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EXHIBIT 3(b)(1)
SOFTWARE PURCHASE AGREEMENT DATED JUNE 27, 1997
BY AND BETWEEN LASERMEDIA INC. AND SOFTECH L.P.
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SOFTWARE PURCHASE AGREEMENT
THIS SOFTWARE PURCHASE AGREEMENT dated the 27th day of June, 1997
between LASERMEDIA INC., a corporation incorporated under the laws of Ontario
(the "Vendor") and SOFTECH, an Ontario limited partnership, by its general
partner, 1234191 Ontario Inc. (the "General Partner"), a corporation
incorporated under the laws of Ontario (the "Partnership").
BACKGROUND:
1. The Vendor owns certain application computer software known as
the "ACTIVE TRAINER" family of software and also related intellectual property
rights.
2. The Partnership wishes to purchase from the Vendor a 100%
undivided interest in such software and intellectual property rights and to
market the same worldwide.
NOW, THEREFORE in consideration of the premises and the respective
covenants herein contained and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, the
following capitalized terms are defined as follows:
"Business Day" means a day other than Saturday, Sunday or
statutory holiday in Ontario;
"Closing Date" means the latest of (a) June 27, 1997, (b) the
date on which all conditions in favour of the parties hereto are
satisfied or waived and (c) the date on which Osgoode Holdings Inc.
completes its acquisition of the Vendor as contemplated in the Osgoode
Circular (provided that Closing shall occur immediately prior to
completion of such acquisition), or such other date as the parties
hereto may agree in writing;
"Closing" means the completion of the sale by the Vendor and
the purchase by the Partnership of a 100% undivided interest in the
Purchased Assets and the completion of all other transactions
contemplated by this Agreement and the Letter Agreement that are to
occur contemporaneously therewith;
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"Code" means the whole or any part of or any combination of
the Object Code and Source Code and, upon their creation,
Modifications and Enhancements;
"Copyright" means the exclusive right to do and authorize
others to do any and all things restricted by copyright or similar
laws of application in any and all jurisdictions in relation to the
use, copying, translation, distribution or publication of the Software
or Derivative Work;
"Derivative Work" means a work that is based upon the Software
such as a revision, modification, translation, abridgment,
condensation, expansion or any other form in which the Software may be
recast, transformed or adapted and that if prepared without
authorization of the owner of the Copyright in such pre-existing work,
would constitute a Copyright infringement. For purposes hereof, a
Derivative Work shall also include any compilation that incorporates
such a pre-existing work;
"Development Documentation" means any devices, programming or
documentation, including compilers, "workbenches", development tools
(e.g. flow charts, schematics, statements of principles of operations,
architecture standards and any other specifications that are used to
create or that comprise the Code), runtime libraries and higher-level
(or "proprietary") languages used by the Vendor for the development,
maintenance, modification and implementation of the Program;
"Encumbrance" means, in respect of property of any kind
(including intangible property of any kind whatsoever), any
encumbrance of any kind whatsoever, including a security interest,
mortgage, lien, pledge, assignment, charge, trust or deemed trust
(whether contractual, statutory or otherwise arising), any
restriction, royalty or obligation to pay a royalty or any other right
or claim of others of any kind whatever affecting the property and any
restrictive covenant or other agreement, restriction or limitation
(registered or unregistered) on the use of the property and, with
respect to any share, warrant, option or other security of an issuer,
including any hold or escrow period (whether contractual, statutory,
regulatory or otherwise arising) or other restriction on the sale or
resale of such security or any security into which such security is
convertible or exchangeable; and "Encumber" as a verb has a
corresponding meaning;
"Enhancements" means all modifications, additions,
enhancements or substitutions made to the Program, other than
Modifications, that accomplish performance, structural or functional
improvements thereto, whether such enhancements accomplish incidental
or substantial redesign or replacement of any parts of the Program;
"Force Majeure" means any of the following: acts of God,
earthquakes, tidal waves, hurricanes, landslides, storms, windstorms,
lightning, floods, explosions, fires, vandalism, wars (whether
declared or not), armed conflicts (whether internal or
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international), riots, insurrections, rebellions, civil commotions,
sabotage, blockages, embargoes, epidemics, partial or entire failure
of utilities owned and operated by governmental bodies, lockouts,
strikes, other labour disturbances (whether legal or illegal), labour
shortages, failure of common or private carriers to deliver anything
within the required time, or any other similar event or cause beyond
the control of the party claiming the benefit of this clause and which
that party could not reasonably have protected itself against,
provided however that lack of funds or credit shall not constitute an
event of force majeure;
"GST" means the goods and services tax levied pursuant to the
Excise Tax Act (Canada) and all provincial sales taxes integrated with
such federal taxes, assessed, rated or charged upon the Partnership or
payable by the Partnership in respect of the purchase and sale of the
Purchased Assets;
"Intellectual Property Rights" means all rights to use, copy,
reproduce, sell, license, enhance, merge, transcribe, adapt or
distribute by any means and for any purpose the Software including any
and all proprietary rights provided under patent law, copyright law or
any other statutory provision or common law principles applicable to
the Software which may provide a right in either ideas, formulae,
algorithms, concepts, inventions or know-how generally, including
trade secret law or the expression or use thereof;
"Letter Agreement" means the letter agreement dated April 8,
1997 between the Partnership and Lasermedia Inc.;
"Modifications" means modifications, updates or revisions to
the Program or User Documentation that correct errors, support new
releases of operating systems or support new models of input-output
devices with which the Program is designed to operate;
"Object Code" means the binary or machine-readable version or
form of the computer programming code generated by compilation or
interpretation of the Source Code to execute the Program;
"Osgoode Circular" means the Notice of Meeting and Management
Information Circular dated May 23, 1997 of Osgoode Holdings Inc.
which, among other things, seeks shareholder approval of the
acquisition of the Vendor by Osgoode Holdings Inc.;
"Person" means an individual, corporation, partnership, joint
venture, trust, unincorporated organization, any government or any
agency or instrumentality thereof or any other entity;
"Program" means the computer software program giving rise to
and embodied in the software known as "ACTIVE TRAINER" and more
particularly described in
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Schedule "A" hereto, together with all other computer software
programs developed from time to time using the Software and all
Modifications and Enhancements thereto;
"Public Domain Software" means computer software, and
documentation for such software, developed by parties other than the
Vendor but in respect of which the Vendor has and after Closing the
Partnership will have the unrestricted right to incorporate into the
Code and the User Documentation without royalty or other charge or
obligation of any kind;
"Purchase Price" means the purchase price for the Purchased
Assets referred to in section 5.1;
"Purchased Assets" means the whole or any part of or any
combination of the Software and Intellectual Property Rights
(excluding, for greater certainty, any trade marks owned or used by
the Vendor);
"Software" means the whole or any part of or any combination
of the Code, Derivative Work, the User Documentation and the
Development Documentation;
"Source Code" means the human readable version or form of the
Program written, in part, in the "Lingo" computer language, including
all comments and procedural code, and implemented for MacIntosh (Apple
Mac OS) and Microsoft Windows;
"Specifications" means the description and specifications,
technical and functional, for the Software set out in Schedule "A"
hereto;
"Supply and Reseller Agreement" means the Supply and Reseller
Agreement between the Partnership and the Vendor relating to the
exploitation of the Software dated of even date hereof, as amended
from time to time;
"User Documentation" means all written materials developed for
use by end users of the Program, including user guides, manuals,
application and data files and specifications and shall include, at
the time of their creation, all modifications thereto. User
Documentation shall also include the application, data and document
files necessary to produce the Development Documentation and all
modifications thereto.
1.2 INTERPRETATION. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) "this Agreement" means this software purchase
agreement (including the Schedules hereto) as it may from time to time
be supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof;
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(b) all references in this Agreement to designated
"Articles", "sections" and other subdivisions are to the designated
Articles, sections and other subdivisions of this Agreement;
(c) the words "herein" "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, section or other subdivision;
(d) the headings are for convenience only and do not form
a part of this Agreement nor are they intended to interpret, define or
limit the scope, extent or intent of this Agreement or any provision
hereof;
(e) words importing the masculine gender include the
feminine or neuter gender and words in the singular include the plural
and vice versa; and
(f) the word "including" shall be deemed to be followed
by the words "without limitation".
1.3 SCHEDULES. The following schedule forms an integral part of
this Agreement.
Schedule "A" - Program Description and Specifications
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 The Vendor hereby represents and warrants to the Partnership
and acknowledges that the Partnership is relying on such representations and
warranties in entering into this Agreement:
(a) The Vendor is a corporation validly existing and not
dissolved under the laws of Ontario with the corporate power and
authority to conduct its business and to own its assets and is duly
qualified or licensed to do business in all jurisdictions in which it
carries on business.
(b) The Vendor has the power and authority to execute,
deliver and perform this Agreement and the other agreements and
instruments to be executed and delivered by it in connection with the
transactions contemplated hereby, has taken all necessary corporate
action to authorize the execution and delivery of this Agreement and
such other agreements and instruments and the consummation of the
transactions contemplated hereby.
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(c) This Agreement has been duly executed and delivered
by the Vendor and constitutes a valid and binding obligation of the
Vendor enforceable against it in accordance with its terms.
(d) Neither the execution nor delivery of this Agreement
nor the compliance by the Vendor with any or all of the terms of this
Agreement conflicts with or will conflict with or results in or will
result in any breach of or constitutes a default under any of the
provisions of the constating documents of the Vendor or any agreement
or instruments to which it is a party or by which it or any of its
property and assets are bound or results or will result in the
creation or imposition of any Encumbrance upon the Purchased Assets or
is in contravention of any applicable law.
(e) There is no legal action pending or threatened by any
Person against the Vendor or relating to the Purchased Assets and no
adverse claim has ever been, or is currently being, threatened against
the Vendor or the Purchased Assets or any of them and there is no
claim by any Person that any of the Intellectual Property Rights is or
may be invalid or unenforceable or non-distinctive of the Vendor or
owned by any Person other than the Vendor.
(f) The Software, with the exception of any Public Domain
Software, is an original work, as that term is used in the law of
Copyright, and the only authors of the Software and every portion
thereof, with the exception of any Public Domain Software, are or were
Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx having been an
employee of Vendor during the development of the Software and Xxxxx
Xxxxxxxx having at all times developed the Software under contract
with the Vendor and, therefore, all of the right, title and interest
in their work was at all times owned by the Vendor. Each of the
authors of the Software has waived his moral rights in the Software in
favour of the Vendor and its successors and assigns.
(g) Each of the artists and other individuals involved in
the creation of the Program has assigned to the Vendor all of his
right, title and interest in and to any work created by such person
and embodied in the Program and waived any moral rights in respect of
same in favour of the Vendor, its successors and assigns and the
Vendor is entitled to assign the benefit of any such rights and
waivers to the Partnership free and clear of any Encumbrance or cost
to the Partnership.
(h) No portion of the Software uses, copies or comprises
the work of any Person in a manner that infringes on, and the use
thereof and the commercial exploitation of the Intellectual Property
Rights does not infringe on, any rights of any Person including any
rights in the structure, sequence or organization of any third party
work and no royalty or other consideration is due to any Person
arising out of the creation, copying, use or distribution of the
Purchased Assets.
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(i) The Vendor has not in any manner whatsoever granted,
transferred, licensed or assigned or permitted to be granted,
transferred, licensed or assigned any right or interest of any kind
whatsoever in the Purchased Assets to any Person (other than the
Partnership) and the Vendor has not otherwise Encumbered the Purchased
Assets.
(j) There are no contracts, agreements, licenses or other
commitments or arrangements in effect with respect to or which would
permit the manufacture, marketing, distribution, licensing, promotion,
maintenance or support of the Software by any Person, except the
Supply and Reseller Agreement.
(k) The Vendor is the owner of all right, title and
interest in each of the Purchased Assets, free and clear of all
Encumbrances. On Closing, the Partnership shall obtain the right,
title and interest in each of the Purchased Assets, free and clear of
all Encumbrances, and such rights shall be sufficient to allow the
Partnership to carry out the business of using, duplicating,
manufacturing, selling, marketing, distributing, licensing, promoting,
maintaining or supporting the Software in the manner contemplated
hereunder and in the Supply and Reseller Agreement or any other
agreement referred to herein.
(l) The Source Code provided in accordance with the terms
of this Agreement is complete and when compiled, produces the then
current production version of the Object Code.
(m) Schedule "A" contains a substantially complete and
accurate (i) description of the Program (including a list of software
modules and related tools), (ii) set of Specifications, (iii) list of
Development Documentation, (iv) list of User Documentation and (v)
list of Public Domain Software.
(n) The Source Code, User Documentation and Development
Documentation, in the form delivered to the Partnership:
(i) are reasonably understandable and usable by
trained and experienced computer programming personnel who are
generally familiar with the computer languages referred to in
the definition of "Source Code";
(ii) do not involve any proprietary languages or
programming components that such personnel could not
reasonably be expected to understand, using the Development
Documentation, which contains sufficient commentary to enable
such personnel to understand and use such languages or
components; and
(iii) include all of the devices, programming and
documentation necessary for the maintenance and support of the
Software by the Partnership, except for devices, programming
and documentation commercially available to the
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Partnership on reasonable terms through readily known sources
not affiliated with or otherwise related to the Vendor.
(o) Each of the Code, User Documentation and Development
Documentation to be delivered by the Vendor hereunder has been
prepared in a workmanlike manner and with professional diligence and
skill and the Code:
(i) will function efficiently on the machines and
with operating systems for which they are designed, as
described in the User Documentation and the Specifications;
(ii) is free from design errors, defects,
deficiencies, malfunctions, bugs or other flaws which would
render it unfit for the purposes intended;
(iii) does not contain any back door, time bomb,
drop-dead device or other software routine designed to disable
the Programs automatically, with the passage of time or under
the positive control of any person other than the Partnership;
(iv) is free from any "viruses"; and
(v) will be "Year 2000 Complaint" in that it will
provide the following functions:
(A) handle date information before,
during and after January 1, 2000, including accepting
date input, providing date output and performing
calculations on dates or portions of dates;
(B) function accurately and without
interruption before, during and after January 1,
2000, without any change in operations associated
with the advent of the new century;
(C) respond to two-digit year-date input
in a way that resolves the ambiguity as to century in
a disclosed, defined and predetermined manner; and
(D) store and provide output of date
information in ways that are unambiguous as to
century and which account for leap years.
(p) The Software operates and performs in all material
respects in accordance with the Specifications and the Specifications
completely and accurately describe the Software.
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(q) The Code, User Documentation and Development
Documentation are substantially complete and accurate and will be
adequate to enable the Partnership to make full use of the latest
version of the Software on and after the Closing.
(r) The Vendor developed the Purchased Assets for use
exclusively in a commercial enterprise and has filed all required
returns and paid all GST and other sales taxes eligible on or in
respect of its development of the Purchased Assets.
(s) There are no retail sales taxes or goods and services
taxes due or accruing due in connection with the acquisition, use,
license or sale of the Software.
(t) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required or desirable for the sale of the Purchased Assets by
the Vendor to the Partnership pursuant to this Agreement.
(u) The Software is substantially complete in a
commercially saleable form and is currently in commercial use.
(v) The Software is in all material respects program code
that instructs the computer to carry out specific applications
relating to the processing or management of data and is not program
code designed to enable application programs to be run or to
co-ordinate the operation of the computer's hardware and components.
(w) The Vendor's principal business and source of gross
revenues in its current fiscal year has been the sale of software and
related products and services.
(x) The Vendor is registered under the Excise Tax Act
(Canada) for purposes of goods and services tax as number 897876470RT.
2.2 All representations and warranties of the Vendor contained in
this Agreement shall survive the Closing.
2.3 The Partnership hereby represents and warrants to the Vendor
and acknowledges that the Vendor is relying on such representations and
warranties in entering into this Agreement:
(a) The General Partner is a corporation validly existing
and not dissolved under the laws of the Province of Ontario with the
corporate power and authority to conduct its business and to own its
assets and is duly qualified or licensed to do business in that
jurisdiction.
(b) The General Partner has been duly appointed as a
general partner of the Partnership and the General Partner has the
power and authority to execute and deliver,
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on behalf of the Partnership, this Agreement and other agreements and
instruments to be executed and delivered by it in connection with the
transactions contemplated hereby, has taken all necessary corporate
action in such capacity to authorize the execution and delivery of
this Agreement and such other agreements and instruments and the
consummation of the transactions contemplated hereby.
(c) This Agreement constitutes a valid and binding
obligation of the Partnership enforceable against it in accordance
with its terms.
(d) Neither the execution nor delivery of this Agreement,
nor compliance with the terms of the Agreement conflicts with or will
conflict with, or results or will result in any breach of, or
constitutes a default under, any of the provisions of the constating
documents of the Partnership or any agreement or instrument to which
it is a party or by which any of its property or assets are bound.
(e) The Partnership is not a "non-Canadian" as such term
is defined in the Investment Canada Act (Canada).
2.4 The representations and warranties of the Partnership
contained in section 2.3 shall survive the Closing.
ARTICLE 3
SALE
3.1 In consideration of the payment of the purchase price as set
out in Article 5, the Partnership hereby agrees to purchase, and the Vendor
hereby agrees to sell, assign and transfer to the Partnership, on Closing,
subject to the terms hereof, a 100% undivided interest in and to the Purchased
Assets.
3.2 Effective on Closing, the Partnership, its successors and
assigns shall have and enjoy such perpetual, royalty-free, irrevocable and
exclusive immunity from suit by the Vendor or any Person affiliated or
otherwise related thereto under any patents or any other intellectual property
rights owned or licensable by the Vendor or any Person affiliated or otherwise
related thereto at any time as may be necessary for the Partnership to exercise
any and all incidents of ownership of the Purchased Assets and any other rights
and licenses acquired or granted under this Agreement.
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ARTICLE 4
COVENANTS
4.1 The Vendor covenants with the Partnership that from the date
hereof until Closing the Vendor shall:
(a) preserve, protect and continuously update and
maintain the Software in "state of the art" and commercially saleable
form;
(b) carry on its business in the ordinary course and in
compliance with all applicable laws;
(c) not suffer or permit any Encumbrance to attach to or
affect the Purchased Assets;
(d) not enter into any transaction which could cause any
representation or warranty of the Vendor contained herein to be
incorrect on the Closing or constitute a breach of any covenant or
agreement of the Vendor contained herein;
(e) cooperate with the Partnership and take all such
actions as may be necessary to register Copyright to the Software; and
(f) permit the Partnership and its representatives to
have free and unrestricted access during business hours to the
Software and all other information with respect to the business of the
Vendor as the Partnership shall from time to time reasonably request
and permit the Partnership to make copies of same.
ARTICLE 5
PURCHASE PRICE
5.1 The purchase price for a 100% undivided interest in the
Purchased Assets shall be $1,950,000 (the "Purchase Price").
5.2 The Purchase Price shall be payable and paid by the
Partnership by way of cash or certified cheque as to $950,000 on the first
Business Day following the day that the shares of the Vendor, or if the Vendor
is then a wholly-owned subsidiary of a company listed on the Canadian Dealing
Network ("CDN"), the shares of such parent company (the shares of the Vendor
and the shares of such parent company, as applicable, being referred to
hereafter as the "Shares") are first quoted for trading on CDN, and the balance
on September 15, 1997, provided that the Partnership
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may defer payment of such balance until January 15, 1998 if either (a) on
September 14, 1997 the closing price (or average of the closing bid and ask
prices if there were no trades on such date) of the Shares is less than $1.50
or (b) the average 30 day closing price (including only such days on which
there was a closing price) of such Shares on CDN for the 30 day period ended
September 14, 1997 is less than $1.50.
5.3 The parties hereby agree to take all such actions and to
execute all such further documents and assurances, including an amended and
restated software purchase agreement containing substantially the same terms as
provided herein, as may be reasonably requested by any party in order to give
full effect to the provisions hereof or to reflect or consolidate the
documentation delivered hereunder. The Partnership shall be responsible for
the preparation of all such documentation, whether prepared at the request of
the Partnership or the Vendor.
5.4 On Closing, the Vendor will advance an amount equal to the GST
exigible on the sale of the Purchased Assets to the Partnership, without
interest, and will remit the GST so exigible as and when required to be
remitted by the Vendor, which advance shall be payable by the Partnership to
the Vendor when and to the extent that the Partnership receives the proceeds of
the input tax credit relating thereto.
5.5 Vendor shall use its best efforts to ensure that the Shares
are quoted on CDN prior to September 15, 1997. If at any time after September
15, 1997 the Shares have not been quoted on CDN, the Partnership may, at its
sole option, sell the Software to the Vendor for an amount equal to the
Purchase Price, which amount shall be paid in full by way of set off of the
Partnership's obligations under section 5.2, and in such event this Agreement
shall be terminated forthwith without further action or formality. In the
event of such termination, the parties shall promptly do all such acts and
execute all such documents as shall be necessary in connection therewith.
ARTICLE 6
INDEMNIFICATION
6.1 The Vendor shall indemnify and save the Partnership, the
General Partner, its directors, officers, agents, employees, licensees,
successors and assigns and limited partners of the Partnership (each an
"Indemnified Person") harmless from all losses, costs, claims, damages, demands
(other than indirect or consequential losses), actions and causes of action
which it may incur, suffer or become liable for as a result of or in connection
with:
(a) any claim that all or any part of the Purchased
Assets infringe any patent, Copyright, trade secret, trade xxxx or
other intellectual property right of any Person; or
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(b) any claim arising pursuant to bulk sales legislation,
retail sales tax legislation, the Excise Tax Act (Canada) or other
similar legislation.
ARTICLE 7
CLOSING
7.1 The Partnership shall be obliged to complete the purchase of
the Purchased Assets only on the Closing Date and only if each of the following
conditions precedent have been satisfied in full or waived in writing by the
Partnership prior thereto:
(a) all of the representations and warranties of the
Vendor herein are true and correct as if made at and as of the Closing
Date;
(b) the Partnership shall have been satisfied, in its
sole discretion as to the results of its investigations of the
Purchased Assets, the Vendor and the Vendor's business, properties and
assets and such other matters relating to the transactions
contemplated herein as the Partnership deems advisable;
(c) prior to the Closing, the Vendor shall have observed
or performed in all respects all of the obligations, covenants and
agreements to be observed or performed by it before the Closing;
(d) the shareholders of Osgoode Holdings Inc. ("Osgoode")
shall have approved the acquisition of the Vendor by Osgoode as
described in the Osgoode Circular and Osgoode shall have filed a
complete application and such supporting materials as are necessary to
obtain quotation for the common shares of Osgoode on CDN;
(e) the Vendor shall have provided the Partnership with a
complete copy of the Source Code and other software programs needed to
execute the Software, together with Specifications acceptable to the
Partnership, acting reasonably;
(f) no material adverse change shall have occurred since
January 1, 1997 with respect to the condition or prospects of the
Vendor or its businesses;
(g) all documentation relating to the purchase and sale
of the Purchased Assets and all actions and proceedings taken on or
prior to the Closing in connection with the performance by the Vendor
of its obligations under this Agreement and the Letter Agreement,
including execution and delivery of the Supply and Reseller Agreement
and delivery of share purchase warrants of the Vendor to the
Partnership and General Partner (exercisable into common shares of the
Vendor) pursuant to separate agreements and other
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deliveries contemplated in the Letter Agreement, shall be satisfactory
to the Partnership and its counsel and the Partnership shall have
received copies of all documentation or other evidence as it may
reasonably request (including legal opinions as to all relevant
matters, certificates from the Vendor and a statutory declaration from
one or more principals of the Vendor), in all cases in form and
substance satisfactory to the Partnership and its counsel; and
(h) the Partnership shall have received evidence
satisfactory to it in its sole discretion that Osgoode Holdings Inc.
will complete its acquisition of the Vendor as contemplated in the
Osgoode Circular and, in connection therewith, issue, in the same
number and on the same terms, share purchase warrants to the
Partnership and General Partner in exchange for the share purchase
warrants of the Vendor described in paragraph (g) above, such
replacement share purchase warrants to be immediately exercisable by
the Partnership and General Partner into common shares of Osgoode
Holdings Inc. and such common shares to be issued free of any
Encumbrance (other than any Encumbrance which may be agreed to by the
Partnership and General Partner in writing).
7.2 The Vendor shall be obliged to complete the sale of the
Purchased Assets on the Closing Date and only if each of the following
conditions precedent have been satisfied in full or waived in writing by the
Vendor at or before the Closing:
(a) all of the representations and warranties of the
Partnership herein shall be true and correct on the Closing Date in
all respects as if made at and as of the Closing Date;
(b) prior to the Closing, the Partnership shall have
observed or performed in all respects all of the obligations,
covenants and agreements to be observed or performed by it before the
Closing;
(c) the shareholders of Osgoode Holdings Inc. shall have
approved the acquisition of the Vendor by Osgoode Holdings Inc. as
described in the Circular; and
(d) all documentation relating to the sale and purchase
of the Purchased Assets and all actions and proceedings taken on or
prior to the Closing in connection with the performance by the
Partnership of its obligations under this Agreement, including
execution and delivery of the Supply and Reseller Agreement, shall be
satisfactory to the Vendor and its counsel and the Vendor shall have
received copies of all documentation or other evidence as it may
reasonably request in form as to certification and otherwise and in
substance satisfactory to the Vendor and its counsel.
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ARTICLE 8
GENERAL
8.1 This Agreement may be executed in any number of counterparts
with the same effect as if all parties had signed the same document. All
counterparts will be construed together and will constitute one and the same
agreement. This Agreement may be executed by the parties and transmitted by
facsimile transmission and if so executed and transmitted this Agreement will
be for all purposes as effective as if the parties had delivered an executed
original Agreement.
8.2 Except as expressly provided otherwise in this Agreement,
dates and times by which a party is required to render performance under this
Agreement or any schedule hereto shall be postponed automatically to the extent
and for the period of time that such party prevented from meeting them by
reason of any Force Majeure, provided the party prevented from rendering
performance notifies the other party immediately and in reasonable detail of
the commencement and nature of such Force Majeure and the probable consequences
thereof. The benefit of this section shall not apply to the performance of an
obligation which is 60 or more days in default.
8.3 The parties hereto will execute such other and further
documents and assurances or cause same to be executed and delivered in order to
give full effect to the provisions of this Agreement.
8.4 No interpretation, change, termination or waiver of any of the
provisions hereof will be binding upon the parties unless in writing signed by
the duly authorized officers of the parties. No modification, waiver,
termination, rescission, discharge or cancellation of this Agreement will
affect the right of any party to enforce any claim or right hereunder, whether
or not liquidated, which accrued prior to the date of such modification,
waiver, termination, rescission, discharge or cancellation.
8.5 The Vendor shall not, directly, indirectly or contingently,
sell, assign or transfer, convey or Encumber this Agreement or any right or
interest herein or hereunder (including, for greater certainty, the Vendor's
right to receive the payments set forth in section 5.2), or suffer or permit
any such assignment, transfer or encumbrance to occur either voluntarily or by
operation of law unless the written consent of the Partnership is first had and
obtained, such consent not to be unreasonably withheld.
8.6 Any notice, direction or other instrument required or
permitted to be given under this Agreement will be in writing and may be given
by delivering same or mailing same by registered mail or sending same by
electronic facsimile or other similar form of communication to the addresses
for the parties set out below:
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if to the Vendor at: 000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxxxx
Fax No.: (000) 000-0000
if to the
Partnership, at: 0 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
with a copy to: FaskenCampbell Xxxxxxx
Xxxxxxx-Xxxxxxxx Xxxxxx
Xxxxx 0000, Xxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx X. Beach
Fax No.: (000) 000-0000
Any notice, direction or instrument aforesaid will if delivered, be deemed to
have been given or made at the time of delivery and, if mailed by registered
mail in Canada and properly addressed, be deemed to have been given or made on
the third day following the day on which it was so mailed (provided that should
there be, at the time of mailing or between the time of mailing and the actual
receipt of the notice, a mail strike, slowdown or other labour dispute which
might affect the delivery of such notice by the mails, then such notice will be
only effective if actually delivered) and, if sent by electronic facsimile or
other similar form of communication during normal business hours, be deemed to
have been given or made on the day on which it was sent. Any party may be
given written notice of change of address in the same manner, in which event
such notice will thereafter be given to it as above provided at such changed
address.
8.7 If any part of this Agreement, for any reason will be declared
invalid, such decision will not affect the validity of any remaining portion
which will remain in full force and effect as if this Agreement had been
executed with the invalid portion eliminated.
8.8 Nothing herein shall be construed to create a partnership,
joint venture, or agency relationship between the parties hereto. No party
shall have the authority to enter into agreements of any kind on behalf of any
other party or otherwise to bind or obligate any other party in any manner to
any Person.
3(b)(1)-17
18
8.9 Time is of the essence of this Agreement and of every
provision thereof.
8.10 This Agreement together with the Supply and Reseller Agreement
and other agreements executed on Closing will be the complete and exclusive
statement of the agreement of the parties relating to the subject matter hereof
and supersede all agreements (oral or written), understandings,
representations, conditions, warranties, covenants and other communications
between the parties relating hereto, including the Letter Agreement (except to
the extent referred to herein). This Agreement may be amended only by a
subsequent writing that specifically refers to this Agreement and is signed by
both parties and no other act, document, usage or custom shall be deemed to
amend this Agreement.
8.11 No waiver by the Vendor or the Partnership of any default in
performance on the part of the other party of any breach or a series of
breaches, will constitute a waiver of any subsequent breach or default or a
waiver of the terms of this Agreement.
8.12 This Agreement shall be governed by, construed and enforced in
accordance with the laws of the Province of Ontario. For the purpose of all
legal proceedings, this Agreement shall be deemed to have been executed and
performed in the Province of Ontario and the courts of the Province of Ontario
shall have exclusive jurisdiction to entertain any action arising under or in
respect of this Agreement. Each of the parties hereto hereby attorns to the
exclusive jurisdiction of the courts of the Province of Ontario.
8.13 This Agreement shall ensure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
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TO WITNESS THEIR AGREEMENT the parties hereto have duly executed this
Agreement under seal on the date first above written.
LASERMEDIA INC., a corporation
By:
--------------------------------------
Name:
--------------------------------
Its:
---------------------------------
SOFTECH, by its general partner,
1234191 Ontario Inc.
By:
--------------------------------------
Name:
--------------------------------
Its:
---------------------------------
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20
SCHEDULE A
1. DESCRIPTION OF THE PROGRAM. The Active Trainer software is
built using MacroMedia Director, a multimedia application development
framework. The programming language built into Director is called Lingo, and
all Active Trainer data structures, objects and methods are written in Lingo.
The choice of this development framework was based on the flexibility of this
system, as applications written in it will be compatible with Macintosh,
Windows 3.1, Windows 95.OS/2 and the World Wide Web.
ACTIVE TRAINER IS COMPRISED OF THE FOLLOWING MODULES:
Shared: This module contains global object declarations, including
Navigation, user and Fitness Test.
Introduction: Here Active Trainer introduces the user to the people
and philosophy behind the fitness program using video clips and animation.
Gym: The gym is comprised of two screens: the Check-in and the Gym.
At the check-in the user selects his or her name from a list of members. The
Gym functions as the main menu, where the user chooses which area to visit
next.
Fitness Test: The test is comprised of a series of screens designed
to evaluate the user's health history, current physical fitness and fitness
goals. A fitness program and weekly schedule is prepared based on this
information.
Stretching Area: This Stretching Area introduces the user to the
concepts of warming up and cooling down, and specifically describes many of the
most effective stretches.
Weight Room: This area presents the user a strength training routine.
This routine can be modified by the user. A video based explanation of each
exercise is complemented by muscle anatomy and motivational information.
Aerobics Studio: The following screens can be found in this area:
Weekly cardiovascular exercise program, comparative list of exercises, and a
guide to target heart rate.
Cafeteria: The cafeteria presents the user with a sample meal plan.
General nutrition information includes an overview of good groups, the food
pyramid, and vitamins. This section is rounded out with a selection of recipes
for healthy desserts.
Glossary: The glossary contains a list of concepts used in Active
Trainer, with a brief definition, and cross references from throughout the
program.
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Map: The map gives the user an overview of the structure of the
Active Trainer screens, showing what areas have been covered and what is still
to be visited.
ACTIVE ABS IS COMPRISED OF THE FOLLOWING:
Shared: This module is very similar to Active Trainer, as the two
programs share most of their object structures.
Main: This is the main menu, similar to Active Trainer's Gym.
Test: This is a shortened version of Active Trainer's Fitness Test.
Learn: Learn is a fun and informative quiz debunking the myths of
abdominal training.
Build: Build is the heart of Active Abs. A different video AB
workout is designed for the user each day. Optionally the user can design a
custom workout by assembling a sequence of clips from a list of about 35
exercises.
LaserMedia has obtained a license to ship QuickTime and QuickTime for
Windows with the software, as well as the MacroMedia runtimes.
2. DOCUMENTATION AND ADDITIONAL INFORMATION. The main
documentation required to enable installation and use of the products are the
instructions are printed as the insert which is contained in the plastic
container housing the CD-ROM. There are pages outlining:
a. Tips and Tricks (for using the program);
b. Windows 3.1 Installation;
c. Windows 95 Installation;
d. Windows Troubleshooting;
e. Mac Troubleshooting;
f. Mac Installation; and
g. Description of the Fitness Test, Weight Room, Aerobics
Studio and Cafeteria modules.
Additional information is contained on the cardboard shipping box
which contains the CD ROM, measuring tape and fat calipers which forms the
complete package as follows:
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a. a 486/33 or Pentium computer is required to operate
the program in Windows along with a double speed CD ROM, 4Mb of free
RAM, 3 to 18Mb disk space, sound card and local bus/PCI video or a
68040 or PowerPC Macintosh with doubles speed CD-ROM, 4.5 Mb of free
RAM and 3 to 18 Mb of disk space (stereo speakers and a printer are
recommended);
b. Information on product features including the ability
to:
- point to any button or screen area for instant
help;
- click on any underlined word for a definition and
hypertext cross-references;
- use the Map to see where you are and to jump to a
specific screen;
- print out an extensive fitness analysis, and
your monthly or daily program;
- store multiple user profiles;
- take a new test to chart your progress and to
update your program;
- drag and drop exercises to customize your workout;
- watch videos in quarter or full screen mode; and
- select your camera angles for exercise
demonstration.
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