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Exhibit 2.3
CMERUN ACQUISITION AGREEMENT entered into December 2, 1999.
BETWEEN:
C ME RUN CORP. (a Delaware corporation)
(hereinafter called "CMeRun I") OF THE FIRST PART
- and -
C ME RUN (ALBERTA) LTD. (an Alberta Corporation)
(hereinafter called "CMeRun Alberta") OF THE SECOND PART
-and-
CMERUN ACQUISITION CORP. (an Alberta Corporation)
(hereinafter called "CAC") OF THE THIRD PART
RECITALS
WHEREAS:
1. The Board of Directors of CMeRun Alberta wish to encourage CMeRun I,
directly or indirectly through its wholly owned subsidiary CAC, to
acquire by share purchase agreement, securities exchange and take-over
bid, or other form of legal business combination from the shareholders
of CMeRun Alberta, all of the issued and outstanding common shares of
CMeRun Alberta.
2. Immediately prior to such offer by CAC and/or CMeRun I the capital
structure of CMeRun Alberta will be structured such that the issued and
outstanding common shares of CMeRun Alberta shall be as set out on
Schedule "A" and the outstanding options to purchase CMeRun Alberta
Common Shares shall be as set out in Schedule "B";
3. The Board of Directors of CMeRun Alberta have determined that it will
recommend acceptance of the CAC and/or CMeRun I offer to the
shareholders of CMeRun Alberta.
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4. CAC and/or CMeRun I is willing to make an offer subject to the terms
and conditions of this Agreement.
5. CMeRun I has entered into or anticipates entering into a merger
agreement ("CMeRun I/FAC Merger Sub Agreement") with Fundae Merger Sub
Inc., a wholly owned subsidiary of Fundae Acquisition Corp. ("Fundae
Delaware"), where upon the surviving corporation shall be called C Me
Run Corp. ("C Me Run II") on terms which provide that:
(a) for each common share in CMeRun I each shareholder shall receive
1 Fundae Delaware common share;
(b) for each option in CMeRun I each holder shall receive 1 Fundae
Delaware option on equivalent terms;
(c) for each warrant in CMeRun I each holder shall receive 1 Fundae
Delaware warrant on equivalent terms; and
(d) Fundae Delaware and CMeRun II will merge to form CMeRun Corp.
("CMeRun III");
(e) Fundae Delaware and/or CMeRun III will honour the obligations of
this Agreement such that:
(i) for each common share in CMeRun Alberta, each shareholder
will receive 1 common share in CMeRun III or an
Exchangeable Share in CAC convertible into a common share
in CMeRun III; and
(ii) for each option in CMeRun Alberta each holder will
receive 1 CMeRun III option to acquire CMeRun III Common
Shares on equivalent terms.
NOW THEREFORE IN CONSIDERATION of the mutual covenants hereinafter set out, the
parties hereby agree as follows:
ARTICLE 1
THE QUALIFYING OFFER
1.1 QUALIFYING OFFER
(a) Subject to the terms and conditions of this Agreement, CAC
and/or CMeRun I agrees to make on or before February 28, 2000,
or so soon as the documentation is available to the holders of
Common Shares of CMeRun Alberta, an offer by way of share
purchase agreement, securities exchange takeover bid or other
form of legal business combination to:
(i) purchase all of the outstanding Common Shares of CMeRun
Alberta, on the following basis: either
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(A) the exchange of one (1) CMeRun I Share for
each issued and outstanding CMeRun Alberta
Common Share representing consideration of
$.001 per CMeRun Alberta Common Share (on a
fully diluted basis); or
(B) one (1) CAC Exchangeable Share which may be
converted into one (1) CMeRun I common
share; and
(ii) to assume the obligations of CMeRun Alberta under
existing option agreements by agreeing to issue CMeRun I
Common Shares upon exercise of each CMeRun Alberta option
to purchase for the same consideration as set out in the
respective option agreements.
To effect the terms of the Qualifying Offer, upon acceptance:
(i) CAC will modify its capital structure to add a class of
shares called Exchangeable Shares on the terms and
conditions set out in Schedule "C" attached hereto (or
substantially similar terms);
(ii) CMeRun I will modify its capital structure to add a class
of Series C preferred shares on the terms and conditions
set out in Schedule "D" attached hereto (or substantially
similar terms);
(iii) C Me Run I and CAC shall execute a Support Agreement on
the terms and conditions set out in Schedule "E" attached
hereto (or substantially similar terms);
(iv) C Me Run I and CAC shall execute a Voting Exchange and
Trust Agreement on the terms and conditions set out in
Schedule "F" attached hereto (or substantially similar
terms); and
(v) C Me Run I and/or CAC undertake to file a registration
statement in the US to qualify the CMeRun I common shares
which may be issued pursuant to a share purchase
agreement, securities exchange takeover bid and/or other
form of business combination, and to maintain the
registration statement in effect to a period of four
years. The terms of the registration rights are set out
in Schedule "G".
CAC and/or CMeRun I expressly reserve the right to modify the
terms of the Qualifying Offer except that, without the prior
written consent of CMeRun Alberta, CAC and/or CMeRun I shall
not reduce the Qualifying Offer price; change the form of
consideration payable under the Qualifying Offer; or add to,
amend or change any of the offer terms in any manner adverse
to the holders of Common Shares of CMeRun Alberta;
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(b) The Qualifying Offering shall expire 21 calendar days after it
is commenced (or, if such date is not a business day, on the
next following business day)("Expiry Date"), provided that the
Qualifying Offer may be extended, at the sole discretion of
CAC and/or CMeRun I, if the conditions set forth in the
Qualifying Offer are not satisfied on the Expiry Date. Subject
to the satisfaction or waiver of the conditions set forth in
the Qualifying Offer, CAC and/or CMeRun I shall within the
time periods required by law take up and pay for all common
shares validly tendered (and not properly withdraw) pursuant
to the Qualifying Offer. CAC and/or CMeRun I shall use its
reasonable commercial efforts to consummate the Qualifying
Offer, subject only to the terms and conditions hereof.
1.2 CMERUN ALBERTA APPROVAL OF THE QUALIFYING OFFER
CMeRun Alberta represents that its Board of Directors, upon
consultation with its advisors, has determined unanimously that the
Board of Directors will recommend that CMeRun Alberta Shareholders
accept the Qualifying Offer.
1.3 POST OFFER COVENANTS
If CAC and/or CMeRun I takes up and pays for Common Shares pursuant to
the Qualifying Offer, CAC, CMeRun I and CMeRun Alberta agree to use all
reasonable commercial efforts to enable CAC and/or CMeRun I to acquire
the balance of the common shares as soon as practicable after
completion of the Qualifying Offer by way of compulsory acquisition,
arrangement, amalgamation or other type of acquisition transaction
carried out for a consideration at least of equal value of the
consideration paid in the Qualifying Offer.
ARTICLE II
COVENANTS OF CMERUN ALBERTA
2.1 ORDINARY COURSE OF BUSINESS
CMeRun Alberta covenants and agrees that:
(a) CMeRun Alberta shall conduct its business only, and not take
any action except in, the usual, ordinary and regular course
of business and consistent with past practice;
(b) CMeRun Alberta shall not directly or indirectly do or permit
to occur any of the following:
(i) issue, sell, or agree to issue or sell any additional
shares of, or any options, warrants, calls,
conversion privileges or rights of any kind
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to acquire any shares of, any capital stock of CMeRun
Alberta (other than pursuant to the exercise of
existing options); or
(ii) except with the usual, ordinary and regular course of
business and consistent with past practice, any
assets of CMeRun Alberta.
(iii) amend or propose to amend its articles or by-laws;
(iv) split, combine or re-classify any outstanding common
shares, or declare, set aside or pay any dividend or
other distribution payable in cash, stock, property
or otherwise with respect to the common shares;
(v) redeem, purchase or offer to purchase any common
shares or other securities of CMeRun Alberta;
(vi) reorganize, amalgamate or merge CMeRun Alberta with
any other person, corporation, partnership or other
business organization whatsoever;
(vi) acquire or agree to acquire (by merger, amalgamation,
acquisition of stock or assets or otherwise) any
person, corporation, partnership, joint venture or
other business organization or division or acquire or
agree to acquire any material assets;
(vii) except in the usual, ordinary and regular course of
business and consistent with past practice, satisfy
any material claims or liabilities except such as
have been reserved against in CMeRun Alberta's
financial statements delivered to CMeRun I,
relinquish any material contractual rights or enter
into any interest rate, currency or commodity swaps,
xxxxxx or other similar financial instruments; or
(viii) incur or commit to incur any indebtedness for
borrowed money or issue any debt securities except
for the borrowing of working capital in the ordinary
course of business and consistent with past practice.
(c) CMeRun Alberta shall cooperate with CMeRun I and/or CAC in
structuring the acquisition by CMeRun I and/or CAC of CMeRun
Alberta in a tax efficient manner provided that no such
cooperation shall be required where such structuring shall
have any adverse effect on CMeRun Alberta.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES XX XXXXXX XXXXXXX
0.0 XXXXXXXXXXXXXXX
XXxXxx Xxxxxxx hereby represents to CMeRun I and CAC that the
information as it relates to CMeRun Alberta as has been provided to CAC
and/or CMeRun I in due diligence disclosures is accurate and CMeRun
Alberta hereby warrants the accuracy of the representations contained
therein (and acknowledge that CAC and CMeRun I are relying upon those
representations and warranties in connection with entering into this
Agreement).
3.2 INVESTIGATION
Any investigation by CMeRun I and CAC and its advisors shall not
mitigate, diminish or affect the representations and warranties of
CMeRun Alberta provided pursuant to this Agreement. Where the
provisions of this Agreement, or any other transaction document, refer
to disclosure in writing, such disclosure shall be made expressly in
response to the applicable provision and shall be signed by a senior
officer of CMeRun Alberta.
ARTICLE IV
COVENANTS OF CMERUN I
4.1 COVENANTS
CMeRun I covenants that in any merger agreement with FAC Merger Sub
and/or Fundae Delaware it will ensure that Fundae Delaware and/or
CMeRun III, as the case may be, honour the obligations of CMeRun I
under this agreement such that:
(a) each CMeRun Alberta shareholder has a right to acquire a Fundae
Delaware common share; and
(b) Fundae Delaware and/or CMeRun III shall issue options to CMeRun
option holders on equivalent terms.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CMERUN I AND CAC
5.1 REPRESENTATIONS
CMeRun I and CAC hereby represent and warrant to CMeRun Alberta that
the information as it relates to CMeRun I and CAC as provided by CMeRun
I and CAC as part of the due diligence disclosures are accurate and
CMeRun I and
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CAC hereby warrant the accuracy of the representations
contained therein (and acknowledges that CMeRun Alberta is relying upon
such representations and warranties in connection with the entering
into of this Agreement).
ARTICLE VI
MUTUAL COVENANTS
6.1 FURTHER ASSURANCES
Subject to the terms and conditions herein, CMeRun I, CAC and CMeRun
Alberta agree to use their respective commercially reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws
and regulations, to consummate the transactions contemplated by this
Agreement and the Offer. CMeRun Alberta, CMeRun I and CAC will use
their commercially reasonable efforts: (i) to obtain all necessary
waivers, consents and approvals from other parties to material loan
agreements, leases, and other contracts or agreements (including in
particular but without limitation, the agreement of any persons as may
be required pursuant to any agreement, arrangement or understanding
relating to CMeRun Alberta's operations); (ii) to obtain all necessary
consents, approvals and authorizations as are required to be obtained
under any federal, provincial or foreign law or regulations with
respect to this Agreement or the Offer; (iii) to lift or rescind any
injunction or restraining order or other order adversely affecting the
ability of the parties to consummate the transactions contemplated
hereby or by the Offer; and (iv) to fulfil all conditions and satisfy
all provisions of this Agreement and the Offer.
ARTICLE VII
TERMINATION
7.1 TERMINATION
This Agreement may be terminated at any time prior to the Effective
Time:
(a) by mutual written consent of CMeRun I, CAC and CMeRun Alberta;
(b) by either CAC or CMeRun Alberta after April 30, 2000 if CAC
and/or CMeRun I has not purchased Common Shares pursuant to
the Offer;
(c) by either CAC or CMeRun Alberta, if the conditions of the
Offer have not been satisfied or waived on the Expiry Date.
In the event of the termination of this Agreement as provided in this
Section 6.1, this Agreement shall forthwith become void and there shall
be no liability on the part of CAC, CMeRun I and/or CMeRun Alberta.
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ARTICLE VIII
MISCELLANEOUS
8.1 ENTIRE AGREEMENT
This Agreement and the documents referred to herein constitute the
entire agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements, arrangements or
understandings with respect thereto.
8.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and each
such counterpart shall be deemed to be an original instrument but all
such counterparts together shall constitute but one Agreement.
8.3 SEVERABILITY
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect
and shall in no way be affected, impaired, or invalidated and the
parties shall negotiate in good faith to modify the Agreement to
preserve each party's anticipated benefits under the Agreement.
8.4 CHOICE OF LAW
This Agreement shall be governed by, construed and in accordance with
the laws of the Province of Alberta.
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8.5 REMEDIES
The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to remedy or prevent non-compliance or
breaches with the terms of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the Province of Ontario
having jurisdiction; provided that such remedies shall be in addition
to, and not in substitution for, any other remedy to which the parties
may be entitled at law or in equity.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed on their behalf by their officers thereunto duly authorized as of the
date first above written.
C ME RUN CORP. C ME RUN (ALBERTA) LTD.
(a Delaware corporation) (an Alberta corporation)
PER:________________________________ PER:__________________________
Xxxxxxx Xxxxx Xxxxxxx Xxxxx
C ME RUN ACQUISITION CORP.
(an Alberta corporation)
PER:________________________________
Xxxxxxx Xxxxx
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SCHEDULE "A"
COMMON SHAREHOLDERS OF CMERUN (ALBERTA) LTD.
NAME NUMBER OF SHARES RELEASE #1 - DEC. 1, 2001 RELEASE #2- DEC. 1, 2002
Xxxxx Xxxxxxxxx 250,000 125,000
125,000 certificate #1 certificate #2
Xxxx Xxxxxx 250,000 125,000 125,000
certificate #3 certificate #4
Xxxxx Xxxxxx 350,000 175,000 175,000
certificate #5 certificate #6
Xxxxxx Xxxxxx 350,000 175,000 175,000
certificate #7 certificate #8
Xxx Xxxxx 250,000 125,000 125,000
certificate #9 certificate #10
Xxxx Xxxxxxx 200,000 100,000 100,000
certificate #11 certificate #12
Xxxxxxx Xxxxx 1,000,000 500,000 500,000
--------- certificate #13 certificate #14
SUBTOTAL: 2,650,000
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SCHEDULE "B"
OPTION HOLDERS OF CMERUN (ALBERTA) LTD.
C Me Run Alberta grants an option to acquire Common Shares
for $1.00 (US) per share:
NAME ADDRESS TOTAL VESTING EXPIRY DATE PRICE ($)
OPTIONS
JUNE 1, 2000 JUNE 1, 2001 DEC. 1, 0000
Xxx Xxxxx Xxxxxxx 50,000 12,500 18,750 18,750 1.00
Xxx Xxxxx Ontario 25,000 6,250 9,375 9,375 1.00
Xxxxx Xxxxxxx Alberta 25,000 6,250 9,375 9,375 1.00
Xxxxx Xxxxxx Alberta 25,000 6,250 9,375 9,375 1.00
Xxxxx Xxxxxxx Alberta 25,000 6,250 9,375 9,375 1.00
Xxx Xxxx Alberta 25,000 6,250 9,375 9,375 1.00
Xxxx Xxxxxxxx Alberta 25,000 6,250 9,375 9,375 1.00
Xxxxxxxxx Xxxxx Alberta 25,000 6,250 9,375 9,375 1.00
1396505 Ontario Inc. Ontario 22,500 5,625 8,438 8,437 1.00
Ibrahim Ontario 2,500 625 937 938 1.00
Karaibrahimovic
Xxxx Xxxxxx Alberta 25,000 6,250 9,375 9,375 1.00
Xxxxx Xxxxxxxxx Alberta 25,000 6,250 9,375 9,375 1.00
Xxxxx Xxxxxxxxx Alberta 25,000 6,250 9,375 9,375 1.00
Xxxxx Xxxxxx Alberta 25,000 6,250 9,375 9,375 1.00
-------
SUBTOTAL 350,000
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Subject to confirmation of the availability of registration and prospectus
exemptions (or US equivalents) pursuant to the Alberta Securities Act, Ontario
Securities Act applicable US state and/or US Federal Securities Act.
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X Xx Xxx Xxxxxxx to grant the following options:
NAME NUMBER OF SHARES VESTING
DEC. 1/2000 DEC. 1/2001 DEC. 1/2002
Cam Chell or Xxxxx.xxx.Xxx. 545,000 181,250 181,875 181,875
Xxxxx Xxxxxx 150,000 50,000 50,000 50,000
Xxxxxx Xxxxxx 150,000 50,000 50,000 50,000
Xxxx Xxxxxx 150,000 50,000 50,000 50,000
Xxxxx Xxxxxxxxx 150,000 50,000 50,000 50,000
JUNE 1/2000 JUNE 1/2001 DEC. 1/2002
Xxx Xxxxx 20,000 5,000 7,500 7,500
Xxxxx Xxxxxxx 20,000 5,000 7,500 7,500
Xxxxx Xxxxxx 20,000 5,000 7,500 7,500
Xxxxx Xxxxxxxxx 10,000 2,500 3,750 3,750
Xxxxx Xxxxx 10,000 2,500 3,750 3,750
Xxxxx Xxxxxx 10,000 2,500 3,750 3,750
Xxxxx Xxxxxxx 20,000 5,000 7,500 7,500
Xxx Xxxx 10,000 2,500 3,750 3,750
Xxxx Xxxxxxxx 10,000 2,500 3,750 3,750
Xxxxxxxxx Xxxxx 5,000 1,250 1,875 1,875
1396505 Ontario Inc. 15,000 3,750 5,625 5,625
Ibrahim Karaibrahimovic 5,000 1,250 1,875 1,875
Unallocated 1,450,000
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SUBTOTAL 2,750,000
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Subject to confirmation of the availability of registration and prospectus
exemptions (or US equivalents) pursuant to the Alberta Securities Act, Ontario
Securities Act applicable US state and/or US Federal Securities Act.
