Exhibit 10.31
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SHARE PURCHASE AGREEMENT
BETWEEN
HCPH CANADIAN NEWSPAPER HOLDINGS CO.
AND
GLACIER VENTURES INTERNATIONAL CORP.
AND
6490239 CANADA INC.
AND
XXXXXXXXX INTERNATIONAL INC.
AND
XXXXXXX NEWSPAPERS INC.
MADE AS OF
DECEMBER 19, 2005
SALE OF SHARES OF GREAT WEST NEWSPAPER GROUP LTD.
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XXXXXXXX XXXXXXXX LLP
TABLE OF CONTENTS
SHARE PURCHASE AGREEMENT
ARTICLE 1 - INTERPRETATION................................................. 2
1.01 Definitions.................................................... 2
1.02 Knowledge...................................................... 7
1.03 Headings....................................................... 7
1.04 Extended Meanings.............................................. 7
1.05 Accounting Principles.......................................... 8
1.06 Currency....................................................... 8
1.07 Schedules...................................................... 8
ARTICLE 2 - PURCHASE AND SALE.............................................. 8
2.01 Purchase and Sale and Purchase Price........................... 8
2.02 Closing and Deliverables....................................... 8
2.03 Xxxxxxxxx International Guarantee.............................. 9
2.04 Glacier Guarantee.............................................. 9
2.05 Taxes.......................................................... 10
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES................................. 10
3.01 Vendor's Representations and Warranties........................ 10
3.02 Survival of Vendor's and Xxxxxxxxx International's
Representations, Warranties and Covenants...................... 12
3.03 Purchaser's Representations and Warranties..................... 12
3.04 Survival of Purchaser's Representations, Warranties
and Covenants.................................................. 13
3.05 Glacier's Representations and Warranties....................... 14
3.06 Survival of Glacier's Representations, Warranties
and Covenants.................................................. 15
3.07 Investigation.................................................. 15
3.08 No Inducement or Reliance; Independent Assessment.............. 15
3.09 Release........................................................ 16
ARTICLE 4 - COVENANTS RELATING TO CONDUCT OF BUSINESS...................... 16
4.01 Appropriate Action; Consents; Filings.......................... 16
4.02 Preservation of Books and Records.............................. 17
4.03 Tax Matters.................................................... 18
4.04 Mail; Payments................................................. 19
4.05 Indemnity Cooperation Agreement................................ 19
4.06 Purchasing Parties' Pre-Closing Reorganization Steps........... 20
4.07 Xxxxxxxxx Pre-Closing Reorganization Steps..................... 20
ARTICLE 5 - CONDITIONS..................................................... 21
5.01 Conditions to Obligations of Each Party........................ 21
5.02 Conditions for the Benefit of the Purchaser and Glacier........ 21
5.03 Conditions for the Benefit of the Vendor....................... 22
ARTICLE 6 - INDEMNIFICATION................................................ 22
6.01 Indemnification................................................ 22
ARTICLE 7 - PUBLICATION STATUS INDEMNITY................................... 28
7.01 Publication Status Indemnity................................... 28
7.02 Claims Process and Limits...................................... 29
ARTICLE 8 - TERMINATION.................................................... 29
8.01 Termination.................................................... 29
8.02 Effect of Termination.......................................... 30
ARTICLE 9 - GENERAL........................................................ 30
9.01 Further Assurances............................................. 30
9.02 Time of the Essence............................................ 31
9.03 Commissions.................................................... 31
9.04 Confidentiality and Public Announcements....................... 31
311
9.05 Benefit of the Agreement....................................... 31
9.06 Entire Agreement............................................... 31
9.07 Amendments and Waiver.......................................... 31
9.08 Assignment..................................................... 32
9.09 Notices........................................................ 32
9.10 Severability................................................... 34
9.11 Parties in Interest............................................ 34
9.12 Expenses....................................................... 34
9.13 Governing Law; Attornment...................................... 35
9.14 Counterparts; Facsimile........................................ 35
9.15 Waiver......................................................... 35
9.16 Disclaimer..................................................... 35
9.17 Waiver of Jury Trial........................................... 36
SHARE PURCHASE AGREEMENT
THIS AGREEMENT made as of the 19th day of December, 2005;
BETWEEN:
HCPH CANADIAN NEWSPAPER HOLDINGS CO., a corporation incorporated
under the laws of Nova Scotia, and any successor in interest
thereto (hereinafter referred to, in either case, as the
"Vendor"),
OF THE FIRST PART,
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6490239 CANADA INC., a corporation incorporated under the laws of
Canada (hereinafter referred to as the "Purchaser),
OF THE SECOND PART,
- and -
GLACIER VENTURES INTERNATIONAL CORP., a corporation incorporated
under the laws of British Columbia (hereinafter referred to as
the "Glacier"),
OF THE THIRD PART,
- and -
XXXXXXXXX INTERNATIONAL INC., a corporation governed by the laws
of the State of Delaware (hereinafter referred to as "Xxxxxxxxx
International"),
OF THE FOURTH PART,
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XXXXXXX NEWSPAPERS INC., a corporation governed by the laws of
Alberta (hereinafter referred to as "Xxxxxxx"),
OF THE FIFTH PART.
WHEREAS the Vendor is the beneficial and registered owner of the
Shares, being 17,540 Class A shares of Great West Newspaper Group Ltd. (the
"Corporation"), a corporation incorporated under the laws of Canada;
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AND WHEREAS the Vendor desires to sell and the Purchaser desires to
purchase the Shares upon and subject to the terms and conditions hereinafter set
forth;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
respective representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
ARTICLE 1 - INTERPRETATION
1.01 DEFINITIONS
In this Agreement, unless something in the subject matter or context
is inconsistent therewith:
(a) "Affiliate", with respect to the relationship between two or more
corporations, has the meaning attributed to "affiliated bodies
corporate" under the Canada Business Corporations Act as of the date
of this Agreement and, with respect to the relationship between two or
more Persons any of which is not a corporation, a Person is deemed to
be an Affiliate of another Person if one of them is Controlled by the
other or if both are Controlled by the same Person, and "Affiliated"
has a corresponding meaning;
(b) "Applicable Law" means:
(i) any domestic or foreign statute, law (including common and civil
law), code, ordinance, rule, regulation, restriction or by-law
(zoning or otherwise); or
(ii) any judgement, order, writ, injunction, decision, ruling, decree
or award;
of any Governmental Entity, statutory body or regulatory authority to
the extent only that the same is legally binding on the Person
referred to in the context in which the term is used;
(c) "Agreement" means this agreement and all amendments made hereto by
written agreement between the Vendor, Xxxxxxxxx International, Glacier
and the Purchaser;
(d) "Books and Records" means all books, records, files and papers of the
Corporation and the Subsidiary, including computer manuals, computer
data, financial and Tax working papers, financial and Tax books and
records, business reports, business plans and projections, sales and
advertising materials, sales and purchases records and correspondence,
trade association files, research and development records, lists of
present and former customers and suppliers, personnel and employment
records (including benefit plan records), minute and share certificate
books, and all copies and recordings of the foregoing;
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(e) "Business Day" means a day other than a Saturday, Sunday or statutory
holiday in Ontario;
(f) "Closing" means the closing of the purchase and sale of the Shares
contemplated by this Agreement;
(g) "Closing Date" is defined in Section 2.02(1);
(h) "Consent" is defined in Section 4.01;
(i) "Contract" means any agreement, contract, indenture, lease, deed of
trust, option or other legally binding commitment or obligation in the
nature of a contract, whether oral or written, for which there are
continuing rights or obligations;
(j) "Control", with respect to the relationship with a Person, means:
(i) if that Person is a corporation, the holding (other than by way
of security) of Equity Securities of that Person to which are
attached more than 50% of the votes that may be cast for the
election of directors and those votes are sufficient, if
exercised, to elect a majority of the board of directors; or
(ii) the right, directly or indirectly, to direct or cause the
direction of the management of the affairs of that Person,
whether by ownership of Equity Securities, by Contract or
otherwise;
and "Controls" and "Controlled" have corresponding meanings;
(k) "Corporation" means Great West Newspaper Group Ltd., a corporation
incorporated under the laws of Canada;
(l) "Deductible" is defined in Section 6.01(3);
(m) "Disclosure Letter" means the disclosure letter of the Vendor attached
hereto as Schedule 1.01(m);
(n) "Encumbrance" means any lien, pledge, charge, claim, security,
interest, contingent sale or title retention agreement, option, deed
of trust, mortgage, conditional sales agreement, right of first
refusal or other right of a third party substantially equivalent
thereto;
(o) "End Date" is defined in Section 8.01(2);
(p) "Equity Securities" means any shares of a corporation, partnership
units or interests or similar securities;
(q) "Filing" is defined in Section 4.01(1);
(r) "Fundata" means Fundata Canada Inc.;
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(s) "Funding Determination" means a determination made by the Government
of Canada that any Indemnity Subsidiary is required to repay to the
Government of Canada the amount of any Government of Canada Funding,
only to the extent that such Government of Canada Funding was received
prior to the Time of Closing and relates to a period ending on or
prior to the Time of Closing and only to the extent that any Indemnity
Subsidiary is, at any time, required by the Government of Canada to
repay such amount because the publications to which the funding
relates were determined not to meet the relevant Canadian ownership
and control requirements during such period;
(t) "GAAP" means generally accepted accounting principles in Canada,
applicable as of date hereof and, in respect of the financial
statements of any Person, applied on a basis consistent with those
applied in previous periods of such Person unless otherwise required
under GAAP;
(u) "Government of Canada Funding" means financial support that has been
provided by the Government of Canada to any Indemnity Subsidiary
pursuant to the Department of Canadian Heritage's Canada Magazine Fund
or Publications Assistance Program;
(v) "Governmental Entity" means any domestic or foreign government,
whether federal, provincial, state, territorial, local, regional,
municipal, or other political jurisdiction, and any agency, authority,
instrumentality, court, tribunal, board, commission, bureau,
arbitrator, arbitration tribunal or other tribunal, or any
quasi-governmental or other entity, insofar as it exercises a
legislative, judicial, regulatory, administrative, expropriation or
taxing power or function of or pertaining to government, as well as
any stock exchange;
(w) "Great West Agreement" means the shareholders agreement in respect of
the Corporation dated February 28, 1997;
(x) "Xxxxxxxxx Pre-Closing Reorganization Steps" mean the transactions
referred to in Schedule 4.07;
(y) "Income", in respect of any period, means the income of the
Corporation or an Indemnity Subsidiary or Mountain View Publishing
Inc. as determined for purposes of the ITA for such period;
(z) "Indemnification Event" means an event, occurrence or state of affairs
for which a Party is expressly indemnified hereunder;
(aa) "Indemnification Notice" means a written notice in reasonable detail
delivered by the Vendor to the Purchasing Parties or either of them,
or by the Purchasing Parties or either of them to the Vendor, as
applicable, stating a demand for indemnification in accordance with
Section 6.01 or in connection with the Publication Status Indemnity;
(bb) "Indemnified Party" is defined in Section 6.01(7);
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(cc) "Indemnifying Party" is defined in Section 6.01(7);
(dd) "Indemnity Cooperation Agreement" is defined in Section 4.05;
(ee) "Indemnity Subsidiaries" means Tall Xxxxxx, Gazette Press Ltd.,
Bonnyville Nouvelle Ltd. and the Limited Partnership, and "Indemnity
Subsidiary" means any one such entity;
(ff) "Insurance Benefits" is defined in Section 6.01(10);
(gg) "ITA" means the Income Tax Act (Canada), R.S.C. 1985 (5th Supp.) c. 1,
and the regulations promulgated thereunder, as amended from time to
time;
(hh) "Letter of Intent" means the letter agreement between Xxxxxxxxx
International and Glacier dated December 15, 2005 in respect of the
transactions contemplated hereby;
(ii) "Limited Partnership" means the Great West Newspapers Limited
Partnership described in the Purchasing Parties' Pre-Closing
Reorganization Steps;
(jj) "Losses" means any and all financial losses, damages, liabilities,
obligations, penalties, encumbrances, assessments, costs and expenses
sustained, suffered or incurred by the Party seeking indemnification
as a direct result of any Indemnification Event; provided, however,
that Losses shall not include any indirect or consequential or
punitive losses or damages, lost profits or lost revenue;
(kk) "Material Adverse Change" or "Material Adverse Effect" means any
change or effect that has or could be reasonably expected to have a
material and adverse effect on the business, assets or financial
condition of the Corporation and the Subsidiary, taken as a whole, and
"Materially Adversely Effect" has a corresponding meaning;
(ll) "Non-Competition Agreement" means the agreement to be entered into by
Glacier, the Purchaser, Xxxxxxxxx International and the Vendor
contemporaneously with Closing whereby, in consideration for the sum
of $1,000, each of the Vendor and Xxxxxxxxx International will agree
not to compete with the Corporation following Closing;
(mm) "Ordinary Course" means, with respect to an action taken by a Person,
that the action is consistent with the past practices of the Person
and is taken in the normal day-to-day operations of the Person and,
with respect to Xxxxxxxxx International and any subsidiary of
Xxxxxxxxx International (other than the Corporation and the
Subsidiary) since January 17, 2004;
(nn) "Party" means the Vendor, the Purchaser, Xxxxxxx, Glacier or Xxxxxxxxx
International, as the case may be;
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(oo) "Person" means an individual, corporation, partnership, joint venture,
trust, limited liability company, unincorporated organization or other
entity, or a Governmental Entity;
(pp) "Publication Status Indemnity" means, collectively, the indemnities
granted by the Vendor in Sections 7.01(1) and (2) of this Agreement;
(qq) "Purchase Price" is defined in Section 2.01(1);
(rr) "Purchasing Parties" means the Purchaser and Glacier;
(ss) "Purchasing Parties' Pre-Closing Reorganization Steps" means the
transactions referred to in Schedule 4.06;
(tt) "Representation and Warranty Losses" is defined in Section 6.01(3);
(uu) "Representatives", with respect to a Party, means its directors,
officers, employees, auditors, agents and other representatives and
advisors;
(vv) "Safe Income" means the income earned or realized by the Corporation
and each Indemnity Subsidiary and Mountain View Publishing Inc. for
purposes of section 55 of the ITA for the period ending at the
safe-income determination time, as defined in subsection 55(1) of the
ITA, for the series of transactions that includes the purchase of the
Shares under this Agreement;
(ww) "Section 19 Claim" means any claim, action, suit or proceeding or
other demand, whether at law or in equity, brought before a court and
asserted against any Indemnity Subsidiary, and either: (i) arising
from a Section 19 Reassessment in respect of a Person, to the extent
that such Section 19 Reassessment relates to expenses incurred by the
Person prior to the Time of Closing; or (ii) arising from damages
suffered by a Person who publishes a newspaper in a market in Canada,
to the extent that such damages arose as a direct result of the
failure of a newspaper produced or published by such Indemnity
Subsidiary to qualify as a Canadian newspaper, as defined in
subsection 19(5) of the ITA or an analogous provision of a provincial
taxing statute, during any period ending prior to the Time of Closing;
(xx) "Section 19 Reassessment" means, in respect of a Person, an assessment
or a reassessment issued to the Person by the Canada Revenue Agency or
provincial taxing authority, solely on the basis of subsection 19(1)
of the ITA or an analogous provision of a provincial taxing statute,
from which no appeal lies disallowing a deduction claimed by the
Person for expenses incurred for advertising space in an issue of a
newspaper produced and published by an Indemnity Subsidiary;
(yy) "Shares" means 17,540 Class A shares of the Corporation;
(zz) "Subsidiaries" means Tall Xxxxxx and Gazette Press Ltd.;
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(aaa) "Tall Xxxxxx" means Tall-Xxxxxx Publishing Ltd.;
(bbb) "Tax" or "Taxes" means all taxes, charges, fees, levies, imposts and
other assessments, including all income, sales, use, goods and
services, value added, capital, capital gains, alternative, net worth,
transfer, profits, withholding, payroll, employer health, excise,
franchise, real property and personal property taxes, and any other
taxes, customs duties, fees, assessments, royalties, duties,
deductions, compulsory loans or similar charges in the nature of a
tax, including Canada Pension Plan and provincial pension plan
contributions, employment insurance payments and workers compensation
premiums, together with any instalments, and any interest, fines and
penalties, imposed by any governmental authority (including federal,
state, provincial, municipal and foreign governmental authorities),
whether disputed or not;
(ccc) "Tax Returns" means any return, declaration, report, schedule or
information statement with respect to Taxes required to be filed with
the Canada Revenue Agency or any other Governmental Entity;
(ddd) "Time of Closing" means 9:00 a.m. (Vancouver time) on the Closing
Date;
(eee) "Title Representation and Warranty Losses" is defined in Section
6.01(5); and
(fff) "Vue Claims" means the claims advanced by 783783 Alberta Ltd. against
Xxxxxxx, among others, in the statement of claim issued out of the
Office of the Clerk of the Court of Queen's Bench of Alberta on
October 27, 2005; provided, however, that Vue Claims shall not include
any new claims unrelated to the Publication Status Indemnity advanced
in any amendment made to such statement of claim after the Time of
Closing.
1.02 KNOWLEDGE
Any reference to "knowledge of the Vendor" or to phrases of similar
import shall mean only the actual knowledge of Xxxxxx Xxxxx, Xxxxx Xxxx or Xxxxx
Xxxx.
1.03 HEADINGS
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any agreement supplemental hereto. Unless something in the subject
matter or context is inconsistent therewith, references herein to Articles and
Sections are to Articles and Sections of this Agreement.
1.04 EXTENDED MEANINGS
In this Agreement words importing the singular number only shall
include the plural and vice versa, words importing the masculine gender shall
include the feminine and neuter
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genders and vice versa and words importing persons shall include individuals,
partnerships, associations, trusts, unincorporated organizations and
corporations.
1.05 ACCOUNTING PRINCIPLES
Wherever in this Agreement reference is made to a calculation to be
made in accordance with generally accepted accounting principles, such reference
shall be deemed to be to GAAP.
1.06 CURRENCY
All references to currency herein are to lawful money of Canada.
1.07 SCHEDULES
The following are the Schedules annexed hereto and incorporated by
reference and deemed to be part hereof:
Schedule 1.01(M) - Disclosure Letter;
Schedule 4.05 - Indemnity Cooperation Agreement;
Schedule 4.06 - Purchasing Parties' Pre-Closing Reorganization
Steps;
Schedule 4.07 - Xxxxxxxxx Pre-Closing Reorganization Steps; and
Schedule 5.01(1)(B) - Consents and Filings.
ARTICLE 2 - PURCHASE AND SALE
2.01 PURCHASE AND SALE AND PURCHASE PRICE
(1) Upon and subject to the terms and conditions contained herein, the
Vendor shall, at the Time of Closing, sell the Shares to the Purchaser and the
Purchaser shall purchase the Shares from the Vendor for a total purchase price
of Cdn.$32,000,000 (hereinafter referred to as the "Purchase Price").
(2) The Purchase Price shall be paid and satisfied by the Purchaser at the
Time of Closing by wire transfer of immediately available funds to an account or
accounts specified by the Vendor against delivery to the Purchaser of a share
certificate or certificates evidencing the Shares duly endorsed for transfer to
the Purchaser.
2.02 CLOSING AND DELIVERABLES
(1) Subject to the terms and conditions contained herein, the Closing shall
take place as soon as practicable but, in any event, within five (5) Business
Days after satisfaction or waiver of the conditions set forth in Article 5
hereof (other than conditions which, by their terms, are to be satisfied at the
Closing) (the "Closing Date") at the offices of Farris, Vaughan, Xxxxx & Xxxxxx
LLP, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx.
(2) At the Closing, the Vendor shall deliver to the Purchaser the
following:
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(a) share certificates representing the Shares duly endorsed for transfer
to the Purchaser or accompanied by duly executed stock transfer
powers;
(b) the officer's certificates referred to in Section 5.02(1)(b), (c) and
(d);
(c) written resignations of each of the nominees of the Vendor to the
board of directors of the Corporation;
(d) executed counterparts of the Indemnity Cooperation Agreement signed by
the Vendor and Xxxxxxxxx International; and
(e) executed counterparts of the Non-Competition Agreement signed by the
Vendor and Xxxxxxxxx International.
(3) At the Closing, the Purchaser shall deliver to the Vendor the
following:
(a) payment of the Purchase Price in Canadian dollars by wire transfer of
immediately available funds to an account or accounts specified by the
Vendor;
(b) an officer's certificate in accordance with Section 5.03(1)(c);
(c) executed counterparts of the Indemnity Cooperation Agreement signed by
each Indemnity Subsidiary; and
(d) executed counterparts of the Non-Competition Agreement signed by
Glacier and the Purchaser.
2.03 XXXXXXXXX INTERNATIONAL GUARANTEE
Xxxxxxxxx International hereby unconditionally and irrevocably
guarantees the due and punctual performance by the Vendor of its obligations
under this Agreement as the same may be amended, changed or replaced, settled,
compromised or otherwise modified, from time to time and irrespective of any
bankruptcy, insolvency, dissolution, winding-up or termination of the existence
of the Vendor, the Purchaser, Glacier or any successor or assignee thereof, as
the case may be, including, without limitation, the unconditional and
irrevocable guarantee of the payment of all indemnification claims for which the
Vendor is liable to the Purchasing Parties or the Indemnity Subsidiaries
pursuant to this Agreement. Xxxxxxxxx International shall be liable to the
Purchasing Parties or the Indemnity Subsidiaries if and only to the extent that
it is established that the Vendor is so liable. The Purchasing Parties are not
required to exhaust all remedies against the Vendor prior to proceeding against
Xxxxxxxxx International under this guarantee. In no event shall the liability of
Xxxxxxxxx International to the Purchasing Parties or the Indemnity Subsidiaries
hereunder be greater than that of the Vendor to the Purchaser hereunder.
2.04 GLACIER GUARANTEE
Glacier hereby unconditionally and irrevocably guarantees the due and
punctual performance by the Purchaser of its obligations under this Agreement,
as the same may be amended, changed or replaced, settled, compromised or
otherwise modified, from time to time and irrespective
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of any bankruptcy, insolvency, dissolution, winding-up or termination of the
existence of the Vendor, the Purchaser, Glacier or any successor or assignee
thereof, as the case may be, including, without limitation, the payment of all
indemnification claims for which the Purchaser is liable to the Vendor pursuant
to this Agreement. Glacier shall be liable to the Vendor if and only to the
extent that it is established that the Purchaser is so liable. The Vendor is not
required to exhaust all remedies against the Purchaser prior to proceeding
against Glacier under this guarantee. In no event shall the liability of Glacier
to the Vendor hereunder be greater than that of the Purchaser to the Vendor
hereunder.
2.05 TAXES
The Purchaser shall pay any sales, use, transfer, excise, stamp or
other similar taxes imposed by reason of the sale of the Shares, excluding, for
greater certainty, any income taxes, capital or capital gains taxes of the
Vendor pursuant to this Agreement, and any deficiency, interest or penalty with
respect to such taxes.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
3.01 VENDOR'S REPRESENTATIONS AND WARRANTIES
(1) The Vendor represents and warrants to the Purchasing Parties that,
except as disclosed in the Disclosure Letter:
(a) the Vendor is the beneficial and registered owner of the Shares and
will (subject to the Xxxxxxxxx Pre-Closing Reorganization Steps) be on
the Closing Date the legal and beneficial owner of the Shares with
good and marketable title thereto, free and clear of all Encumbrances;
(b) the Vendor is incorporated, organized and existing under the laws of
the jurisdiction of its incorporation, the Vendor has good and
sufficient power, authority and right to enter into and deliver this
Agreement and the Vendor has the power, authority and right to
transfer the legal and beneficial title and ownership of the Shares to
the Purchaser free and clear of all Encumbrances;
(c) this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and legally binding obligation of, the Vendor,
enforceable against the Vendor in accordance with its terms subject to
general principles of equity and to applicable bankruptcy, insolvency,
reorganization and other laws of general application limiting the
enforcement of creditors' rights generally and to the fact that
specific performance is an equitable remedy available only in the
discretion of the court;
(d) there is no contract, option or any other right of another binding
upon the Vendor or capable of becoming a contract, option or right
binding upon the Vendor to sell, transfer, assign, pledge, charge,
mortgage or in any other way dispose of or encumber any of the Shares
other than pursuant to the provisions of this Agreement;
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(e) neither the entering into nor the delivery of this Agreement nor the
completion of the transactions contemplated hereby by the Vendor will
result in the violation of:
(i) any of the provisions of the constating documents or by-laws of
the Vendor; or
(ii) any Contract to which the Vendor is a party or the Vendor is
bound;
except where such violation would not have a material adverse effect
on the ability of the Vendor to carry out its obligations hereunder;
(f) no approval, order, consent of or filing with any Governmental Entity
is required in connection with the execution and delivery by the
Vendor of this Agreement or any other documents and agreements to be
delivered under this Agreement or the performance of the obligations
of the Vendor under this Agreement or any other documents and
agreements to be delivered under this Agreement except where the
failure to obtain such approval, order or consent or make such filing
would not have a material adverse effect on the ability of the Vendor
to carry out its obligations hereunder;
(g) the Vendor is not a non-resident person within the meaning of section
116 of the Income Tax Act (Canada);
(h) to the knowledge of the Vendor, neither the Corporation nor any of the
Subsidiaries is a party to any court proceeding arising as a result
of, or in relation to, the investigation of the Special Committee of
the Board of Directors of Xxxxxxxxx International and, to the
knowledge of the Vendor, there are no facts or circumstances that
would be reasonably likely to result in the Corporation or the
Subsidiaries becoming involved in any court action or proceeding, as a
defendant, related to the matters raised in the report of the Special
Committee of the Board of Directors of Xxxxxxxxx International; and
(i) to the knowledge of the Vendor, there is no existing litigation in the
United States against the Corporation or the Subsidiaries.
(2) Xxxxxxxxx International represents and warrants to the Purchasing
Parties that, except as disclosed in the Disclosure Letter:
(a) Xxxxxxxxx International is incorporated, organized and existing under
the laws of the jurisdiction of its incorporation, and Xxxxxxxxx
International has good and sufficient power, authority and right to
enter into and deliver this Agreement;
(b) this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and legally binding obligation of, Xxxxxxxxx
International, enforceable against Xxxxxxxxx International in
accordance with its terms subject to general principles of equity and
to applicable bankruptcy, insolvency, reorganization and other laws of
general application limiting the enforcement of
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creditors' rights generally and to the fact that specific performance
is an equitable remedy available only in the discretion of the court;
(c) neither the entering into nor the delivery of this Agreement nor the
completion of the transactions contemplated hereby by Xxxxxxxxx
International will result in the violation of:
(i) any of the provisions of the constating documents or by-laws of
Xxxxxxxxx International; or
(ii) any Contract to which Xxxxxxxxx International is a party or is
bound;
except where such violation would not have a material adverse effect
on the ability of Xxxxxxxxx International to carry out its obligations
hereunder; and
(d) no approval, order, consent of or filing with any Governmental Entity
is required in connection with the execution and delivery by Xxxxxxxxx
International of this Agreement or any other documents and agreements
to be delivered under this Agreement or the performance of the
obligations of Xxxxxxxxx International under this Agreement or any
other documents and agreements to be delivered under this Agreement
except where the failure to obtain such approval, order or consent or
make such filing would not have a material adverse effect on the
ability of Xxxxxxxxx International to carry out its obligations
hereunder.
3.02 SURVIVAL OF VENDOR'S AND XXXXXXXXX INTERNATIONAL'S REPRESENTATIONS,
WARRANTIES AND COVENANTS
(1) The representations and warranties of the Vendor and Xxxxxxxxx
International set forth in Section 3.01 (other than those set forth in Section
3.01(1)(a) and 3.01(1)(d)) shall survive the completion of the sale and purchase
of the Shares herein provided for and, notwithstanding such completion, shall
continue in full force and effect for the benefit of the Purchasing Parties for
a period of 24 months from the Closing Date. The representations and warranties
of the Vendor set forth in Section 3.01(1)(a) and 3.01(1)(d) shall survive the
completion of the sale and purchase of the Shares herein provided for and,
notwithstanding such completion, shall continue in full force and effect for the
benefit of the Purchasing Parties for a period of 36 months from the Closing
Date.
(2) The covenants of the Vendor set forth in this Agreement shall survive
the completion of the sale and purchase of the Shares herein provided for and,
notwithstanding such completion, shall continue in full force and effect for the
benefit of the Purchasing Parties in accordance with the terms thereof.
3.03 PURCHASER'S REPRESENTATIONS AND WARRANTIES
(1) The Purchaser represents and warrants to the Vendor that:
(a) the Purchaser is a corporation duly incorporated, organized and
subsisting under the laws of Canada;
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(b) the Purchaser has good and sufficient power, authority and right to
enter into and deliver this Agreement and to complete the transactions
to be completed by the Purchaser contemplated hereby;
(c) this Agreement has been duly authorized, executed and delivered by the
Purchaser and constitutes a valid and legally binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with
its terms subject to general principles of equity and to applicable
bankruptcy, insolvency, reorganization and other laws of general
application limiting the enforcement of creditors' rights generally
and to the fact that specific performance is an equitable remedy
available only in the discretion of the court;
(d) neither the entering into nor the delivery of this Agreement nor the
completion of the transactions contemplated hereby by the Purchaser
will result in the violation of:
(i) any of the provisions of the constating documents or by-laws of
the Purchaser; or
(ii) any Contract to which the Purchaser is a party or by which the
Purchaser is bound;
except where such violation would not have a material adverse effect
on the ability of the Purchaser to carry out its obligations
hereunder;
(e) the Purchaser is a Canadian within the meaning of the Investment
Canada Act (Canada);
(f) the Purchaser will, at Closing, have available funds sufficient to
consummate the transactions contemplated hereby; and
(g) no approval, order, consent of or filing with any Governmental Entity
is required in connection with the execution and delivery by the
Purchaser of this Agreement or any other documents and agreements to
be delivered under this Agreement or the performance of the
obligations of the Purchaser under this Agreement or any other
documents and agreements to be delivered under this Agreement except
where the failure to obtain such approval, order or consent or make
such filing would not have a material adverse effect on the Purchaser
or its ability to carry out its obligations hereunder.
3.04 SURVIVAL OF PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
(1) The representations and warranties of the Purchaser set forth in
Section 3.03 shall survive the completion of the sale and purchase of the Shares
herein provided for and, notwithstanding such completion, shall continue in full
force and effect for the benefit of the Vendor for a period of 24 months from
the Closing Date.
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(2) The covenants of the Purchaser set forth in this Agreement shall
survive the completion of the sale and purchase of the Shares herein provided
for and, notwithstanding such completion, shall continue in full force and
effect for the benefit of the Vendor in accordance with the terms thereof.
3.05 GLACIER'S REPRESENTATIONS AND WARRANTIES
(1) Glacier represents and warrants to the Vendor and the Purchaser that:
(a) Glacier is a corporation duly incorporated, organized and subsisting
under the laws of Canada;
(b) Glacier has good and sufficient power, authority and right to enter
into and deliver this Agreement and to complete the transactions to be
completed by Glacier contemplated hereby;
(c) this Agreement has been duly authorized, executed and delivered by
Glacier and constitutes a valid and legally binding obligation of
Glacier, enforceable against Glacier in accordance with its terms
subject to general principles of equity and to applicable bankruptcy,
insolvency, reorganization and other laws of general application
limiting the enforcement of creditors' rights generally and to the
fact that specific performance is an equitable remedy available only
in the discretion of the court;
(d) neither the entering into nor the delivery of this Agreement nor the
completion of the transactions contemplated hereby by Glacier will
result in the violation of:
(i) any of the provisions of the constating documents or by-laws of
Glacier; or
(ii) any Contract to which Glacier is a party or by which Glacier is
bound;
except where such violation would not have a material adverse effect
on the ability of Glacier to perform its obligations hereunder;
(e) Glacier is a Canadian within the meaning of the Investment Canada Act
(Canada); and
(f) no approval, order, consent of or filing with any Governmental Entity
is required in connection with the execution and delivery by Glacier
of this Agreement or any other documents and agreements to be
delivered under this Agreement or the performance of the obligations
of Glacier under this Agreement or any other documents and agreements
to be delivered under this Agreement except where the failure to
obtain such approval, order or consent or make such filing would not
have a material adverse effect on Glacier or its ability to carry out
its obligations hereunder.
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3.06 SURVIVAL OF GLACIER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
(1) The representations and warranties of Glacier set forth in Section 3.05
shall survive the completion of the sale and purchase of the Shares herein
provided for and, notwithstanding such completion, shall continue in full force
and effect for the benefit of the Vendor and the Purchaser for a period of 24
months from the Closing Date.
(2) The covenants of Glacier set forth in this Agreement shall survive the
completion of the sale and purchase of the Shares herein provided for and,
notwithstanding such completion, shall continue in full force and effect for the
benefit of the Vendor and the Purchaser, as the case may be, in accordance with
the terms thereof.
3.07 INVESTIGATION
Glacier and the Purchaser are knowledgeable about the industry in
which the Corporation and the Subsidiaries operate (and the Purchaser currently
manages the business of the Corporation) and are experienced in the acquisition
and management of businesses. The Purchaser and Glacier acknowledge that they
have been advised by the Vendor and Xxxxxxxxx International that neither the
Vendor, Xxxxxxxxx International nor their respective Affiliates are or have been
involved in the day-to-day management of the Corporation or the Subsidiaries nor
do they or have they exercised any material oversight in respect of the
management of the Corporation or the Subsidiaries. Glacier and its
Representatives have been afforded reasonable access to the Books and Records,
Contracts, facilities and personnel of the Corporation and the Subsidiaries for
purposes of conducting a due diligence investigation of the Corporation and the
Subsidiaries. Glacier has conducted a reasonable due diligence investigation of
the Corporation and the Subsidiaries and has received answers to all inquiries
which it has made with respect to the Corporation and the Subsidiaries and their
respective businesses.
3.08 NO INDUCEMENT OR RELIANCE; INDEPENDENT ASSESSMENT
(1) Neither the Purchaser nor Glacier has been induced by or relied upon
any representations, warranties or statements, whether express or implied, made
by the Vendor, Xxxxxxxxx International (or their Affiliates or Representatives)
that are not expressly set forth herein (including the Disclosure Letter),
whether or not any such representations, warranties or statements were made in
writing or orally.
(2) The Purchaser and Glacier acknowledge that none of the Vendor,
Xxxxxxxxx International or their Affiliates or Representatives makes, will make
or has made any representation or warranty, express or implied, as to the
prospects of the Corporation, the Subsidiaries or their respective businesses
for the Purchaser or Glacier or with respect to any forecasts, projections or
business plans made available to Glacier in connection with Glacier's review of
the Corporation, the Subsidiaries and their respective businesses. No
information concerning the Corporation or the Subsidiaries or their respective
businesses provided by the Purchaser to Glacier shall constitute or be deemed to
constitute, in any way, information or a representation of or provided by the
Vendor or Xxxxxxxxx International.
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3.09 RELEASE
From and after the expiry of the time periods referred to in Sections
3.02(1), 3.04(1) and 3.06(1)(as applicable), each Party releases and forever
discharges each other Party from any and all claims, demands, causes of action,
liabilities, obligations, costs and damages of any nature whatsoever which the
Party may have in respect of or in any way arising out of any inaccuracy in or
breach of any representation or warranty contained in this Agreement and any
instrument or certificate or other document executed or delivered pursuant to
this Agreement (except for the Indemnity and Cooperation Agreement which will
survive according to its terms), except for (and only to the extent of) any
claim in respect of which the Party making the claim has provided notice to the
Party making that representation and warranty in accordance with Section 6.01(7)
or 7.01(2) prior to the expiry of those time limits and in respect of which any
applicable limitation period imposed by Applicable Law has not expired and, in
that event, only on the terms and conditions of and to the extent provided for
in Article 6.
ARTICLE 4 - COVENANTS RELATING TO CONDUCT OF BUSINESS
4.01 APPROPRIATE ACTION; CONSENTS; FILINGS
(1) Upon the terms and subject to the conditions set forth herein, from the
date hereof until the Closing Date, the Vendor, Glacier and the Purchaser shall
use their respective commercially reasonable efforts to take, or cause to be
taken, all appropriate action, and do, or cause to be done, and to assist and
cooperate with the other Party in doing all things necessary, proper or
advisable under Applicable Law or otherwise to consummate and make effective the
transactions contemplated herein as promptly as practicable, including: (i)
executing and delivering any additional instruments necessary, proper or
advisable to consummate the transactions contemplated herein, and to carry out
fully the purposes of this Agreement; (ii) identifying and making all necessary
registrations, declarations, notices or filings (each a "Filing") with any
Governmental Entity as is required in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated herein,
and thereafter making any other required submissions, with respect to the
transactions contemplated hereby and any Applicable Law; and (iii) obtaining all
consents, waivers, approvals, licenses, permits, orders or authorizations (each,
a "Consent") of any Governmental Entity or third party necessary for the
consummation of the transactions contemplated herein; provided, however, that
the Vendor shall not be required to commence any litigation or offer or grant
any accommodation (financial or otherwise) to any third-party. In addition to
the foregoing, the Purchaser and Glacier agree to provide such information and
assurances as to financial capability, resources and creditworthiness as may be
reasonably requested by any Governmental Entity or other third party whose
consent or approval is sought in connection with the transactions contemplated
herein to the extent that such information or assurances do not increase the
benefit that such party possesses under the applicable contract. The Purchaser,
Glacier and the Vendor shall cooperate with each other in connection with the
making of any Filings in accordance with this Section 4.01(1), including
providing copies of all such documents to the non-filing Party and its advisors
prior to filing and implementing all reasonable additions, deletions or changes
suggested in connection therewith. All reasonable costs and expenses incurred in
connection with the Filings pursuant to this Section 4.01 shall be paid by the
Purchaser and all reasonable costs and expenses incurred for obtaining the
Consents shall be paid by the Vendor. The Vendor, Glacier and the
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Purchaser shall furnish to each other all information required for any
application or other Filing to be made pursuant to any Applicable Law in
connection with the transactions contemplated hereby.
(2) The Purchaser and Glacier acknowledge that, as a result of the
transactions contemplated hereby, certain consents and waivers may be required
from parties to contracts to which the Corporation and the Subsidiaries, as the
case may be, are party, and that such consents and waivers have not been
obtained and may not be obtained prior to the Closing. The Vendor shall have no
liability whatsoever to the Purchaser or Glacier arising out of or relating to
the failure to obtain any consents or waivers, that may be required as a result
of the transactions contemplated hereby or because of the termination of any
contract as a result thereof. The Purchaser and Glacier acknowledge that no
representation, warranty or covenant of the Vendor contained herein shall be
breached or deemed breached, and no condition shall be deemed not satisfied, as
a result of: (i) the failure to obtain any such consent or waiver; (ii) any such
termination; or (iii) any claim, lawsuit, action, proceeding or investigation
commenced or threatened by or on behalf of any Person arising out of or relating
to the failure to obtain any such consent, or any such termination.
(3) From the date hereof until the Closing Date, the Vendor, Glacier and
the Purchaser shall promptly notify each other in writing of any pending or, to
the knowledge of the Vendor, Glacier or the Purchaser, as applicable, threatened
action, proceeding or investigation by any Governmental Entity or any other
Person: (i) challenging or seeking damages in connection with the transactions
contemplated hereby; or (ii) seeking to restrain or prohibit the consummation of
the transactions contemplated hereby or otherwise limit the right of the
Purchaser or Glacier to own all or any portion of the Shares. The Vendor,
Glacier and the Purchaser shall cooperate with each other in defending any such
action, proceeding or investigation, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity
vacated or reversed.
(4) From and after the date hereof, and at all times following Closing, the
Purchaser and Glacier (to the extent within its control) shall, and shall cause
the Corporation and any Indemnity Subsidiary to, provide all necessary
cooperation and assistance to the Vendor and make available all personnel
requested by the Vendor in connection with any proceeding or enquiry by or
before any Governmental Entity in connection with the operation of the business
or the activities of the Corporation or any Indemnity Subsidiary or in
connection with any third party claim including, without limitation, any Section
19 Claim or any claim related to Government of Canada Funding, brought against
or involving the Vendor or its Affiliates. The Vendor shall reimburse the
Purchaser and Glacier for their reasonable out-of-pocket expenses in connection
with the foregoing.
4.02 PRESERVATION OF BOOKS AND RECORDS
(1) For a period of six (6) years from the Closing Date, the Purchaser and
Glacier (to the extent within its control)shall use all reasonable efforts to
preserve and retain, or cause the Corporation and any Indemnity Subsidiary to
preserve and retain, all material Books and Records relating to the Corporation
and any Indemnity Subsidiary prior to the Closing.
(2) The Purchaser and Glacier shall not, at any time, dispose of or destroy
any of the Books and Records without first offering to turn over possession
thereof to the Vendor by written notice to the Vendor at least sixty (60) days
prior to the proposed date of such disposition or destruction.
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(3) At any time for a period of six (6) years from the Closing Date and
thereafter in the event that either Party has issued an Indemnification Notice
to the other Party, or the Vendor otherwise requires access to such Books and
Records:
(a) The Purchaser and Glacier shall allow the Vendor and its
Representatives access to all Books and Records within their control
on reasonable notice and at reasonable times at the Purchaser's or
Glacier's principal place of business or at any location where any
Books and Records are stored, and the Vendor and its Representatives
shall have the right to make copies of any Books and Records;
provided, however, that any such access or copying shall be had or
done in such a manner so as not to unduly interfere with the normal
conduct of the business of the Corporation or any Indemnity
Subsidiary.
(b) The Purchaser and Glacier shall, or shall (in the case of Glacier, to
the extent within its control) cause the Corporation and/or any
Indemnity Subsidiary to, make available to the Vendor at the Vendor's
request upon reasonable notice and at reasonable times and at the
Vendor's sole cost written request: (i) the Corporation's and the
Indemnity Subsidiary's personnel to assist the Vendor in locating and
obtaining any Books and Records; and (ii) any of the Corporation's and
the Indemnity Subsidiary's personnel whose assistance or participation
(including as witnesses) is reasonably required by the Vendor or any
of its Affiliates in anticipation of, or preparation for, existing or
future litigation or other matters in which the Vendor or any of its
Affiliates are involved, including in connection with the preparation
of any report or Tax Return to be filed by the Vendor under Applicable
Law or otherwise or for the purposes of responding to or defending
against any action, suit, proceeding, audit, investigation or claim in
respect of any Taxes arising prior to the Closing Date relating to the
Corporation or any Indemnity Subsidiary.
(4) The Vendor and Xxxxxxxxx International shall maintain the
confidentiality of any information (other than information that is already in
the public domain or that the Vendor and Xxxxxxxxx International have in their
possession on or prior to the date hereof, except to the extent specifically
covered by any confidentiality undertaking) received from the Purchaser as a
result of its access to the Books and Records under this Section 4.02 and,
except as otherwise authorized by the Purchaser, will not disclose to any third
party (except as may be required by Applicable Law or in any suit, action or
proceeding involving the Vendor or Xxxxxxxxx International) any such
information.
4.03 TAX MATTERS
(1) Neither the Purchaser nor Glacier (to the extent within its control)
shall initiate or cause the Corporation or the Subsidiaries or any of their
respective Affiliates to initiate any Income or Tax adjustment, for any period
ending on or before the Closing Date, that would result in a reduction of Safe
Income attributable to any of the Shares without the prior written consent of
the Vendor.
(2) The Purchaser and Glacier (to the extent within its control) shall
cause the Corporation, the Subsidiaries and the Limited Partnership and their
respective down-stream
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Affiliates not to divest, sell, transfer or otherwise dispose of any asset to
any Person in the remainder of the 2005 calendar year other than: (i) in the
Ordinary Course; (ii) pursuant to the Purchasing Parties' Pre-Closing
Reorganization Steps; or (iii) to the extent required by Applicable Law. The
Purchaser and Glacier (to the extent within its control) shall cause the
Corporation, the Subsidiaries and their respective down-stream Affiliates not to
establish and/or acquire in the remainder of the 2005 calendar year, any
corporation other than an unlimited liability company established under the laws
of the Province of Nova Scotia.
(3) The Purchaser and Glacier (to the extent within its control) shall, and
shall cause the Corporation, the Subsidiaries and their respective down-stream
Affiliates to provide all financial data and other information concerning the
Corporation, the Subsidiaries and their respective down-stream Affiliates for
the 2005 calendar year to the Vendor to enable the Vendor to prepare and file
any Tax Returns required to be filed by it.
4.04 MAIL; PAYMENTS
(1) The Vendor shall promptly deliver to the Purchaser copies of any
correspondence or other communication received by the Vendor after the Closing
Date pertaining to the Corporation or the Subsidiaries and, where such
correspondence or other communication relates exclusively to the Corporation or
any Subsidiaries, originals thereof. The Purchaser and Glacier shall and shall
cause the Corporation and the Subsidiaries to promptly deliver to the Vendor any
correspondence or other communication received by the Purchaser or Glacier after
the Closing Date pertaining to the Vendor or its Affiliates.
(2) The Vendor shall promptly pay or deliver to the Purchaser any monies or
cheques which have been mistakenly sent after the Closing Date by customers of
the Corporation and the Subsidiaries to the Vendor and which should have been
sent to the Purchaser. The Purchaser and Glacier shall promptly pay or deliver
to the Vendor any monies or checks which have been mistakenly sent after the
Closing Date to the Purchaser and which should have been sent to the Vendor or
its Affiliates.
4.05 INDEMNITY COOPERATION AGREEMENT
The Parties agree that, notwithstanding the Closing, the Vendor shall
be entitled, in its sole discretion and at its sole expense, to control and
direct all matters related to any Section 19 Claims and any Government of Canada
Funding claims involving the Corporation, Xxxxxxx, and any Indemnity Subsidiary
including, without limitation, the exclusive right to retain and instruct
counsel and to enter into any settlement or other negotiations with respect
thereto. In connection therewith, the Vendor, Xxxxxxxxx International and each
Indemnity Subsidiary will, concurrently with the Closing, enter into an
agreement (the "Indemnity Cooperation Agreement") addressing such matters in the
form set out in Schedule 4.05. The Purchaser, Xxxxxxx and Glacier (to the extent
within its control) covenant and agree to cooperate, in all respects, with the
Vendor and Xxxxxxxxx International so as to assist the Vendor and Xxxxxxxxx
International in enjoying benefits of the Indemnity Cooperation Agreement and
not in any way impair or interfere with the rights of the Vendor or Xxxxxxxxx
International hereunder.
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4.06 PURCHASING PARTIES' PRE-CLOSING REORGANIZATION STEPS
Prior to the Time of Closing, at the Purchaser's option and upon
notice thereof being provided to the Vendor by the Purchaser, the Parties agree
to implement the Purchasing Parties' Pre-Closing Reorganization Steps in
accordance with Schedule 4.06 hereof. Upon such notice being provided by the
Purchasing Parties to the Vendor, the Parties agree to implement the Purchasing
Parties' Pre-Closing Reorganization Steps in accordance with Schedule 4.06
hereof. Upon notice being provided hereunder, the Purchaser shall be deemed to
waive all conditions under this Agreement for their benefit, including without
limitation, the conditions contained in Article 5. The Purchasing Parties shall
be solely responsible for any and all costs and expenses (including, without
limitation, all Taxes) incurred by the Purchasing Parties, the Vendor and its
Affiliates, Xxxxxxxxx International and its Affiliates, the Corporation and the
Subsidiaries, including, without limitation, all legal fees and disbursements of
counsel, in connection with or in any way related to implementation of the
Purchasing Parties' Pre-Closing Reorganization Steps and the termination or
unwinding of the Purchasing Parties' Pre-Closing Reorganization Steps should
Closing not occur. The Purchasing Parties shall reimburse each of the Vendor and
its Affiliates, Xxxxxxxxx International and its Affiliates, the Corporation and
the Subsidiaries forthwith, on an as incurred basis, for any and all costs and
expenses so incurred. The Purchasing Parties hereby indemnify and saves harmless
the Vendor and its Affiliates, Xxxxxxxxx International and its Affiliates, the
Purchaser, the Corporation and the Subsidiaries for any and all claims, demands,
suits, actions, proceedings, obligations, penalties, encumbrances, assessments
(including, without limitation, assessments of Taxes), Taxes, costs, fees
(including, without limitation, legal fees and disbursements) expenses, losses
(including, without limitation, loss of profit or revenue), liabilities, damages
(including, without limitation, indirect, special, consequential and punitive
damages or damages for pure economic loss) of any nature whatsoever, directly or
indirectly incurred or suffered by any of them as a result of, in connection
with or arising from, directly or indirectly, implementation of the Purchasing
Parties' Pre-Closing Reorganization Steps or the unwinding or termination of the
Purchasing Parties' Pre-Closing Reorganization Steps should Closing not occur.
The obligations of the Purchasing Parties set forth in this Section 4.06 shall,
notwithstanding any other provision of this Agreement to the contrary, survive
completion or termination of this Agreement and the transactions contemplated
hereby and shall continue in full force and effect for the benefit of the Vendor
and its Affiliates, Xxxxxxxxx International and its Affiliates, the Corporation
and the Subsidiaries indefinitely. To the extent that any of the Purchasing
Parties' Pre-Completion Reorganization Steps contemplate or require the
establishment of any corporate entity, those entities shall be unlimited
liability companies established under the laws of the Province of Nova Scotia
only.
4.07 XXXXXXXXX PRE-CLOSING REORGANIZATION STEPS
Notwithstanding any other provision of this Agreement, the Vendor and
Xxxxxxxxx International may, at any time and upon notice thereof being provided
to the Purchasing Parties by the Vendor prior to the Time of Closing, implement
the Xxxxxxxxx Pre-Closing Reorganization Steps set out in Schedule 4.07.
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ARTICLE 5 - CONDITIONS
5.01 CONDITIONS TO OBLIGATIONS OF EACH PARTY
(1) The respective obligations of each Party to effect the transactions
contemplated hereby is subject to the following conditions having been satisfied
or met on or prior to the Closing, any or all of which may be waived by
agreement of the Vendor, Glacier and the Purchaser, in whole or in part, to the
extent permitted by Applicable Law:
(a) no court or Governmental Entity of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, executive order, decree, judgment, injunction or other
order (whether temporary, preliminary or permanent), in any case which
is in effect or be pending and which prevents or prohibits, or will
prevent or prohibit if then pending, consummation of the transactions
contemplated hereby; provided, however, that each of the Parties shall
use its commercially reasonable efforts to cause any such executive
order, decree, judgment, injunction or other order to be vacated or
lifted;
(b) all Filings and Consents that are listed in Schedule 5.01(1)(b) shall
have been duly made or obtained;
(c) completion of the sale by the Vendor of all of the shares of 3120575
Nova Scotia Company held by it to Glacier or a wholly-owned
subsidiary; and
(d) evidence of the discharge of the lien of Toronto Dominion (Texas),
Inc. against the Vendor insofar as it relates to the Shares or an
acceptable undertaking to do so.
5.02 CONDITIONS FOR THE BENEFIT OF THE PURCHASER AND GLACIER
(1) The sale by the Vendor and the purchase by the Purchaser of the Shares
is subject to the following conditions which are for the exclusive benefit of
the Purchaser and Glacier to be performed or complied with at or prior to the
Time of Closing:
(a) the representations and warranties of the Vendor set forth in Section
3.01 shall be true and correct in all material respects at the Time of
Closing with the same force and effect as if made at and as of such
time (except for representations and warranties that are made as of a
specific date, which shall be true and correct in all material
respects as of that date);
(b) the Vendor shall have performed or complied in all material respects
with all of the terms, covenants and conditions of this Agreement to
be performed or complied with by the Vendor at or prior to the Time of
Closing;
(c) the Vendor shall have delivered to the Purchaser and Glacier a
certificate executed on its behalf by its duly authorized officer
certifying that the conditions set forth in Sections 5.02(1)(a) and
(b) hereof have been satisfied;
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(d) the Purchaser and Glacier shall have received a certificate of the
Vendor and Xxxxxxxxx International certifying that all existing
indebtedness of the Corporation to Xxxxxxxxx International or any of
its Affiliates has been repaid in full;
(e) the Purchaser shall have received a certificate of the Vendor
certifying that the Great West Agreement has been terminated in
respect of the Vendor and that the Corporation currently owes no
amounts to Xxxxxxxxx International or any of its Affiliates thereunder
or under any management agreement;
(f) the Purchaser shall have been furnished with the documents referred to
in Section 2.02(2) at or prior to the Time of Closing; and
(g) all necessary corporate steps and proceedings shall have been taken to
permit the Shares to be duly and transferred to and registered in the
name of the Purchaser.
5.03 CONDITIONS FOR THE BENEFIT OF THE VENDOR
(1) The sale by the Vendor and the purchase by the Purchaser of the Shares
is subject to the following conditions which are for the exclusive benefit of
the Vendor to be performed or complied with at or prior to the Time of Closing:
(a) the representations and warranties of the Purchaser set forth in
Section 3.03 and of Glacier set forth in Section 3.05 shall be true
and correct in all material respects at the Time of Closing with the
same force and effect as if made at and as of such time (except for
representations and warranties that are made as of a specific date,
which shall be true and correct in all material respects as of such
date);
(b) the Purchaser and Glacier shall have performed or complied in all
material respects with all of the terms, covenants and conditions of
this Agreement to be performed or complied with by the Purchaser and
Glacier at or prior to the Time of Closing;
(c) the Purchaser and Glacier shall have delivered to the Vendor a
certificate executed on their behalf by its duly authorized officers
certifying that the conditions set forth in Sections 5.03(1)(a) and
(b) have been satisfied; and
(d) the Vendor shall have been furnished the documents referred to in
Section 2.02(3).
ARTICLE 6 - INDEMNIFICATION
6.01 INDEMNIFICATION
(1) If the Closing shall occur, and subject to the provisions of this
Article 6, the Vendor hereby agrees to indemnify and hold harmless the
Purchasing Parties against and from any and all Losses incurred by the
Purchasing Parties as a result of:
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(a) the failure of any representation or warranty of the Vendor or
Xxxxxxxxx International contained in this Agreement to be true and
correct as of the date made, except that the Vendor shall not be
required to indemnify or save harmless a Purchasing Party in respect
of any such failure unless the Purchasing Party shall have provided
notice to the Vendor in accordance with Section 6.01(7) on or prior to
the expiration of the applicable time period related to that
representation and warranty set out in Section 3.02; and
(b) any breach or non-performance by the Vendor of any covenant or other
obligation to be performed by it that is contained in this Agreement.
(2) Subject to the provisions of this Article 6, each Purchasing Party
shall indemnify, defend and save harmless the Vendor from any and all Losses
suffered or incurred by the Vendor as a result of:
(a) the failure of any representation or warranty of the Purchasing Party
contained in this Agreement to be true and correct, except that a
Purchasing Party shall not be required to indemnify or save harmless
the Vendor in respect of any such failure unless the Vendor shall have
provided notice to the Purchasing Party in accordance with Section
6.01(7) on or prior to the expiration of the applicable time period
for that representation and warranty set out in Section 3.04 or
Section 3.06, as the case may be; and
(b) any breach or non-performance by that Purchasing Party of any covenant
or other obligation to be performed by it that is contained in this
Agreement.
(3) The Vendor shall not be required to indemnify either Purchasing Party,
and no Purchasing Party shall be entitled to recover from the Vendor, any amount
for any claims described in Section 6.01(1) including any certificate delivered
hereunder in respect thereof (collectively, "Representation and Warranty
Losses"), until and unless the amount which the Purchasing Party is entitled to
recover in respect of such Losses exceeds, in the aggregate, $150,000 (the
"Deductible"), following which, subject to this Article 6 (including paragraphs
(4) (5) and (6) below), the entire amount which the Purchasing Party is entitled
to recover in respect of such Losses, less the Deductible, shall be payable.
(4) Any and all Representation and Warranty Losses that involve Losses of
less than $25,000 shall not be entitled to indemnification under this Section
6.01 and shall not be counted toward satisfaction of the Deductible.
(5) The maximum aggregate amount recoverable by the Purchasing Parties, in
the aggregate, for any and all Representation and Warranty Losses (other than
Representation and Warranty Losses relating to breaches or inaccuracies of the
Vendor's representation and warranties in Section 3.01(1)(a) or 3.01(1)(d)
("Title Representation and Warranty Losses")) shall (inclusive of all legal fees
and disbursements) not, in any event, exceed $650,000 and in no event shall the
Vendor be liable for any amount in excess thereof and the maximum aggregate
amount recoverable by the Purchasing Parties, in the aggregate, for any and all
Title Representation and Warranty Losses shall (inclusive of all legal fees and
disbursements) not, in any event, exceed an amount equal to 100% of
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the Purchase Price and in no event shall the Vendor be liable for any amount in
excess thereof. The maximum amount recoverable by the Vendor from the Purchasing
Parties in respect of all Losses incurred by the Vendor pursuant to claims
described in Section 6.01(2) including any certificate delivered hereunder in
respect thereof shall (inclusive of all legal fees and disbursements) not, in
any event, exceed $650,000 and in no event shall the Purchasing Parties shall be
liable for any amount in excess thereof.
(6) The maximum aggregate amount recoverable, in the aggregate, from the
Vendor in respect of all Losses incurred by the Purchasing Parties and the
Indemnity Subsidiaries (including, without limitation, Representation and
Warranty Losses, Title Representation and Warranty Losses, Losses under the
Publication Status Indemnity and Losses any other document or agreement
contemplated hereby or otherwise) shall be an amount equal to 100% of the
Purchase Price (inclusive of all legal fees and disbursements) and in no event
shall the Vendor be liable for any Losses in excess of such amount.
(7) The following procedures shall apply to claims for indemnification
under this Article 6:
(a) In the event that a Party shall incur or suffer any Losses (or shall
reasonably anticipate that it shall suffer any Losses), in respect of
which indemnification may be sought by such Party (an "Indemnified
Party") pursuant to the provisions of this Article 6 from another
Party (each, an "Indemnifying Party"), the Indemnified Party shall
promptly submit to the Indemnifying Party an Indemnification Notice
stating the nature and basis of such claim including a description in
reasonable detail of the facts giving rise to the claim for
indemnification hereunder and (if known) the amount or the method of
computation of the amount of such claim, and a reference to the
provisions of this Agreement upon which such claim is based; provided,
however, that the failure of the Indemnified Party to give the
Indemnification Notice promptly shall not relieve the Indemnifying
Party of any liability that the Indemnifying Party may have to the
Indemnified Party, except to the extent that the Indemnifying Party is
prejudiced thereby. In the case of Losses arising by reason of any
third-party claim, the Indemnification Notice shall be given within
thirty (30) days of the filing or other written assertion of any such
claim against the Indemnified Party, but the failure of the
Indemnified Party to give the Indemnification Notice within such time
period shall not relieve the Indemnifying Party of any liability that
the Indemnifying Party may have to the Indemnified Party, except to
the extent that the Indemnifying Party is prejudiced thereby.
Thereafter, the Indemnified Party shall deliver to the Indemnifying
Party, within ten (10) calendar days after the Indemnified Party's
receipt thereof, copies of all notices and documents (including court
papers) received by the Indemnified Party relating to the third-party
claim. Notwithstanding the foregoing, should a Person be served with a
complaint with regard to a third-party claim, the Indemnified Party
must notify the Indemnifying Party with a copy of the complaint within
ten (10) calendar days after receipt thereof and shall deliver to the
Indemnifying Party within ten (10) calendar days after the receipt of
such complaint copies of notices and documents (including court
papers) received by the Indemnified Party relating to the third-party
claim (or in each case such earlier
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time as may be necessary to enable the Indemnifying Party to respond
to the court proceedings on a timely basis); provided, however, that
failure to do so shall not relieve the Indemnifying Party of any
liability that it may have to the Indemnified Party, except to the
extent that the Indemnifying Party is prejudiced thereby.
(b) The Indemnified Party shall provide to the Indemnifying Party on
request all information and documentation in the Indemnified Party's
possession: (i) that is not privileged and is reasonably necessary;
and (ii) that is critical (whether or not privileged), in each case,
to support and verify any Losses which the Indemnified Party believes
give rise to a claim for indemnification hereunder and shall give the
Indemnifying Party access to all books, records and personnel in the
possession or under the control of the Indemnified Party which would
have bearing on such claim.
(c) In the case of third-party claims with respect to which an
Indemnification Notice is given, the Indemnifying Party shall have the
option at its own expense: (i) to conduct any proceedings or
negotiations in connection therewith; (ii) to take all other steps to
settle or defend any such claim; and (iii) to employ counsel of the
Indemnifying Party's choosing and approved by the Indemnified Party
acting reasonably to contest any such claim in the name of the
Indemnified Party or otherwise. The Indemnifying Party may not
compromise or settle any claim without the Indemnified Party's prior
written consent, which may not be unreasonably withheld or delayed.
Should the Indemnifying Party provide written notice of its desire to
settle any third party claim but the Indemnified Party does not
provide consent within a reasonable period of time, the Indemnified
Party shall be responsible for any incremental costs and expenses
incurred beyond the proposed settlement amount. The Indemnified Party
shall be entitled to participate at its own expense and by its own
counsel in any proceedings relating to any third-party claim. The
Indemnifying Party shall, within twenty (20) days of receipt of the
Indemnification Notice, notify the Indemnified Party of its intention
to assume the defense of any such claim. Until the Indemnified Party
has received notice of the Indemnifying Party's election whether to
defend any such claim, the Indemnified Party shall take reasonable
steps to defend (but may not settle) such claim. If the Indemnifying
Party shall decline to assume the defense of any such claim, or shall
fail to notify the Indemnified Party within twenty (20) days after
receipt of the Indemnification Notice of the Indemnifying Party's
election to defend such claim or fails to diligently defend such claim
after electing to assume conduct, the Indemnified Party shall defend
such claim but may not settle such claim without the advance written
consent of the Indemnifying Party (which consent shall not be
unreasonably withheld or delayed). Should the Indemnified Party
provide notice of its desire to settle such claim but the Indemnifying
Party does not provide consent within a reasonable period of time, the
Indemnifying Party shall be responsible for any incremental costs and
expenses incurred beyond the proposed settlement amount. The expenses
of all proceedings, contests or lawsuits in respect of any such claims
(other than those incurred by the Indemnified Party which are referred
to in the third and fourth sentences of this subparagraph (c)) shall
be borne by the
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Indemnifying Party but only if the Indemnifying Party is responsible
pursuant hereto to indemnify the Indemnified Party in respect of such
claim and, if applicable, only to the extent required by this Section
6.01(7). Regardless of which Party shall assume the defense of the
claim, the Parties agree to cooperate fully with one another in
connection therewith.
(8) Nothing in this Section 6.01 shall be construed as a limitation on the
Indemnifying Party's right to contest in good faith whether the Indemnified
Party is entitled to indemnification pursuant to this Section 6.01 with respect
to a particular claim. The Indemnified Party shall have the burden of proof in
establishing the existence of a claim for indemnification under this Agreement
and the amount of Losses suffered by it.
(9) The indemnification provided for in this Section 6.01 shall be the sole
and exclusive remedy of the Purchasing Parties (except in the case of fraud on
the part of the Vendor), whether in contract, tort or otherwise, for all matters
arising under or in connection with this Agreement and the transactions
contemplated hereby, including, without limitation, for any inaccuracy or breach
of any representation, warranty, covenant or agreement set forth herein and the
Purchasing Parties hereby irrevocably waive and release any rights to take
action, institute proceedings or make any claims of any nature whatsoever
against the Vendor (or Xxxxxxxxx International) or their respective Affiliates
except pursuant to such indemnification provisions. The indemnification provided
for in this Section 6.01 shall be the sole and exclusive remedy of the Vendor
(except in the case of fraud on the part of either of the Purchasing Parties),
whether in contract, tort or otherwise, for all matters arising under or in
connection with this Agreement with respect to the breach of any representation
or warranty set forth herein.
(10) Notwithstanding anything contained herein to the contrary, the amount
of any Losses incurred or suffered by an Indemnified Party shall be calculated
after giving effect to: (i) any insurance proceeds received by or otherwise
payable to the Indemnified Party (or any of its Affiliates) with respect to such
Losses (collectively, "Insurance Benefits"); and (ii) any recoveries obtained by
the Indemnified Party (or any of its Affiliates) from any party other than the
Indemnifying Party. Each Indemnified Party shall exercise commercially
reasonable efforts to obtain such proceeds, benefits and recoveries. If any such
proceeds, benefits or recoveries are received by an Indemnified Party (or any of
its Affiliates) with respect to any Losses after an Indemnifying Party has made
a payment to the Indemnified Party with respect thereto, the Indemnified Party
(or such Affiliate) shall pay to the Indemnifying Party the amount of such
proceeds, benefits or recoveries (up to the amount of the Indemnifying Party's
payment). With respect to any Losses incurred or suffered by an Indemnified
Party, no liability shall attach to the Indemnifying Party in respect of any
Losses to the extent that the same Losses have been recovered by the Indemnified
Party and, accordingly, the Indemnified Party may only recover once in respect
of the same Loss.
(11) Upon making any payment to an Indemnified Party in respect of any
Losses, the Indemnifying Party shall, to the extent of such payment, be
subrogated to all rights of the Indemnified Party (and its Affiliates) against
any third party in respect of the Losses to which such payment relates. Such
Indemnified Party (and its Affiliates) and Indemnifying Party shall execute upon
request all instruments reasonably necessary to evidence or further perfect such
subrogation rights. The Purchasing Parties shall use commercially reasonable
efforts to mitigate any Losses in
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respect of which indemnification under this Agreement may be sought, whether by
asserting claims against a third party or by otherwise qualifying for a benefit
that would reduce or eliminate Losses. To the extent that any breach of any
representation or warranty contained in this Agreement or any other provision of
this Agreement is capable of remedy, the Indemnified Party shall afford the
Indemnifying Party a reasonable opportunity to remedy the matter complained of.
(12) The liability of the Vendor in respect of any claim by the Purchasing
Parties under this Agreement shall be reduced by the amount by which any Taxes
for which the Purchasing Parties, the Corporation or any Indemnity Subsidiary is
now or in the future accountable or liable to be assessed is reduced or
extinguished as a result of the matter giving rise to such liability.
(13) From the date hereof through the Closing Date, the Vendor shall have
the right, from time to time, to modify, amend and/or supplement the Disclosure
Letter by delivering any such modifications, amendments and/or supplements to
Glacier in writing in accordance with the terms of this Agreement. No such
supplement, amendment or modification shall be evidence, in and of itself, that
the representations and warranties in the corresponding Section are no longer
true and correct in all material respects. It is specifically agreed that the
Disclosure Letter may be modified, amended and/or supplemented to add
immaterial, as well as material, items thereto. In the event that the Vendor
provides Glacier with an amendment, supplement, or modification to the
Disclosure Letter within three Business Days prior to the date that the parties
intend to close the transaction contemplated in this Agreement, the parties
agree to extend the Closing Date for a period of three Business Days from the
date of delivery of such information, or otherwise as the parties may agree. In
the event that the amendment, supplement or modification to the Disclosure
Letter constitutes a Material Adverse Effect, then the Purchasing Parties may,
at their election within 3 Business Days of receipt, elect to terminate their
obligations to complete the transactions contemplated hereby by notice in
writing to the Vendor. For purposes of determining whether the Vendor is subject
to any claim for indemnification under this Section 6.01 following the Closing
Date for a breach of any representation or warranty under this Agreement, the
Disclosure Letter shall be deemed to include the information contained therein
on the date hereof and such other information as may be set forth in any
modification, amendment and/or supplement to the Disclosure Letter delivered by
the Vendor to Glacier pursuant to this Section 6.01(13). Disclosure of any fact
or item in the Disclosure Letter shall be deemed to constitute disclosure with
respect to each reasonably related provision of this Agreement. Neither the
specification of any dollar amount in any representation or warranty contained
in this Agreement nor the inclusion of any specific item in the Disclosure
Letter is intended to imply that such amount, or higher or lower amounts, or the
item so included or other items, are or are not material, and no party shall use
the fact of the setting forth of any such amount or the inclusion of any such
item in any dispute or controversy between the parties as to whether any
obligation, item or matter not described herein or included in the Disclosure
Letter is or is not material for purposes of this Agreement. Unless this
Agreement specifically provides otherwise, neither the specification of any item
or matter in any representation or warranty contained in this Agreement nor the
inclusion of any specific item in the Disclosure Letter is intended to imply
that such item or matter, or other items or matters, are or are not in the
Ordinary Course of business. No party shall use the fact of the setting forth or
the inclusion of any such item or matter in any dispute or controversy between
the parties as to whether any obligation, item or matter not described herein or
included in the Disclosure Letter is or is not in the Ordinary Course for
purposes of this Agreement.
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(14) In no event shall the Vendor be required to indemnify the Purchaser or
Glacier and the Vendor shall have no liability to the Purchaser or Glacier:
(a) to the extent the indemnification obligation or liability arises or is
increased as a result of any action taken or omitted to be taken by
the Purchaser or Glacier or any of their Affiliates (including any
action taken or omitted to be taken by the Corporation or the
Subsidiary on or after the Closing Date);
(b) for any Loss or matter to the extent resulting from a change in
Applicable Law that becomes effective after the Closing Date;
(c) for any Loss or matter to the extent arising from a change in the
accounting policies or practices of the Corporation or any Subsidiary
after the Closing; or
(d) to the extent that the Vendor is unable to challenge or dispute any
claim due to the loss or destruction of any relevant Books and Records
by the Purchasing Parties, the Corporation or the Indemnity
Subsidiaries.
(15) Notwithstanding anything contained herein to the contrary, the Vendor
shall have no liability for a breach of or inaccuracy in any representation or
warranty if the Purchaser or Glacier was aware, at or before the Closing Date,
of the facts as a result of which such representation or warranty was breached
or inaccurate.
(16) Any amounts payable under Section 6.01 by Glacier, the Purchaser or
the Vendor (other than interest) shall be treated as an adjustment to the
Purchase Price.
ARTICLE 7 - PUBLICATION STATUS INDEMNITY
7.01 PUBLICATION STATUS INDEMNITY
(1) The Vendor shall, if the Closing occurs, indemnify, defend and save
harmless each Indemnity Subsidiary, effective as and from the Time of Closing,
from and against Losses suffered or incurred by such Indemnity Subsidiary as a
result of:
(a) any Funding Determination, except that the Vendor shall,
notwithstanding anything in Article 6 to the contrary, in no event be
responsible for any costs incurred by any Indemnity Subsidiary in
responding to a potential or actual Funding Determination as long as
the Vendor is defending the claim or pursuing a settlement but if the
Vendor ceases to do so and the Indemnity Subsidiary determines for
bona fide reasons to pursue the claim, the Vendor shall be responsible
for the fees and expenses of one set of counsel in respect of such
claim; and
(b) any Section 19 Claim, except that the Vendor shall, notwithstanding
anything in Article 6 to the contrary, in no event be responsible for
any costs incurred by any Indemnity Subsidiary in respect of the
defence or settlement of any Section 19 Claim as long as the Vendor is
defending the claim or pursuing a settlement but if
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the Vendor ceases to do so and the Indemnity Subsidiary determines for
bona fide reasons to pursue the claim, the Vendor shall be responsible
for the fees and expenses of one set of counsel in respect of such
claim.
(2) The Vendor shall, if the Closing occurs, indemnify, defend and save
harmless Xxxxxxx, effective as and from the Time of Closing, from and against
Losses suffered or incurred by Xxxxxxx as a result of the Vue Claims, except
that the Vendor shall, notwithstanding anything in Article 6 to the contrary, in
no event be responsible for any costs incurred by Xxxxxxx in respect of the
defence or settlement of any Vue Claims as long as the Vendor is defending the
claim or pursuing a settlement but if the Vendor ceases to do so and Xxxxxxx
determines for bona fide reasons to pursue the claim, the Vendor shall be
responsible for the fees and expenses of one set of counsel in respect of such
claim.
(3) The Publication Status Indemnity shall be the sole remedy of Glacier,
the Purchaser, Xxxxxxx and any Indemnity Subsidiary for any Losses in respect of
any matter related to the matters addressed by the Publication Status Indemnity
and Glacier, the Purchaser, Xxxxxxx and each Indemnity Subsidiary hereby
irrevocably waive and release any rights to take action, institute proceedings
or make any claim of any nature whatsoever against the Vendor in connection with
the Publication Status Indemnity pursuant to any other provision of this
Agreement or otherwise. The Publication Status Indemnity will expire on the
sixth anniversary of the Closing Date.
(4) The Purchaser, and its successors in interest, shall hold the
Publication Status Indemnity in trust for the benefit of the Indemnity
Subsidiaries subject to the qualifications and limitations of this Agreement.
7.02 CLAIMS PROCESS AND LIMITS
The provisions of Sections 6.01(7), 6.01(8), 6.01(9), 6.01(10),
6.01(11), 6.01(12), 6.01(14) and 6.01(16) shall apply, mutatis mutandis, to the
Publication Status Indemnity.
ARTICLE 8 - TERMINATION
8.01 TERMINATION
This Agreement may be terminated at any time prior to the Closing
Date:
(1) by mutual written agreement of the Vendor, Glacier and the Purchaser;
or
(2) by written notice by either the Vendor, Glacier or the Purchaser, by
the terminating Party to the other Parties, if:
(a) the transactions contemplated hereby shall not have been consummated
by 5:00 p.m., (Toronto time) on December 31, 2005 (the "End Date"),
subject to the right of the Vendor, in its sole discretion, to extend
the End Date to such time on a date on or prior to January 31, 2006 by
notice in writing to the Purchaser and Glacier, in which case the End
Date shall be such time on such date; provided, however, that the
right to terminate this Agreement under this Section 8.01(2)(a)shall
not be
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available to any Party whose breach of any provision of this Agreement
has resulted in the failure of the transactions contemplated hereby to
occur on or before the End Date; or
(b) there shall be any Applicable Law that makes consummation of all of
the transactions contemplated hereby illegal or otherwise prohibited
or any judgment, injunction, order or decree of any Governmental
Entity having competent jurisdiction enjoining the Purchaser or the
Vendor from consummating all of the transactions contemplated hereby
is entered and such judgment, injunction, order or decree shall have
become final and non-appealable and, prior to such termination, the
Parties shall have used their respective commercially reasonable best
efforts to resist, resolve or lift, as applicable, such judgment,
injunction, order or decree; or
(c) by written notice from the Purchaser, if a breach of any
representation, warranty, covenant or agreement on the part of the
Vendor set forth herein shall have occurred, is not cured within
thirty (30) days after written notice thereof from the Purchaser or
Glacier to the Vendor, would cause the conditions set forth in Section
5.02(1)(a) or (b) hereof not to be satisfied, and such condition shall
be incapable of being satisfied by the End Date; or
(d) by written notice from the Vendor, if a breach of any representation,
warranty, covenant or agreement on the part of the Purchaser or
Glacier set forth herein shall have occurred, is not cured within
thirty (30) days after written notice thereof from the Vendor to the
Purchaser or Glacier, would cause the conditions set forth in Section
5.03(1)(a)or (b) hereof not to be satisfied, and such condition shall
be incapable of being satisfied by the End Date.
8.02 EFFECT OF TERMINATION
Termination of this Agreement pursuant to Section 8.01 hereof shall
terminate all rights and obligations of the Parties hereunder and this Agreement
shall become void and have no force or effect. Upon such termination, none of
the Parties shall have any liability to the other Parties hereunder.
Notwithstanding the foregoing, no Party shall be relieved from any liability for
any breach of any of its covenants or agreements in this Agreement prior to such
termination.
ARTICLE 9 - GENERAL
9.01 FURTHER ASSURANCES
Each of the Vendor, Glacier and the Purchaser shall from time to time
execute and deliver all such further documents and instruments and do all acts
and things as the other party may, either before or after the Closing Date,
reasonably require to effectively carry out or better evidence or perfect the
full intent and meaning of this Agreement.
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9.02 TIME OF THE ESSENCE
Time shall be of the essence of this Agreement.
9.03 COMMISSIONS
Each of the Vendor, the Purchaser and Glacier shall indemnify and save
harmless the other from and against any claims whatsoever for any commission,
brokers fees, finders fees or other similar remuneration payable or alleged to
be payable to any Person by the Party providing the indemnity in respect of the
sale and purchase of the Shares.
9.04 CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS
No Party shall make any public announcement or press releases
concerning, or otherwise disclose the existence or the contents of, this
Agreement without the prior written consent of the other except as required by
Applicable Law, stock exchange regulation or, in the case of the Vendor and its
Affiliates (including the Corporation and the Subsidiary) the terms of any
Contract in effect on the date hereof or, in the case of the Purchasing Parties,
communications to the customers, employers and suppliers of the Corporation and
the Subsidiary following the Closing Date of the fact of the completion of the
transaction.
9.05 BENEFIT OF THE AGREEMENT
This Agreement shall enure to the benefit of and be binding upon the
respective heirs, executors, administrators, successors and permitted assigns of
the Parties, including the Limited Partnership and each successor in interest of
the Vendor (including Xxxxxxxxx Canadian Publishing Holdings Co.).
9.06 ENTIRE AGREEMENT
This Agreement (together with the Schedules and the Disclosure Letter)
constitutes the entire agreement between the Parties with respect to the subject
matter hereof and cancels and supersedes any prior understandings and agreements
between the Parties with respect thereto (including the Letter of Intent). There
are no representations, warranties, terms, conditions, undertakings or
collateral agreements, express, implied or statutory, between the parties other
than as expressly set forth in this Agreement.
9.07 AMENDMENTS AND WAIVER
No modification of or amendment to this Agreement shall be valid or
binding unless set forth in writing and duly executed by both of the parties
hereto and no waiver of any breach of any term or provision of this Agreement
shall be effective or binding unless made in writing and signed by the party
purporting to give the same and, unless otherwise provided, shall be limited to
the specific breach waived.
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9.08 ASSIGNMENT
This Agreement may not be assigned by any Party without the prior
written consent of the other Parties.
9.09 NOTICES
Any demand, notice or other communication to be given in connection
with this Agreement shall be given in writing and shall be given by personal
delivery, by registered mail or by electronic means of communication addressed
to the recipient as follows:
To the Vendor:
c/x Xxxxxxxxx International Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
With a copy to:
XxXxxxxx Xxxxxxxx XXX
Xxxxx 0000, 00 Xxxxxxxxxx Xxxxxx West
TD Xxxx Xxxxx, XX Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
To Glacier:
Glacier Ventures International Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxx
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With a copy to:
Farris, Vaughan, Xxxxx & Xxxxxx LLP
P.O. Box 10026, 000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxx
To Xxxxxxxxx International:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
With a copy to:
XxXxxxxx Xxxxxxxx XXX
Xxxxx 0000, 00 Xxxxxxxxxx Xxxxxx West
TD Xxxx Xxxxx, XX Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
To the Purchaser:
6490239 Canada Inc.
00 Xxxxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxxx
X0X 0X0
Facsimile No.: (000) 000-0000
Attention: President
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With a copy to:
Xxxxxx & XxXxxxxx LLP
0000, 00000-000 Xxxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
or to such other address, individual or electronic communication number as may
be designated by notice given by either party to the other. Any demand, notice
or other communication given by personal delivery shall be conclusively deemed
to have been given on the day of actual delivery thereof and, if given by
registered mail, on the second Business Day following the deposit thereof in the
mail and, if given by electronic communication, on the day of transmittal
thereof if given during the normal business hours of the recipient and on the
Business Day during which such normal business hours next occur if not given
during such hours on any day. If the party giving any demand, notice or other
communication knows or ought reasonably to know of any difficulties with the
postal system which might affect the delivery of mail, any such demand, notice
or other communication shall not be mailed but shall be given by personal
delivery or by electronic communication.
9.10 SEVERABILITY
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
Party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the Parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
9.11 PARTIES IN INTEREST
This Agreement shall be binding upon, inure solely to the benefit of
and be enforceable by each Party and their respective successors and assigns
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other Person (including, without limitation, any lenders
to the Purchasing Parties) other than the Parties any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
9.12 EXPENSES
Except as otherwise expressly set forth in this Agreement all fees and
expenses incurred in connection herewith and the transactions contemplated
hereby shall be paid by the Party incurring such expenses, whether or not the
transactions contemplated hereby are consummated. Notwithstanding the foregoing
or anything to the contrary contained herein, in the event that any
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dispute among the Parties results in litigation, arbitration, mediation or any
other contest, the prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing any right of
such prevailing party with respect to this Agreement, including, without
limitation, reasonable attorney's fees and expenses.
9.13 GOVERNING LAW; ATTORNMENT
This Agreement shall be governed by, and construed in accordance with,
the law of the Province of Alberta and the laws of Canada applicable therein.
For the purposes of all legal proceedings, this Agreement shall be deemed to
have been performed in the Province of Alberta and the courts of the Province of
Alberta shall have jurisdiction to entertain any action arising under this
Agreement. Each of the Parties hereby irrevocably and unconditionally attorn to
the exclusive jurisdiction of the courts of the Province of Alberta located in
the City of Edmonton, for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby, and further agrees that
service of any process, summons, notice or document by Canadian registered mail
to its respective address set forth herein shall be effective service of process
for any litigation brought against it in any such court. It is understood and
agreed that upon service of an originating process by registered mail as
provided herein, the solicitors for the plaintiffs in the action may accept
service of the Statement of Claim on behalf of the solicitors for the defendants
in the action, effective on the fifth day following mailing of the Statement of
Claim, and may thereafter take whatever steps are permitted under the Alberta
Rules of Civil Procedure in respect of an originating process for which service
has been accepted by a solicitor. Each of the Parties hereby irrevocably and
unconditionally waives any objection to the laying of venue of any litigation
arising out of this Agreement and the transactions contemplated hereby in the
courts of the Province of Alberta, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such litigation brought in any such court has been brought in an
inconvenient forum.
9.14 COUNTERPARTS; FACSIMILE
This Agreement may be executed and delivered in one or more
counterparts and via facsimile, and by the Parties in separate counterparts,
each of which when executed and delivered shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
9.15 WAIVER
Subject to the limitations contained in this Agreement, the failure of
a party to require performance of any provision hereof shall not affect its
right at a later time to enforce the same. No waiver by a party of any term,
covenant, representation or warranty contained herein shall be effective unless
in writing. No such waiver in any one instance shall be deemed a further or
continuing waiver of any such term, covenant, representation or warranty in any
other instance.
9.16 DISCLAIMER
The Vendor disclaims any representations or warranties except as
specifically set forth in this Agreement. In particular, the Vendor disclaims
any representation or warranty, and the Purchasing Parties agree that the Vendor
shall not have any liability, with respect to any information concerning the
Vendor, the Corporation, and the Subsidiaries not expressly represented and
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warranted to in this Agreement, including, without limitation, any information
regarding the Vendor, the Corporation, and the Subsidiaries provided at any
management presentation related to the transactions contemplated by this
Agreement.
9.17 WAIVER OF JURY TRIAL
Each Party hereby waives to the fullest extent permitted by Applicable
Law, any right it may have to a trial by jury in respect of any litigation
directly or indirectly arising out of, under or in connection with this
Agreement or any transaction contemplated hereby.
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IN WITNESS WHEREOF the parties have executed this Agreement.
GLACIER VENTURES INTERNATIONAL CORP.
Per:
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Name:
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Title:
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Per:
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Name:
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Title:
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HCPH CANADIAN NEWSPAPER HOLDINGS CO.
Per:
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Name:
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Title:
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XXXXXXXXX INTERNATIONAL INC.
Per:
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Name:
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Title:
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6490239 CANADA INC.
Per:
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Name:
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Title:
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Per:
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Name:
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Title:
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XXXXXXX NEWSPAPERS INC.
Per:
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Name:
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Title:
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Per:
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Name:
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Title:
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SCHEDULE 1.01(M)
DISCLOSURE LETTER
SCHEDULE 4.05
INDEMNITY COOPERATION AGREEMENT
SCHEDULE 4.07
PURCHASING PARTIES' PRE-CLOSING REORGANIZATION STEPS
SCHEDULE 4.08
XXXXXXXXX PRE-CLOSING REORGANIZATION STEPS
SCHEDULE 5.01(1)(C)
CONSENTS AND FILINGS
