SHARE EXCHANGE AGREEMENT
THIS AGREEMENT made effective as at the 31st day of August, 1994.
AMONG:
TALGARTH LIMITED, a body corporate under the laws of Guernsey, Channel
Islands, of P.O. Box 175, Xxxxxxx House, Xxx Xxxxxxx Place, St. Xxxxx
Port, Guernsey, Channel Islands, GY1 4HQ (hereafter "Talgarth")
OF THE FIRST PART
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EDGEWELL LIMITED, a body corporate under the laws of Guernsey, Channel
Islands of P.O. Box 175, Xxxxxxx House, Xxx Xxxxxxx Place, St. Xxxxx
Port, Guernsey, Channel Islands, CYI 4HQ (hereafter "Edgewell")
OF THE SECOND PART
(Talgarth and Edgewell are collectively referred to as the "Classic
Shareholders")
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CLASSIC PORTRAITS AND DESIGN LTD. a body corporate incorporated under
the laws of Alberta, of 104 - 00000 - 000 Xxxxxx, Xxxxxxxx, Xxxxxxx
(hereafter "Classic")
OF THE THIRD PART
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XXXXXXX INVESTMENTS LTD., a body corporate incorporated under the
laws of Alberta of 1410, 0000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx, X0X
0X0 (hereafter "Xxxxxxx")
OF THE FOURTH PART
WITNESSES THAT:
WHEREAS:
A. The Classic Shareholders own the Classic Shares as set out in schedule
"A";
B. The Classic Shareholders and Xxxxxxx wish to effect the exchange of
the Classic Shares for the Xxxxxxx Shares, upon the terms and
conditions hereinafter set forth; and
D. This Agreement is intended to be approved by the shareholders of
Xxxxxxx as the "Major Transaction" of Xxxxxxx within the meaning of
Policy 4.11 of the Alberta Securities Commission and Circular No. 7
of the Alberta Stock Exchange.
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NOW THEREFORE the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement and the recitals hereto, the following words and phrases
have the following respective meanings:
a. "Xxxxxxx" means Xxxxxxx Investments Ltd.;
b. "Xxxxxxx Shares" means fully paid and non-assessable common shares in
the capital of Xxxxxxx to be issued to the Classic Shareholders as set
out in Schedule "A" attached hereto;
c. "Xxxxxxx Financial Statements" means the audited financial statements
of Xxxxxxx for the fiscal period ended November 25, 1993 attached and
forming part of the prospectus of Xxxxxxx dated March 4, 1994;
d. "Circular No. 7" means Circular No. 7 of The Alberta Stock Exchange,
as amended from time to time;
e. "Closing" means the completion of all transactions and matters under
this Agreement to occur on or before the Closing Time;
f. "Closing Time" means 10:00 a.m. on the second business day after the
approval of this Agreement as a Major Transaction in the manner
required by Policy 4.11 and Circular No. 7;
g. "Edgewell" means Edgewell Limited;
h. "Effective Date" means the date of Closing;
1. "Escrow Agreement" means the form of escrow agreement set out in
Schedule "C" attached hereto;
j. "Classic" means Classic Portraits and Design Ltd.;
k. "Classic Financial Statements" means the audited financial statements
of Classic for the fiscal period ended July 31, 1994 attached hereto
as Schedule "B";
l. "Classic Shares" means the common shares in the capital of Classic to
be transferred to Xxxxxxx under this Agreement as set out in Schedule
"A" attached hereto;
m. "Classic Shareholders" means Talgarth and Edgewell;
n. "Policy 4.11" means Policy 4.11 of the Alberta Securities Commission
as amended from time to time;
o. "Talgarth" means Talgath Limited; and
p. "Valuation" means Xxxxxxx Investments Ltd. Valuation of all the Issued
and Outstanding Shares of Classic Portraits and Design Ltd., prepared
by Acumen Management Consultants and dated June, 1994.
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ARTICLE 2
AGREEMENT TO EXCHANGE
2.1 Classic Shares
The Classic Shareholders hereby agree to sell the Classic Shares to Xxxxxxx
in consideration of the issuance by Xxxxxxx to the Classic Shareholders of the
Xxxxxxx Shares.
2.2 Xxxxxxx Shares
Xxxxxxx hereby agrees to issue the Xxxxxxx Shares to the Classic
Shareholders for the Classic Shares as fully paid and non-assessable shares, in
consideration of the transfer of the Classic Shares held by the Classic
Shareholders. The parties hereto acknowledge and agree that the Xxxxxxx Shares
shall be issued subject to substantially the escrow provisions contained in the
form of Escrow Agreement attached hereto as Schedule "C".
2.3 Other Shares
If and to the extent that the Classic Shareholders have any absolute,
contingent, optional, pre-emptive or other right to acquire shares in the
capital of Classic, the Classic Shareholders shall be conclusively deemed, as
and from Closing, to have transferred the same to Xxxxxxx to the fullest extent
permitted by law, and to otherwise hold the same in trust for and at the
direction of Xxxxxxx.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Representations and Warranties of the Classic Shareholders
Effective both as at the date hereof and as at the Closing Time, the
Classic Shareholders individually represent and warrant to Xxxxxxx that:
a. the Classic Shareholders are each a resident of Guernsey, Channel
Islands, for the purposes of the Income Tax Act (Canada), as amended,
and are not a "Canadian" as defined in the Investment Canada Act
(Canada), as amended;
b. the Classic Shareholders are the sole, full and absolute legal and
beneficial owner of the Classic Shares and the said Classic Shares are
fully paid and non-assessable and free and clear of liens, charges,
encumbrances, pledges, mortgages, hypothecations and adverse claims,
of any and all nature whatsoever, including without limitation options
and pre-emptive and other rights of acquisition, in favour of any
person, firm or body corporate, whether conditional or absolute;
c. the Classic Shareholders have the full right to vote all of the
Classic Shares and in particular but without limitation such shares
are not, and will not be immediately prior to Closing; be subject to
any voting trust or similar arrangement; and
d. the Classic Shareholders have the full authority and capacity required
to enter into this Agreement and perform its obligations hereunder.
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3.2 Representations and Warranties of Classic
Effective both as at the date hereof and as at the Closing Time, Classic
represents and warrants to Xxxxxxx that:
a. Classic is duly incorporated and validly subsisting according to the
laws of Alberta and is registered or qualified to carry on business in
all jurisdictions where the nature of its assets or its business
require such registration or qualification;
b. the entry into and performance of this Agreement by Classic has been
duly authorized by the Board of Directors of Classic;
c. the entry into and performance of this Agreement by Classic will not
result in the violation of any applicable law, the Articles of
Incorporation or Articles of Amendment of Classic, any court or
administrative judgment or order or any indenture or agreement which
Classic is a party to or bound by, and Classic has full right and
authority to enter into and perform this Agreement on the terms
contained herein;
d. Classic is a "private company" as defined in the Securities Act
(Alberta), as amended, and is not a "distributing corporation" as
defined in the Business Corporation Act (Alberta), as amended;
e. The authorized capital of Classic is an unlimited number of Class "A",
Class "B" and Class "C" common shares of which the only issued and
outstandIng shares of Classic are as set out in Schedule "A";
f. there are no outstanding securities of Classic which are convertible
into shares of Classic and, there are no outstanding options or rights
to subscribe for or receive the issuance of any shares in the capital
of Classic;
g. the minute book of Classic contains complete and accurate minutes of
all meetings of the directors and shareholders of Classic held since
its incorporation, all such meetings were duly called and held and all
registers therein are complete and accurate;
h. there have been no amendments made to the By-laws or Articles of
Incorporation of Classic, and there are no resolutions, special
resolutions or other proceedings pending for any further amendment,
excepting a name change that was completed on December 31, 1993 by
Articles of Amendment;
i. the books and records of Classic fairly and correctly set out and
disclose in all material respects, in accordance with generally
accepted accounting principles consistently applied, the financial
position of Classic as at this date and will be accurate at Closing
and all material financial transactions of Classic have been
accurately recorded in such books and records;
j. the Classic Financial Statements have been prepared in accordance with
generally accepted accounting principles, and present fairly (i) the
assets, liabilities (whether accrued, absolute, contingent or
otherwise) and the financial condition of Classic as at the date
thereof, and (ii) the results of its operations during the periods
covered by the Classic Financial Statements, and the financial
position of Classic is now at least as good as that shown by or
reflected in the Classic Financial Statements;
k. since July 31, 1994 the business of Classic has been carried on in the
usual and ordinary course and there has been no material adverse
change in the affairs, business, prospects, operations or conditions
of Classic, financial or otherwise, howsoever arising;
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l. except for (i) liabilities which are disclosed, reflected or
adequately provided for in the Classic Financial Statements, or which
need not be disclosed, reflected or adequately provided for in the
Classic Financial Statements under generally accepted accounting
principles, and (ii) liabilities incurred in the ordinary course of
business after the date of the Classic Financial Statements, Classic
has no absolute or contingent liabilities which are material to its
affairs, business, prospects, operations or condition, financial or
otherwise;
m. Classic has duly and timely filed all tax returns required to be filed
by it and has paid all taxes and assessments which are shown on such
returns as due and payable by it and adequate provision has been made
for taxes payable for the current period for which tax returns are not
yet required to be filed;
n. Since August 31, 1994 Classic has not (i) declared and paid or set
aside for payment any dividend, whether in cash, shares or otherwise;
(ii) reduced its stated capital in any manner or purchased, acquired,
cancelled or redeemed, or agreed to purchase, acquire, cancel or
redeem, any outstanding shares in its issued capital; or (iii)
authorized or paid any bonus or similar payment to any employee,
officer or director, and Classic is not presently indebted to any of
its present or former shareholders, directors or officers in any
material respect;
o. except as specifically disclosed to Xxxxxxx in writing, there are no
actions, suits or proceedings (whether or not purportedly on behalf of
Classic), and having or reasonably capable of having a material
adverse effect on Classic, outstanding, pending or threatened by or
against or affecting Classic at law or in equity or before or by any
federal, provincial, municipal or other governmental department,
commission, board, bureau, agency or instrumentality;
p. Classic has no wholly or partially owned subsidiary bodies corporate
and no obligation to wholly or partially acquire the shares of any
body corporate other than the wholly owned subsidiaries;
q. all written data, information and reports supplied by or on behalf of
Classic in connection with the Valuation is complete and accurate in
all material respects;
r. Classic is a Canadian resident for the purposes of the Income Tax Act
(Canada), as amended, and is not a "Canadian" as defined in the
Investment Canada Act (Canada), as amended;
s. Classic holds all licenses, authorizations and permits required by law
in relation to the business carried on by Classic and the business of
Classic is in compliance with all applicable laws;
t. Classic has no labour union agreement in effect or pending in relation
to its operations; and
u. Classic owns no real estate and is the lessee of the space at 104 -
10315 000 Xxxxxx, Xxxxxxxx, Xxxxxxx, 0000 00 Xxxxxx, Xxxxxxxx,
Xxxxxxx, 000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx and 00000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx.
The recourse of Xxxxxxx for any inaccuracy in any of the foregoing
representations and warranties is expressly limited and restricted to the
indemnity provided for in Section 3.5.
3.3 Representations and Warranties of Xxxxxxx
Effective both as at the date hereof and as at the Closing Time, Xxxxxxx
represents and warrants to the Classic Shareholders that:
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x. Xxxxxxx is duly incorporated and validly subsisting and is registered
or qualified to carry on business in all jurisdictions where the
nature of its assets or its business require such registration or
qualification;
b. the entry into and performance of this Agreement by Xxxxxxx has been
duly authorized by the directors of Xxxxxxx;
c. the entry into and performance of this Agreement by Xxxxxxx will not
result in the violation of any applicable law, the Articles of
Incorporation of Xxxxxxx, any court or administrative judgment or
order or any indenture or agreement which Xxxxxxx is a party to or
bound by, and Xxxxxxx has full right and authority to enter into and
perform this Agreement on the terms contained herein;
x. Xxxxxxx is in all respects in good standing with and up to date in
regard to all filings required by The Alberta Stock Exchange and
Xxxxxxx is not in default of any requirements under the Securities Act
(Alberta), as amended, or any regulations pursuant thereto;
e. the authorized capital of Xxxxxxx is an unlimited number of common
shares and an unlimited number of preferred shares of which, at the
Closing Time, the following will be the only shares issued and
outstanding:
Class of Shares No. Issued
--------------- ----------
common shares 4,583,000
f. the common shares of Brockor are listed and posted for trading only on
The Alberta Stock Exchange, and are not subject to any cease trading
or trading suspension order;
x. Xxxxxxx is, and has been since March 4, 1994 a "reporting issuer" in
accordance with the Securities Act (Alberta), as amended, for the
purposes of the transactions provided for in this Agreement;
h. there are no outstanding securities of Xxxxxxx which are convertible
into shares of Xxxxxxx and, except for the following, there are no
outstanding options or rights to subscribe for or receive the issuance
of any shares in the capital of Xxxxxxx:
NAME OF NUMBER OF COMMON EXERCISE PRICE PER
OPTIONEE SHARES UNDER OPTION COMMON SHARE EXPIRY DATE
--------------------------------------------------------------------------------------
Yorkton Securities Inc. 200,000 $0.10 February 16, 1996
Xxxx X. Xxxx 91,600 $0.10 November 25, 1998
Xxxxx X. X'Xxxxx 91,600 $0.10 November 25, 1998
Xxxxxx X. Xxxxxxxxx 91,600 $0.10 November 25, 0000
Xxxxx X. Xxxxx 91,600 $0.10 November 25, 1998
Xxxxx Xx 91,600 $0.10 November 25, 1998
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i. the minute book of Xxxxxxx contains complete and accurate minutes of
all meetings of the directors and shareholders of Xxxxxxx held since
its incorporation, all such meetings were duly called and held and all
registers therein are complete and accurate;
j. since the date of incorporation of Xxxxxxx there have been no
amendments made to the By-laws or Articles of Incorporation of Xxxxxxx
and there are no resolutions, special resolutions or other proceedings
pending for any such amendment;
k. the books and records of Xxxxxxx fairly and correctly set out and
disclose in all material respects, in accordance with generally
accepted accounting principles consistently applied, the financial
position of Xxxxxxx as at December 2, 1993 and all material financial
transactions of Xxxxxxx have been accurately recorded in such books
and records;
l. the Xxxxxxx Financial Statements have been prepared in accordance with
generally accepted accounting principles, and present fairly (i) the
assets, liabilities (whether accrued, absolute, contingent or
otherwise) and the financial condition of Xxxxxxx at the date thereof,
and (ii) the results of its operations during the period covered by
the Xxxxxxx Financial Statements, and the financial position of
Xxxxxxx is now at least as good as that shown by or reflected in the
Xxxxxxx Financial Statements provided that Xxxxxxx has completed its
initial public offering pursuant to the March 4, 1994 prospectus and
received $200,000 less commission and offering expenses;
m. since incorporation the business of Xxxxxxx has been carried on in the
usual and ordinary course and there has been no material adverse
change in the affairs, business, prospects, operations or conditions
of Xxxxxxx, financial or otherwise, howsoever arising other than the
completion of the initial public offering and entering into this
agreement;
n. except for (i) liabilities which are disclosed, reflected or
adequately provided for in the Xxxxxxx Financial Statements, or which
need not be disclosed, reflected or adequately provided for in the
Xxxxxxx Financial Statements under generally accepted accounting
principles, and (ii) liabilities incurred in the ordinary course of
business after the date of the Xxxxxxx Financial Statements, Xxxxxxx
has no absolute or contingent liabilities which are material to its
affairs, business, prospects, operations or condition, financial or
otherwise;
x. Xxxxxxx has duly and timely filed all tax returns required to be filed
by it and has paid all taxes and assessments which are shown on such
returns as due and payable by it and adequate provisions has been made
for taxes payable for the current period for which tax returns are not
yet required to be filed;
x. Xxxxxxx has not (i) declared and paid or set aside for payment any
dividend, whether in cash, shares or otherwise; (ii) reduced its
stated capital in any manner or purchased, acquired, cancelled or
redeemed, or agreed to purchase, acquire, cancel or redeem, any
outstanding shares in its issued capital; or (iii) authorized or paid
any bonus or similar payment to any employee, officer or director, and
Xxxxxxx is not presently indebted to any of its present or former
shareholders, directors or officers in any material respect;
q. except as specifically disclosed to Classic in writing, there are no
actions, suits or proceedings (whether or not purportedly on behalf of
Xxxxxxx) and having or reasonably capable of having a material adverse
effect on Xxxxxxx, outstanding, pending or threatened by or against or
affecting Xxxxxxx at law or in equity or before or by any federal,
provincial, municipal or other governmental department, commission,
board, bureau, agency or instrumentality;
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x. Xxxxxxx has no wholly or partially owned subsidiary bodies corporate
and no obligation to wholly or partially acquire the shares of any
body corporate;
x. Xxxxxxx is a Canadian resident for the purposes of the Income Tax Act
(Canada), as amended, and a "Canadian" as defined in the Investment
Canada Act (Canada), as amended;
x. Xxxxxxx holds all licenses, authorizations and permits required by law
in relation to the business carried on by Xxxxxxx and the business of
Xxxxxxx is in compliance with all applicable laws;
u. Except as disclosed in the final prospectus of Xxxxxxx dated March 4,
1994, Xxxxxxx is not a party to any contracts, leases, licenses or
other agreements of any kind; and
v. On the Closing, Xxxxxxx shall have liquid assets of not less than
$200,000.
The recourse of the Classic Shareholders for any inaccuracy in any of the
foregoing representations and warranties is expressly limited and restricted to
the indemnity provided for in Section 3.5.
3.4 Survival
The representations and warranties in Sections 3.1, 3.2 and 3.3 shall
survive Closing, in accordance with the following provisions:
a. the representations and warranties relating to tax liability shall,
unless based upon any misrepresentation made or fraud committed in
filing a return or supplying information for the purposes of the
Income Tax Act (Canada), as amended, or any other legislation imposing
tax, continue in full force and effect until the expiration of the
last of the limitation periods contained in the Income Tax Act
(Canada), as amended, and any other applicable legislation imposing
tax, subsequent to the expiration of which an assessment, reassessment
or other form or recognized document assessing liability for tax,
interest or penalties thereunder for the period ended on the Closing
Time cannot be issued;
b. the representations and warranties relating to tax liability and based
upon any misrepresentation made or fraud committed in filing a return
or in supplying information for the purposes of the Income Tax Act
(Canada), as amended, or any other legislation imposing tax shall
continue in full force and effect and be unlimited as to duration; and
c. the representations and warranties set forth in Section 3.1 and the
remaining representations and warranties set forth in Sections 3.2 and
3.3 shall continue in full force and effect for a period of one (1)
year from the date hereof.
After the applicable survival period specified in subsections 3.4(a) and
3.4(c), if no claim shall have been made hereunder prior to expiry of such
survival periods against a party hereto with respect to any incorrectness in or
breach of any representation or warranty contained herein, the party making the
representation or warranty in this Agreement shall have not further liability
hereunder with respect to any such representation or warranty.
3.5 Indemnity
Xxxxxxx hereby agrees to indemnify and save harmless the Classic
Shareholders and Classic, and the Classic Shareholders individually hereby agree
to indemnify and save Xxxxxxx harmless from and against all losses, claims,
actions, causes of action and liabilities, of any and all nature whatsoever,
which the other may suffer, sustain or incur or which may be brought, made or
asserted against the other as the result of any
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inaccuracy in any representation and warranty made in this Agreement by the
indemnifying party, subject to the following limitations:
a. there shall be no obligation to indemnify unless the total claim of
Xxxxxxx, Classic, or the Classic Shareholders exceeds or could exceed
$50,000;
b. there shall be no obligation to indemnify in respect of a claim not
made in writing both within:
i. the applicable survival period, if any, specified in Section 3.4;
and
ii. the period of 120 days from the date upon which the party
claiming the indemnity first learned of the facts giving rise to
the claim;
c. the liability of Xxxxxxx to the Classic Shareholders under this
section shall not, in the aggregate, exceed the product obtained by
multiplying the number of Xxxxxxx Shares issued to the Classic
Shareholders under this Agreement by $0.20 per share;
d. the liability of the Classic Shareholders to Xxxxxxx under this
section shall not, in the aggregate, exceed the product obtained by
multiplying the number of Xxxxxxx Shares issued to the Classic
Shareholders under this Agreement by $0.20 per share;
e. the effect of an inaccuracy in any representation and warranty shall
be assessed in the total context of this Agreement;
f. Classic shall not be considered to be in breach of any representation
and warranty concerning the assets or liabilities of Classic by reason
of an inaccuracy in aggregate assets or aggregate liabilities which
occurs in good faith and does not exceed $50,000; and
x. Xxxxxxx shall not be considered to be in breach of any representation
and warranty concerning the assets or liabilities of Xxxxxxx by reason
of an inaccuracy in aggregate assets or aggregate liabilities which
occurs in good faith and does not exeed $50,000.
3.6 Tax Information
The parties shall provide each other with such assistance as may reasonably
be requested by any of them in connection with the preparation of any return of
taxes, any audit or other examination by any trading authority, or any judicial
or administrative proceedings relating to liabilities for taxes arising out of
this Agreement, and each will retain and, upon request of the other, provide the
other with such records or information as is relevant to such return, audit or
examination or proceedings. Such assistance shall include providing copies of
any relevant returns of taxes and supporting work schedules. The party
requesting assistance hereunder shall reimburse the other for reasonable
out-of-pocket expenses incurred by the other in providing such assistance. Any
party in possession of records or information relating to taxes shall retain
such records and information for such time as may be prescribed by any relevant
legislation.
3.7 Tax Assessments
If any assessment or reassessment of income tax results or may result in
making any representation and warranty in this Agreement inaccurate in any
material respect, the party (and if more than one party, any on of them) making
the representation and warranty may, at its or their expense, require the same
to be contested in such manner and upon such basis as such party or parties may
reasonably determine. All other parties shall offer all reasonable cooperation
(but without the obligation to incur expense) as may be required in connection
therewith.
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ARTICLE 4
PRE-CLOSING MATTERS
4.1 Preservation of Representations and Warranties
Each of the parties shall, at all times up to and including the Closing
Time, do or cause to be done all such acts and things as may be required to
ensure the continued material accuracy of the representations and warranties
made by it in Article 3.
4.2 Commitments
Classic and Xxxxxxx respectively agree with each other that, except for
commitments existing at the date of this Agreement and disclosed or referred to
in this Agreement, they will not, between the date hereof and the Closing Time,
(i) undertake or make any absolute or contingent commitments or expenditures in
the aggregate exceeding $50,000 in cash or cash equivalent, or (ii) in any way
alienate or otherwise dispose of any of their respective assets or properties,
unless the consent of the other is first obtained, such consent not to be
unreasonably withheld.
4.3 Public Announcements
Xxxxxxx and Classic shall consult with each other before any press release
is issued or other public statement made with respect to this Agreement and the
transactions provided hereby, and, except as may be required by law or pursuant
to any listing agreement with any stock exchange, no such press release or
public statement shall be issued or made without the prior consent of the other,
such consent not to be unreasonably withheld.
4.4 Examination
At all reasonable times up to the Closing Time, Classic and Xxxxxxx shall:
a. permit the other to examine and inspect, in organized form, and to
take extracts from, their respective books, records, accounts, data
systems, and files; and
b. furnish to the other such information relating to their respective
attairs, businesses, prospects, operations, conditions and assets,
as may be reasonably requested from time to time and as they respectively have
access to or control over. The rights under this section shall be extended to
the respective representatives and professional advisors of Xxxxxxx and Classic.
ARTICLE 5
CLOSING
5.1 Conditions of Classic Shareholders
The obligation of the Classic Shareholders to complete the transactions
provided for in this Agreement is subject to the following conditions:
a. the representations and warranties of Xxxxxxx in this Agreement shall
be true and correct in all material respects as at the Closing Time;
b. the board of directors of Xxxxxxx shall have authorized and approved
this Agreement and all acts and things required to be performed on the
part of Xxxxxxx hereunder;
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x. Xxxxxxx shall have complied with all obligations on its part under
this Agreement required to be performed at or before the Closing Time;
d. Receipt of a legal opinion from counsel to Xxxxxxx that all Alberta
Stock Exchange and other regulatory requirements have been complied
with, that all shareholder and other approvals required to complete
the transaction have been obtained and that the Xxxxxxx Shares have
been accepted for listing by the Alberta Stock Exchange; and
e. The present directors of Xxxxxxx have agreed to sell their 2,583,000
common shares of Xxxxxxx to the Classic Shareholders;
f. No challenge is made under the Investment Canada Act to the
transaction.
If any or all of the aforesaid conditions are not fulfilled, the Classic
Shareholders may withdraw from this Agreement by notice to Xxxxxxx and in that
event the Classic Shareholders shall be released from all obligations hereunder
and Xxxxxxx shall also be released from all obligations hereunder in regard to
the withdrawing Classic Shareholders. Notwithstanding the foregoing, the Classic
Shareholders may by written instrument waive compliance with any of the said
conditions, without prejudice to its rights of rescission in the event of
non-fulfilment of any other condition or conditions.
5.2 Conditions of Xxxxxxx
The obligations of Xxxxxxx to complete the transactions provided for in
this Agreement is subject to the following conditions:
a. the representations and warranties of Classic and the Classic
Shareholders in this Agreement shall be true and correct in all
material respects as at the Closing Time and the President of Classic
shall provide a Certificate that the representation and warranties
contained in Section 3.2 are true and correct at Closing Time;
b. Classic and the Classic Shareholders shall have complied with all the
obligations on their respective parts required to be performed at or
before the Closing Time;
c. the board of directors of Classic shall have approved of all matters
contemplated by the transfer of the Classic Shares to Xxxxxxx, and all
other acts and things shall have occurred as are necessary to give
Xxxxxxx full status as owner of the Classic Shares, upon delivery to
Xxxxxxx of the certificates therefor; and
d. this Agreement shall have been executed by each party listed in
Schedule "A" as owning shares in Classic.
If any or all of the aforesaid conditions are not fulfilled, Xxxxxxx may rescind
this Agreement by notice to the Classic Shareholders, and in such event Xxxxxxx
shall be released from all obligations hereunder. Unless the condition or
conditions, the non-performance of which has given rise to rescission, were
reasonably capable of being performed or caused to be performed by them, then
the Classic Shareholders shall also be released from all obligations hereunder.
Notwithstanding the foregoing, Xxxxxxx may waive by written instrument
compliance with any of the said conditions, without prejudice to its right of
rescission in the event of non-fulfilment of any other condition or conditions.
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5.3 Mutual Conditions
The obligations of all parties to complete the transactions provided for in
this Agreement are subject to the conditions that:
a. The Alberta Stock Exchange shall have approved this Agreement and the
within contemplated transactions at or before the Closing Time;
b. the shareholders of Xxxxxxx shall have approved this Agreement and the
transactions contemplated hereunder and the acquisition of all the
shares of Classic at a meeting of the shareholders of Xxxxxxx duly
called and held in accordance with the provisions of Policy 4.11 and
Circular No. 7;
c. at or before the Closing Time, The Alberta Stock Exchange shall have
agreed to list the Xxxxxxx Shares for trading upon release from
escrow;
d. all closing documentation tabled by or on behalf of the parties hereto
shall be mutually satisfactory to counsel acting for each of the
Classic Shareholders and Xxxxxxx.
Xxxxxxx alone shall bear the cost and expense of obtaining fulfilment of the
conditions set forth in paragraphs 5.3.a, b and c. above, and each of Classic
and Xxxxxxx agrees to use their best efforts to achieve fulfilment of the said
conditions. If any of the said conditions are not fulfilled by the Closing Time,
this Agreement shall automatically terminate, with all parties released from
liability hereunder.
5.4 Closing Obligations of Xxxxxxx
At the Closing Time, Xxxxxxx shall:
a. tender to the Classic Shareholders share certificates for the Xxxxxxx
Shares to be issued to the Classic Shareholders in the numbers set
forth in Schedule "A", such certificates to be in the form required by
law and by the constating documents of Xxxxxxx provided however that
such share certificates shall be delivered to the trustee of the
Escrow Agreement to be held pursuant to the terms of the Escrow
Agreement;
b. do or cause to be done all such acts and things as may be required to
give the Classic Shareholders full status as owners of their
respective Xxxxxxx Shares set forth in Schedule "A"; and
c. execute and deliver to the Classic Shareholders an Escrow Agreement
regarding the Xxxxxxx Shares in substantially the form as set out in
Schedule "C"; and
d. tender the regulations of the Xxxxxxx directors and such resolutions
as may be required to permit the Classic Shareholders to appoint their
nominees to the Board of Xxxxxxx.
5.5 ClosIng Obligations of Classic Shareholders
At the Closing Time, the Classic Shareholders shall:
a. tender to Xxxxxxx the share certificate or certificates for the
Classic Shares owned by each of them, as set forth in Schedule "A",
duly endorsed for transfer to Xxxxxxx;
E-555
- 13 -
b. tender to Xxxxxxx a new share certificate registered in the name of
Xxxxxxx for the Classic Shares owned by each of them as aforesaid,
such share certificate to be in the form required by law and by the
constating documents of Classic; and
c. execute the Escrow Agreement delivered to the Classic Shareholders by
Xxxxxxx as aforesaid, and deliver or cause the Escrow Agreement to be
delivered to the trustee therein.
5.6 Closing Arrangements
Closing shall take place at the Closing Time at the offices of Xxxxxxx X.
Xxxxxx, Barrister and Solicitor, 1410, 0000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx
X0X 0X0 or such other place as may be agreed upon by the parties.
ARTICLE 6
EFFECTIVE DATE
6.1 Notwithstanding the Closing Time or any other term herein the Effective Date
of the sale shall be the date of Closing or such other date as accountants to
Xxxxxxx shall advise.
ARTICLE 7
GENERAL PROVISIONS
7.1 Headings
The headings in this Agreement have been included solely for convenience of
reference and shall not affect the interpretation of any of the provisions of
this Agreement.
7.2 Gender and Number
The provisions of this Agreement shall be read with all changes in gender
and number as may be required by the context.
7.3 Waiver and Amendment
This Agreement may only be amended by further written agreement executed
and delivered by all parties. No waiver or consent by a party of or to any
breach or default by another party shall be effective unless evidenced in
writing, executed and delivered by the party so waiving or consenting. No such
waiver or consent shall operate as a waiver of or consent to any further or
other breach of default in relation to the same or any other provision of this
Agreement.
7.4 Entirety of Agreement
This Agreement contains the entire agreement among the parties with respect
to the matters of agreement herein, and the parties acknowledge and agree that
there are no oral or other written agreements, undertakings, promises,
conditions, representations or warranties respecting the matters of agreement
herein.
7.5 Severance
If any provisions of this Agreement is judicially determined to be void,
illegal or unenforceable, such provision shall be ineffective to the extent of
such voidness, illegality or unenforceability, but without invalidating or
affecting the validity or enforceability of any of the remaining provisions of
this Agreement.
E-556
- 14 -
7.6 Arbitration
In the event of a dispute the parties hereto each agree to arbitrate such
matters pursuant to the terms of the Arbitration Act (Alberta) and agree to be
bound to any decision thereof. The purpose of this clause is to avoid the cost
and delays of legal proceedings in the courts of Alberta. Cost of the arbitrator
shall be paid by the party losing the arbitration.
7.7 Proper Law and Jurisdiction of Adjudication and Trades
This Agreement shall be construed in accordance with the laws of Alberta
and the federal laws of Canada. Each of the parties hereto irrevocably attorns
to the jurisdiction of the Courts of Alberta and consents that any dispute
between them may be litigated in and adjudicated upon by any otherwise
appropriate Court located in Alberta subject to section 7.6. Further, the
parties hereto acknowledge and agree that the trades of the Classic Shares for
Xxxxxxx Shares as contemplated herein will occur within Alberta.
7.8 Schedules
The following schedules are attached hereto and form a part of this
Agreement:
Schedule "A" - The Classic Shareholders
Schedule "B" - Classic Financial Statements
Schedule "C" - Escrow Agreement
7.9 Confidentiality
Each party shall treat as confidential, shall not communicate to others and
shall use its best efforts to prevent those within its employ and control from
communicating to persons other than its solicitors, accountants, banker and
other professional advisors prior to the Closing Time (and, if the transactions
contemplated by this Agreement do not close for any reason whatsoever,
subsequent to the Closing Time) all written information which it receives
pursuant to or in relation to this Agreement and which is marked "confidential".
The foregoing shall not apply to information which:
a. at the time of disclosure is in the public domain;
b. becomes part of the public domain by publications or otherwise,
through no act or omission on the part of the restricted party; or
c. must be and is disclosed by requirement of law or pursuant to
established policy or any listing agreement with any securities
exchange.
7.10 Notices
All notices and other communications required or permitted to or in
relation to this Agreement shall be in writing and shall be:
a. personally served upon the addressee (if an individual) or an officer
or director of the addressee (if a body corporate), in which case such
notice or other communication shall conclusively be deemed to have
been given to the addressee at the time of such service; or
E-557
- 15 -
b. sent by postage prepaid first class mail addressed to the addressee at
the following respective addresses or to the fax numbers hereinafter
se out:
i. For the Classic Shareholders:
P.O. Box 175, Xxxxxxx House,
Xxx Xxxxxxx Xxxxx
Xx. Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxx Xxxxxxx, XX0 4HQ
fax: 0000 000000 / 715544
ii. For Classic:
Xxxxxx & Xxxxx
Barrister & Solicitors
2800, 00000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx TSJ 3V9
Attention: Xxxxxx Xxxxxx
fax: (000) 000-0000
iii. For Xxxxxxx:
Xxxxxxx X. Xxxxxx Professional Corporation
1410, 0000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
fax: (000) 000-0000
in which case such notice or other communication shall conclusively be
deemed to have been given to the addressee upon the same date as the fax
transmission or if mailed, on the expiration of the 5th day (excluding
Saturdays, Sundays and statutory holidays), free from interruption in the
postal service, from the date of mailing. If the postal service is
interrupted due to a strike, lockout or other cause, whether at the time of
such mailing or during the said period of 5 days, service of such notice or
other commnunication shall not be effective unless given in accordance with
the provisions of paragraph 7.10.a. Any party may by notice in writing to
the other parties change its address for service.
7.11 Prohibition on Assignment
No party hereto may assign all or any part to the benefit of this
Agreement.
7.12 Time of the Essence
Time shall be of the essence in this Agreement.
7.13 Further Assurances
A party shall, upon request of another party, execute and deliver or cause
to be executed and delivered all such documents, deeds and other instruments of
further assurance and do or cause to be done all such acts and things as may be
reasonably necessary or advisable to implement and give full effect to the
provisions of this Agreement.
X-000
- 00 -
0.00 Xxxxxxxxxxx Execution
This Agreement may be executed in counterpart and when each party has
executed a counterpart, all counterparts shall constitute one agreement.
7.15 Effective Date
Notwithstanding the date or dates upon which this Agreement is executed and
delivered by the parties, this Agreement shall be effective among the parties as
of and from the date first above written.
7.16 Enurement
This Agreement shall enure to the benefit of and be binding upon the
parties, the successors and permitted assigns of corporate parties and the
heirs, executors, administrators, personal representatives, successors and
assigns of individual parties.
7.17 Commission
The parties hereto hereby represent and warrant to each other that there
are no agent's or broker's commissions payable in respect of the within
contemplated transaction.
IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed and delivered.
XXXXXXX INVESTMENTS LTD. CLASSIC PORTRAITS AND DESIGN LTD.
per: /s/ [ILLEGIBLE] per: /s/ [ILLEGIBLE]
------------------------------ ----------------------------c/s
per: /s/ [ILLEGIBLE]
------------------------------c/s
TALGARTH LIMITED EDGEWELL LIMITED
per: /s/ [ILLEGIBLE] per: /s/ [ILLEGIBLE]
------------------------------ -------------------------------
FIDSEC LIMITED FIDSEC LIMITED
Secretary Secretary
/s/ [illegible] /s/ [illegible]
----------------------------- -----------------------------
Authorised Signatory Authorised Signatory
E-559
- 17 -
SCHEDULE "A"
The Classic Shareholders
Classic Shareholders Classic Shares Xxxxxxx Shares
-------------------- --------------
Talgarth Limited 49 1,715,000
Edgewell Limited 51 1,785,000
Totals 100 3,500,000
X-000
- 00 -
XXXXXXXX "X"
Classic Financial Statements
E-561
- 1 -
SCHEDULE "C"
FORM A
Escrow Agreement
THIS AGREEMENT made in triplicate this ___ day of _______________________, 1994.
AMONG:
XXXXXXX INVESTMENTS LTD.
(herein called the "Issuer")
OF THE FIRST PART
- AND -
MONTREAL TRUST COMPANY OF CANADA
(herein called the "Trustee")
OF THE SECOND PART
- AND -
TALGARTH LIMITED AND
EDGEWELL LIMITED
(herein called the "Security Holders")
OF THE THIRD PART
WHEREAS in furtherance of complying with the requirements of the Securities Act,
Alberta Securities Commission Policy 4.11 and Alberta Stock Exchange Circular
No. 7, the Security Holders are desirous of depositing in escrow certain
securities in the Issuer owned or to be received by them;
AND WHEREAS the Trustee has agreed to undertake and perform its duties according
to the terms and conditions hereof;
NOW THEREFORE this agreement witnesses that in consideration of the sum of ONE
($1.00) DOLLAR paid by the parties to each other, receipt of this sum being
acknowledged by each of the parties, the Security Holders jointly and severally
covenant and agree with the Issuer and with the Trustee and the Issuer and the
Trustee covenant and agree with the other and with the Security Holders jointly
and severally as follows:
1. Where used in this agreement, or in any amendment or supplement hereto,
unless the context otherwise requires, the following words and phrases
shall have the meaning ascribed to them below:
a. "Major Transaction" shall include any material transaction in
accordance with the by-laws of The Alberta Stock Exchange, and a
transaction whereby:
E-562
- 2 -
1. the Issuer issues more than 25% of the number of its previously
outstanding securities to acquire assets (other than cash) or
securities of another issuer;
ii. the Issuer enters into an arrangement, amalgamation, merger or
reorganization with another issuer with Significant Assets other
than cash, whereby the ratio of securities which are distributed
to the two sets of security holders results in the security
holders of the other issuer acquiring control of the resulting
entity;
iii. the Issuer acquires Significant Assets; or
iv. the Issuer issues more than 25% of the number of its perviously
outstanding securities for cash (a "Private Placement");
b. "Significant Assets" means assets (other than cash) or securities of
another issuer whereby the purchase price exceeds $200,000 or such
lesser amount as is acceptable to the Exchange.
2. Each of the Security Holders hereby undertakes and agrees to deposit in
escrow any securities of the Issuer which he has or may acquire pursuant to
the first Major Transaction or pursuant to the exercise of any option
granted to him by the Issuer pursuant to the first Major Transaction
(including any replacement securities if and when issued) which securities
are described in Schedule "A" attached to this agreement.
3. The Parties hereby agree that, subject to the provisions of paragraph 6
herein, the securities and the beneficial ownership of or any interest in
them and the certificate representing them (including any replacement
securities or certificates) shall not be sold, assigned, hypothecated,
alienated, released from escrow, transferred within escrow, or otherwise in
any manner dealt with, without the written consent of the Alberta Stock
Exchange (hereinafter referred to as the "Exchange") given to the Trustee
or except as may be required by reason of the death or bankruptcy of any
Security Holder, in which cases the Trustee shall bold the said
certificates subject to this agreement, for whatever person, or company
shall be legally entitled to become the registered owner thereof.
4. The Security Holders direct the Trustee to retain their respective
securities and the certificates (including any replacement securities or
certificates) representing them and not to do or cause anything to be done
to release them from escrow or to allow any transfer, hypothecation or
alienation thereof except as provided in paragraph 6, without the written
consent of the Exchange. The Trustee accepts the responsibilities placed on
it by the agreement and agrees to perform them in accordance with the terms
of this agreement and the written consents, orders or directions of the
Exchange.
5. Any Security Holder applying to the Exchange for a consent for a transfer
within escrow shall before applying give reasonable notice in writing of
his intention to the Issuer and the Trustee.
6. The securities escrowed pursuant to this agreement shall be released from
escrow as to one third thereof on each of the first, second and third
anniversaries of the shareholder vote which approved the first Major
Transaction, other than a Major Transaction that is a Private Placement.
7. A release from escrow of all or part of the escrowed securities shall
terminate the agreement only in respect to those securities so released.
For greater certainty this paragraph does not apply to securities
transferred within escrow.
8. If during the period in which any of the securities are retained in escrow
pursuant hereto, any dividend is received by the Trustee in respect of the
escrowed securities, any such dividend shall be promptly paid or
transferred to the respective Security Holders entitled thereto.
E-563
- 3 -
9. All voting rights attached to the escrowed securities shall at all times be
exercised by the respective registered owners thereof.
10. The Security Holders hereby jointly and severally agree to and do hereby
release and indemnify and save harmless the Trustee from and against all
claims, suits, demands, costs and expenses which may be occasioned by
reason of the Trustee's compliance in good faith with the terms hereof.
11. The Issuer hereby acknowledges the terms and conditions of this Agreement
and agrees to take all reasonable steps to facilitate its performance and
to pay the Trustee's proper charges for its services as trustee of this
escrow.
12. If the Trustee should wish to resign, it shall give at least 6 months
notice to the Issuer which may, with the written consent of the Exchange,
by writing appoint another Trustee in its place and such appointment shall
be binding on the Security Holders and the new Trustee shall assume and be
bound by the obligations of the Trustee hereunder.
13. The covenants of the Security Holders with the Issuer in this agreement are
made with the Issuer both in its own right and as trustee for the holders
from time to time of free securities in the Issuer, and may be enforced not
only by the Issuer but also by any holder of free securities.
14. This agreement may be executed in several parts of the same form and the
parts as so executed shall together constitute one original agreement and
the parts, if more than one, shall be read together and construed as if all
the signing parties hereto had executed one copy of this agreement.
15. Wherever the singular or masculine is used, the same shall be construed to
include the plural or feminine or neuter where the context so requires.
16. This agreement shall enure to the benefit of and be binding on the parties
to this agreement and each of their heirs, executors, administrators,
successors and assigns.
IN WITNESS WHEREOF the Issuer and Trustee have caused their respective corporate
seals to be hereto affixed and the Security Holders have hereto set their
respective hands and seals.
XXXXXXX INVESTMENTS LTD.
per: /s/ [ILLEGIBLE]
-------------------------------------
per: /s/ [ILLEGIBLE]
-----------------------------------(c/s)
MONTREAL TRUST COMPANY OF CANADA
per:
-------------------------------------
per:
-----------------------------------(c/s)
X-000
- 0 -
XXXXXXXX "X"
to agreement dated the 31st day of August, 1994
and made among Xxxxxxx Investments Ltd. therein called the "Issuer", Montreal
Trust Company of Canada therein call the "Trustee", and some security holders of
the Xxxxxxx Investments Ltd., therein called the "Security Holders".
Name of Security Number of Securities Certificate Numbers of
Holders Type of Securities Escrowed Securities Escrowed
-----------------------------------------------------------------------------------------
Talgarth Limited Common 1,715,000
Edgewell Limited Common 1,785,000
E-565
Minutes
EDGEWELL LIMITED
MINUTES OF A MEETING OF THE BOARD OF DIRECTORS OF THE
COMPANY HELD AT XXXXXXX HOUSE, XXX XXXXXXX PLACE, ST XXXXX
PORT, GUERNSEY ON 10 NOVEMBER 1994.
PRESENT Xx X X Xxxxxx
Mr I M Xxxxx
CHAIRMAN Xx X X Xxxxxx was elected to the Chair.
MINUTES The Minutes of the previous Meeting had been circulated,
approved and signed.
QUORUM The Chairman confirmed a quorum and declared the Meeting
open.
SHARE EXCHANGE
AGREEMENT The Chairman tabled to the Meeting a Share Exchange
Agreement (the Agreement) made effective as at 31 August
1994 between Edgewell Limited and Talgarth Limited (the
Classic Shareholders); Classic Portraits and Design Limited
(Classic) and Xxxxxxx Investments Limited (Xxxxxxx) whereby
the Classic Shareholders own the Classic shares as set in
Schedule A of the Agreement and that Classic Shareholders
and Xxxxxxx wish to effect the exchange of the Classic
shares for Xxxxxxx shares upon the terms and conditions
hereinafter set out in the Agreement
After due consideration and on a motion proposed and duly
seconded, IT WAS RESOLVED that the company would approve and
ratify the terms of the Agreement and that IT WAS FURTHER
RESOLVED that the Common Seal of the Company be affixed to
the document and that X X Xxxxxx as Director and X X X
Xxxxxx as Authorised Signatory of Fidsec Limited, Corporate
Secretary, be authorised to sign the said Agreement.
ANY OTHER
BUSINESS: There being no further business the Meeting was declared
closed.
/s/ [ILLEGIBLE]
--------------------------------------
CHAIRMAN
{STAMP}
E-566
Minutes
TALGARTH LIMITED
MINUTES OF A MEETING OF THE BOARD OF DIRECTORS OF THE
COMPANY HELD AT XXXXXXX HOUSE, XXX XXXXXXX PLACE, ST XXXXX
PORT, GUERNSEY ON 10 NOVEMBER 1994
PRESENT Xx X X Xxxxxx
Mr I M Xxxxx
CHAIRMAN Mr I M Xxxxx was elected to the Chair
MINUTES The Minutes of the previous Meeting had been circulated,
approved and signed.
QUORUM The Chairman confirmed a quorum and declared the Meeting
open.
SHARE EXCHANGE
AGREEMENT The Chairman tabled to the Meeting a Share Exchange
Agreement (the Agreement) made effective as at 31 August
1994 between Edgewell Limited and Talgarth Limited (the
Classic Shareholders); Classic Portraits and Design Limited
(Classic) and Xxxxxxx Investments Limited (Xxxxxxx) whereby
the Classic Shareholders own the Classic shares as set in
Schedule A of the Agreement and that the Classic
Shareholders and Xxxxxxx wish to effect the change of the
Classic shares for Xxxxxxx shares upon the terms and
conditions hereinafter set out in the Agreement
After due consideration and on a motion proposed and duly
seconded, IT WAS RESOLVED that the company would approve and
ratify the terms of the Agreement and that IT WAS FURTHER
RESOLVED that the Common Seal of the Company be affixed to
the document and that I M Xxxxx as Director and X X Xxxxxxxx
as Authorised Signatory of Fidsec Limited, Corporate
Secretary, be authorised to sign the said Agreement.
ANY OTHER
BUSINESS: There being no further business the Meeting was declared
closed.
/s/ [ILLEGIBLE]
--------------------------------------
CHAIRMAN
{STAMP}
E-567
