EXHIBIT 10.6
SHARE PURCHASE AGREEMENT
This Agreement is made as of January 1, 2000 between
GRANT BROTHERS SALES, LIMITED, a corporation
existing under the laws of Canada (the "Vendor"),
and
SPECTRE INDUSTRIES, INC., a corporation existing under the
laws of Nevada (the "Purchaser").
RECITALS
A. The Vendor is the registered and beneficial owner of the Purchased Shares.
B. The Purchaser wishes to purchase and the Vendor wishes to sell the Purchased
Shares on the terms of this Agreement.
For value received, the parties agree as follows.
SECTION 1 - INTERPRETATION
1.1 Definitions. In this Agreement the following terms have the meanings set out
below.
(a) Agreement means this share purchase agreement including any recitals and
schedules to this share purchase agreement, as amended, supplemented or restated
from time to time.
(b) Corporation means Grant Automotive Group Inc., a corporation existing under
the laws of Ontario.
(c) Encumbrances means all options, pledges, mortgages, security interests,
liens, charges, adverse claims, rights, restrictions, burdens and encumbrances
whatsoever.
(d) Management Services Agreement means the management services agreement dated
the date of this agreement between the Purchaser, the Vendor and the
Corporation.
(e) Purchase means the transaction of purchase and sale contemplated by this
Agreement.
(f) Purchase Price has the meaning given to it in section 2.1.
(g) Purchased Shares means all the common shares issued and outstanding in the
capital of the Corporation as at the date of this Agreement.
(h) Securities Act means the United States Securities Act of 1933, as amended.
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1.2 Headings and References. The division of this Agreement into sections and
the insertion of headings are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement.
1.3 Extended Meanings. Words importing the singular include the plural and vice
versa and words importing gender include all genders. The term "including" means
"including without limitation" and the term "includes" has a similar meaning.
SECTION 2 - PURCHASE, SALE AND PLEDGE
2.1 Purchased Shares. On the terms of this Agreement, as at the date of this
Agreement, the Vendor hereby sells to the Purchaser free and clear of all
Encumbrances and the Purchaser hereby purchases all of Vendor's right, title and
interest in and to the Purchased Shares for a purchase price equal to the
aggregate value of US$500,000 (the "Purchase Price").
2.2 Payment of the Purchase Price. The Purchaser shall satisfy the Purchase
Price by paying on or before the date of this Agreement US$500,000 to the Vendor
by cheque;
2.3 Accounting Matters.
(a) Review. Promptly following the date of this Agreement, the parties shall
retain the Vendor's independent accountants to conduct a review of the financial
statements of the Corporation for the year ending December 31, 1999 (the "1999
Financial Statements"). The 1999 Financial Statements shall be prepared in
accordance with generally accepted accounting principles in effect in Canada
from time to time, including the accounting recommendations published in the
Handbook of the Canadian Institute of Chartered Accountants and on a consistent
basis with those accounting principles used by the Vendor in preparing its
December 31, 1998 financial statements which were reviewed by the Vendor's
independent accountants.
(b) Currency Conversion Schedule. Based on the 1999 Financial Statements, the
Vendor shall direct the Vendor's independent accountants to prepare a schedule
(the "Currency Conversion Schedule") setting out the total revenues attributable
to the Business, as that term is defined in the Management Services Agreement,
for the 1999 fiscal year as at December 31, 1999 expressed in US dollars and
using an exchange rate in which one Canadian dollar is equal to US$0.68.
(c) Draft Documents. The Vendor shall direct the Vendor's independent
accountants to provide the parties with:
(1) a draft review engagement 1999 Financial Statements, including a
draft review engagement report thereon; and
(2) a draft Currency Conversion Schedule, together with a draft report
thereon indicating that the schedule has been prepared in accordance
with this Agreement.
(d) Review and Comment. The parties shall have 10 days to provide their comments
and then the independent accountants shall finalize the 1999 Financial
Statements and the Currency Conversion Schedule. The finalized 1999 Financial
Statements and the Currency Conversion Schedule shall be final and binding on
the parties. The Vendor shall pay the independent accountants' costs for the
review of the 1999 Financial Statements and the preparation of the Currency
Conversion Schedule.
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SECTION 3 -- REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor represents and warrants to the Purchaser as stated below
and acknowledges that the Purchaser is relying on the accuracy of each such
representation and warranty in entering into this Agreement and completing the
Purchase.
3.1 Corporate Matters
(a) Status and Capacity of Vendor. The Vendor is a subsisting corporation under
the laws of Canada, and has the corporate power and capacity to execute and
deliver this Agreement and to consummate the Purchase.
(b) Authorization of Purchase. The execution and delivery of this Agreement and
the consummation of the Purchase have been validly authorized by the Vendor.
(c) Enforceability. This Agreement has been validly executed and delivered by
the Vendor and is a legally binding obligation of the Vendor enforceable against
the Vendor, subject, as to enforcement, to bankruptcy, insolvency and other laws
affecting creditors' rights generally and to general principles of equity.
Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will:
(1) require any consent, authorization, approval or other action of any
government authority; or
(2) violate or constitute a default under the articles or by-laws of the
Vendor or any note, indenture, mortgage, deed of trust or other
contract, agreement or commitment of the Vendor.
(d) Residence. The Vendor is not a non-resident of Canada within the meaning of
the Income Tax Act (Canada).
3.2 The Corporation.
(a) Status of Corporation. The Corporation has been duly incorporated and
organized and is a subsisting corporation under the laws of Ontario. The
Corporation is a "private company" within the meaning of the Securities Act
(Ontario).
(b) Authorized and Issued Share Capital. The authorized capital of the
Corporation consists of an unlimited number of common shares, of which 10,000
common shares have been duly issued and are outstanding as fully paid and
non-assessable shares in the capital of the Corporation. The Corporation has not
issued or authorized the issue of any shares except the Purchased Shares.
(c) Title to Shares. The Vendor legally and beneficially owns and controls all
of the Purchased Shares with a good and marketable title thereto free of any
Encumbrances, other than Encumbrance contained in laws of general application.
(d) No Employees. The Corporation has no employees, nor has it ever employed an
employee.
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SECTION 4 - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Vendor as stated below
and acknowledges that the Vendor is relying on the accuracy of each such
representation and warranty in entering into this Agreement and completing the
Purchase.
4.1 Status. The Purchaser is a subsisting corporation under the laws of Nevada,
and has the corporate power and capacity to execute and deliver this Agreement
and to consummate the Purchase.
4.2 Due Authorization. The execution and delivery of this Agreement and the
consummation of the Purchase have been validly authorized by the Purchaser.
4.3 Enforceability. This Agreement has been validly executed and delivered by
the Purchaser and is a legally binding agreement of the Purchaser enforceable
against the Purchaser, subject, as to enforcement, to bankruptcy, insolvency and
other laws affecting creditors' rights generally and to general principles of
equity. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will:
(1) require any consent, authorization, approval or other action of any
government authority; or
(2) violate or constitute a default under the articles or by-laws of the
Vendor or any note, indenture, mortgage, deed of trust or other
contract, agreement or commitment of the Vendor.
SECTION 5 -- SURVIVAL AND INDEMNIFICATION
5.1 Survival. The representations and warranties contained in sections 3 and 4
shall survive the closing for a period of one year and the undertakings and
agreements to be performed after the date of this agreement shall survive the
closing indefinitely unless otherwise specified in this Agreement.
Notwithstanding the foregoing, any representation, warranty, undertaking or
agreement that survives the closing but would otherwise terminate in accordance
with this section 5.1 will continue to survive to the extent notice of any claim
has been given on or prior to the termination of such survival until the related
claim for indemnity has been satisfied or otherwise resolved as provided in this
section 5.
5.2 Indemnity for Purchaser. The Vendor shall, subject to the other terms of
this Agreement, indemnify the Purchaser and save and hold the Purchaser harmless
from, against, for and in respect of any and all damages (including amounts paid
in settlement with the Vendor's consent), losses, obligations, liabilities,
liens, deficiencies, costs and expenses, including reasonable attorneys' fees
and other reasonable costs and expenses incident to any suit, action,
investigation, claim or proceeding net of any amounts recoverable under
insurance policies, suffered, sustained, incurred or required to be paid by the
Purchaser by reason of:
(a) any representation or warranty made by the Vendor in this Agreement
which is untrue or incorrect in any material respect; or
(b) any material failure by the Vendor to observe or perform its
undertakings and agreements set out in this Agreement.
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5.3 Indemnity for Vendor. The Purchaser shall, subject to the other terms of
this Agreement, indemnify the Vendor and save and hold the Vendor harmless from,
against, for and in respect of any and all damages (including amounts paid in
settlement with the Purchaser's consent), losses, obligations, liabilities,
claims, deficiencies, costs and expenses, including reasonable attorneys' fees
and other reasonable costs and expenses incident to any suit, action,
investigation, claim or proceeding net of any amounts recoverable under
insurance policies, suffered, sustained, incurred or required to be paid by the
Vendor by reason of:
(a) any representation or warranty made by the Purchaser in this
Agreement which is untrue or incorrect in any material respect;
(b) any material failure by the Purchaser to observe or perform its
undertakings and agreements set out in this Agreement.
5.4 Right to Defend. Upon receipt of a notice of a claim under this section 5 (a
"Claim Notice"), the party obliged to provide an indemnity under this Agreement
(the "Indemnifying Party") shall promptly assume the defense of, and contest or
otherwise protect against, such suit, action investigation, claim or proceeding
at its own cost and expense. The other party (the "Indemnified Party") shall
have the right, but not the obligation, to participate at its own expense in the
defense thereof by counsel of its own choosing, but the Indemnifying Party shall
be entitled to control the defense unless the Indemnified Party has relieved the
Indemnifying Party from liability with respect to the particular matter or in
the event set out in the next sentence. In the event the Indemnifying Party
shall fail to defend, contest or otherwise protect within 10 days of the receipt
of a Claim Notice against any such suit, action, investigation, claim or
proceeding, the Indemnified Party shall have the right, but not the obligation,
to defend, contest or otherwise protect against the same and, with the prior
written approval of the Indemnifying Party, make any compromise or settlement
thereof and subject to the limitations set out in sections 5.2 or 5.3, as the
case may be, recover the entire cost thereof from the Indemnifying Party
including all amounts paid as a result of such suit, action, investigation,
claim or proceeding or the compromise or settlement thereof which was approved
by the Indemnifying Party. However, if the Indemnifying Party undertakes the
defense of such matters, the Indemnified party shall not be entitled to recover
from the Indemnifying Party any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than the
reasonable costs of investigation undertaken by the Indemnified Party with the
prior written consent of the Indemnifying Party.
SECTION 6 -- REPURCHASE OF PURCHASED SHARES
6.1 On Insolvency or Bankruptcy of Purchaser. In the event that the Purchaser
becomes technically insolvent, files for bankruptcy, is forced into involuntary
bankruptcy, or seeks to effect a transfer of assets outside of the ordinary
course of business in order to satisfy creditor obligations, the Vendor shall
have the right:
(a) to purchase all of the assets attributable to or otherwise used in
the Business, as that term is defined in the Management Services
Agreement, by paying the Purchaser an amount equal to US$500,000 in
cash; or
(b) to terminate the Management Services Agreement and any remaining
obligations under this Agreement, all without penalty. In the event
the Management Services
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agreement is terminated, then the option referenced in paragraph 6.2
below shall simultaneously be terminated.
6.2 On Failure to Exercise Option. In the event that the Corporation fails to
exercise its right under section 2.3(b)(3) of the Management Services Agreement
and to pay the amount required to the Vendor, then the Vendor, if having given
notice of its intent to re-purchase the Business no later than December 31,
2004, shall have the right at any time in the first quarter of 2005 (but not
thereafter) to purchase all of the assets attributable to or otherwise used in
the Business, as that term is defined in the Management Services Agreement, by
paying the Purchaser an amount equal to US$500,000 in cash.
SECTION 7 -- ARBITRATION
7.1 Scope. Any dispute or other controversy between the parties relating to this
Agreement (including any dispute as to whether an issue is arbitrable) shall be
referred to arbitration under the Arbitration Act, 1991 (Ontario), but subject
to the terms of this section 7.
7.2 Appointment of Arbitrators. A party desiring arbitration under this section
7 shall give a notice of arbitration to the other party containing a concise
description of the matter submitted for arbitration. Within 10 business days
after a party gives a notice of arbitration, the parties shall jointly appoint a
single arbitrator (the "Arbitrator"), who shall be a retired judge of the
Ontario Court (General Division) or of any court of a province of Canada having
jurisdiction comparable to or higher than that of such court. If the parties
fail to appoint an Arbitrator within such time, an Arbitrator shall be
designated by a judge of the Ontario Court (General Division) upon application
by either party.
7.3 Powers of Arbitrator. The Arbitrator may determine all questions of law and
jurisdiction (including questions as to whether a dispute is arbitrable) and all
matters of procedure relating to the arbitration. The Arbitrator shall have the
right to grant legal and equitable relief (including injunctive relief) and to
award costs (including legal fees and the costs of the arbitration) and
interest.
7.4 Arbitration Procedure. The arbitration shall take place in the Municipality
of Metropolitan Toronto at such place therein and time as the Arbitrator may
fix. No later than 20 business days after hearing the representations and
evidence of the parties, the Arbitrator shall make his or her determination in
writing and deliver one copy to each of the parties. The decision of the
Arbitrator shall be final and binding upon the parties in respect of all matters
relating to the arbitration, the conduct of the parties during the proceedings,
and the final determination of the issues in the arbitration.
7.5 Awards and Appeal. There shall be no appeal from the determination of the
Arbitrator to any court under the Arbitration Act, 1991 (Ontario). Judgment upon
any award rendered by the Arbitrator may be entered in any court having
jurisdiction thereof.
7.6 Costs of Arbitration. The costs of any arbitration under this section 7
shall be borne by the parties in the manner specified by the Arbitrator in his
or her determination.
7.7 Rules. Insofar as they do not conflict with this section 7, the Rules of
Procedure For Commercial Arbitration of the Arbitration and Mediation Institute
of Canada Inc. in effect at the date of commencement of any arbitration held
under this section 7 shall be applicable to the
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arbitration, and the Arbitrator shall have jurisdiction to take such action and
make such orders as are contemplated in such rules.
7.8 Condition Precedent. Submission to arbitration under this section 7 shall be
a condition precedent to bringing any action with respect to this Agreement.
SECTION 8 -- GENERAL
8.1 Notice. Unless otherwise specified, each notice to a party must be given in
writing and delivered personally or by overnight courier or transmitted by fax
to the party as follows:
If to the Vendor: Grant Brothers Sales, Limited
000 Xxxxxxx Xxxxxx, Xxxx #0
Xxxxx Xxxx, Xxxxxxx X0X 0X0
Attention: President
Fax No: (000) 000-0000
If to the Purchaser: Spectre Industries, Inc.
c/o Xxx Xxxxx, Chief Executive Officer
0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx, X.X.
Xxxxxx X0X 0X0
with a copy to:
or to any other address, fax number or individual that the party designates. Any
notice, if delivered personally or by courier, will be deemed to have been given
when actually received, and if transmitted by fax before 3:00 p.m. (Toronto
time) on a business day, will be deemed to have been given on that business day,
and if transmitted by fax after 3:00 p.m. (Toronto time) on a business day, will
be deemed to have been given on the next business day.
8.2 Time. Time shall be of the essence of this Agreement.
8.3 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Province of Ontario, and each of the parties
irrevocably attorns to the non-exclusive jurisdiction of the courts of Ontario.
8.4 Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter and supersedes all prior
agreements, representations, negotiations and understandings, whether written or
verbal. No term of this Agreement may be amended or waived except in writing.
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8.5 Severability. Any term of this Agreement which is invalid or unenforceable
shall not affect any other term and shall be deemed to be severable.
8.6 Assignment and Enurement. No party may assign this Agreement without the
prior written consent of the other party (except to an affiliate of such party),
which consent may not be unreasonably withheld or delayed. This Agreement enures
to the benefit of and binds the parties and their respective successors and
permitted assigns.
8.7 Counterparts and Fax Delivery. This Agreement and any amendment, supplement,
restatement or termination of any term of this Agreement may be executed and
delivered in any number of counterparts, each of which when executed and
delivered is an original but all of which taken together constitute one and the
same instrument. A party may deliver this Agreement and any amendment,
supplement, restatement or termination of any term of this Agreement by fax.
The parties have duly executed this Agreement.
GRANT BROTHERS SALES, LIMITED
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Chief Operating Officer
By: /s/ Xxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
Vice President
SPECTRE INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Chairman
