EXHIBIT 10.1
SHARE PURCHASE AGREEMENT
THIS AGREEMENT dated the 9th day of November, 2002.
BETWEEN:
XXXXXX XXXXX XXXXX XXX, of #15 - 0000 Xxxx Xxxx Xxxxxx X.,
Xxxxxxxxx, XX, X0X 0X0, Xxxxxx;
AND
XXXXXX XXX XXX XX, of 0000 XxXxxxxx Xxxxxx, Xxxxxxxxx, XX, X0X
0X0, Xxxxxx;
AND
XXXXX XXXXX HOU NG, of 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX, X0X
0X0, Xxxxxx
(collectively, the "Vendors")
AND:
XIN NET CORP., a company duly incorporated under the laws of
of Florida and having the business office at 950 - 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxxxx, XX, X0X 0X0
(the "Purchaser")
AND:
WINDSOR EDUCATION ACADEMY INC., a company duly incorporated
under the laws of British Columbia and having the business
office at 000 - 0000 Xxxxxxxxxxx Xxx, Xxxxxxxx, XX, X0X 0X0
(the "Company")
WHEREAS:
A. The Vendors are the registered and beneficial owner of all the issued
and outstanding shares (collectively, the "Shares") in the capital of
the Company;
B. The Vendors agreed to sell and the Purchaser agreed to purchase the
Shares;
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by the parties), the parties
covenant and agree as follows:
SECTION 1
INTERPRETATION
1.1 Definitions.
------------
(a) "Business" means the business currently carried on by the Company which is
the operation of educational programs to foreign and local students;
(b) "Closing" means the completion of the transactions herein on the Closing
Date and occurring at the offices of Fraser and Company, Barristers and
Solicitors, located at 1200 - 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0 at 4:00 p.m. Vancouver time;
(c) "Closing Date" means November 30, 2002, or such later date which may be
agreed between the parties;
(d) "Contracts" means all of those agreements, contracts and commitments,
written or verbal, entered into by the Company that are in effect as of the
Closing Date;
(e) "Employees" means any and all present and former employees and staff of the
Business and the Company;
(f) "Financial Statements" means the unaudited financial statements of the
Company for the year ended December 31, 2000, December 31, 2001 and the
unaudited financial statements of the Company for the period ending
September 30, 2002, each consisting of a balance sheet and a statement of
operations and deficit, copies of which are attached as Schedule 1.1(f);
(g) "Premises" means the land and buildings which are currently occupied by the
Company and from which the Company carried on the Business, legally
described as Xxx 00, Xxxxxxx 0, Xxxxx 0 Xxxxx, Xxxxx 6 West, Plan 34152;
(h) "Purchase Price" means the sum described in Section 3.1; and
(i) "Lease" means the Lease of the Premises between Richmond Holdings Ltd. (the
"Landlord"), together with all Schedules thereto.
SECTION 2
SALE AND PURCHASE
2.1 Sale and Purchase. Subject to the terms and conditions of this
Agreement and based on the warranties and representations herein
contained the Vendors agree to sell to the Purchaser, and the Purchaser
agrees to purchase from the Vendors, the Shares for the Purchase Price.
SECTION 3
PURCHASE PRICE
3.1 Amount of Purchase Price. The Purchase Price for the Shares is
$200,000 in Canadian funds.
3.2 Inclusions in the Purchase Price. The Purchase Price includes
equipment, fixtures, Internet domain of the school, existing XXXX
Contract between the Company and Settlement and Multiculturalism
Branch, Aboriginal, Immigration and Multiculturalism Service Division,
Ministry of Community, Aboriginal and Women's Services. A completed
list of inventory and is attached as Schedule 3.2.
3.3 Payment of Purchase Price. The Purchase Price is payable as follows:
(a) the sum of Twenty Thousand (CDN$20,000) Dollars (the
"Deposit"), which has been paid in trust to Xxxxxx Xxx Law
Office, Barrister and Solicitor at 627 - 6081 Xx.0 Xxxx,
Xxxxxxxx, XX, X0X 0X0, prior to the date hereof;
(b) the sum of Forty Thousand (CDN$40,000) Dollars (the
"Holdback") will be held in trust by the Purchaser's
solicitor, Fraser and Company, Barristers and Solicitors at
1200 - 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX, X0X 0X0, in
accordance with Section 3.4 hereof; and
(c) the sum of One Hundred and Forty Thousand (CDN$140,000)
Dollars to the Vendors which includes the sum of Fourteen
Thousand Nine Hundred and Eighty (CDN$14,980) Dollars (the
"Finder's Fee") payable to and divided equally between Xx.
Xxxxx Xxxx and Mr. Xxxx Xxx which represents 3.5% commission
of the purchase price to each of them and including GST.
3.4 Holdback. The Holdback will be held in trust by the Purchaser's
solicitor, Fraser and Company, Barristers & Solicitors, in accordance
with the terms and conditions of this Agreement. Interest on the
Holdback will accrue to the benefit of the Vendors. The Holdback will
be released to the Vendors within five business days from the date the
Company's English Language Service For Adults ("XXXX") application is
submitted to the government of British Columbia. The Vendors shall
assist in acquiring approval from the government.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Vendors. The Vendors hereby
represent and warrant, as of the date hereof and as of the Closing
Date, that:
(a) the Vendors have full right and authority to enter into this
Agreement on the terms and conditions herein set forth and to
sell and transfer the legal and beneficial title and ownership
of the Shares and the Company and its directors and
shareholders have taken all necessary or desirable actions and
proceedings to approve and authorize, validly and effectively,
the entering into and the execution, delivery and performance
of this Agreement and the transactions contemplated hereby;
and this Agreement is a legal, valid and binding obligation of
the Vendors, enforceable against each of them in accordance
with its terms;
(b) each of the Vendors is not a non-resident of Canada within
the meaning of the Income Tax Act (Canada);
(c) the execution, delivery and performance of this Agreement and
the completion of the transactions contemplated hereby will:
(i) not constitute a breach by the Vendors of any statute,
bylaw or regulation or of the Company's memorandum or
articles of association;
(ii) not result in a breach of any terms or provisions, or
constitute a default under any agreement, indenture,
mortgage, instrument, court order, judgment or decree to
which the Vendors or the Company is a party or by which
the Vendors or the Company is bound; and
(iii) not result in the creation of any lien, encumbrance or
other charge on the Shares;
(d) no person, firm or corporation has any agreement or option or
a right capable of becoming an agreement for the purchase of
the Shares or any other shares in the capital of the Company
or any right capable of becoming an agreement for the
purchase, subscription or issuance of any of the unissued
shares in the capital of the Company, or for the acquisition
from the Company of any of its undertaking, property or
assets;
(e) the authorized capital of the Company consists of One Thousand
Two Hundred (1,200) Shares without par value divided into 100
Class "A" shares, 100 Class "B" shares and 1,000 Class "C"
shares, of which 75 Class "B" Shares (the "Shares") are issued
and outstanding;
(f) the Shares are duly authorized, validly issued and outstanding
as fully paid and non-assessable shares and constitute 100% of
all of the issued and outstanding shares in the capital of the
Company;
(g) the Vendors are the registered and beneficial owner of the
Shares have good and marketable title to the Shares and the
Shares are free and clear of all liens, claims, charges and
encumbrances of every nature and kind whatsoever;
(h) the Company is a company duly organized under the laws of the
Province of British Columbia, is not a reporting company and
is a valid and subsisting company in good standing with the
Office of the Registrar of Companies of British Columbia with
respect to the filing of annual reports;
(i) the Company has the power to own all of its property and
assets and to carry on the Business, is duly qualified to
carry on the Business and does not carry on Business in any
jurisdiction other than the Province of British Columbia;
(j) the Company does not have and never has had any subsidiaries,
the Company is not a partner or participant in any
partnership, joint venture, profit-sharing arrangement or
other association of any kind, nor is the Company a party to
or bound by any agreement which would restrict or limit its
right to carry on any business or activity or to solicit
business from any person or in any geographical area or
otherwise to conduct the Business as the Company may
determine;
(k) the Company holds the Lease of the Premises which in good
standing and has been complied with fully by all parties
thereto;
(l) no dividend declared by the Company has remained unpaid;
(m) neither the Vendors nor any present or former officer,
director, Employee or shareholder of the Company is indebted
or under obligation to the Company on any account whatsoever,
and the Company will not at Closing be indebted to the
Vendors, or any director, officer or Employee of the Company
or any affiliate or associate of any of them, on any account
whatsoever;
(n) there are no liabilities, obligations, commitments or
indebtedness of any nature whatsoever (whether accrued,
absolute, contingent or otherwise) of the Company which have
not been disclosed to the Purchaser and which the Purchaser
has not agreed to assume or which the Vendors will not pay
subsequent to Closing;
(o) the memorandum and articles of the Company have not been
altered since the incorporation of the Company, and the
register of members, register of directors, and the minutes of
members and directors meetings of the Company contained in the
minute book of the Company are accurate and complete and
document all material occurrences and actions of the Company
since its incorporation, and all meetings of directors and
shareholders have, since incorporation, been duly held;
(p) the Company has no Contracts, bonus plans, undertakings or
arrangements whether oral, written or implied with Employees,
lessees, licensees, managers, accountants, suppliers, agents,
distributors, officers, directors, lawyers or others;
(q) all excise tax and income tax returns and reports of the
Company required by law to be filed prior to the date hereof,
have been duly filed and are true, complete and correct and
all amounts required by law to be deducted and remitted,
including, without limitation, employer remittances to Revenue
Canada, have been deducted and remitted within the time
periods prescribed;
(r) the Company has withheld from each amount paid or credited to
any person the amount required to be withheld therefrom and
has remitted such amount to the proper tax or other receiving
authorities within the time required under applicable
legislation;
(s) the Company has paid all assessments and reassessments, if
any, and all other taxes, penalties, interest, fines and
other governmental charges (collectively, "Governmental
Charges") due and payable by it (whether payable to any
federal, provincial, municipal, local or other government or
governmental agency, authority, board, bureau or commission,
domestic or foreign); no Governmental Charges will become
payable after the Closing Date; all information necessary
for the calculation of any tax liability of the Company has
been or will prior to the Closing Date be disclosed to the
Purchaser; and the Company has (or will have pursuant to the
terms and conditions of this Agreement) duly and on a timely
basis prepared and filed all tax returns and other documents
required to be filed by it in respect of all Governmental
Charges, and such returns and documents are complete and
correct;
(t) the Company is (and has been since its incorporation) a
Canadian controlled private corporation as defined in the
Income Tax Act (Canada);
(u) the Company has not made any election under Section 85 of the
Income Tax Act with respect to the acquisition or disposition
of any property or made any election under Section 83 of the
Income Tax Act with respect to the payment out of the capital
dividend account of the Company;
(v) to the best knowledge of the Vendors, the Company has no
contingent liabilities nor are there any grounds which would
prompt a reassessment under the Income Tax Act (Canada) of the
Company, including aggressive treatment of income and expenses
in filing tax returns;
(w) the Company maintains insurance against loss or damage to its
property and with respect to public liability as is in
accordance with prudent business practice, and the Vendors
have provided to the Purchaser true and complete copies of all
relevant insurance policies;
(x) except as has been previously disclosed to the Purchaser, the
Company holds all permits, licenses, consents and authorities
issued by any federal, provincial or municipal governmental
authority, or any subdivision thereof, which are necessary or
desirable in connection with the conduct and operation of the
Business and the ownership or leasing of its assets and the
Company is not in breach of or in default under any term or
condition of any thereof;
(y) neither the Vendors nor any company controlled by the Vendors
own any property or assets which are used by the Company or
are necessary or useful in the conduct of the Business;
(aa) except as has been previously disclosed to the Purchaser, the
Company is not in breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which it is subject
or which apply to it, and neither the Premises nor their use
violates any zoning or other by-law, law, ordinance or
regulation applicable to them;
(ab) to the best knowledge of the Vendors, there is no basis for
and there are no actions, suits, judgments, investigations or
arbitration or governmental proceedings in progress,
outstanding, pending or threatened against or relating to the
Company or affecting the Business, Premises, or the Shares at
law or in equity or before or by any governmental authority,
commission or agency, domestic or foreign;
(ac) no security or other encumbrance has been granted by the
Company;
(ad) the documents and information to be delivered to the Purchaser
pursuant to this Agreement shall be accurate and complete and,
without restricting the generality of the foregoing, the
Financial Statements that have been provided to the Purchaser
and attached hereto as part of Schedule 1.1(f), have been
prepared in accordance with generally accepted accounting
principles in Canada, applied on a consistent basis and fairly
represent the financial position and the corporate affairs of
the Company;
(ae) the Company has good and marketable title to all of its
properties and assets, including those reflected in the
Financial Statements or acquired since the date of the most
recent Financial Statement, free and clear of all mortgages,
pledges, liens, encumbrances or charges of any kind whatsoever
and none of the Company's assets or properties are in the
possession of or under the control of any other person;
(af) the Company has no guarantees with respect to the obligations
of any other person and has no indemnities or contingent or
indirect obligations with respect to the obligation of any
other person;
(ag) except as previously disclosed to the Purchaser, neither the
Company nor the Vendors is under any obligation, contractual
or otherwise, to notify or to request or obtain the consent of
any person, and no permits, licenses, certifications,
authorizations or approvals of, or notifications to, any
federal, provincial, municipal or local government or
governmental agency, board, commission or authority, or any
foreign government or other authority, are required to be
obtained or given by the Company or the Vendors:
(i) in connection with the execution, delivery or perform
-ance by the Vendors or the Company of this Agreement
or the completion of any of the transactions contem-
plated herein;
(ii) to avoid the loss of any permit, license, certifica-
tion or other authorization; or
(iii) in order to enable the Company to carry on the
Business in the ordinary course as of and following
the closing of the transactions contemplated hereby.
(ah) the Vendors covenant and represent and warrant in favour of
the Purchaser that all of the representations and warranties
set forth herein shall be true and correct at the time of
Closing as if made on that date.
4.2 Representations and Warranties in Closing Documents. All statements
contained in a certificate or other instrument delivered by or on
behalf of the Vendors pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed to be representations
and warranties by the Vendors hereunder.
4.3 Survival of Representations and Warranties of the Vendors. The
representations and warranties of the Vendors contained in this
Agreement shall survive the Closing and the payment of the Purchase
Price and, notwithstanding the Closing and the payment of the Purchase
Price, the representations and warranties of the Vendors shall continue
in full force and effect for the benefit of the Purchaser, subject to
the following:
(a) the representations and warranties of the Vendors contained in
Sections 4.1 (n), (p), (r), (w), (x), (y), (z), (aa), (ab),
(ac), (ad), (ae), (af) and (ag) shall survive for a period of
eighteen (18) months following the Closing Date;
(b) notwithstanding paragraph (a) above, any claim which is based
on intentional misrepresentation or fraud by the Vendors may
be made or brought by the Purchaser at any time.
provided that if a written notice of claim is made before the expiry of
the applicable period, then the representation and warranty to which
such notice applies shall survive in respect of that claim until the
final determination or settlement of that claim.
4.4 The Purchaser hereby represents and warrants to the Vendors as follows:
(a) the Purchaser is a company duly organized, validly existing
and in good standing under the laws of Florida with respect to
the filing of annual reports, and its shares are traded on the
OTC Bulletin Board in the United States;
(b) the Purchaser has all corporate power, authority and capacity
to acquire the Shares and to perform its obligation hereunder.
The execution and delivery of this Agreement has been duly
authorized by all necessary corporate action on the part of
the Purchaser and this Agreement constitutes a valid and
binding obligation of the Purchaser. The Purchaser is not a
party to, bound by or subject to any indenture, mortgage,
lease, Agreement, instrument, statute, regulation, order,
judgment, decree or law which would be violated, contravened
or breached by or under which any default would occur as a
result of the execution and delivery by the Purchaser of this
Agreement or the performance by the Purchaser of any of the
terms hereof;
(c) the Purchaser covenants and represents and warrants in favour
of the Vendors that all of the representations and warranties
set forth herein shall be true and correct at the time of
Closing as if made on that date.
4.5 Survival of Representations and Warranties of Purchaser. The
representations and warranties of the Purchaser contained in this
Agreement shall survive the Closing and the purchase of the Shares and,
notwithstanding the Closing and the purchase of the Shares and the
representations and warranties of the Purchaser shall continue in full
force and effect for the benefit of the Vendors for a period of
eighteen (18) months from the Closing Date.
SECTION 5
COVENANTS OF THE VENDORS
5.1 Vendors' Covenants. The Vendors' covenant, agree and undertake with the
Purchaser that from and after the date of execution of this Agreement
to the Closing Date the Vendors will:
(a) cause the Company to conduct its business in the ordinary and
normal course and will not permit the Company to do or fail to
do anything that would result in the representations and
warranties of the Vendors herein not to be true and correct at
the time of Closing;
(b) ensure that the Purchaser and its representatives have full
and complete access to the Premises, and the books and records
of the Company, authorize all government agencies or offices
to disclose to the Purchaser and its representatives any
information concerning the Company, the Vendors and the
Business which the Purchaser considers relevant and will
furnish, and will require the Company's bankers, accountants /
auditors and other advisors to furnish to the Purchaser all
financial and operating data and other information with
respect to the Business and the Company as the Purchaser shall
request;
(c) ensure the execution and delivery of all documents and
instruments required to be executed and delivered by the
Vendors and the Company hereunder and will take all steps and
proceedings and execute such further assurances and documents
as may be required to effect the transfer to and register the
Shares in the name of the Purchaser and to fulfill the terms
and conditions of this Agreement;
(d) deliver to the Purchaser true and complete copies of all
documents and instruments referred to in this Agreement or in
the Schedules hereto and will not permit the Company to amend
any of them or enter into any other contract or agreement
without the prior written consent of the Purchaser;
(e) resign their positions as directors and/or officers of the
Company or cause to resign the existing directors and/or
officers of the Company effective the Closing Date;
(f) execute and deliver on the Closing Date the certificate
contemplated by Section 8.1(d) hereof dated the Closing Date
in a form satisfactory to the Purchaser's solicitors;
(g) obtain all necessary shareholders and directors resolutions to
effect the transactions contemplated by this Agreement and do
all other things reasonably necessary to facilitate the
transactions contemplated herein;
(h) maintain all existing insurance coverage with respect to the
Business and the Premises in full force and effect until
completion of the Closing;
(i) ensure that the income tax returns for the Company for 2000
and 2001 have been duly filed and that all income taxes of the
Company for such years, together with any interest and
penalties thereon, have been paid in full;
(j) have delivered or caused to be delivered to the Purchaser
complete originals, when available, or otherwise true and
complete copies of such originals (including all amendments)
of all Contracts, leases and other documents referred to in
this Agreement or any Schedule hereto or required to be
disclosed hereby;
(k) be present to answer all queries if CCRA needs to perform an
audit on school operation for the period prior to the Closing
Date;
(l) transfer all student records since they took over the business
in 1996;
(m) sign a personal guarantee for any GST, CPP, EI and taxes
incurred to CCRA;
(n) assist the Purchaser to assume the existing lease of the
Premises subject to current landlord approval if necessary;
(o) allow Xxxxxx Xxx and/or any other Purchaser's designee to
study and learn the existing Company management system
after signing of this Agreement;
(p) cause Xxxxxxx Xxx to work for the Purchaser in March and April
2003 to work on the XXXX application, and will be compensated
on an hourly basis at $25 per hour, not exceeding one hundred
hours.
(q) agree not to start a similar business within the area of
Greater Vancouver for a period of two years from the date of
Closing;
(r) ensure that at the Time of Closing, the Company's financial
situation shall in line with the financial situation contained
in the financial reports set forth as of September 30, 2002 in
the Schedule attached hereto, except that the Company may have
some financial changes incurred in its normal course of
business for the period from September 30, 2002 to the Date of
Closing provided the amount of each single expense should be
less than CDN$1,000, otherwise the Company should ask the
Purchaser for approval.
5.2 Indemnity by the Vendors. Without prejudicing any other remedy
available to the Purchaser at law or in equity, the Vendors shall fully
indemnify and save harmless the Purchaser from and against any and all
costs, losses, damages or expenses suffered or incurred by the
Purchaser or the Company in any manner arising out of or relating to:
(a) any representation or warranty of the Vendors set forth in
this Agreement being untrue or incorrect or the failure of the
Vendors to observe or perform any of its obligations pursuant
hereto, including, but not limited to, the obligations set
forth in Section 5.1 hereof;
(b) any and all indebtedness or liability of the Company existing
at the time of the Closing which was not disclosed in writing
to the Purchaser by the Vendors;
(c) any misrepresentation in or omission from any certificate or
other instrument furnished to the Purchaser hereunder;
and
(d) any and all actions, suits, proceedings, demands, assessments,
judgments, costs and legal and other expenses incident to any
of the foregoing.
5.3 Indemnity Notwithstanding Holdback. For greater certainty, the indem-
nity provided by the Vendors under Section 5.3 shall apply notwithstand
-ing the existence of the Holdback or the release of the Holdback from
trust.
5.4 Claims Under Vendors' Indemnity. If any claim is made by any person
against the Purchaser or the Company in respect of which the Purchaser
or the Company may incur or suffer damages, losses, costs or expenses
that might reasonably be considered to be subject of the indemnity
obligation of the Vendors as provided in paragraph 5.2, the Purchaser
will notify the Vendors as soon as reasonably practicable of the nature
of such claim and the Vendors shall be entitled (but not required) to
assume the defence of any suit brought to enforce such claim.
Notwithstanding the foregoing, if the person making the claim threatens
or takes any action which does or could affect the assets of the
business of the Company or the Purchaser then the Vendors shall, within
ten (10) days of being notified of such threat or action, post with the
Court sufficient security to satisfy the claim and costs related
thereto, failing which the Vendors shall not have the right to defend
or continue to defend the claim. The defence of any such claim (whether
assumed by the Vendors or not) shall be through legal counsel and shall
be conducted in a manner acceptable to the Purchaser and the Vendors,
acting reasonably, and no settlement may be made by the Vendors or the
Purchaser without the prior written consent of the other. If the
Vendors assumes the defence of any claim then the Purchaser and the
Purchaser's counsel shall co-operate with the Vendors and their counsel
in the course of the defence, such co-operation to include using
reasonable best efforts to provide or make available to the Vendors and
his counsel documents and information and witnesses for attendance at
examinations for discovery and trials. The reasonable legal fees and
disbursements and other costs of such defence shall, from and after
such assumption, be borne by the Vendors.
SECTION 6
covenants of the Purchaser
6.1 Purchaser's Covenants. The Purchaser covenants, agrees and undertakes
with the Vendors that:
(a) it will pay on the Closing Date the Purchase Price in the
manner described in this Agreement;
(b) it will not assume the existing photocopier Contract between
the Company and Panasonic Office Systems Direct.
6.2 Purchaser's Covenants. The Purchaser covenants, agrees and undertakes
with the Vendors that the Purchaser shall operate the Company in a
professional and businesslike manner after the Closing Date.
Specifically, no non-XXXX students will be placed into the XXXX
program, which will endanger the XXXX program.
6.3 Indemnity by the Purchaser. The Purchaser shall fully indemnify and
save harmless the Vendors from and against any and all costs, losses,
damages or expenses suffered or incurred by the Vendors in any manner
arising out of or relating to:
(a) any misrepresentation or nonfulfillment of any covenant on the
part of the Purchaser under this Agreement; and
(b) any and all actions, suits, proceedings, demands, assessments,
judgments, costs and legal and other expenses incident to any
of the foregoing.
6.4 Claims Under Purchaser's Indemnity. If any claim is made by any person
against the Vendors in respect of which the Vendors may incur or suffer
damages, losses, costs or expenses that might reasonably be considered
to be subject to the indemnity obligation of the Purchaser as provided
in Section 6.3, the Vendors will notify the Purchaser as soon as
reasonably practicable of the nature of such claim and the Purchaser
and the Company shall be entitled (but not required) to assume the
defence of any suit brought to enforce such claim. Notwithstanding the
foregoing, if the person making the claim threatens or takes any action
which does or could affect the assets of the business of the Vendors
then the Purchaser shall, within ten (10) days of being notified of
such threat or action, post with the Court sufficient security to
satisfy the claim and costs related thereto, failing which the
Purchaser and the Company shall not have the right to defend or
continue to defend the claim. The defence of any such claim (whether
assumed by the Purchaser and/or the Company or not) shall be through
legal counsel and shall be conducted in a manner acceptable to the
Purchaser and the Vendors, acting reasonably, and no settlement may be
made by the Vendors or the Purchaser without the prior written consent
of the other. If the Purchaser or the Company assumes the defence of
any claim then the Vendors and the Vendors' counsel shall co-operate
with the Purchaser and the Company and their counsel in the course of
the defence, such co-operation to include using reasonable best efforts
to provide or make available to the Purchaser and the Company and their
counsel documents and information and witnesses for attendance at
examinations for discovery and trials. The reasonable legal fees and
disbursements and other costs of such defence shall, from and after
such assumption, be borne by the Purchaser or the Company, as the case
may be.
SECTION 7
CONDITIONS PRECEDENT TO THE VENDORS' OBLIGATIONS
7.1 Vendors' Conditions Precedent. The Vendors' obligation to carry out the
transactions contemplated in this Agreement is subject to fulfillment
of the following conditions on the Closing Date, unless and to the
extent waived by the Vendors, namely, that the Purchaser shall have
fulfilled all of its obligations hereunder, including, without
limitation, its obligation to pay the Purchase Price as provided
herein.
7.2 Conditions for Benefit of the Vendors. The conditions described in
Section 7.1 are for the exclusive benefit of the Vendors and such
conditions may be waived in whole or in part by the Vendors on or prior
to the Closing Date by delivery to the Purchaser of a written waiver to
that effect, signed by the Vendors.
SECTION 8
CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS
8.1 Purchaser's Conditions Precedent. Notwithstanding anything herein
contained, the obligation of the Purchaser to complete the transactions
hereunder is conditional upon the fulfillment of the following condi-
tions precedent:
(a) all covenants and agreements of the Vendors to be performed on
or before the Closing Date pursuant to the terms and
conditions of this Agreement have been duly performed;
(b) on or before the Closing Date, no injunction or restraining
order of a court or administrative tribunal of competent
jurisdiction shall be in effect which prohibits the
transactions contemplated hereunder and no action or
proceeding shall have been instituted and remain pending
before any such court or administrative tribunal to restrain
or prohibit the transactions contemplated hereby;
(c) the Vendors shall deliver to the Purchaser on the Closing Date
a certificate signed by the Vendors that the conditions set
out in Section 8.1(a) have been satisfied;
(d) the representations and warranties of the Vendors contained in
this Agreement shall be true on and as of the Closing Date
with the same effect as though such representations and
warranties had been made on and as of the Closing Date; and
(e) since the date hereof and prior to the Closing Date, no loss
or damage by fire, negligence or otherwise shall occur to the
property and assets of the Company or Premises.
8.2 Conditions for Benefit of Purchaser. The preceding conditions are for
the exclusive benefit of the Purchaser and such conditions must be
fulfilled as described in subsection 8.1 or may be waived in whole or
in part by the Purchaser on or prior to the Closing Date by delivery to
the Vendors of a written waiver to that effect, signed by the
Purchaser.
SECTION 9
REVOCATION OF THE AGREEMENT
9.1 The Vendors and the Company agree to revoke this Agreement and return
all and any part of the Purchase Price, including the Deposit, to the
Purchaser in either or both of the following events:
(a) in the event that the Purchaser's due diligence review of the
affairs of the Company discloses:
(i) any material discrepancy in any representations made
to the Purchaser about the status of the Company,
(ii) the Company is experiencing financial difficulties,
(iii) there are lawsuits and/or other legal proceedings
against the Company, or
(iv) the board of the Company refuses at Closing to
sequentially resign and appoint the Purchaser's
representatives to the Board of the Company; and
(b) the Company loses its XXXX certification prior to Closing.
9.2 The Vendors are responsible for all costs incurred after Closing due to
any occurrence stated in Section 9.1 above.
SECTION 10
DELIVERIES AT CLOSING
10.1 Vendors' Deliveries. At the Closing, the Vendors shall deliver or cause
to be delivered to the Purchaser:
(a) share certificate(s) representing the Shares issued in the
name of the Vendors, duly endorsed for transfer to the
Purchaser;
(b) certified copy of resolutions of the directors of the Company
authorizing the transfer of the Shares, the registration of
the Shares in the name of the Purchaser and the issuance of
share certificates representing all of the Shares registered
in the name of the Purchaser;
(c) share certificate representing all of the Shares registered in
the name of the Purchaser, signed by the directors of the
Company;
(d) certified copy of the register of members of the Company show-
ing the Purchaser as the registered owner of the Shares;
(e) certificate of the Vendors certifying that the representations
and warranties of the Vendors set forth in this Agreement are
true and correct as of the Closing Date and containing the
information described in Section 8.1(a);
(f) duly signed resignation of the Vendors as the sole director
and sole officer of the Company;
(g) release in form and substance satisfactory to the Purchaser's
solicitor, executed by the Vendors in favour of the Company,
releasing the Company from any and all manner of actions,
causes of action, suits, proceedings, debts, dues, profits,
expenses, contracts, damages, claims, demands and liabilities
whatsoever, in law or equity which the Vendors ever had, now
has, or may have against the Company for or by reason of any
matter, cause or thing whatsoever done or omitted to be done
by the Company up to the Closing;
(h) the Company's minute books, corporate seal and all other
corporate and financial records of the Company; and
(i) all such instruments of transfer, duly executed, which in the
opinion of the Purchaser's solicitor, are necessary to effect
and evidence the transfer of the Shares to the Purchaser, free
and clear of all liens, charges and encumbrances whatsoever.
10.2 Purchaser's Deliveries. At the Closing, the Purchaser shall deliver
or cause to be delivered the following, either by certified cheque,
bank draft or solicitors trust cheque:
(i) the sum of $40,000 payable to Fraser and Company in trust, in
accordance with Section 3.3(b) of this Agreement; and (ii) the
sum of $140,000 payable to the Vendors in accordance with Section
3.3(c) of this Agreement.
SECTION 11
GENERAL PROVISIONS
11.1 Time of Essence. Time shall be of the essence of this Agreement.
11.2 Force Majeure. If the transaction fails to close due to an act of God,
the Vendors shall return the Deposit to the Purchaser and no compensa-
tion shall be made to either party.
11.3 No Merger and Survival. The representations, warranties, covenants,
indemnities and agreements contained in this Agreement or pursuant
hereto shall not merge at the Closing nor upon release of the Holdback
from trust, and shall survive and continue in full force and effect
from the Closing Date.
11.4 Notice. Any notice, waiver or other communication required or permitted
to be given hereunder shall be in writing and signed by or on behalf of
such party and shall be given to the other party by delivery thereto,
or by sending by prepaid registered mail or facsimile to the address of
the other party as herein set forth or to such other address of which
notice is given, and any notice shall be deemed not to have been
sufficiently given until it is received. Any notice or other
communication contemplated herein shall be deemed to have been received
on the day delivered, if delivered, on the fourth business day
following the mailing thereof, if sent by registered mail, and the
second business day following the transmittal thereof, if sent by
facsimile. If normal mail or facsimile service shall be interrupted by
strike, slowdown, force majeure or other cause, the party sending the
notice shall utilize any of such services which have not been so
interrupted or shall deliver such notice in order to ensure prompt
receipt of same by the other party.
11.5 Waiver. No waiver of any of the provisions of this Agreement will be
deemed or will constitute a waiver of any other provision (whether or
not similar) nor will any waiver constitute a continuing waiver unless
otherwise expressly provided.
11.6 Modifications and Approvals. No amendment, modification, supplement,
termination or waiver of any provision of this Agreement will be
effective unless in writing signed by the appropriate party and then
only in the specific instance and for the specific purpose given.
11.7 Further Assurances. Each of the parties hereby covenants and agrees to
execute any further and other documents and instruments and to do any
further and other things that may be necessary to implement and carry
out the intent of this Agreement.
11.8 Enurement and Assignment. This Agreement will enure to the benefit of
and will be binding upon the Vendors and the Purchaser, and their
respective personal representatives, heirs, executors, administrators,
successors and permitted assigns. Neither party will assign its rights
or obligations under this Agreement or any part thereof, provided that
the Purchaser may assign this Agreement, without consent, but upon
notification to the Vendors, to another corporation.
11.9 Remedies. Notwithstanding any other provision hereof, the Purchaser
shall be entitled to any and all remedies at law or in equity, and the
mechanisms in this Agreement regarding the Holdback shall be without
prejudice and in addition to any and all other remedies available to
the Purchaser. The remedies of the Purchaser shall be cumulative and
not alternative.
11.10 Counterparts. This Agreement may be executed in counterparts or by
facsimile and each such Agreement or facsimile so executed shall be
deemed to be an original and such counterparts together shall
constitute one and the same Agreement.
11.11 Severability. If any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of such provision or
provisions shall not in any way be affected or impaired thereby in any
other jurisdiction and the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby in any other jurisdiction and the validity, legality and
enforceability of the remaining provisions contained herein shall not
in any way be affected or impaired thereby.
11.12 Included Words. Words importing the singular include the plural and
vice-versa, and words importing gender include all genders.
11.13 Headings and Interpretation. The section and subsection headings are
included solely for convenience, are not intended to be full or
accurate descriptions of the content, or to be considered part of this
Agreement. The parties hereto acknowledge that their respective legal
counsel have reviewed and participated in settling the terms of this
Agreement, and agree that any rule of construction to the effect that
any ambiguity is to be resolved against the drafting party shall not be
applicable in the interpretation of this Agreement.
11.14 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the Province of British Columbia, and the
laws of Canada applicable therein, and will be treated in all respects
as a British Columbia contract.
11.15 Entire Agreement. This Agreement, together with the contract and all
Schedules to this Agreement, constitutes the entire agreement between
the parties regarding the subject matter hereof. In the event of any
inconsistency between this Agreement and the interim contract, the
provisions of this Agreement shall prevail.
IN WITNESS WHEREOF the parties have executed this Agreement on the date first
above written.
EXECUTED and DELIVERED by )
)
/s/ Xxxxxx Xxxxx Xxxxx Xxx in the )
----------------------------- )
presence of: )
)
)
/s/ Mme Xxxx Xxxxxxxxx )
------------------------------ )
Witness Name - Signature )
) Xxxxxx Xxxxx Xxxxx Xxx
Mme Xxxx Xxxxxxxxx ) [Shareholder's Name]
------------------------------ )
Witness Name - Print )
)
L0-L2 Rue Xxxxx xxxxxx )
------------------------------ )
Address )
)
00000 Xxxxx, Xxxxxx )
------------------------------ )
City, Province )
)
Restaurant Owner )
------------------------------ )
Occupation )
EXECUTED and DELIVERED by )
)
/s/ Xxxxxx Xxx Xxx Xx in the )
------------------------------ )
presence of: )
)
/s/ Xxxxxx Xxx )
------------------------------ )
Witness Name - Signature )
) Xxxxxx Xxx Xxx Xx
Xxxxxx Xxx ) [Shareholder's Name]
------------------------------ )
Witness Name - Print )
)
00-0000 Xxxx Xxxx Xxxxxx North )
------------------------------ )
Address )
)
Vancouver, BC )
------------------------------ )
City, Province )
)
School Administrator )
------------------------------ )
Occupation )
EXECUTED and DELIVERED by )
)
/s/ Xxxxx Xxxxx Hou Ng in the )
------------------------------- )
presence of: )
)
/s/ Xxxxxx Xxx )
Witness Name - Signature )
) Xxxxx Xxxxx Hou Ng
Xxxxxx Xxx ) [Shareholder's Name]
------------------------------- )
Witness Name - Print )
)
00-0000 Xxxx Xxxx Xxxxxx North )
------------------------------- )
Address )
)
Vancouver, BC )
------------------------------- )
City, Province )
)
School Administrator )
------------------------------- )
Occupation )
WINDSOR EDUCATION ACADEMY INC.
Per: /s/ Xxxxxx Xxxxx Xxxxx Xxx
-----------------------------------
Name: Xxxxxx Xxxxx Xxxxx Xxx
Title: President
XIN NET CORP.
Per: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
SCHEDULE 1.1(f)
FINANCIAL STATEMENTS
SCHEDULE 3.2
LIST OF INVENTORY AND FIXTURES OF THE COMPANY
