BROOKLINE MINERALS INC.
- AND -
XXXXXXXX COMMUNICATIONS LTD.
- AND -
INTEK DIVERSIFIED CORPORATION
- AND -
XXXXXX TRAVEL, LIMITED
SHARE PURCHASE AGREEMENT
Made as of August 24, 0000
XXXXXX XXXXXXX
XXXXXXX
SHARE PURCHASE AGREEMENT
TABLE OF CONTENTS
ARTICLE 1 - INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Interpretation Not Affected by Headings, Etc.. . . . . . . . . . . . 5
1.4 Gender and Number. . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.5 Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.6 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.7 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . 5
1.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 2 - SHARE PURCHASE AND REORGANIZATION. . . . . . . . . . . . . . . . . 6
2.1 Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 Brookline Performance Common Shares. . . . . . . . . . . . . . . . . 6
2.3 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4 Board of Directors of Purchaser, Section 2.1 Transaction, etc. . . . 8
2.5 Chairman and President of Purchaser. . . . . . . . . . . . . . . . . 8
2.6 Change of Name . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.7 Adjustment Provisions. . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . .10
3.1 Representations and Warranties of the Vendors. . . . . . . . . . . .10
3.2 Representations and Warranties of the Purchaser. . . . . . . . . . .11
ARTICLE 4 - COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
4.1 Covenants of Vendors . . . . . . . . . . . . . . . . . . . . . . . .14
4.2 Covenants of Purchaser . . . . . . . . . . . . . . . . . . . . . . .14
4.3 Mutual Covenant. . . . . . . . . . . . . . . . . . . . . . . . . . .15
ARTICLE 5 - CONDITIONS PRECEDENT AND SUBSEQUENT. . . . . . . . . . . . . . . .16
5.1 Mutual Conditions Precedent. . . . . . . . . . . . . . . . . . . . .16
5.2 Conditions Precedent of the Purchaser. . . . . . . . . . . . . . . .16
5.3 Conditions Precedent of the Vendors. . . . . . . . . . . . . . . . .17
5.4 Conditions Precedent Notices . . . . . . . . . . . . . . . . . . . .18
5.5 Satisfaction of Conditions Precedent . . . . . . . . . . . . . . . .19
5.6 Mutual Condition Subsequent. . . . . . . . . . . . . . . . . . . . .19
ARTICLE 6 - TERMINATION, SURVIVAL AND AMENDMENT. . . . . . . . . . . . . . . .19
6.1 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
6.2 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
6.3 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE 7 - GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
7.1 Commissions, Fees and Expenses . . . . . . . . . . . . . . . . . . .20
7.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
7.3 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
7.4 Confidentiality and Public Notices . . . . . . . . . . . . . . . . .22
7.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
7.6 Time of the Essence. . . . . . . . . . . . . . . . . . . . . . . . .22
7.7 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . .22
SHARE PURCHASE AGREEMENT
THIS AGREEMENT made as of the 24th day of August, 1995.
AMONG:
BROOKLINE MINERALS INC., a corporation
incorporated under the laws of Canada
(hereinafter referred to as the "Purchaser")
OF THE FIRST PART
- and -
XXXXXXXX COMMUNICATIONS LTD., a corporation
incorporated under the laws of the Province of
Ontario
(hereinafter referred to as "Xxxxxxxx")
OF THE SECOND PART
- and -
INTEK DIVERSIFIED CORPORATION, a corporation
incorporated under the laws of the State of
Delaware
(hereinafter referred to as "Intek")
OF THE THIRD PART
- and -
XXXXXX TRAVEL, LIMITED, a limited liability
company formed under the laws of the State of
Nevada
(hereinafter referred to as "Xxxxxx")
OF THE FOURTH PART
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RECITALS:
1. Brook SIG Corp. ("BSIG"), a corporation incorporated under the laws of
the State of Delaware, and which intends to change its name to Brookline Capital
Corp., intends to purchase, directly or indirectly, from Xxxxxxxx, Intek and
Xxxxxx certain assets, including, among other things, cash, a loan receivable
from Pagers Plus Cellular, and equity in Pagers Plus Cellular.
2. Financing provided by BSIG (which will include, to the extent
available, an equity interest in the borrower) will be used by management
companies to construct wireless specialized mobile radio systems on behalf of
certain United States 220 MHz narrowband licensees.
3. All of the issued and outstanding shares of BSIG are owned by
Xxxxxxxx, Intek and Xxxxxx (sometimes hereinafter, each referred to as a
"Vendor", and collectively referred to as the "Vendors").
4. The Purchaser and Xxxxxxxx, on behalf of the Vendors, entered into a
letter of intent accepted on the 12th day of July, 1995 (the "Letter of Intent")
pursuant to which, among other things, the Vendors agreed to sell and the
Purchaser agreed to purchase all of the issued and outstanding shares of BSIG.
5. In view of the foregoing, and in accordance with the Letter of Intent,
the parties wish to now enter into this Agreement in order to set out in greater
detail the terms of the transaction as described in the Letter of Intent.
NOW THEREFORE in consideration of the mutual covenants and agreements
contained in this Agreement and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
For the purpose of this Agreement, in addition to the definitions set
out above:
"AFFILIATE" means, with respect to any corporation or limited liability company,
any other corporation which directly or indirectly controls or is controlled by
or is under direct or indirect common control with such first mentioned
corporation or limited liability company, and for the purpose of this definition
"control" means, with respect to any corporation or limited liability company,
the ownership of voting securities to which are attached 20 per cent or more of
the voting rights attached to all outstanding voting securities of such
corporation or limited liability company;
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"AGREEMENT" means this Agreement and all schedules attached to this Agreement,
in each case as they may be amended or supplemented from time to time, and the
expressions "hereof", "herein", "hereto", "hereunder", "hereby" and similar
expressions refer to this Agreement and unless otherwise indicated, references
to Articles and sections are to Articles and sections in this Agreement and
references to parties are to the parties to this Agreement;
"ASSET PURCHASE AGREEMENT" means the agreement between the Purchaser and
Orvilliers in the form attached hereto as Schedule "D";
"AUDITORS" has the meaning ascribed thereto in section 2.7;
"BROOKLINE COMMON SHARES" means common shares in the capital of the Purchaser at
the date hereof;
"BROOKLINE MANAGEMENT CONTRACT COMMON SHARES" means the Brookline Common Shares
issuable pursuant to the Management Contracts;
"BROOKLINE PERFORMANCE COMMON SHARES" means the Brookline Common Shares issuable
pursuant to section 2.2;
"BROOKLINE SHAREHOLDERS" means the holders of Brookline Common Shares;
"BROOKLINE SHAREHOLDERS CONSENT" means the written consent of the holders of a
majority of the outstanding Brookline Common Shares to be obtained in connection
with the transaction contemplated by section 2.1;
"BROOKLINE SHAREHOLDERS MEETING" has the meaning ascribed thereto in section
2.4;
"BSIG ASSET ACQUISITION" means the sale and assignment by the Vendors to BSIG of
certain assets and agreements relating to the specialized mobile radio systems
industry, as listed in Schedule "A" hereto, in exchange for the Purchased
Shares;
"BSIG PRO FORMA BALANCE SHEET" has the meaning ascribed thereto in subsection
4.1.4;
"BUSINESS DAY" means any day, other than Saturday, Sunday or any statutory
holiday in the Provinces of Ontario, Quebec, British Columbia and the State of
Ohio;
"CLOSING DATE" has the meaning ascribed thereto in section 2.3;
"FCC" means the United States Federal Communications Commission;
"FINANCING" means financing of any kind, including equity, secured debt and
lease financing, which is provided to assist with construction or development of
SMR 220 Mhz Systems or which is related in any way to their construction or
development, whether directly or indirectly;
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"FINDER'S FEE BROOKLINE COMMON SHARES" means the 400,000 Brookline Common Shares
issuable on the Closing Date to Xxxxxx Xxxxxxxx, Xx., or his nominee, subject to
regulatory approvals, as a finder's fee in connection with the transaction
contemplated by this Agreement;
"INTEK MANAGEMENT CONTRACT" means the agreement between Intek and the Purchaser
in the form attached hereto as Schedule "C";
"MANAGEMENT CONTRACTS" means collectively the Xxxxxxxx Management Contract and
the Intek Management Contract;
"ME" means the Montreal Exchange;
"MIDLAND" means Midland International Corporation, a corporation incorporated
under the laws of the State of Delaware;
"ORVILLIERS" means Orvilliers Resources Inc., a corporation incorporated under
the laws of Canada;
"PERSON" means an individual, general partnership, limited partnership, limited
liability company, syndicate, sole proprietorship, company or corporation with
or without share capital, unincorporated association, trust, trustee, executor,
administrator or other legal or personal representative, regulatory body or
agency, government or governmental agency, authority or entity, however
designated or constituted;
"PURCHASER PRO FORMA BALANCE SHEET" has the meaning ascribed thereto in
subsection 4.2.4;
"PURCHASED SHARES" has the meaning ascribed thereto in section 2.1;
"QUALIFYING SYSTEM" has the meaning ascribed thereto in subsection 2.2.1;
"XXXXXXXX MANAGEMENT CONTRACT" means the agreement among Xxxxxxxx, Midland and
the Purchaser in the form attached hereto as Schedule "B";
"SMR 220 MHZ SYSTEMS" means specialized mobile radio systems using the 220 MHz
narrowband spectrum;
"TERMINATION DATE" means September 30, 1995; and
"VSE" means the Vancouver Stock Exchange.
1.2 CURRENCY
All sums of money which are referred to in this Agreement are
expressed in lawful money of Canada unless otherwise specified.
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1.3 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this Agreement into Articles, sections and other
portions and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this Agreement.
1.4 GENDER AND NUMBER
In this Agreement, unless the context otherwise requires, words
importing the singular include the plural and vice versa and words importing
gender include all genders.
1.5 SCHEDULES
The following schedules are attached to and form part of this
Agreement:
Schedule "A" - BSIG Assets
Schedule "B" - Xxxxxxxx Management Contract
Schedule "C" - Intek Management Contract
Schedule "D" - Asset Purchase Agreement
1.6 ENTIRE AGREEMENT
This Agreement, including the schedules hereto, together with
documents or instruments contemplated by or referred to in this Agreement,
constitute the entire agreement between the parties pertaining to the subject
matter hereof and supersede all prior agreements, understandings, negotiations
and discussions, whether oral or written, between the parties with respect to
the subject matter hereof, and without limiting the generality of the foregoing,
this Agreement supersedes the Letter of Intent. There are no representations,
warranties, covenants or conditions with respect to the subject matter hereof,
except as contained herein and in any other written agreement, document or
instrument signed and delivered contemporaneously with the execution and
delivery of this Agreement or contemplated by or referred to in this Agreement.
1.7 INVALIDITY OF PROVISIONS
Each of the provisions contained in this Agreement is distinct and
severable and a declaration of invalidity or unenforceability of any such
provision or part thereof by a court of competent jurisdiction shall not affect
the validity or enforceability of any other provision hereof.
1.8 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Province of British Columbia and the laws of Canada applicable
therein and the parties hereby irrevocably attorn to the jurisdiction of the
courts of British Columbia.
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ARTICLE 2
SHARE PURCHASE AND REORGANIZATION
2.1 PURCHASE
2.1.1 The Purchaser shall purchase from the Vendors and the Vendors
shall sell to the Purchaser the number of common shares (the "Purchased Shares")
of BSIG opposite each Vendor's name below. In addition, Xxxxxxxx shall assign
to the Purchaser all of its right, title and interest in and to 285,714 shares
of common stock of American Digital Communications, Inc. ("ADC") and certain
options to purchase additional common stock of ADC, all as described more fully
in that certain letter of intent dated May 9, 1995 between Xxxxxxxx and ADC (the
"ADC Securities"). In consideration for the Purchased Shares and the ADC
Securities, the Purchaser shall cause the Brookline Performance Common Shares to
be issued to the Vendors on the basis set out in section 2.2 and shall cause one
Brookline Common Share to be issued to Xxxxxxxx on the Closing Date.
VENDOR'S NAME NUMBER OF PURCHASED SHARES
Xxxxxxxx 300
Intek 300
Xxxxxx 300
2.1.2 At the request of Xxxxxxxx, the Purchaser will jointly elect with
Xxxxxxxx in the prescribed form and within the time prescribed under subsection
85(1) of the INCOME TAX ACT (Canada) (the "Act") as to the amount they have
agreed on to be deemed to be Xxxxxxxx' proceeds of disposition of the ADC
Securities and the Purchaser's cost thereof. In any such election, such amount
will be the "cost amount" of the ADC Securities to Xxxxxxxx within the meaning
of the Act.
2.2 BROOKLINE PERFORMANCE COMMON SHARES
2.2.1 Subject to section 2.7 and subsections 2.2.3 and 2.2.4, 33,333.33
Brookline Performance Common Shares shall be issuable to each of the Vendors for
each SMR 220 MHz System for which Financing is provided by BSIG (a "Qualifying
System").
2.2.2 For greater certainty, the eight SMR 220 MHz Systems for which
funds have already been advanced to Pagers Plus Cellular shall be deemed to be
Qualifying Systems as of the date of this Agreement.
2.2.3 Upon receipt by the Purchaser, from time to time, of certificates
signed by or on behalf of either Intek or Xxxxxxxx, as applicable, certifying
that the number of Qualified Systems indicated below have been built to FCC
specifications:
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(a) 50 Qualifying Systems, in aggregate;
(b) 100 Qualifying Systems, in aggregate;
(c) 150 Qualifying Systems, in aggregate; or
(d) such number of Qualifying Systems as have been completed by the
second anniversary of the Closing Date, if that number is greater
than 50 and less than 150,
the unissued Brookline Performance Common Shares which are issuable based on
such certificates in accordance with this section 2.2 shall be issued by the
Purchaser to the Vendors.
2.2.4 In the event that less than 50 Qualifying Systems have been built
to FCC specifications by the second anniversary of the Closing Date, the
Purchaser shall issue to each of the Vendors the greater of:
(i) 33,333.33 Brookline Performance Common Shares for each Qualifying
System which has been built to FCC specifications; and
(ii) the lesser of:
(A) 1,666,667 Brookline Common Shares; and
(B) that number of Brookline Common Shares having a fair market value
equal to one-third of the aggregate net value represented by,
realized from or generated by, as applicable, in any manner
whatsoever, the assets listed in Schedule A hereto and the ADC
Securities (all as determined by the Auditors, as defined below,
as of the second anniversary of the Closing Date),
upon receipt by the Purchaser of a certificate signed by or on behalf of either
Intek or Xxxxxxxx, as applicable, certifying the number of Qualified Systems
built to FCC specifications. For the purposes of this section 2.2.4, the "fair
market value" of a Brookline Common Share will be deemed to be $0.82, which was
the last trading price of the Brookline Common Shares on the ME prior to the
announcement of the transaction contemplated by section 2.1.
2.2.5 During the period from the Closing Date to and including the
third anniversary of the Closing Date, each Vendor shall not transfer in any
matter whatsoever any Brookline Performance Common Shares issued to such Vendor,
except: (a) with the written consent of the Purchaser; or (b) for transfers
which constitute pledges of Brookline Performance Common Shares to secure BONA
FIDE debts or other obligations of such Vendor; or (c) for transfers to
Affiliates of such Vendor, provided such Affiliates agree in writing to be bound
by the provisions of this paragraph.
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2.3 CLOSING
The transaction contemplated by section 2.1 shall be completed on
September 20, 1995 (the "Closing Date") at 2:30 p.m. (Eastern Standard Time) (or
on such other date as the parties may agree to in writing) at which time,
provided all conditions precedent set out in Article 5 have been satisfied or
waived, the Vendors shall deliver to the Purchaser share certificates
representing the Purchased Shares and Xxxxxxxx shall deliver to the Purchaser
any share certificates or other documents in its possession evidencing title to
the ADC Securities, all duly endorsed for transfer in blank, and the Purchaser
shall deliver to Xxxxxxxx a share certificate representing one Brookline Common
Share.
2.4 BOARD OF DIRECTORS OF PURCHASER, SECTION 2.1 TRANSACTION, ETC.
At the meeting of the Brookline Shareholders scheduled to be held on
or about September 26, 1995, including any adjournments thereof (the "Brookline
Shareholders Meeting"), the Brookline Shareholders shall be asked to, among
other things: (a) approve, ratify and confirm the transaction contemplated by
section 2.1; (b) elect Mr. Xxxxxxxx Xxxxxx, Mr. Xxxx Xxxxxxxx and Xx. Xxxxx
X'Xxxx directors of the Purchaser; and (c) approve amendments to the Purchaser's
Stock Option Plan (1995), as amended, to authorize the issuance of an additional
1,800,000 Brookline Common Shares pursuant to options granted under such Plan.
2.5 CHAIRMAN AND PRESIDENT OF PURCHASER
As soon as possible following the completion of the transaction
contemplated by section 2.1, the Board of Directors of the Purchaser shall meet
to appoint Mr. Xxxx Xxxxxxxx and Xx. Xxxxx X'Xxxx the Chairman and the
President, respectively, of the Purchaser.
2.6 CHANGE OF NAME
At the Brookline Shareholders Meeting, the Brookline Shareholders
shall also be asked to approve the change of the Purchaser's name to "Brookline
Capital Inc.". As soon as possible following such approval by the Brookline
Shareholders at the Brookline Shareholders Meeting, the Purchaser shall cause
articles of amendment to be filed changing the Purchaser's name to "Brookline
Capital Inc.".
2.7 ADJUSTMENT PROVISIONS
If the Purchaser, at any time during which any Brookline Performance
Common Shares remain unissued and potentially issuable on or after the date of
this Agreement and within two years of the Closing Date, shall:
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(a) issue or cause to be issued any Brookline Common Shares or
securities convertible into or granting rights to acquire Brookline
Common Shares (unless contemplated by this Agreement) at an issue
price which is less than that permitted by the rules of the ME for
private placement offerings by listed companies; or
(b) effect any changes to its share capital which affect the
Brookline Common Shares, including without limitation, the
subdivision, consolidation, exchange, conversion or reclassification
of Brookline Common Shares, the reorganization of its share capital or
any consequential change thereto resulting from the merger or
amalgamation by the Purchaser with any other corporation; or
(c) declare a share dividend on Brookline Common Shares;
then the number of Brookline Performance Common Shares which remain unissued and
potentially issuable shall be equitably and proportionately adjusted, based on a
determination of the external independent auditors of the Purchaser (the
"Auditors"), with a view to ensuring that the Vendors ultimately are entitled to
receive the number of Brookline Performance Common Shares as a proportion of all
Brookline Common Shares outstanding after the event or change described in
paragraph (a), (b) or (c) above, as they would have been entitled to receive if
all Brookline Performance Common Shares issuable hereunder had been issued on
the Closing Date. Pursuant to the Management Contracts, if any of the foregoing
events or changes occur, a corresponding adjustment shall be made to the number
of Brookline Management Contract Common Shares which remain issuable thereunder.
If any event occurs of the type contemplated by the provisions of this
section 2.7, or is similar thereto, but is not expressly provided for by such
provisions, then the Purchaser's Board of Directors will direct the Auditors to
determine an appropriate adjustment in the number of Brookline Performance
Common Shares and, pursuant to the Management Contracts, in the number of
Brookline Management Contract Common Shares, which remain unissued and
potentially issuable, so as to protect the rights of the Vendors.
Proportionate adjustments shall be carried out in the following
manner:
(i) the Purchaser shall give not less than 14 Days notice to the
Vendors and the Auditors of its intention to cause any of the events
or effect any of the changes mentioned above;
(ii) the notice shall contain a description of the event or change
contemplated by the Purchaser in sufficient detail to permit a full
understanding and assessment thereof; and
(iii) the Auditors shall provide written notice to the Vendors and
the Purchaser of their determination of the required adjustment not
less than 5 Days prior to the
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event or change, failing which (unless
the Vendors consent otherwise in writing) the Purchaser shall not
proceed with the event or change.
The Purchaser shall not be required to make any adjustment if the
determination of the Auditors indicates that pursuant to the adjustment, the
Vendors would receive less than one percent (1%) more or less Brookline
Performance Common Shares or Brookline Management Contract Common Shares, as
applicable, than they would otherwise receive; provided however, that any
adjustments which by reason of this paragraph are not required to be made shall
be carried forward and taken in to account in any subsequent adjustment.
The adjustments provided for in this section 2.7 are cumulative and
will be made successively whenever an event referred to herein occurs.
The adjustments provided for in this section 2.7 shall not be applied
to any Brookline Performance Common Shares issuable pursuant to subclause
(ii)(B) of section 2.2.4, unless the event referred to herein occurs between the
second anniversary of the Closing Date and the date upon which such shares are
issued to the Vendors.
The determination of the equitable and proportionate adjustment made
by the Auditors shall be binding upon the parties.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE VENDORS
Each Vendor severally (and, for further certainty, not jointly or
jointly and severally) represents and warrants to the Purchaser that:
3.1.1 each Vendor is duly incorporated or formed, as applicable, and
validly existing under the laws of its jurisdiction of incorporation or
formation and has the corporate or other necessary power, as applicable, and
authority to own, lease and operate its properties and assets;
3.1.2 each Vendor has the corporate or other necessary power, as
applicable, and authority to enter into this Agreement and to perform its
obligations hereunder and this Agreement has been duly executed and delivered by
each Vendor and constitutes a valid and binding obligation of each Vendor
enforceable against it in accordance with its terms, subject to the availability
of equitable remedies and the enforcement of creditors' rights generally;
3.1.3 the execution and delivery of this Agreement by each Vendor and
the consummation by each Vendor of the transaction contemplated hereby do not
contravene the articles or other constating documents of such Vendor, or any
applicable laws which could reasonably be expected to prevent or materially
hinder the completion of the transaction
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contemplated by this Agreement, or any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument, written or oral, to
which each Vendor is a party or by which it is bound;
3.1.4 all necessary corporate or other necessary action, as applicable,
will, prior to the Closing Date, be taken by each Vendor to authorize the
execution and delivery by each Vendor of this Agreement and, in the case of
Xxxxxxxx and Intek, the Management Contract to which it is a party. On the
Closing Date, the Management Contract to which each of Xxxxxxxx and Intek is a
party will be duly executed and delivered by each such Vendor and will
constitute a valid, binding and legally enforceable agreement of such Vendor
enforceable against it in accordance with its terms, subject to the availability
of equitable remedies and the enforcement of creditors' rights generally;
3.1.5 BSIG is duly incorporated and validly existing under the laws of
the State of Delaware and has the corporate power and authority to own, lease
and operate its properties and assets, to carry on its business as it is now
being carried on, and to carry on the business described in the recitals to this
Agreement;
3.1.6 the authorized capital of BSIG consists of 900 common shares, all
of which have been duly issued and are outstanding as fully paid;
3.1.7 there are no agreements, options, warrants, rights of conversion
or other rights pursuant to which BSIG is or may become obligated to issue any
common shares or any securities convertible into common shares;
3.1.8 on the Closing Date, all agreements or restrictions which limit
or restrict the transfer of the Purchased Shares to the Purchaser will have been
complied with and each Vendor will have good and marketable title to its
Purchased Shares and the full legal right, power and authority to sell and
transfer its Purchased Shares to the Purchaser free and clear of all liens,
charges, encumbrances and adverse claims;
3.1.9 BSIG owns and has good and marketable title, free and clear of
all liens, charges and encumbrances, to all assets used in connection with its
business (which, when acquired, will include all assets acquired under the BSIG
Asset Acquisition);
3.1.10 there are no actions, suits, investigations or other proceedings in
progress, pending or threatened against BSIG;
3.1.11 immediately following completion of the transaction contemplated by
section 2.1, the BSIG Pro Forma Balance Sheet will be correct in all material
respects; and
3.1.12 the foregoing representations and warranties of each Vendor will be
true on and as of the Closing Date with the same effect as if made on and as of
the Closing Date, except as affected by
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the transactions contemplated or permitted by this Agreement or agreements
scheduled or ancillary hereto.
3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Vendors that:
3.2.1 the Purchaser is duly incorporated and validly existing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to own, lease and operate its properties and assets, to carry on its
business as it is now being carried on and to assist BSIG in carrying on the
business to be carried on by BSIG as described in the recitals to this
Agreement;
3.2.2 the Purchaser has the corporate power and authority to enter into
this Agreement and to perform its obligations hereunder and this Agreement has
been duly executed and delivered by the Purchaser and constitutes a valid and
binding obligation of the Purchaser enforceable against it in accordance with
its terms, subject to the availability of equitable remedies and the enforcement
of creditors' rights generally;
3.2.3 the execution and delivery of this Agreement by the Purchaser and
the consummation by the Purchaser of the transaction contemplated hereby do not
contravene the articles or other constating documents of the Purchaser, or any
applicable laws which could reasonably be expected to prevent or materially
hinder the completion of the transaction contemplated by this Agreement, or any
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument, written or oral, to which the Purchaser is a party or by which it
is bound;
3.2.4 the authorized capital of the Purchaser consists of an unlimited
number of Brookline Common Shares, of which 21,248,636 have been duly issued and
are outstanding as fully paid, and there are no options, warrants or other
rights, commitments or other agreements outstanding that obligate the Purchaser
to issue any Brookline Common Shares, options, or other rights to acquire
Brookline Common Shares or acquire securities which are convertible or
exchangeable directly or indirectly into Brookline Common Shares, other than (a)
as contemplated by this Agreement, and (b) unexercised options to purchase
2,000,000 Brookline Common Shares issued under the Purchaser's Stock Option Plan
(1995), as amended;
3.2.5 the Purchaser has filed all tax returns required to be filed by
it in all applicable jurisdictions and it has paid all taxes, levies,
assessments, reassessments, penalties, interest and fines due and payable by it
and all such tax returns properly reflect the taxable income and liability for
taxes of the Purchaser in the relevant tax year;
3.2.6 provided that the transaction contemplated by this Agreement is
completed on the terms set forth herein and the Brookline Shareholders Consent
is obtained, the Brookline Performance Common Shares and the Brookline
Management Contract Common Shares to be
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issued will be duly and validly authorized for issuance as of the Closing
Date and, upon their issuance, will be duly and validly issued and
outstanding as fully paid Brookline Common Shares;
3.2.7 all necessary corporate action will, prior to the Closing Date,
be taken by the Purchaser to authorize the execution and delivery by the
Purchaser of this Agreement, the Xxxxxxxx Management Contract, the Intek
Management Contract and the Asset Purchase Agreement, which on the Closing Date,
will each be duly executed and delivered by the Purchaser and will constitute
valid, binding and legally enforceable agreements of the Purchaser enforceable
against it in accordance with their terms, subject to the availability of
equitable remedies and the enforcement of creditors' rights generally;
3.2.8 the Purchaser is a reporting issuer not in default under
applicable securities laws in the Provinces of Quebec, British Columbia and
Ontario; the Brookline Common Shares are listed on the ME and VSE and have not
been cease traded by any applicable Canadian securities regulatory authority;
3.2.9 apart from the liabilities to be assumed by Orvilliers pursuant
to the Asset Purchase Agreement, the Purchaser has, and shall have as of the
Closing Date, no liabilities (actual, accrued, contingent or otherwise) other
than liabilities incurred in the ordinary course of business not exceeding
$100,000;
3.2.10 there are no actions, suits, investigations or other proceedings in
progress, pending or threatened against or of the Purchaser;
3.2.11 since July 12, 1995, the Purchaser has not taken any action, directly
or indirectly, with the intention of adversely affecting the approval of the
transaction contemplated by this Agreement or the completion thereof and, there
has been no material adverse change (or any event, condition or state of facts
which may reasonably be expected to give rise to any such change), in the
assets, financial condition, business or prospects of the Purchaser;
3.2.12 since July 12, 1995, the Purchaser has conducted its business in the
ordinary course consistent with prior practice and has not entered into any
transactions with Persons not dealing at arm's length (within the meaning of the
INCOME TAX ACT (CANADA));
3.2.13 to the best of its knowledge, there is no valid basis for any action,
suit, investigation or other proceeding against or of the Purchaser under any
applicable law relating to the environment or the release of any hazardous
substance into the environment;
3.2.14 immediately following completion of the transaction contemplated by
section 2.1, the Purchaser Pro Forma Balance Sheet will be correct in all
material respects;
3.2.15 the Purchaser is in compliance with all laws applicable to it, the
non-compliance with which could reasonably be expected to result in a material
adverse change in the Purchaser or prevent the completion of the transaction
contemplated by this Agreement; and
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3.2.16 the foregoing representations and warranties of the Purchaser will be
true on and as of the Closing Date with the same effect as if made on and as of
the Closing Date, except as affected by the transactions contemplated or
permitted by this Agreement or agreements scheduled or ancillary hereto.
ARTICLE 4
COVENANTS
4.1 COVENANTS OF VENDORS
Each Vendor severally (and, for further certainty, not jointly or
jointly and severally) covenants to:
4.1.1 cause BSIG to give to the Purchaser's representatives full access
during business hours from the date hereof to the Closing Date to all its
assets, agreements and records and furnish them with such information as they
may reasonably request;
4.1.2 on the Closing Date, cause all directors and officers of BSIG to
resign, and if requested by the Purchaser, shall cause nominees of the Purchaser
to be elected or appointed directors of BSIG;
4.1.3 not take any action which might, directly or indirectly,
interfere or be inconsistent with or otherwise adversely affect the consummation
of the transaction contemplated by this Agreement;
4.1.4 cause BSIG to deliver to the Purchaser within two Business Days
of the date of this Agreement an internally prepared PRO FORMA balance sheet
(the "BSIG Pro Forma Balance Sheet") reflecting accurately in all material
respects the financial position of BSIG immediately following completion of the
transaction contemplated by section 2.1; and
4.1.5 provide the Purchaser with all relevant information, if any, for
inclusion in an information circular to be provided to Brookline Shareholders in
connection with the Brookline Shareholders Meeting to enable the Purchaser to
meet applicable standards for such documentation.
4.2 COVENANTS OF PURCHASER
The Purchaser covenants to:
4.2.1 not take any action which might, directly or indirectly,
interfere or be inconsistent with or otherwise adversely affect the consummation
of the transaction contemplated by this Agreement;
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4.2.2 in connection with each approval, consent, waiver or order
required to be obtained from the Brookline Shareholders or any regulatory or
governmental authority or private party in connection with approval of the
transaction contemplated by this Agreement, recommend that Brookline
Shareholders vote for, or consent in writing to, the approval of the transaction
and support the granting of any such approval, consent, waiver or order by such
regulatory or governmental authority or private party;
4.2.3 give the Vendors' representatives full access during business
hours from the date hereof to the Closing Date to all its assets, agreements and
records and furnish them with such information as they may reasonably request;
4.2.4 deliver to the Vendors within two Business Days of the date of
this Agreement an internally prepared PRO FORMA balance sheet (the "Purchaser
Pro Forma Balance Sheet") reflecting accurately in all material respects the
financial position of the Purchaser immediately following completion of the
transaction contemplated by section 2.1;
4.2.5 not take any action, while section 2.7 continues to apply, to
cause the Purchaser to become a private company or to cause the Brookline Common
Shares to cease to be listed on the ME or the VSE, except with the written
consent of the Vendors entitled to any potentially issuable Brookline
Performance Common Shares or Brookline Management Contract Common Shares;
4.2.6 continue being a reporting issuer in good standing in the
jurisdictions where it is currently one for not less than 40 months from the
Closing Date; and
4.2.7 in a timely manner, prepare and file an information circular
relating to the approval by Brookline Shareholders of the matters contemplated
by sections 2.4 and 2.6 in all jurisdictions where the same is required and mail
the same in accordance with applicable law, and ensure that such information
circular complies with all applicable disclosure laws, and without limiting the
generality of the foregoing, will provide Brookline Shareholders with
information in sufficient detail to permit them to form a reasoned judgement
concerning the matters before them.
4.3 MUTUAL COVENANT
Each of the Vendors and the Purchaser covenants to use its best
efforts to satisfy, or cause the satisfaction of, the conditions precedent to
its obligations hereunder and take, or cause to be taken, all other action and
do, or cause to be done, all other things necessary, proper or advisable under
applicable law and regulations to complete the transaction contemplated hereby
and use its best efforts to cooperate with the other parties in connection with
the performance by the others of their obligations under this Agreement.
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ARTICLE 5
CONDITIONS PRECEDENT AND SUBSEQUENT
5.1 MUTUAL CONDITIONS PRECEDENT
The respective obligations of the Vendors and the Purchaser to
complete the transaction contemplated by section 2.1 shall be subject to the
fulfilment, or mutual waiver in writing by the Vendors and the Purchaser, on or
before the Closing Date, of each of the following conditions precedent:
5.1.1 receipt of the Brookline Shareholders Consent;
5.1.2 all other consents, waivers, orders, exemptions and approvals,
including any regulatory and judicial approvals and orders (including the
conditional approval of the ME and the VSE, subject to ratification of the
transaction by the Brookline Shareholders at the Brookline Shareholders Meeting,
of the listing of the Brookline Performance Common Shares and the Brookline
Management Contract Common Shares), which the Vendors and the Purchaser agree
are required for the completion of the transaction contemplated by section 2.1,
shall have been obtained or received and reasonably satisfactory evidence
thereof shall have been delivered to all parties;
5.1.3 the Closing Date shall occur on or prior to the Termination Date;
and
5.1.4 no preliminary or permanent injunction, restraining order, cease
trading order or other order of any court, regulatory body or agency which
prevents the consummation of the transaction contemplated by this Agreement
shall have been issued and remain in effect and no action or proceeding to
obtain such an order shall be pending or threatened.
5.2 CONDITIONS PRECEDENT OF THE PURCHASER
The obligation of the Purchaser to complete the transaction
contemplated by section 2.1 shall be subject to the fulfilment, or waiver in
writing by the Purchaser, on or before the Closing Date, of each of the
following conditions precedent:
5.2.1 the Purchaser, acting reasonably and diligently, shall have
completed its due diligence review of BSIG and the Vendors and the results of
such review shall be satisfactory to the Purchaser in its sole discretion acting
reasonably;
5.2.2 Xxxxxxxx, Midland and Intek shall have executed and delivered the
respective Management Contracts;
5.2.3 the BSIG Asset Acquisition shall have been completed to the
satisfaction of the Purchaser acting reasonably;
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5.2.4 all necessary corporate or other necessary action, as applicable,
shall have been taken by each of the Vendors to authorize the execution and
delivery of this Agreement and any agreements scheduled or ancillary hereto to
which such Vendor is a party and each Vendor shall have performed in all
material respects each obligation to be performed by it prior to the Closing
Date either hereunder or thereunder;
5.2.5 the representations and warranties of each Vendor set out in
Article 3 shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of such date, except as affected by
transactions contemplated or permitted by this Agreement or agreements scheduled
or ancillary hereto;
5.2.6 each of the Vendors shall have observed its covenants hereunder
in all material respects;
5.2.7 the Purchaser shall have received a certificate of each of the
Vendors, dated the Closing Date, signed in each case by a senior officer to the
effect that, to the best of the knowledge, information and belief of such
officer, the conditions precedent specified in subsections 5.2.1, 5.2.2, 5.2.3,
5.2.4, 5.2.5 and 5.2.6 have been fulfilled; and
5.2.8 the Purchaser shall have received opinions of counsel to the
Vendors and BSIG concerning the transaction contemplated by this Agreement in
form and substance satisfactory to counsel to the Purchaser, acting reasonably.
5.3 CONDITIONS PRECEDENT OF THE VENDORS
The obligations of the Vendors to complete the transaction
contemplated by section 2.1 shall be subject to the fulfilment, or waiver in
writing by each of the Vendors, on or before the Closing Date, of each of the
following conditions precedent:
5.3.1 each of the Vendors, acting reasonably and diligently, shall have
completed its due diligence review of the Purchaser and the results of such
review shall be satisfactory to each of the Vendors in its sole discretion
acting reasonably;
5.3.2 the sale of assets and assignment of obligations of the Purchaser
to Orvilliers pursuant to the Asset Purchase Agreement shall have been completed
and photocopies of an executed copy of the Asset Purchase Agreement and all
material documents ancillary thereto have been delivered to each of the Vendors;
5.3.3 the Purchaser shall hold cash or treasury bills or other
evidences of indebtedness issued, or fully guaranteed as to principal and
interest, by any of the Federal, Provincial or Territorial Governments of Canada
maturing not more than 30 days from the Closing Date having an aggregate fair
market value of not less than $5,000,000 (less the Purchaser's reasonable costs
related to the transaction contemplated by this Agreement and normal course
business expenses of the Purchaser incurred after the date hereof and prior to
the Closing Date, all of the foregoing
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not to exceed $100,000 in aggregate), to which the Purchaser shall have good
and marketable title, free and clear of all liens, charges, encumbrances and
adverse claims;
5.3.4 the Purchaser shall have executed and delivered the Management
Contracts and have issued to each of Xxxxxxxx and Intek 250,000 Brookline
Management Contract Common Shares;
5.3.5 the board of directors of Intek and the managing members of
Xxxxxx shall have approved the transaction contemplated by this Agreement;
5.3.6 all necessary corporate action shall have been taken by the
Purchaser to authorize the execution and delivery of this Agreement and any
agreements scheduled or ancillary hereto to which it is a party and the
Purchaser shall have performed in all material respects each obligation to be
performed by it hereunder or thereunder;
5.3.7 the representations and warranties of the Purchaser set out in
Article 3 shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of such date, except as affected by
transactions contemplated or permitted by this Agreement or agreements scheduled
or ancillary hereto;
5.3.8 the Purchaser shall have observed its covenants hereunder in all
material respects;
5.3.9 the ME and the VSE shall have confirmed that trading of Brookline
Common Shares will resume on the Closing Date or the next following Business Day
upon those exchanges being notified by the Purchaser that the transaction
contemplated by section 2.1 has been completed;
5.3.10 the Vendors shall have received a certificate of the Purchaser, dated
the Closing Date, signed by a senior officer of the Purchaser to the effect
that, to the best of the knowledge, information and belief of such officer, the
conditions precedent specified in subsections 5.3.1, 5.3.2, 5.3.3, 5.3.4, 5.3.5,
5.3.6, 5.3.7, 5.3.8 and 5.3.9 have been fulfilled; and
5.3.11 the Vendors shall have received an opinion of counsel to the Purchaser
concerning the transaction contemplated by this Agreement in form and substance
satisfactory to counsel to the Vendors, acting reasonably.
5.4 CONDITIONS PRECEDENT NOTICES
5.4.1 Each of the Vendors and the Purchaser shall give prompt notice to
the others of the occurrence or failure to occur, at any time from the date
hereof to the Closing Date, of any event or state or facts which occurrence or
failure would, or would be likely to:
(a) cause any of the representations or warranties of any party
contained herein to be untrue or inaccurate in any material respect,
or
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(b) result in the failure to comply with or satisfy any covenant,
condition precedent or agreement to be complied with or satisfied by
any party hereunder;
provided, however, that no such notification shall affect the representations or
warranties of the parties or the conditions precedent to the obligations
hereunder.
5.4.2 No party may elect not to complete the transaction contemplated
by section 2.1 pursuant to the conditions precedent contained herein unless, on
or prior to the Closing Date, the party intending to rely thereon has delivered
a written notice to the party it alleges to be in breach (the "Defaulting
Party"), specifying in reasonable detail all breaches of covenants,
representations and warranties or other matters which the party delivering such
notice is asserting as the basis of the non-fulfilment of the applicable
condition precedent.
5.5 SATISFACTION OF CONDITIONS PRECEDENT
The conditions precedent set out in this Article 5 shall be
conclusively deemed to have been satisfied, waived or released when the
transaction contemplated by section 2.1 has been completed on the Closing Date.
5.6 MUTUAL CONDITION SUBSEQUENT
Unless the ME waives, in form and on terms satisfactory to the
parties, the requirement for Brookline Shareholder approval of the transaction
contemplated by section 2.1, if such approval is not obtained at the Brookline
Shareholders Meeting, the parties will forthwith negotiate in good faith the
means of most expeditiously reversing the transactions contemplated by this
Agreement with a view to restoring the parties as nearly as practically possible
to their respective positions prior to the Closing Date, except that Xxxxxxxx
and Intek shall be entitled to retain any Brookline Management Contract Common
Shares issued at any time prior to the date of the Brookline Shareholders
Meeting.
ARTICLE 6
TERMINATION, SURVIVAL AND AMENDMENT
6.1 TERMINATION
Unless the parties agree otherwise in writing, this Agreement,
excluding sections 7.1 and 7.4, shall forthwith terminate in the event the
Closing Date does not occur on or before the Termination Date.
6.2 SURVIVAL
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Subject to section 6.1, this Agreement will survive completion of the
transaction contemplated by section 2.1, including, for greater certainty, but
without limiting the generality of the foregoing, the provisions set out below:
(a) the representations and warranties of each of the parties in
Article 3 shall survive notwithstanding any investigations made by or
on behalf of any of the parties;
(b) the obligations of the Purchaser in section 2.2 shall survive
until 15,000,000 Brookline Performance Common Shares (or such greater
or lesser number as may be determined to be the maximum number
issuable in accordance with section 2.7) have been issued pursuant
thereto;
(c) the obligations of the Purchaser in sections 2.4, 2.5 and 2.6
shall survive until completed pursuant to the terms thereof;
(d) the provisions of section 2.7 shall survive and continue to
apply to section 2.2 and to the Management Contracts until all
potentially issuable Brookline Performance Common Shares and Brookline
Management Contract Common Shares have been issued; and
(e) the provisions of section 5.6 shall survive until the earliest
of:
(i) waiver by the ME, in form and on terms satisfactory to the
parties, of the requirement for Brookline Shareholder
approval of the transaction contemplated by section 2.1,
(ii) Brookline Shareholder approval of the transaction
contemplated by section 2.1 being obtained, and
(iii) reversal of the transactions contemplated by this
Agreement as described in section 5.6.
6.3 AMENDMENT
Subject to applicable law, this Agreement may, at any time and from
time to time before and after the Brookline Shareholders Meeting, be amended by
written agreement of the parties without further notice to or action on the part
of the Brookline Shareholders; provided that, after ratification of the
transaction contemplated by section 2.1 at the Brookline Shareholders Meeting,
this Agreement shall not be amended in a manner materially prejudicial to the
Brookline Shareholders without the approval of the Brookline Shareholders given
in the same manner as required for the approval of the transaction contemplated
by section 2.1.
-21-
ARTICLE 7
GENERAL
7.1 COMMISSIONS, FEES AND EXPENSES
Each of the parties represents and warrants to the others that it has
not done any act which would give rise to any valid claim against another party
for a brokerage commission, finder's fee or other like payment, other than the
right to the Finder's Fee Brookline Common Shares granted by the Purchaser.
Each party acknowledges that it shall be responsible for its own out-
of-pocket fees and expenses (including fees and expenses of legal advisers,
accountants and other professional advisers) incurred by them, respectively, in
connection with the transaction contemplated by this Agreement, regardless of
whether the transaction is completed or not.
7.2 NOTICES
Notices and other communications hereunder shall be in writing and
shall be delivered by hand or sent by telecopier to the parties at the following
addresses or such other addresses as shall be specified by the parties by like
notice, and shall be deemed to be received at the time of delivery by hand or at
the time such telecopy is received:
(a) if to Xxxxxxxx: Xxxxxxxx Communications Ltd.
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx X'Xxxx
Telecopier: (000) 000-0000
(b) if to Intek: Intek Diversified Corporation
000 Xxxx 000xx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx
00000
Attention: Xxxxx Xxxxxxx
Telecopier: 310-366-7712
(c) if to Xxxxxx: Xxxxxx Travel, Limited
0000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxx X000
Xxx Xxxxx, Xxxxxx
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89102
Attention: Xx. Xxxx Xxxxxxxx
(d) if to the Purchaser: Brookline Minerals Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxxxx, Xx.
Telecopier: (000) 000-0000
7.3 ASSIGNMENT
This Agreement and all the provisions hereof shall be binding upon and
enure to the benefit of the parties and their respective successors and
permitted assigns. Neither this Agreement nor any of the rights hereunder shall
be assigned by any party without the prior written consent of the other parties.
7.4 CONFIDENTIALITY AND PUBLIC NOTICES
The Purchaser shall not, directly or indirectly, use for its own
purposes or communicate to any other Person any confidential information or data
relating to the Vendors or BSIG or their respective businesses which becomes
known to the Purchaser, its accountants, legal advisers or representatives as a
result of the Vendors making the same available in connection with the
transaction contemplated hereby.
Subject to applicable laws and regulatory requirements, no press
release or other announcement concerning the transaction contemplated by this
Agreement shall be made by the Vendors or the Purchaser without the prior
written consent of the others (such consent not to be unreasonably withheld).
If a public announcement is necessary due to applicable laws and/or regulatory
requirements, the party making the announcement shall use its best efforts to
give prior oral or written notice to the other parties, and if such prior notice
is not possible, to give such notice immediately following the making of such
disclosure.
7.5 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument.
7.6 TIME OF THE ESSENCE
Time shall be of the essence of this Agreement.
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7.7 FURTHER ASSURANCES
Each of the parties shall properly do, make, execute or deliver or
cause to be done, made, executed or delivered, all such further acts, documents
and things as the other parties may reasonably require from time to time for the
purpose of giving effect to this Agreement and shall use reasonable efforts and
take all such steps as may be reasonably within
its power to implement to the full extent the provisions of this Agreement.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first above written.
BROOKLINE MINERALS INC.
Per: /s/
_________________________________
XXXXXXXX COMMUNICATIONS LTD.
Per: /s/
_________________________________
INTEK DIVERSIFIED CORPORATION
Per: /s/
_________________________________
XXXXXX TRAVEL, LIMITED
Per: /s/
_________________________________
SCHEDULE "A"
BSIG ASSETS
1. 57,691.5 shares of common stock of Pagers Plus Cellular, a California
corporation ("PPC").
2. A Secured Promissory Note in the principal amount of U.S. $250,000 issued
by PPC to SLW Properties, Ltd. ("SLWP") on May 9, 1995 (the "Note") pursuant to
a Loan Agreement between SLWP and PPC dated as of May 9, 1995.
3. A security interest in certain assets of PPC pursuant to a Security
Agreement between SLWP and PPC dated as of May 9, 1995.
4. The right of SLWP to assume PPC's rights under certain management and joint
venture agreements if PPC fails to repay the Note by November 11, 1995 as
provided in an Assignment Agreement among SLWP, PPC and Xxxxxxx Xxxxxxx & Xxxxxx
dated as of May 9, 1995.
5. U.S. $25,000 in cash.
6. The rights and interests of Xxxxxxxx under that certain letter of intent,
dated May 9, 1995, between Xxxxxxxx and American Digital Communications, Inc., a
Wyoming corporation ("ADC"), other than the rights and interest of Xxxxxxxx to
purchase 285,714 shares of common stock of ADC and options to purchase
additional common stock of ADC.
SCHEDULE "B"
MANAGEMENT SERVICES AGREEMENT
THIS AGREEMENT made as of the day of August, 1995.
B E T W E E N:
BROOKLINE MINERALS INC.,
a corporation incorporated under the laws of Canada
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
- and -
XXXXXXXX COMMUNICATIONS LTD.,
a corporation incorporated under the laws of the Province of
Ontario
(hereinafter referred to as "SCL")
OF THE SECOND PART
- and -
MIDLAND INTERNATIONAL CORPORATION,
a corporation incorporated under the laws of the State of
Delaware
(hereinafter referred to as "Midland")
OF THE THIRD PART
RECITALS:
1. The Corporation and SCL, Intek Diversified Corporation and Xxxxxx Travel,
Limited (collectively, the "Vendors") have entered into an agreement of
purchase and sale made as of the 24th day of August, 1995 (the "Share
Purchase Agreement"), pursuant to which the Corporation has agreed to
purchase from the Vendors all of the issued and outstanding shares of Brook
SIG Corp. ("BSIG"), a company whose primary business objective is to
provide financing to management companies who construct, manage and operate
wireless specialized mobile radio systems on behalf of United States 220
MHz narrowband licensees.
2. In conjunction with the share purchase transaction, SCL has agreed to
provide certain management services to the Corporation.
3. Midland is a wholly-owned subsidiary of SCL.
-2-
4. Pursuant to the Share Purchase Agreement, the execution and delivery by the
Corporation, SCL and Midland of a management services agreement which
obliges SCL to provide the services described herein in exchange for the
common shares of the Corporation which are issuable to SCL hereunder, is a
condition precedent to the completion of the share purchase transaction
contemplated thereby.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
out herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties agree as follows:
1. DEFINITIONS. For the purpose of this Agreement, in addition to the
definitions set out above:
(a) "AFFILIATE" means, with respect to any corporation, any other
corporation which directly or indirectly controls or is controlled by or is
under direct or indirect common control with such first mentioned corporation,
and for the purpose of this definition "control" means, with respect to any
corporation, the ownership of voting securities to which are attached 20 per
cent or more (or, for the purpose of section 9.1 only, 50 per cent or more) of
the voting rights attached to all outstanding voting securities of the
corporation;
(b) "AGREEMENT" means this management services agreement, as the same may
be amended and supplemented from time to time;
(c) "BROOKLINE COMMON SHARES" means common shares in the capital of the
Corporation as constituted at the date hereof;
(d) "BROOKLINE MANAGEMENT CONTRACT COMMON SHARES" has the meaning ascribed
thereto in section 4;
(e) "CLOSING DATE" has the meaning ascribed to that term in the Share
Purchase Agreement; and
(f) "TERM" means the term of this Agreement.
2. RETAINER TO PROVIDE MANAGEMENT SERVICES. The Corporation hereby retains
SCL to provide it and its subsidiary, BSIG, with various management services as
specified in section 7, during the Term.
3. TERM. The Term shall commence on the Closing Date and terminate on the
first anniversary of such date. The Corporation shall be entitled to terminate
this Agreement at any time upon thirty (30) days prior written notice to SCL,
but in that event, except where the termination is for "just cause", the
Corporation shall immediately issue to SCL all of the Brookline Management
Contract Common Shares which remain unissued, whether or not accrued. For the
purposes of this section 3, "just cause" shall mean a fundamental breach of this
Agreement by SCL which, under common law, entitles the Corporation to terminate
all of its obligations under this Agreement.
-3-
4. MANAGEMENT SERVICES FEES.
4.1 In consideration of the management services to be provided by SCL to the
Corporation and BSIG hereunder, SCL shall be entitled to receive one million
(1,000,000) Brookline Common Shares (the "Brookline Management Contract Common
Shares"). Subject to section 4.2, two hundred and fifty thousand (250,000)
Brookline Management Contract Common Shares shall be issued to SCL on each of
the following dates:
(a) the Closing Date;
(b) the date which is three (3) months after the Closing Date;
(c) the date which is six (6) months after the Closing Date; and
(d) the date which is nine (9) months after the Closing Date.
4.2 If Brookline, at any time during which any Brookline Management Contract
Common Shares remain unissued, shall take any of the actions contemplated by the
provisions of section 2.7 of the Share Purchase Agreement, then the procedure
set out in that section shall be followed and the appropriate equitable and
proportionate adjustment determined pursuant to the provisions of section 2.7,
if any, shall be made to the number of unissued Brookline Management Contract
Common Shares.
4.3 SCL agrees that, without the prior written consent of the Corporation, it
will not sell, assign or otherwise transfer any of the Brookline Management
Contract Common Shares for a period of three (3) years from the Closing Date,
except that this restriction shall not apply to the following transactions in
such shares:
(a) pledges to secure bona fide debts or other obligations; or
(b) sales or transfers to Affiliates of SCL who agree to be bound by
the provisions of this section 4.3.
5. EXPENSES. The Corporation shall, or shall cause BSIG to, reimburse SCL
for all of its reasonable expenses incurred in connection with the provision of
management services to either the Corporation or BSIG within thirty (30) days
following submission of applicable receipts or other supporting documentation.
For greater certainty, the expenses of SCL shall be deemed not to include
salaries or other compensation paid or payable by SCL to its employees, or any
amounts paid to consultants or independent contractors who have been hired to
perform any portion of the services described in section 7.
6. ACCESS TO INFORMATION. During the Term, the Corporation shall, or shall
cause BSIG to, ensure that SCL and its representatives have access to all
financial statements and other records and information of the Corporation and
BSIG which are available to the shareholders and directors of those corporations
generally. In addition, the Corporation agrees to provide SCL and its
representatives with access to its management information systems and to cause
BSIG to do the same.
-4-
7. RESPONSIBILITIES OF SCL. During the Term, SCL shall provide the
Corporation and BSIG with certain administrative and management services
including, INTER ALIA, the following services:
(a) STRATEGIC PLANNING. By making its Chairman and Chief Executive
Officer and its Executive Vice-President available to the Corporation
on a part time basis, SCL shall provide the Corporation with advice
and assistance on the formulation and implementation of its strategic
planning initiatives.
(b) FIELD ASSESSMENT AND MARKETING ASSISTANCE. Both directly and through
Midland, SCL shall provide advice and assistance to the Corporation
and BSIG, from time to time, on their field assessment and marketing
activities.
(c) ACCOUNTING AND FINANCIAL MANAGEMENT. SCL shall provide advice and
assistance to the Corporation, from time to time, on the management of
its accounting function and corporate finance activities.
(d) NEGOTIATION OF FINANCING CONTRACTS. SCL shall assist the Corporation
and BSIG, from time to time, in the negotiation of contracts to
provide financing in various forms for management companies who
construct, manage and operate wireless specialized mobile radio
systems on behalf of United States 220 MHz narrowband licensees,
including consulting on the business assessment and technical review
of the 220 MHz systems to be constructed.
(e) NEGOTIATIONS WITH EQUIPMENT SUPPLIERS. SCL, either directly or
through Midland, shall assist the Corporation and BSIG, from time to
time, in the negotiation of purchasing terms with suppliers of radio
equipment and in the selection of such equipment.
(f) PUBLIC RELATIONS. SCL may assist the corporation, upon request, with
the management of its corporate public relations function, including
advising it on handling its relations with its shareholders.
(g) COMPUTER SERVICES. SCL shall, to the extent feasible, provide the
Corporation with computer-related services.
8. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation
represents and warrants to SCL that:
(a) the Corporation has the corporate power and authority to enter into
this Agreement and to perform its obligations hereunder;
(b) the Corporation has taken all necessary corporate action to authorize
the execution and delivery of this Agreement and the performance of
its obligations hereunder;
(c) this Agreement has been duly executed and delivered by the Corporation
and constitutes a valid and binding obligation of the Corporation,
enforceable against it in accordance with its terms;
-5-
(d) the Corporation has duly authorized the issuance of such number of
Brookline Common Shares as shall be necessary to issue the Brookline
Management Contract Common Shares as contemplated herein and such
shares, when issued, will be validly issued as fully paid shares of
the Corporation; and
(e) other than any required stock exchange approvals, no consent is
required of, or notice required to be given to, any person by the
Corporation in respect of any of the transactions contemplated herein
or any part thereof.
9. MISCELLANEOUS.
9.1 Midland shall pay (or shall cause its Affiliates to pay, as applicable),
the Corporation semi-annually within 30 days of June 30 and December 31 an
amount equal to 5% of the net selling price paid for radio equipment by
management companies who purchase such equipment from Midland or any of its
Affiliates for use in the construction or operation of Qualifying Systems (as
that term is defined in the Share Purchase Agreement).
9.2 In this Agreement, unless the context otherwise requires, words importing
the singular include the plural and vice versa and words importing gender
include all genders.
9.3 The headings in this Agreement are for convenience of reference only and
shall not be given any effect in the interpretation of this Agreement.
9.4 This Agreement and all amendments hereof and waivers and consents hereunder
shall be governed by and construed in accordance with the law of the Province of
British Columbia and the laws of Canada applicable therein and the parties
hereby irrevocably attorn to the jurisdiction of the courts of British Columbia.
9.5 Time shall be of the essence of this Agreement.
9.6 The provisions of this Agreement are intended to be and shall be deemed
severable. The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
were omitted.
9.7 All notices, consents and other communications required or permitted to be
given under or by reason of this Agreement shall be in writing, shall be
delivered personally or by facsimile as described below, and shall be deemed
given on the date on which such delivery is made. Any such delivery shall be
addressed to the intended recipient at the following addresses (or at such other
address for a party as shall be specified by such party by like notice to the
other parties):
-6-
(a) if to the Corporation:
000-000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: The President
Facsimile: (000) 000-0000
(b) if to SCL:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx X. X'Xxxx
Facsimile: (000) 000-0000
(c) if to Midland:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
9.8 Subject to SCL's right to assign its rights and obligations hereunder to an
Affiliate capable of performing SCL's obligations hereunder, neither party may
assign any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the other party.
9.9 The failure of a party to insist upon strict adherence to a term of this
Agreement on an occasion shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. No purported waiver shall be effective unless in
writing. The waiver by any party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent or other breach.
9.10 This Agreement supersedes any other agreement, whether written or oral
(including a letter of intent between the Corporation and SCL dated July 12,
1995), that may have been made or entered into by the parties relating to the
matters contemplated hereby and constitutes the entire agreement between the
parties with respect to such matters.
9.11 This Agreement may be executed in counterparts, each of which shall be
considered an original, but all of which together shall constitute one and the
same instrument.
-7-
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto, all as of the date first above written.
BROOKLINE MINERALS INC.
By: _________________________
By: __________________________
XXXXXXXX COMMUNICATIONS LTD.
By: __________________________
By: __________________________
MIDLAND INTERNATIONAL CORPORATION
By: ___________________________
By: ___________________________
SCHEDULE "C"
MANAGEMENT SERVICES AGREEMENT
THIS AGREEMENT made as of the day of August, 1995.
B E T W E E N:
BROOKLINE MINERALS INC.,
a corporation incorporated under the laws of Canada
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
- and -
INTEK DIVERSIFIED CORPORATION,
a corporation incorporated under the laws of the State of
Delaware
(hereinafter referred to as "Intek")
OF THE SECOND PART
RECITALS:
1. The Corporation and Xxxxxxxx Communications Ltd., Intek and Xxxxxx Travel,
Limited (collectively, the "Vendors") have entered into an agreement of
purchase and sale made as of the 24th day of August, 1995 (the "Share
Purchase Agreement"), pursuant to which the Corporation has agreed to
purchase from the Vendors all of the issued and outstanding shares of Brook
SIG Corp. ("BSIG"), a company whose primary business objective is to
provide financing to management companies who construct, manage and operate
wireless specialized mobile radio systems on behalf of United States 220
MHz narrowband licensees.
2. In conjunction with the share purchase transaction, Intek has agreed to
provide certain management services to the Corporation.
3. Pursuant to the Share Purchase Agreement, the execution and delivery by the
Corporation and Intek of a management services agreement which obliges
Intek to provide the services described herein in exchange for the common
shares of the Corporation which are issuable to Intek hereunder, is a
condition precedent to the completion of the share purchase transaction
contemplated thereby.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
out herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties agree as follows:
-2-
1. DEFINITIONS. For the purpose of this Agreement, in addition to the
definitions set out above:
(a) "AFFILIATE" means, with respect to any corporation, any other
corporation which directly or indirectly controls or is controlled by or is
under direct or indirect common control with such first mentioned corporation,
and for the purpose of this definition "control" means, with respect to any
corporation, the ownership of voting securities to which are attached 20 per
cent or more of the voting rights attached to all outstanding voting securities
of the corporation;
(b) "AGREEMENT" means this management services agreement, as the same may
be amended and supplemented from time to time;
(c) "BROOKLINE COMMON SHARES" means common shares in the capital of the
Corporation as constituted at the date hereof;
(d) "BROOKLINE MANAGEMENT CONTRACT COMMON SHARES" has the meaning ascribed
thereto in section 4;
(e) "CLOSING DATE" has the meaning ascribed to that term in the Share
Purchase Agreement; and
(f) "TERM" means the term of this Agreement.
2. RETAINER TO PROVIDE MANAGEMENT SERVICES. The Corporation hereby retains
Intek to provide it and its subsidiary, BSIG, with various management services
as specified in section 7, during the Term.
3. TERM. The Term shall commence on the Closing Date and terminate on the
first anniversary of such date. The Corporation shall be entitled to terminate
this Agreement at any time upon thirty (30) days prior written notice to Intek,
but in that event, except where the termination is for "just cause", the
Corporation shall immediately issue to Intek all of the Brookline Management
Contract Common Shares which remain unissued, whether or not accrued. For the
purposes of this section 3, "just cause" shall mean a fundamental breach of this
Agreement by Intek which, under common law, entitles the Corporation to
terminate all of its obligations under this Agreement.
4. MANAGEMENT SERVICES FEES.
4.1 In consideration of the management services to be provided by Intek to the
Corporation and BSIG hereunder, Intek shall be entitled to receive one million
(1,000,000) Brookline Common Shares (the "Brookline Management Contract Common
Shares"). Subject to section 4.2, two hundred and fifty thousand (250,000)
Brookline Management Contract Common Shares shall be issued to Intek on each of
the following dates:
(a) the Closing Date;
(b) the date which is three (3) months after the Closing Date;
-3-
(c) the date which is six (6) months after the Closing Date; and
(d) the date which is nine (9) months after the Closing Date.
4.2 If Brookline, at any time during which any Brookline Management Contract
Common Shares remain unissued, shall take any of the actions contemplated by the
provisions of section 2.7 of the Share Purchase Agreement, then the procedure
set out in that section shall be followed and the appropriate equitable and
proportionate adjustment determined pursuant to the provisions of section 2.7,
if any, shall be made to the number of unissued Brookline Management Contract
Common Shares.
4.3 Intek agrees that, without the prior written consent of the Corporation, it
will not sell, assign or otherwise transfer any of the Brookline Management
Contract Common Shares for a period of three (3) years from the Closing Date,
except that this restriction shall not apply to the following transactions in
such shares:
(a) pledges to secure bona fide debts or other obligations; or
(b) sales or transfers to Affiliates of Intek who agree to be bound
by the provisions of this section 4.3.
5. EXPENSES. The Corporation shall, or shall cause BSIG to, reimburse
Intek for all of its reasonable expenses incurred in connection with the
provision of management services to either the Corporation or BSIG within thirty
(30) days following submission of applicable receipts or other supporting
documentation. For greater certainty, the expenses of Intek shall be deemed not
to include salaries or other compensation paid or payable by Intek to its
employees, or any amounts paid to consultants or independent contractors who
have been hired to perform any portion of the services described in section 7.
6. ACCESS TO INFORMATION. During the Term, the Corporation shall, or shall
cause BSIG to, ensure that Intek and its representatives have access to all
financial statements and other records and information of the Corporation and
BSIG which are available to the shareholders and directors of those corporations
generally. In addition, the Corporation agrees to provide Intek and its
representatives with access to its management information systems and to cause
BSIG to do the same.
7. RESPONSIBILITIES OF INTEK. During the Term, both directly and through its
subsidiary Roamer One, Inc. ("Roamer One"), Intek shall provide the Corporation
and BSIG with certain administrative and management services including, INTER
ALIA, the following services:
(a) SITE SELECTION. Representatives of Intek and/or Roamer One will be
available to the Corporation and BSIG for consultation regarding the
selection of sites to be financed.
(b) INFRASTRUCTURE EQUIPMENT AND SYSTEM COMPATIBILITY. Intek shall
provide advice and assistance to the Corporation and BSIG, from time
to time, on the evaluation of infrastructure equipment and system
capability.
-4-
(c) FCC MATTERS. Intek shall assist the Corporation and BSIG, from time
to time, in matters regarding the United States Federal Communications
Commission (the "FCC"), including providing notification to the FCC,
as required.
(d) CONTRACT MANAGEMENT. Intek and/or Roamer One shall provide advice and
assistance to the Corporation and BSIG, from time to time, on the
management of contracts for 220 MHz and site licenses, as required.
(e) NEGOTIATION OF FINANCING CONTRACTS. Intek shall assist the
Corporation and BSIG, from time to time, in the negotiation of
contracts to provide financing in various forms for management
companies who construct, manage and operate wireless specialized
mobile radio systems on behalf of United States 220 MHz narrowband
licensees, including consulting on the business assessment and
technical review of the 220 MHz systems to be constructed.
8. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation
represents and warrants to Intek that:
(a) the Corporation has the corporate power and authority to enter into
this Agreement and to perform its obligations hereunder;
(b) the Corporation has taken all necessary corporate action to authorize
the execution and delivery of this Agreement and the performance of
its obligations hereunder;
(c) this Agreement has been duly executed and delivered by the Corporation
and constitutes a valid and binding obligation of the Corporation,
enforceable against it in accordance with its terms;
(d) the Corporation has duly authorized the issuance of such number of
Brookline Common Shares as shall be necessary to issue the Brookline
Management Contract Common Shares as contemplated herein and such
shares, when issued, will be validly issued as fully paid shares of
the Corporation; and
(e) other than any required stock exchange approvals, no consent is
required of, or notice required to be given to, any person by the
Corporation in respect of any of the transactions contemplated herein
or any part thereof.
9. MISCELLANEOUS.
9.1 In this Agreement, unless the context otherwise requires, words importing
the singular include the plural and vice versa and words importing gender
include all genders.
9.2 The headings in this Agreement are for convenience of reference only and
shall not be given any effect in the interpretation of this Agreement.
9.3 This Agreement and all amendments hereof and waivers and consents hereunder
shall be governed by and construed in accordance with the law of the Province of
British Columbia
-5-
and the laws of Canada applicable therein and the parties hereby irrevocably
attorn to the jurisdiction of the courts of British Columbia.
9.4 Time shall be of the essence of this Agreement.
9.5 The provisions of this Agreement are intended to be and shall be deemed
severable. The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
were omitted.
9.6 All notices, consents and other communications required or permitted to be
given under or by reason of this Agreement shall be in writing, shall be
delivered personally or by facsimile as described below, and shall be deemed
given on the date on which such delivery is made. Any such delivery shall be
addressed to the intended recipient at the following addresses (or at such other
address for a party as shall be specified by such party by like notice to the
other parties):
(a) if to the Corporation:
000-000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: The President
Facsimile: (000) 000-0000
(b) if to Intek:
000 Xxxx 000xx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx
00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
9.7 Subject to Intek's right to assign its rights and obligations hereunder to
an Affiliate capable of performing Intek's obligations hereunder, neither party
may assign any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the other party.
9.8 The failure of a party to insist upon strict adherence to a term of this
Agreement on an occasion shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. No purported waiver shall be effective unless in
writing. The waiver by any party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent or other breach.
-6-
9.9 This Agreement supersedes any other agreement, whether written or oral
(including a letter of intent between the Corporation and Xxxxxxxx
Communications Ltd. dated July 12, 1995), that may have been made or entered
into by the parties relating to the matters contemplated hereby and constitutes
the entire agreement between the parties with respect to such matters.
9.10 This Agreement may be executed in counterparts, each of which shall be
considered an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto, all as of the date first above written.
BROOKLINE MINERALS INC.
By: ____________________________
By: ____________________________
INTEK DIVERSIFIED CORPORATION
By: ____________________________
By: ____________________________
