition for a
receiving order in bankruptcy filed against it.
3.20 Consents. There are no Consents or filings that should be obtained or
made in order to complete transactions contemplated by this Agreement.
3.21 No Options, Etc. Except for the Parent under this Agreement, no Person
has any agreement or option, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming an agreement or option for the
purchase from it of any of the Purchased Shares owned by it.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PARENT
Representations And Warranties Of The Parent. The Parent
represents and warrants to the Company as follows and acknowledges that the
Company are relying upon such representations and warranties in connection with
the entering into of this Agreement and the consummation of the transactions
contemplated hereby.
4.1 Incorporation and Good Standing of the Parent. The Parent is a
corporation duly incorporated and validly subsisting and in good standing under
the laws of the State of Delaware. The Parent has all necessary corporate power
and authority to own or lease its property and assets and to carry on its
business as now being conducted by it.
4.2 Validity of Agreement.
(a) The Parent has all necessary right, power and authority to enter into,
execute and deliver this Agreement and to perform its obligations hereunder.
(b) The entry into, execution and delivery of this Agreement and all other
agreements and documents required to be delivered by the Parent hereunder, the
performance by the Parent of its obligations hereunder and the consummation of
the transactions contemplated hereby: i) have been and will be duty authorized
by all necessary action, corporate or otherwise, on the part of the Parent and
(ii) do not or will not conflict with or constitute a breach of or a default
under or create any Encumbrance under (or would not with the passage of time or
the giving of notice, or both, conflict with or constitute a breach of or a
default under or create any Encumbrance under) any of the terms or provisions of
the co stating documents, by-laws or resolutions of the Parent or of any
Contractual or Other Right or Obligation to which the Parent is a party or by
which the Parent is bound or of any laws or regulations applicable to the
Parent.
(c) Each of this Agreement and all other agreements and documents required
to be delivered by the Parent hereunder constitute, or on delivery will
constitute, a legal, valid and binding obligation of the Parent enforceable
against it in accordance with its terms.
4.3 Shares. The Optima Global Corp. Common Shares to be issued to the
Company hereunder will be validly issued and outstanding as fully paid and
non-assessable shares of the Parent upon issuance and delivery to the Company.
4.4 Authorized and Issued Capital. The authorized capital of the Parent
consists of an 50,000,000 of common shares of which 17,500,000 common shares are
issued and outstanding as fully paid and non-assessable shares of the Parent
upon issuance and delivery to the Company.
4.5 Consents. Other than the approval of the shareholders of the Parent,
there are no Consents or filings that should be obtained or made in order to
complete the transactions contemplated by this Agreement (including without
limitation any Consents of or filings with any shares commission or stock
exchange),
4.6 Restrictive Documents. The Parent is not subject to, or a party to, any
charter or by-law restriction, Encumbrance, Contractual or Other Right or
Obligation, law, rule, ordinance, regulation, or any other restriction of any
kind or character which would prevent the consummation of the transactions
contemplated by this Agreement or compliance by the Parent with the terms
conditions and provisions hereof.
4.7 Subsidiaries. The Parent does not have any subsidiaries.
4.8 Parent's Options. No Person has or at the Time of Closing will have any
agreement or option or any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option, including convertible
shares, warrants or convertible obligations of any nature for the purchase,
subscription, allotment or issuance of any of the unmissed shares or shares
convertible into unmissed shares in the capital of the Parent, other than the
rights of the Company hereunder and the rights of the holders of the remaining
shares of the Company to exchange such shares of the Parent.
4.9 Liabilities. The Parent has no material liabilities or obligations
except liabilities contemplated by this Agreement and costs associated with the
transactions contemplated hereby.
4.10 Taxes. For all periods prior to the date of this Agreement,
(30) all federal, state and foreign tax returns and tax reports required to
be filed by the Parent have been timely filed with the appropriate governmental
agencies in all jurisdictions in which such returns and reports are required to
be filed, and all of the foregoing is true, correct and complete;
(31) all Taxes (including interest and penalties) due from the Parent have
been fully paid or, adequate provisions are made therefore; and
(32) to the best knowledge of the Parent, no claim or liability is pending
or has been assessed or asserted or threatened against the Parent in connection
with any such Taxes, and the Parent knows of no basis for any such claim or
liability.
4.11 Litigations, Compliance with Laws. The Parent has complied in all
significant respects with all applicable laws and orders, and all other
requirements and rules of governmental authorities. The Parent is not presently
subject to any court or administrative order, judgment, or decree. No suit,
action, investigation, governmental proceeding, administrative proceeding or
other litigation of any kind or nature to which the Parent may be a party is now
pending, threatened or, to the knowledge of the Parent, contemplated.
4.12 Subsequent Events. Except as otherwise contemplated or permitted by
this Agreement:
(33) there has not been any material adverse change in the financial
condition, business, business organization or personnel of the Parent;
(34) there has not been any acquisition or retirement by the Parent of any
of its capital stock or any dividend or other distribution declared, paid or
made on or with respect to its capital stock;
(35) there has not been any sale, mortgage, pledge or other disposition of
any asset owned by the Parent;
(d) the Parent has not merged or consolidated with any other corporation;
(e) the Parent has not altered or amended its corporate charter or other
instrument governing its corporate existence or powers, or by-laws; and
(36) the Parent has not entered into, materially amended or terminated any
material contract, agreement, franchise, permit or license.
4.13 Books and Records. All accounts, books, ledgers and other financial
and accounting records of the Parent have been fully, properly and accurately
kept and completed and there are no material inaccuracies or discrepancies of
any kind contained or reflected therein. The Parent does not have any of its
records, systems controls, data or information recorded, stored, maintained,
operated or otherwise wholly or partly dependent upon or held by any means
(including any electronic, mechanical or photographic process, whether
computerized or not) which (including all means of access thereto and there
from) are not under the exclusive ownership and direct control of the Parent.
4.14 Assets. The Parent has no material assets.
4.15 Leased Premises. The Parent is not a party to any lease, agreement to
lease or agreement in the nature of a lease, whether as lessor or lessee,
respecting real property.
4.16 Leases of Personal Property. The Parent is not a party to any lease,
sublease, conditional sales contract, franchise, license or other agreement
respecting personal property.
4.17 Contracts. The Parent is not a party to or bound by any material
contracts, agreements, engagements or commitments.
4.18 Powers of Attorney. There are no Persons holding a general or special
power of attorney from the Parent.
4.19 Insolvency. The Parent is not insolvent, nor has it committed an act
of bankruptcy, proposal of compromise or arrangement to its creditors generally,
taken any proceeding with respect to a compromise or arrangement, taken any
proceeding to have itself declared bankrupt or wound-up taken any proceeding to
have a receiver appointed over any part of its assets, had any encumbrance or
receiver take possession of any of its property, had an execution or distress
become enforceable or levied upon any of its property or had any petition for a
receiving order in bankruptcy filed against it.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Parent's Conditions Precedent. The obligation of the Parent to complete
the purchase of the Purchased Shares hereunder shall be subject to the
satisfaction of, or compliance with, at or before the Time of Coming, each of
the following conditions precedent each of which is separate, is provided for
the exclusive benefit of the Parent and may be waived by the Parent in
accordance with Section 5.4;
(a) all corporate, legal and regulatory proceedings, approvals and consents
as are reasonably considered necessary by the Parent's solicitors shall have
been taken or obtained to permit the consummation of the transactions
contemplated herein;
(b) the Company shall not have any material assets other than those
relating to the Business and shall not have any material liabilities (whether or
not absolute, contingent or otherwise) other than those liabilities incurred to
the ordinary course of operation of the Business;
(c) all of the representations and warranties of the Company contained
herein or in any certificate or other document delivered or given pursuant to
this Agreement shall be true and correct and with the same effect as if made,
and as of the time of Closing and the Parent shall have received a certificate,
confirming, to the best of the Company's knowledge, information and belief, the
truth and correctness in all material respects of such representations and
warranties (except as such representations and warranties may be affected by the
occurrence of events or transactions expressly contemplated and permitted
hereby), provided that the receipt hereof and the closing of the transactions
contemplated herein shall not constitute a waiver of the representations and
warranties of the Company which are contained in this Agreement.
(d) the Company has fulfilled and/or complied with all terms, conditions,
covenants and agreements herein contained to be performed or caused to be
performed by it, including, without limiting the generality of the foregoing,
the covenants contained in article Six to the extent the same are to be
performed at or prior to the Time of Closing and each of the Company shall have
delivered a certificate executed by a senior officer to that effect, provided
that the receipt thereof and the closing of the transactions contemplated herein
shall not constitute a waiver of the covenants and agreements of the Company
which are contained in this Agreement;
(e) all documentation relating to the due authorization (including, without
limitation, the due authorization by the directors and shareholders of the
Company) and completion of the sale and purchase hereunder of the Purchased
Shares and all actions and proceedings taken on or prior to the Time of Closing
in connection with the performance by the Company of its obligations under this
Agreement shall be satisfactory to the Parent and its counsel, both acting
reasonably, and the Parent shall have received copies of all such documentation
or other evidence as it may reasonably request in order to establish the
consummation of the transactions contemplated hereby and the taking of all
corporate proceedings in connection therewith in compliance with those
conditions, in form (as to certification and otherwise) and substance
satisfactory to the Parent, acting reasonably, and its counsel;
(f) there shall have been no material adverse change in the business,
affairs and conditions of the Company,
whether financial or otherwise;
(g) all Consents, licenses, permits and certificates of any Persons and all
filings and notifications to any Persons required in connection with the
completion of the transactions contemplated by this Agreement, the execution and
delivery of this Agreement, the Closing or the performance of any of the terms
and conditions hereof shall have been obtained on or before the Time of Closing;
(h) the Parent shall have completed its investigation into the books,
records and affairs of the Company and such investigation shall not have
disclosed any matter, which the Parent, acting reasonably, considers to be
material to its decision to acquire the Purchased Shares;
(1) the Company shall have executed and delivered such conveyances,
assurances, assignments, transfers and other instruments of conveyance necessary
or reasonably required effectively to transfer the Purchased Shares to the
Parent with a good marketable title free and clear of all Encumbrances of any
kind whatsoever; and
(j) the Parent shall have purchased all of the shares of International Dart
Corporation outstanding as at the Time of Closing.
5.2 Company Conditions Precedent. The obligations of the Company to
contemplate sale of the Purchased Shares hereunder shall be subject to the
satisfaction of, or compliance with, at or before the Time of Closing, each of
the following conditions precedent each of which is separate, is provided for
the exclusive benefit of the Company and may be waived by the Company in
accordance with Section 5.5.
(a) all corporate, legal and regulatory proceedings, approvals and consents
as are reasonably considered necessary by the Company's solicitors shall have
been taken or obtained to permit the consummation of the transactions
contemplated herein;
(b) all of the representations and warranties of the Parent contained
herein or in any certificate or other document delivered or given pursuant to
this Agreement shall be true and correct and with the same effect as if made at
the Time of Closing and the Company shall have received a certificate from an
officer of the Parent confirming, to the best of him knowledge, information and
belief, the truth and correctness in all material respects of such
representations and warranties (except as such representations and warranties
may be affected by the occurrence of events or transactions expressly
contemplated and permitted hereby), provided that the receipt thereof and the
closing of the transactions contemplated herein shall not constitute a waiver of
the representations and warranties of the Parent which are contained in this
Agreement:
(c) the Parent shall have fulfilled and/or complied with all terms,
conditions, covenants and agreements herein contained to be performed or caused
to be performed by it, including, without limiting the generality of the
foregoing, its covenants contained in Article Seven to the extent the same are
to be performed prior to the Time of Closing and the Parent shall have delivered
a certificate executed by a senior officer to that effect, provided that the
receipt thereof and the closing of the transactions contemplated herein shall
not constitute a waiver of the covenants and agreements of the Parent which are
contained in this Agreement;
(d) all documentation relating to the due authorization (including, without
limitation, the due authorization by the directors and shareholders of the
Parent) and completion of the sale and purchase hereunder of the Purchased
Shares and all actions and proceedings taken on or prior to the Time of Closing
in connection with the performance by the Parent of its obligations under this
Agreement shall be satisfactory to the Company and its counsel, acting
reasonably, and the Company shall have received copies of all such documentation
or other evidence as they may reasonably request in order to establish the
consummation of the transaction contemplated hereby and the taking of all
corporate proceedings in connection therewith in compliance with these
conditions, in form (as to certification and otherwise) and substance
satisfactory to the Company, acting reasonably, and their counsel;
(e) there shall have been no material adverse change in the business,
affairs and conditions of the Parent, whether financial or otherwise;
(f) all Consents, licenses, permits and certificates of any Persons and all
filings and notifications to any Persons required in connections with the
completion of the transactions contemplated by this Agreement, the execution and
delivery of this Agreement, the Closing or the performance of any of the terms
and conditions hereof shall have been obtained on or before the Time of Closing;
(g) the Parents shall not have any material assets and shall not have any
material liabilities other than those liabilities incurred in the ordinary
course of operation of its business; and
(h) the Company shall have completed their investigation into the books,
records and affairs of the Parent and such investigation shall not have
disclosed any matter, which the Company, acting reasonably, consider to be
material to their decisions to sell the Purchased Shares.
5.3 Conditions to the Obligations of All Parties. The obligations of all
Parties to complete the transactions contemplated herein shall be subject to the
satisfaction of, or compliance with, at or before the Time of Closing; each of
the following, each of which is a true condition precedent and may not be
waived;
(1) the shareholders of the Parent shall have approved the transactions
contemplated hereby; and
(2) the shareholders of the Company shall have approved the transactions
contemplated hereby, and
(3) no action or proceeding, at law or in equity and no investigation shall
be pending or threatened by any Person to restrain, restrict or prohibit or
materially adversely affect the consummation of any of the transactions
contemplated hereby, or the right of the Parent or the Company to carry on the
Business in the same manner as it has been carried on in the past; and
5.4 Non-Fulfillment of Parent's Conditions. In case any of the conditions
set Forth-in Section 5.1 shall not be satisfied or complied with at or before
the Time of Closing, the Parent may:
(a) refuse to complete the transactions contemplated herein by notice to
the Company, and in such event the Parent shall be released from all its
obligations hereunder, it being expressly understood and agreed that the Parent
may thereafter pursue any rights or remedies which it may have at law or in
equity arising from the breach or default of the Company, including any claim
for breach of representation , warranty or covenant hereunder (provided that any
claims for losses shall be limited to the claimants s direct out-of-pocket costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby), or
(b) complete the transactions contemplated herein, it being expressly
understood and agreed that the Parent may rely, notwithstanding such completion,
upon any representation, warranties or covenants and conditions contained in
this Agreement; provided that any of such conditions may be waived in whole or
in part, any such waiver to be binding on the Parent only if the same is in
writing. No waiver by the Parent of a condition, in whole or in part, shall
operate as a waiver of any other condition or part of a condition.
5.5 Non-Fulfillment of Company's Conditions. In case any of the conditions
set forth in Section 5.2 shall not be satisfied or compiled with at or before
the Time of Closing, the Company may;
(a) refuse to complete the transactions contemplated herein by notice to
the Company, and in such event the Parent shall be released from all their
respective obligations hereunder, it being expressly understood and agreed that
the Parent may thereafter pursue any rights or remedies which they may have at
law or in equity arising from the breach or default of the Company, including
any claim for breach of representation, warranty or covenant hereunder (provided
that any claims for losses shall be limited to the claimant s direct out of
pocket costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby), or
(b) complete the transactions contemplated herein, it being expressly
understood and agreed that the Parent may rely, notwithstanding such completion,
upon any representations, warranties or covenants and conditions contained in
this Agreement; provided that any of such conditions may be waived in whole or
in part, any such waiver to be binding on the Parent only if the same is in
writing. No waiver by the Parent of a condition, in whole or in part shall
operate as a waiver of any other condition or part of a condition.
ARTICLE VI
OTHER COVENANTS OF THE COMPANYS
6.1 Interim Period. During the Interim Period, the Company shall, except as
otherwise herein contemplated:
(a) conduct the Business in, and only in, the ordinary and normal course
thereof in substantially the same manner as heretofore (conducted and to
preserve intact the Assets, the business, the present business organization and
the clients and customers connected therewith and keep available the services of
its present officers and employees and others having business dealings with it
to the end that its good will and business shall be maintained;
(b) not, without the prior written consent of the Parent, enter into any
transaction, undertake any action or refrain from taking any action which, if
had been effected or had occurred before the date of this Agreement, would
constitute a breach of the representations, warranties, or agreements or the
Companys contained herein (provided that the Company shall be entitled to enter
into agreements and arrangements to license the Technology and otherwise carry
out the Company s business plan and marketing strategy):
(c) comply with all laws affecting the operation of the Business;
(d) not create, assume or incur any debt or liability (contingent or
otherwise) outside of the ordinary course of the Business;
(e) not knowingly take or cause to be taken any steps, directly or
indirectly, which may in any way adversely affect the completion of the
transaction, contemplated herein;
(f) not cancel or waive any material claim or right;
(g) not sell, lease, or otherwise dispose of any of the Assets, other than
in the ordinary course of business;
(h) pay, satisfy and discharge its obligations and liabilities in the
ordinary course of business;
(i) not declare, pay or authorize any dividends or make or authorize any
distribution, or repayments of capital in respect of its outstanding shares;
(j) not amend its co stating documents or by-laws;
(k) disclose or cause to be disclosed to the Parent in writing, forthwith
upon occurrence, any material change in relation to the condition, affairs or
operations of the Company);
(1) not solicit, initiate or encourage or cause to be solicited, initiated
or encouraged submissions of proposals or offers from any other Person, relating
to, or facilitate or encourage or cause to be facilitated or encouraged any
effort or attempt with respect to any Extraordinary Business Combination
involving the Company and any other party (other than the Parent). The Company
will not participate in any negotiations regarding, or (except as required by
law) furnish to any other Person, any information with respect to, or otherwise
cooperate in any way with, or assist or participate in any Extraordinary
Business Combination. If the Company receives any such enquiry or proposal, it
will promptly notify the Parent in writing of all relevant details relating
thereto; and
(m) not agree, whether or not in writing, to do any of the foregoing.
6.2 Disclosure by Company. The Company agrees to make full disclosure to
the Parent the financial position and condition, business, operations, assets
and liabilities of the Company and the Business and of such other matters or
information as may be material or relevant to the transactions contemplated
herein. The Company agrees to permit the Parent and its employees, agents,
counsel and accountants or other representatives, between the date hereof and
the Time of Closing, to have free and unrestricted access during normal business
hours to the books, accounts, records and other data and documents of the
Company (including, without limitation, all corporate, accounting and tax
records of the Company) and to the Assets and premises the Company and to have
access to and consultation with the Company's advisors, and to furnish to the
Parent such financial and operating data and other information with respect to
the Business, the Assets, and the Company as the Parent shall from time to time
reasonably request to enable confirmation of the matters warranted in Article
III hereof and to enable the Parent to familiarize itself with the Company, the
Business and the Assets. No investigations made by or on behalf of the Parent at
any lime shall have the effect of waiving, diminishing the scope of or otherwise
affecting any representation or warranty made by the Company herein or pursuant
hereto.
6.3 Company to Use Best Efforts. The Company hereby agrees to take all such
actions as are within its power to control and to use its best efforts to cause
other actions to be taken which are not within its power to control, so as to
ensure compliance with any conditions set forth in Article Five hereof which are
for the benefit of the Parent.
6.4 Extraordinary Business Combinations. The Company hereby covenants and
agrees to instruct the Company's advisors and representatives not to take or
refrain from taking and (subject to their fiduciary duties) the Company's
directors and senior officers not to take or to refrain from taking, any action
which if taken or not taken by the Company would contravene subsection 6.1(1).
The Parties acknowledge and agree that the board of directors and the directors
of the Company may be required, in the exercise in its and their fiduciary
duties to the Company and its shareholders, to entertain proposals more
favorable to the shareholders of the Company than that contemplated herein.
Accordingly, until such time as the transactions contemplated herein have been
consummated or terminated, the Company and its directors and officers may
respond to, and supply, in connection with such response, information to a third
party which has made a proposal for the acquisition of substantially all the
shares of the Company, substantially all of assets of the Company or to effect
any Extraordinary Business Combination that, in the opinion of the board of
directors of this Company, is more favorable to the shareholders of the Company
than that contemplated by this Agreement, provided that in each such case the
Company shall promptly notify the Parent.
ARTICLE VII
OTHER COVENANTS OF THE PARENT
7.1 Interim Period. During the Interim Period, the Parent shall, except as
otherwise herein contemplated:
(a) not conduct any business;
(b) not, without the prior written consent of the Company, enter into any
transaction, undertake any action or refrain from taking any action, which, if
had been effected or had occurred before the date of this Agreement, would
constitute a breach of the representations, warranties or agreements of the
Parent contained herein;
(c) comply with all laws affecting the operation of its business;
(d) not create, assume or incur any debt or liability (contingent or
otherwise);
(e) not knowingly take or cause to be taken any steps, directly or
indirectly, which may in any way adversely affect the completion of the
transactions, contemplated herein:
(f) not cancel or waive any material claim or right;
(g) pay, satisfy and discharge its obligations and liabilities in the
ordinary course of business;
(h) not declare, pay or authorize any dividends or make or authorize any
distributions or repayments of capital in respect of its outstanding shares;
(i) not amend its co stating documents or by-laws;
(j) not issue, authorize or propose the issuance of, or purchase or propose
the purchase of, any of its shares or shares;
(k) not incur or authorize any expenditure of any nature;
(l) disclose or cause to be disclosed to the Company in writing, forthwith
upon occurrence, any material change or change in a material fact or new
material fact (within the meaning of the shares legislation of Ontario and/or
applicable national policies of shares administrators) in relation to the
condition, affairs or operations of the Parent;
(m) not solicit, initiate or cause to be solicited, initiated or encouraged
submissions of proposals or offers from any other Person, relating to, or
initiate or encourage or cause to be initiated or encouraged any effort or
attempt with respect to any Extraordinary Business Combination involving the
Parent and any other party (other than the Company and other security holders of
the Company). The Parent will not participate in any negotiations regarding, or
(except as required by law) furnish to any other Person, any information with
respect to, or otherwise cooperate in any way with or assist or participate in
any Extraordinary Business Combination. If the Parent receives any such enquiry
or proposal, it will promptly notify the Company in writing of all relevant
details relating thereto; and
(37) not agree, whether or not in writing, to do any of the foregoing.
7.2 Parent to use Best Efforts. The Parent hereby agrees to take all such
actions as are within its power to control and to use its best efforts to cause
other actions to be taken which are not within its power to control, so as to
ensure compliance with any conditions set forth in Article Five hereof which are
for the benefit of the Company.
7.3 Disclosure by Parent. Full disclosure to the Company and the Company of
the financial position and condition, business, operations, assets and
liabilities of the Parent and of such other matters or information as may be
material to the transactions contemplated herein. The Parent agrees to permit
the Company and its employees, agents, counsel and accountants or other
representatives between the date hereof and Time of Closing, to have free and
unrestricted access during normal business hours to the books, accounting
records and other data and documents of the Parent (including, without
limitation, all corporate, accounting and tax records of the Parent) and the
assets of the Parent and to furnish to the Company such financial and operating
data and other information with respect to the Parent and its assets as the
Company shall from time to time reasonably request and to enable the Company to
familiarize itself with the Parent and its assets. No investigation made by or
on behalf of the Company at any time shall have the effect of waiving,
diminishing the scope of or otherwise affecting any representation or warranty
made by the parent herein or pursuant hereto.
7.4 Filings and Authorizations. The Parent, as promptly and as practicable
after the execution thereof, (i) will make, or cause to be made, all much
filings and submissions under laws, rules and regulations applicable to it, as
may be required for it to consummate the purchase and sale of the Purchased
Shares in accordance with the term of this Agreement; (ii) will use all
reasonable efforts to obtain, or cause to be obtained, all authorization,
approvals, consents and waivers from all Persons and governmental authorities
necessary or advisable to be obtained by it in order to consummate such
transfer; and (iii) will use all reasonable efforts to take, or cause to be
taken, all other actions necessary, proper or advisable in order for it to
fulfill its obligations hereunder. The Parent will coordinate and cooperate with
the Company in exchanging such information and the Company in connection with
the foregoing may reasonably request supplying such reasonable assistance as.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES: INDEMNIFICATION
8.1 Survival. All covenants, representations and warranties made herein or
in any agreement, certificate or other document delivered or given pursuant to
this Agreement (other than those which are expressly waived in writing as part
of the Closing herein) shall survive the execution and delivery of this
Agreement and the completion of the Transactions contemplated by this Agreement
and, notwithstanding such completion or any investigation made by or on behalf
of the Party to whom or in whose favor such covenants, representations and
warranties were made, shall continue in full force and effect for the respective
benefit of the Parent and the Company, as the case may be, for a period of two
years following the Closing Date, after which period the respective Parties
shall be released from their respective obligations and liabilities hereunder,
except in respect of claims made in writing prior to expiry of such period,
provided that:
(a) all covenants, representations and warranties relating to Taxes, tax
liability or other tax matters for any period ending prior to or on the Closing
Date shall survive the Closing for any period during which any taxing authority
may make any claim or assessment based on any return filed or failed to be filed
plus a period of six months, after which period the Parent and the Company shall
be released from their respective obligations and liabilities hereunder, except
in respect of claims made in writing prior to the expiry of such period,
(b) any claim based on or with respect to the inaccuracy or non-performance
or non-fulfillment or breach of any representation, warranty or covenant of a
Party respecting Taxes, tax liability or other tax matters set out herein may be
brought by The Parent or the Company, as the case may be, at any time, if such
claim is based upon any failure or omission to file a return or any
misrepresentation made or fraud committed in filing a return or in supplying
information under any legislation pursuant to which a Tax is imposed,
(c) any claim based upon any misrepresentation, or breach or inaccuracy in
any of the representations and warranties of a Party set out herein may be
brought against such Party at any time if such Party knew of such
misrepresentation, breach or inaccuracy at the time such representation or
warranty was made by such Party, and;
(d) any claim based upon a defect in title of or the inability of the
Company to sell all or any of the Purchased Shares may be brought by the Parent
at any time.
8.2 Indemnification by the Company. The Company agrees to indemnify and
hold the Parent and its shareholders, directors, officers, employees, agents and
representatives (and the Parent shall be deemed to be a trustee and agent with
respect thereto) harmless of and from any liability, obligation, cost expenses,
damage or loss whatsoever arising out of, under, or pursuant to:
(a) any incorrectness in, breach of, or default under, and representation
or warranty or covenant of such Company given to the Parent hereunder or in any
certificate or other document delivered by such Company pursuant hereto,
subject, to the extent applicable, to the limitations set forth in Section 8.1
with respect thereto;
(b) any assessment for Taxes, Interest and/or penalties of or relating to
the Company, subject, to the extent applicable, to the limitations set forth in
Section 8.1 with respect thereto;
(c) all claims, demands, suits, causes of action, proceedings judgments,
costs and or other liabilities of any kind whatsoever in respect of the
foregoing, including reasonable legal fees and disbursements in connection with
the foregoing; and
(d) the non-fulfillment of any condition contained herein for which it is
solely responsible (excluding there from the conditions precedent contained in
Section 5.3 except to the extent such condition(s) are not met by reason of its
default).
8.3 Indemnification by the Parent. The Parent agrees to indemnify and save
the Company, their respective shareholders, directors, officers, employees,
agents and representatives (and the Company shall be deemed to be a trustee and
agent with respect thereto) harmless of and from any liability, obligation,
cost, expense, damage or loss whatsoever arising out of, under, or pursuant to:
(a) any incorrectness in, or breach of, or default under, any
representation, warranty or covenant of the Parent given to the Company
hereunder or in any certificate or other document delivered by the Parent
pursuant hereto, subject to the limitations set forth in section 8.1 with
respect thereto;
(b) any assessment for Taxes, interest and/or penalties of or relating to
the Parent, subject, to the extent applicable, to the limitations set forth in
Section 8.1 with respect thereto;
(c) all claims, demands, suits, courses of action, proceedings, judgments,
costs and expenses or other liabilities of any kind whatsoever in respect of the
foregoing, Including reasonable legal fees and disbursements in connection with
the foregoing; and
(d) the non-fulfillment of any condition contained herein for which it is
solely responsible (excluding there from the conditions precedent contained in
Section 5.3 except to the extent such condition(s) are not met by reason of its
default).
8.4 Indemnification Proceedings
(a) Any Party seeking indemnification under this Article Eight ("the
indemnified party ) shall forthwith notify the Party against whom a claim for
indemnification is sought hereunder ("the indemnifying party ) in writing, which
notice shall specify, In reasonable detail, the nature and estimated amount of
the claim. If a claim by a third party is made against an indemnified party, and
if the indemnified party intends to seek indemnity with respect thereto under
this article Eight, the indemnified party shall promptly (and In any case within
30 days of such claim being made) notify the indemnifying party of such with
reasonable particulars. The Indemnifying party shall have 30 days after receipt
of such notice to undertake, conduct and control, through counsel of its own
choosing and at its expense, the settlement or defense thereof, and the
indemnified party shall cooperate with it in connection therewith; provided,
however, that with respect to settlements entered into by the indemnifying party
(i) the consent of the indemnified party shall be required if the settlement
provides for equitable relief against the indemnified party, which consent shall
not be unreasonably withheld or delayed; and (ii) the indemnifying party shall
obtain the release of the indemnified party. If the indemnifying party shall
undertakes, conducts and controls the settlement or defense of such claim (i)
the indemnifying party shall permit the indemnified party to participate in such
settlement or defense through counsel chosen by the indemnified party, and (ii)
the indemnifying party shall promptly reimburse the indemnified party for the
full amount of any loss resulting from any claim and all related expenses (other
than the fees and expenses of counsel as aforesaid) incurred by the indemnified
party. The indemnified party shall not pay or settle any claim so long as the
indemnifying party is reasonably contesting any such claim in good faith on a
timely basis. Notwithstanding the two immediately preceding sentences, the
indemnified party shall have the right to settle any such claim, provided that
in such event it shall waive any right to indemnity therefore or by the
indemnifying party.
(b) With respect to third party claims, if the indemnifying party does not
notify the indemnified party within 30 days after the receipt of the indemnified
party's notice of a claim of indemnity hereunder that it elects to undertake the
defense thereof, the indemnified party shall have the right, but not the
obligation, to contest, settle or compromise the claim in the exercise of its
reasonable judgment at the expense of the indemnifying party.
(c) In the event of any claim by a third party against an indemnified
party, the defense of which is being undertaken and controlled by the
indemnifying party, the indemnified party will use all reasonable efforts to
make available to the indemnified party those employees whose assistance,
testimony or presence Is necessary to assist the indemnified party in evaluating
and In defending any such claims; provided that the indemnifying party shall be
responsible for the expense associated with any employees made available by the
indemnified party to the indemnifying party hereunder, which expense shall be
equal to an amount to be mutually agreed upon per person per hour or per day for
each day or portion thereof that such employees are assisting the indemnifying
party and which expenses shall not exceed the actual cost to the indemnified
party associated with such employees.
(d) with respect to third party claims, the indemnified party shall make
available to the indemnifying party or its representatives on a timely basis all
documents, records and other materials In the possession of the indemnified
party, at the expense of the indemnifying party, reasonably required by the
indemnifying party for its use in defending any claim and shall otherwise
cooperate on a timely basis with the indemnifying party In the defense of such
claim.
58.5 Limitation of Losses.
No claim for Indemnity under this Article VIII may be made for loss of
profits or consequential losses or damages, it being the Intention at the
Parties to limit such claims to direct liabilities, obligations, costs,
expenses, damages or losses suffered as result of any breach, default or
non-fulfillment contemplated by Sections 8.2 and 8.3.
ARTICLE IX
CLOSING ARRANGEMENTS AND TERMINATION
9.1 Closing. The Closing of the purchase and sale of the Purchased Shares
shall take place at the Time of Closing on the Closing Date at the Offices of
Xxxxxxx, Xxxxxxx & Morningstar, Barristers & Solicitors, 00 Xxxx Xxxxxx, Xxxxx
000, Xx. Xxxxxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, or at such other place and/or
time as the Parties may mutually agree upon.
9.2 Closing Delivery. At the Time of Closing, the Company shall deliver to
the Parent:
(a) certificates representing the Purchased Shares duly endorsed in blank
for transfer;
(b) the certificates referred to in Subsection 5.1(c) together with the
documentation referred to in Subsection 5.1 (e); and
(c) all other assurances, transfers, assignments, consents, legal opinions
and other documents as the Parent's solicitors consider reasonably necessary or
desirable to validly and effectively complete the transactions contemplated
hereby, and upon the fulfillment of the foregoing provisions of this Section
9.2, the Parent shall deliver to the Company:
(d) the certificate referred to in Subsection 5.2 (a) together with the
documentation referred to in Subsection 5.2 (d);
(e) certificates representing the International Dart Corporation Common
Shares registered in the respective names of the Company in the amounts
necessary to satisfy the purchase Price; and
(f) all other assurances, transfers, assignments, consents, legal opinions
and other documents as the Company's solicitors consider reasonably necessary or
desirable to validly and effectively complete the transactions contemplated
hereby,
9.3 Failure to Close. In the event that the Closing has not been completed
on or before February 1, 2001, this Agreement shall terminate and the Parties
shall be released from their obligations hereunder (other than Section 10.7).
9.4 Conditions Precedent. Without limiting the generality of the provisions
of this Agreement, all conditions precedent to the Parent s obligations and the
conditions precedent to the Company's obligations provided for in Article 5 of
this Agreement, must be satisfied on or before the Time of Closing.
ARTICLE X
MISCELLANEOUS
10.1 Publicity. Except as is required by law, none of the Parties shall
issue any press release or make any other public statement or announcement
relating to or connected with or arising out of this Agreement or the matters
contained herein without obtaining the prior written approval of the other
parties, which approval shall not be unreasonably withheld.
10.2 Knowledge of Parties. Where any representation or warranty contained
in this Agreement is expressly qualified by reference to the knowledge of a
Party, it shall be deemed to refer to the knowledge of such Party and such Party
shall confirm that it has made due and diligent inquiry of such Persons
(including without limitation appropriate officers of such Party) as it
considers necessary as to the matters that are the subject of such
representations and warranties.
10.3 Further Assurances. To the extent reasonably practicable in the
circumstances or permitted by law each of the Parties upon the request of the
other shall do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged or delivered all such further acts, deeds, documents, assignments,
transfers, conveyances, and assurances as may be reasonably necessary or
desirable to effect complete consummation of the transactions contemplated by
this Agreement.
10.4 Time. Time shall be of the essence hereof.
10.5 Successors in Interest. This Agreement and the provisions hereof shall
ensure to the benefit of and be binding upon the Parties and their respective
successors and permitted assigns.
10.6 Notices. Any notice, document or other communication required or
permitted by this Agreement to be given by a party hereto shall be in writing
and is sufficiently given if delivered personally, or if sent by prepaid
ordinary mail posted in Canada to such party at the address set out on the fact
page hereof and as set out in Schedule "C" hereto. Notice so mail shall be
deemed to have been given on the third business day after deposit in a post
office or public letterbox. Neither party shall mail any notice, request or
other communication hereunder during any period in which Canadian postal workers
are on strike or if such strike is imminent and may reasonable by anticipated to
affect the normal delivery of mail. Any Party may from time to time notify the
others in the manner provided herein of any change of address which thereafter,
until changed by like notice, shall be the address of such party for all
purposes hereof.
10.7 Expenses. All costs and expenses (including without limitation, the
fees and disbursements of legal counsel, investment advisers and auditors)
incurred by a Company in connection with this Agreement and the transactions
contemplated hereby shall he paid by such Company.
10.8 Assignment. This Agreement may not be assigned by the Company without
the prior written consent of the Parent which consent will not be unreasonably
withheld. This Agreement may not be assigned by the Parent without the prior
written consent of the Company.
10.9 Execution in Counterparts. This Agreement may be executed by facsimile
or original signature by the parties hereto in separate counterparts or
duplicates each of which when so executed and delivered shall be an original,
but all such counterparts or duplicates shall together constitute one and the
same instrument.
10.10 Entire Agreement. This Agreement together with my agreements or other
documents to be delivered pursuant hereto acts forth the entire agreement among
the Parties pertaining to the purchase and sale of the Purchased Shares and
replaces and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties, and there an no
warranties, representations or other agreements, whether oral or written,
express or implied, statutory, or otherwise between the Parties in connection
with the subject matter hereof except as specifically set forth herein.
10.11 Amendments. No supplement, modification, waiver or termination of
this Agreement shall be binding unless executed in writing by the Party to be
bound thereby
10.12 Waiver. No delay or failure of any party in exercising any right or
remedy hereunder and no partial exercise of any such right or remedy shall be
deemed to constitute a waiver of such right or remedy or any other rights or
remedies of such party hereunder. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
(whether or not similar) nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided. Any consent by a party to or any waiver by
a Party of any breach of any provision of this Agreement shall not constitute a
consent to or waiver of any subsequent, further or other breech of the
provisions of this Agreement.
10.13 Third Part Beneficiaries. Each Party intends that this Agreement or
any agreement entered into pursuant to this Agreement shall not benefit or
create any right or cause of action in or on behalf of any Person, other than
the Parties, and no Person, other than the Parties shall be entitled to rely on
the provisions hereof or any agreement entered into pursuant hereto in any
action, proceeding, hearing, or other forum.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
SIGNED, SEALED AND DELIVERED:
INTERNATIONAL DART CORPORATION
By:
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Duly authorized Officer
I have authority to bind the Corporation
OPTIMA GLOBAL CORPORATION
By:
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Duly authorized Officer
I have authority to bind the Corporation
