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EXHIBIT 2.2
SHARE EXCHANGE AGREEMENT
THIS AGREEMENT made the 17th day of December, 1998.
BETWEEN:
ONEX CORPORATION,
a corporation existing under the laws of the
Province of Ontario,
(hereinafter referred to as the "Transferor"),
OF THE FIRST PART,
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CUSTOMERONE HOLDING CORPORATION,
a corporation existing under the laws of the
State of Delaware,
(hereinafter referred to as the "Transferee"),
OF THE SECOND PART.
THIS AGREEMENT WITNESSES THAT in consideration of the respective
covenants, representations and warranties of the parties hereinafter contained
and for other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged by each party), the parties hereby agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS. For the purposes of this Agreement, unless the context
otherwise requires, the following terms shall have the respective meanings set
out below and grammatical variations of such terms shall have corresponding
meanings:
(a) "COMMON SHARES" means 11,526,055 common shares in the capital of Onexco;
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(b) "HEREBY", "HEREOF" and similar terms refer to this Agreement and not
to any particular Article, section, subsection or other portion of
this Agreement;
(C) "HOLDINGS SHARES" means the 11,410,071 common shares in the capital of
the Transferee to be issued pursuant to section 2.2;
(d) "ITA" means the Income Tax Act (Canada), as amended from time to time;
and
(e) "ONEXCO" means 1293219 Ontario Inc.
1.2 SECTIONS AND HEADINGS. The division of this Agreement into Articles,
sections and subsections and the insertion of headings are for reference
purposes only and shall not affect the interpretation of this Agreement. Unless
otherwise indicated, any reference herein to a particular Article, section or
subsection refers to the specified Article, section or subsection of this
Agreement.
1.3 NUMBER, GENDER AND PERSONS. In this Agreement, words importing the singular
number shall include the plural and vice versa, words importing gender shall
include all genders and words importing persons shall include individuals,
corporations, partnerships, associations, trusts, unincorporated organizations,
governmental bodies and other legal or business entities.
1.4 APPLICABLE LAW. This Agreement shall be construed, interpreted and
enforced in accordance with, and the respective rights and obligations of the
parties shall be governed by, the laws of the Province of Ontario and the
federal laws of Canada applicable therein and each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of such
province and all courts competent to hear appeals therefrom.
1.5 SUCCESSORS AND ASSIGNS. This Agreement shall enure to the benefit of and
shall be binding on and enforceable by the parties and their respective
successors and permitted assigns, as applicable. Neither party may assign any of
its rights or obligations hereunder without the prior written consent of the
other party.
1.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall constitute an original and both of which taken together
shall constitute one and the same instrument.
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ARTICLE 2
EXCHANGE OF COMMON SHARES
2.1. EXCHANGE. Subject to the provisions of this Agreement and in consideration
for the Holdings Shares, the Transferor hereby transfers to the Transferee all
of the right, title and interest of the Transferor in and to the Common Shares,
having a fair market value on the date hereof of U.S. $11,410,071.
2.2 CONSIDERATION. In consideration for the Common Shares, the Transferee
hereby agrees to issue to the Transferor on the date hereof the Holdings Shares,
having a fair market value on the date hereof of U.S. $11,410,071. The
Transferee hereby agrees to deliver to the Transferor a certificate representing
the Holdings Shares registered in the name of the Transferor.
ARTICLE 3
REPRESENTATIONS, WARRANTIES
AND FURTHER COVENANTS
3.1. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR. The Transferor hereby
represents and warrants to the Transferee as follows and acknowledges that the
Transferee is relying on such representations and warranties in connection with
its acquisition of the Common Shares:
(a) Enforceability. This Agreement is a legal, valid and binding obligation of
the Transferor, enforceable against the Transferor by the Transferee in
accordance with its terms except as enforcement may be limited by
bankruptcy, insolvency and other laws affecting the rights of creditors
generally and except that equitable remedies may be granted only in the
discretion of a court of competent jurisdiction.
(b) No Violation. The entering into and performance of this Agreement by the
Transferor will not result in any violation of any agreement or instrument
by which it is bound or of any judgment or order to which it is subject.
(c) Beneficial Ownership. The Transferor is the registered and beneficial
owner of the Common Shares with a good and marketable title thereto, free
of all other liens, charges and encumbrances whatsoever.
(d) Residence. The Transferor is not a non-resident of Canada for purposes of
the ITA.
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3.2 REPRESENTATIONS AND WARRANTIES OF THE TRANSFEREE. The Transferee hereby
represents and warrants to the Transferor as follows and acknowledges that the
Transferor is relying on such representations and warranties in connection with
its disposition of the Common Shares and acquisition of the Holdings Shares:
(a) Enforceability. This Agreement is a legal, valid and binding obligation of
the Transferee, enforceable against the Transferee by the Transferor in
accordance with its terms except as enforcement may be limited by
bankruptcy, insolvency and other laws affecting the rights of creditors
generally and except that equitable remedies may be granted only in the
discretion of a court of competent jurisdiction.
(b) No Violation. The entering into and performance of this Agreement by the
Transferee will not result in any violation of any agreement or instrument
by which the Transferee is bound or of any judgment or order to which it
is subject.
(c) Holdings Shares. The Holdings Shares shall be validly issued by the
Transferee as fully paid and non-assessable shares.
3.3 SURVIVAL. The representations and warranties set out in this Article 3
shall survive the purchase and sale of the Common Shares herein provided for and
shall continue in full force and effect for the benefit of the party in whose
favour they are expressed to be made indefinitely.
ARTICLE 4
FURTHER ASSURANCES
4.1 FURTHER ASSURANCES BY THE TRANSFEROR. Upon the request from time to time
of the Transferee, the Transferor shall execute all such transfers, assignments,
notices and other documents, shall use its reasonable efforts to obtain all such
consents and approvals (provided that the Transferor shall not be required to
make any payments to obtain the same) and shall do all such other acts and
things as the Transferee, acting reasonably, may consider necessary or advisable
to have the Common Shares registered in the name of the Transferee.
IN WITNESS WHEREOF the parties have executed this Agreement.
ONEX CORPORATION
by /s/ XXXX X. XXXXXX
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/s/ XXXXXXX XXXX
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CUSTOMERONE HOLDING
CORPORATION by
by /s/ XXXXXX X. XXX
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/s/ XXXX X. XXXXXX
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