Exhibit 10.1
SHARE PURCHASE AGREEMENT
This agreement is made between the parties as of the 26TH day of JUNE, 2000.
1. PARTIES
1.1 XxxxXxxx.xxx Inc. (Delaware), a Delaware corporation (the "Vendor").
1.2 XxxxXxxx.xxx Inc. (Ontario), an Ontario corporation (the "Corporation").
1.3 1412531 Ontario Inc., an Ontario corporation (the "Purchaser").
2. RECITALS
2.1 This agreement sets out the terms and conditions by which the Purchaser
agrees to purchase and the Vendor agrees to sell all of the issued and
outstanding shares of the Corporation (the "Shares").
3. PURCHASE AND SALE OF SHARES
3.1 The Purchaser agrees to purchase the Shares from the Vendor and to tender
in full satisfaction of the purchase price, the following (the "Payment"):
(1) 2,250,000 shares of the Vendor will be surrendered for cancellation.
(2) US$1,065,350.00, of which up to US$500,000.00 may be satisfied by
surrender for cancellation of 8% Senior Subordinated Convertible
Debentures of the Vendor, and delivery of releases from the holders
of such debentures. Such amount shall be satisfied by delivery at
closing of US$346,500 of such debentures and a promissory note issued
by the Purchaser in the principal amount of US$718,850, US$65,350
shall be due and payable on or before 3:00 pm on July 21, 2000, the
balance plus accrued interest shall be due and payable on or before
3:00 pm November 10, 2000. Up to US$153,500 of the principal amount
of the promissory note may be satisfied by surrender for cancellation
of 8% Senior Subordinated Convertible Debentures of the Vendor and
delivery of releases from the holders of such debentures. In the
event the Purchaser prepays US$653,500 (US$153,500 of which may be
satisfied by surrender for cancellation of 8% Senior Subordinated
Convertible Debentures of the Vendor, and delivery of releases from
the holder of such debentures), on or before 3:00 pm on July 21, 2000
the balance of the Payment shall be deemed paid in full.
3.2 The Vendor agrees to sell to the Purchaser the Shares and to accept the
Payment in full satisfaction of the purchase price.
3.3 Each party agrees to cooperate with each other party to provide access to
all information reasonably requested by another party to verify the truthfulness
of the representations and warranties contained herein or in any other
collateral document.
3.4 The effective date of closing of the purchase and sale contemplated herein
shall be June 26, 2000 and formal closing shall take place on July 7, 2000,
provided that at or before closing the conditions of closing shall have been
satisfied or waived by the party or parties for whom such conditions were for
the exclusive benefit. Upon the closing, the transfer of Shares shall be
effective from and after the effective date of closing.
3.5 It is understood and agreed that the Vendor shall request and undertake to
obtain within approximately 90 days after closing (subject to delays from the
Securities and Exchange Commission) the approval of shareholders holding 50% of
the shares of the Vendors plus one for the sale of the Shares contemplated
herein.
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4. CONDITIONS OF CLOSING
4.1 The obligation of the Purchaser to complete this agreement is subject only
to the following:
(1) the representations and warranties of the Vendor and the Corporation
shall be true in all material respects now and on the Closing Date;
(2) receipt at closing of the following:
(a) share certificates in the name of the Purchaser evidencing the
Shares;
(b) certified copies of duly authorized resolutions of the
Corporation and the Vendor enabling the entering into and
performance of this agreement and the transfer of the Shares to
the Purchaser;
(c) full and final releases of the Corporation, Xxxx Xxxxxx, and Xxx
Xxxxx by Xxxxxx XxxXxxxxx, Xxxxxxxx Capital Limited, and the
Vendor;
(d) resignations as officers and directors of the Corporation by all
persons related to the Vendor or Xxxxxxxx Capital Limited;
(e) undertaking and/or other assurances of Xxxxxxxx Capital Limited,
and such directors and officers of Xxxxxxxx Capital Limited and
the Vendor as are shareholders, and of companies related to any
of the foregoing, to vote their shares in favour of approval of
this transaction at any shareholders vote where such approval is
sought.
(f) undertaking of the Vendor to change its name to a name that does
not contain "eiei" or "eieihome" and to change its ticker symbol
from "eiei".
(g) Undertaking of an officer or director of the Vendor to without
delay deliver true and correct financial statements of the
Corporation to the date of closing. The undertaking shall be to
the best of the knowledge of the person so undertaking.
(h) a certificate as of the Closing Date of a duly authorized
signing officer of the Corporation and of the Vendor attesting
to the truthfulness of the representations and warranties of the
Vendor and the Corporation contained herein.
The conditions in this paragraph 4.1 are for the exclusive benefit of the
Purchaser and may be waived by the Purchaser in whole or in part in its
sole discretion.
4.2 The obligation of the Vendor to complete this agreement is subject only to
the following:
(1) the representations and warranties of the Purchaser shall be true in
all material respects now and on the Closing Date;
(2) receipt at closing of the following:
(a) share certificates representing 2,250,000 shares of the Vendor,
duly executed for transfer, or assignment and transmittal in
respect of such shares and "declaration of loss and indemnity"
in respect of such share certificates not tendered;
(b) certified funds in the amount of US$1,000,000.00 less the face
amount of any debentures of the Vendor tendered for cancellation
(to a maximum of US$500,000 of debentures). In the event
debenture certificates are not available at closing, Vendor will
accept a signed assignment agreement, "declaration of loss and
indemnity", and transmittal to Vendor. Vendor will also accept
in lieu of debentures, additional certified funds deposited in
escrow representing the face value of debentures desired to be
tendered for cancellation and which are not then available,
together with the Purchaser's undertaking to deliver such
debentures within 30 days after closing, failing which certified
funds in respect of such debentures as are not delivered shall
be released from escrow to Vendor, and the balance if any
released to Purchaser;
(c) full and final releases of Xxxxxx XxxXxxxxx, Xxxxxxxx Capital
Limited, and the Vendor by the Corporation, by Xxxx Xxxxxx and
by Xxx Xxxxx;
(d) certified copies of duly authorized resolutions of the Purchaser
enabling the entering into and
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performance of this agreement;
(e) undertaking of the Vendor to forthwith file appropriate forms
with the Ministry of Consumer and Commercial Relations to
evidence the change in directors and officers of the Corporation
after the closing.
(f) a certificate as of the Closing Date of a duly authorized
signing officer of the Purchaser attesting to the truthfulness
of the representations and warranties of the Purchaser contained
herein.
The conditions in this paragraph 4.2 are for the exclusive benefit of the
Vendor and may be waived by the Vendor in whole or in part in its sole
discretion.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Vendor and the Corporation represent and warrant as of the date of
execution of this agreement, and as of the Closing Date, as follows:
(1) the Corporation is duly incorporated and validly subsisting under
the laws of the Province of Ontario.
(2) the Corporation has full, right, power and capacity to enter into
this agreement and perform the obligations of the Corporation
contained herein. The Vendor has full, right, power and capacity to
enter into this agreement and perform the obligations of the Vendor
contained herein. The within representations and warranties are
subject only to the Vendor's covenant to obtain shareholder approval
of the transaction after closing as contained herein.
(3) The execution and delivery of this agreement and the consummation of
the transactions contemplated hereby, have been duly authorized,
executed, and delivered by proper corporate action of the Vendor and
the Corporation. Shareholders' consent will be obtained after
closing.
(4) This agreement is valid and binding as against the Vendor and the
Corporation, enforceable against such parties in accordance with its
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or
other laws of general application affecting enforcement of creditors
rights or by general principles of equity. The within
representations and warranties are subject only to the Vendor's
covenant to obtain shareholder approval of the transaction after
closing as contained herein.
(5) All consents, approvals, qualifications, orders and authorizations
of, or filings with all local, state and federal governmental
authorities required on the part of the Corporation and the Vendor
in connection with each of such party's valid execution, delivery or
performance of this agreement, the offer, sale, issuance or delivery
of common shares of the Corporation, or the performance by the
Corporation and the Vendor of its respective obligations in respect
thereof have been obtained and all required filings have been made.
The within representations and warranties are subject only to the
Vendor's covenant to obtain shareholder approval of the transaction
after closing as contained herein.
(6) The execution, delivery, or performance by the Vendor and the
Corporation of this agreement, or compliance with the terms and
provisions of this agreement, or the consummation of the
transactions contemplated by this agreement will not:
(a) to the best of the knowledge of the Vendor and the
Corporation, without investigation, contravene any
applicable law, statute, rule, regulation, order, writ,
injunction or decree of any Federal, state or local
government, court or governmental department, commission,
board, bureau, agency or instrumentality;
(b) conflict or be inconsistent with, or result in any breach of
any of the terms, covenants, conditions or provisions of, or
constitute a default (either immediately or with notice or
the passage of time or both) under any indenture, mortgage,
deed of trust, credit
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agreement or instrument or any other material agreement or
instrument to which any of the Vendor or the Corporation is
a party or by which it may be bound or to which any of the
foregoing may be subject; or
(c) violate any provisions of the charter documents or bylaws or
other constituting documents of any of the Vendor or the
Corporation.
(7) Except the Shares, there are no other shares, options, rights,
warrants or other securities capable of being converted to shares of
the Corporation issued and outstanding. The Shares are validly
issued as fully paid shares by proper corporate authority.
(8) The Vendor is the legal and beneficial owner of all of the Shares
free of encumbrances.
(9) No person has any agreement, option, understanding or commitment, or
any right or privilege (whether by law, pre-emptive or contractual)
capable of becoming an agreement, option or commitment, including
convertible securities, options, warrants or convertible obligations
of any nature, for:
(i) to the best of the Vendor's knowledge, the purchase,
subscription, allotment or issuance of, or conversion into,
any of the unissued shares in the capital of the Corporation
or any securities of the Corporation;
(ii) the purchase from the Vendor of any of the Shares; or
(iii) to the best of the Vendor's knowledge, the purchase or
other acquisition from of the Vendor or the Corporation of
any its undertaking, property or assets, other than in the
ordinary course of business;
Representations and Warranties of the Purchaser
5.2 The Purchaser represents and warrants as of the date of execution of this
agreement, and as of the Closing Date, as follows:
(1) the Purchaser is duly incorporated and validly subsisting under the
laws of the Province of Ontario.
(2) The execution and delivery of this agreement and the consummation of
the transactions contemplated hereby, have been duly authorized,
executed, and delivered by proper corporate action.
(3) the Purchaser has full, right, power and capacity to enter into this
agreement and perform the obligations of the Purchaser contained
herein.
(4) This agreement is valid and binding as against the Purchaser,
enforceable against the Purchaser in accordance with its terms,
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other laws of
general application affecting enforcement of creditors rights or by
general principles of equity.
(5) All consents, approvals, qualifications, orders and authorizations
of, or filings with all local, state and federal governmental
authorities required on the part of the Purchaser in connection with
the Purchaser's valid execution, delivery or performance of this
agreement, the offer, sale, issuance or delivery of common shares of
the Purchaser, or the performance by the Purchaser of its
obligations in respect thereof have been obtained and all required
filings have been made or will be made on a timely basis.
(6) The execution, delivery, or performance by the Purchaser of this
agreement, or compliance with the terms and provisions of this
agreement, or the consummation of the transactions contemplated by
this agreement will not:
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(a) to the best of the knowledge of the Purchaser, without
investigation, contravene any applicable law, statute, rule,
regulation, order, writ, injunction or decree of any Federal,
state or local government, court or governmental department,
commission, board, bureau, agency or instrumentality;
(b) conflict or be inconsistent with, or result in any breach of
any of the terms, covenants, conditions or provisions of, or
constitute a default (either immediately or with notice or the
passage of time or both) under any indenture, mortgage, deed of
trust, credit agreement or instrument or any other material
agreement or instrument to which the Purchaser is a party or by
which it may be bound or to which any of the foregoing may be
subject; or
(c) violate any provisions of the charter documents or bylaws of
the Purchaser.
6. NON-LITIGATION / CROSS INDEMNIFICATION
6.1 Upon the closing of the purchase and sale contemplated herein all of the
parties to this agreement, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby release, remise, acquit
and forever discharge the others and all of their respective officers,
directors, agents, representatives, executors, heirs, affiliates,
administrators, predecessors, successors, and assigns (the "Releasees"), from
any and all known, unknown, matured and unmatured, liquidated and unliquidated,
contingent and non-contingent, actions, causes of action, claims, demands,
damages, costs, suits, debts, dues, sums of money, accounts, reckonings, bills,
covenants, contracts, liens, controversies, agreement, promises, variances,
trespasses, extents and executions whatsoever, at law or in equity
(collectively, the "Claims") which the parties to this agreement, or any of
them, had, have or may have against one or more of the Releasees in respect of
any conduct, any matter or document, and any Claims, arising, in whole or in
part, at any time prior to the execution of this agreement or thereafter in
respect of the performance of any obligations of any parties hereto save and
except for any Claims arising from this Agreement or any document delivered
pursuant to this Agreement.
6.2 And for the said consideration each of the parties to this agreement agrees
that it shall not make any claim or take any proceedings against any other
person, corporation or legal entity which might claim contribution or indemnity
from any of the Releasees under the provisions of any statute or otherwise with
respect to any cause, matter or thing released by paragraph 6.1 hereof.
6.3 The Vendor and the Corporation hereby indemnify and hold the Purchaser
harmless from and against any claims, actions, damages, losses, reasonable legal
fees and expenses that may be suffered by the Purchaser in the event that the
representation and warranties of the Vendor and the Corporation prove to be
untrue in any material respect as of the Closing Date. The Purchaser hereby
indemnifies and holds the Vendor harmless from and against any claims, actions,
damages, losses reasonable legal fees and expenses that may be suffered by the
Vendor in the event that the representation and warranties of the Purchaser
prove to be untrue in any material respect as of the Closing Date. This
paragraph 6.3 shall survive closing of the purchase and sale contemplated herein
for a period of one year after closing.
7. GENERAL
7.1 This Agreement is binding on the parties, and together with the documents
contemplated herein constitutes the whole and complete statement of agreement
between the parties as to the subject matter hereof.
7.2 This agreement, and all ancillary agreements between the parties may be
executed in counterparts and delivered by facsimile transmission. All
counterparts shall be read together to constitute one agreement.
7.3 Each of the parties hereto agrees to do such further acts and execute such
further documents as may be necessary or appropriate to give effect to the terms
of this Agreement both before and after the closing.
7.4 The parties attorn to the non-exclusive jurisdiction of the courts of the
Province of Ontario. The laws of the Province of Ontario shall govern the
validity and interpretation of this agreement.
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7.5 Each of the parties hereto individually represents and warrants that it has
the right, power and capacity to enter into and perform its obligations as set
out herein.
7.6 Notices shall be properly given to a party if delivered, or if sent by
facsimile transmission to the facsimile numbers set out below, or if sent by
Federal Express courier, pre-paid to the addresses set out below and signed for
at the address set forth for receipt, or if sent by pre-paid post to the
addresses set out below, provided that if a postal disruption is imminent,
notices shall not be sent by pre-paid post. If delivered, notice shall be
effective upon receipt. If sent by facsimile transmission, notice shall be
effective at the date and time of transmittal. If sent by Federal Express
courier, notice shall be effective upon receipt. If sent by pre-paid post,
notice shall be effective five (5) business days after the date of posting.
Addresses for service of notice:
the Corporation and the Vendor
Address: 000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx, X0X 0X0
Facsimile No.: 000-000-0000
the Purchaser:
Address: 000 Xxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx,
X0X 0X0
Facsimile No.: 000-000-0000
7.7 This agreement is not assignable by the Vendor or the Purchaser, without the
written permission of the other.
7.8 The parties confirm that there have been no brokers or finders in connection
with the transactions contemplated herein, and each party agrees to indemnify
the other against any brokers' or finders' fees or commissions or other
compensation sought by persons purporting to have acted as agent or finder for
such party in connection with the transactions contemplated herein.
7.9 Each party is responsible for his or her or its own expenses, including
professional fees and disbursements and applicable taxes, in connection with the
negotiation, drafting, execution and delivery of this agreement, and the conduct
of any due diligence sought to be conducted by such party, except as otherwise
expressly provided to the contrary.
IN WITNESS WHEREOF the parties have caused these presents to be executed
as of the day and year first above written.
XxxxXxxx.xxx Inc. (Delaware)
Per: /s/ Xxxxx X. X'Xxxx
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xxxxXxxx.xxx Inc. (Ontario)
Per: /s/ Xxxxx X. X'Xxxx
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1412531 Ontario Inc.
Per: /s/ Xxxx Xxxxxx
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