Exhibit 4.56
GLOBAL COMMUNICATIONS LIMITED
- AND -
G.T.C. TRANSCONTINENTAL GROUP LTD.
- AND -
CANWEST GLOBAL COMMUNICATIONS CORP.
SHARE PURCHASE AGREEMENT
AUGUST 8, 2002
OSLER, XXXXXX & HARCOURT LLP
STIKEMAN ELLIOTT
TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS AND PRINCIPLES OF INTERPRETATION............................................... 1
Section 1.1 Definitions.............................................................. 1
Section 1.2 Certain Rules of Interpretation.......................................... 10
Section 1.3 Entire Agreement......................................................... 11
Section 1.4 Schedules................................................................ 11
ARTICLE 2. PURCHASE AND SALE.......................................................................... 13
Section 2.1 Action by Vendor and Purchaser........................................... 13
Section 2.2 Place of Closing......................................................... 13
Section 2.3 Tender................................................................... 13
ARTICLE 3. PURCHASE PRICE............................................................................. 14
Section 3.1 Purchase Price........................................................... 14
Section 3.2 Satisfaction of Purchase Price........................................... 14
Section 3.3 Net Working Capital Adjustment........................................... 14
Section 3.4 Objection to Closing Statement........................................... 14
Section 3.5 Allocation of Purchase Price............................................. 15
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE VENDOR............................................... 16
Section 4.1 Incorporation and Registration........................................... 16
Section 4.2 Residence of the Vendor.................................................. 16
Section 4.3 Right to Sell............................................................ 16
Section 4.4 Capitalization........................................................... 16
Section 4.5 Title to the Assets...................................................... 17
Section 4.6 Due Authorization........................................................ 17
Section 4.7 Enforceability of Obligations............................................ 17
Section 4.8 Absence of Conflicting Agreements........................................ 17
Section 4.9 Regulatory Approvals..................................................... 18
Section 4.10 Financial Statements..................................................... 18
Section 4.11 Absence of Undisclosed Liabilities....................................... 18
Section 4.12 Absence of Changes and Unusual Transactions.............................. 18
Section 4.13 Absence of Guarantees.................................................... 19
Section 4.14 Condition of Assets...................................................... 20
Section 4.15 Inventories.............................................................. 20
Section 4.16 Collectibility of Accounts Receivable.................................... 20
Section 4.17 Business in Compliance with Law.......................................... 20
Section 4.18 Governmental Authorizations.............................................. 20
Section 4.19 Intellectual Property.................................................... 20
Section 4.20 Owned Real Property...................................................... 22
Section 4.21 Leased Real Property..................................................... 22
Section 4.22 Real Property Generally.................................................. 23
Section 4.23 Environmental Matters.................................................... 23
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PAGE
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Section 4.24 Employment Matters....................................................... 25
Section 4.25 Collective Agreements.................................................... 26
Section 4.26 Pension and Other Benefits............................................... 26
Section 4.27 Insurance................................................................ 27
Section 4.28 Material Contracts....................................................... 27
Section 4.29 Litigation............................................................... 27
Section 4.30 Tax Matters.............................................................. 28
Section 4.31 Trade Allowances......................................................... 29
Section 4.32 Indebtedness............................................................. 29
Section 4.33 Shareholder Loans........................................................ 29
Section 4.34 Lenders' Consent......................................................... 29
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER............................................ 30
Section 5.1 Incorporation............................................................ 30
Section 5.2 Due Authorization........................................................ 30
Section 5.3 Enforceability of Obligations............................................ 30
Section 5.4 Absence of Conflicting Agreements........................................ 30
Section 5.5 Investment Canada........................................................ 30
Section 5.6 Litigation............................................................... 30
ARTICLE 6. NON-WAIVER, SURVIVAL....................................................................... 31
Section 6.1 Non-Waiver............................................................... 31
Section 6.2 Nature and Survival...................................................... 31
ARTICLE 7. PURCHASER'S CONDITIONS PRECEDENT........................................................... 32
Section 7.1 Truth and Accuracy of Representations of Vendor at the Closing Time...... 32
Section 7.2 Performance of Obligations............................................... 32
Section 7.3 Receipt of Closing Documentation......................................... 32
Section 7.4 Opinion of Counsel for Vendor............................................ 32
Section 7.5 Consents, Authorizations and Registrations............................... 33
Section 7.6 No Proceedings........................................................... 33
Section 7.7 Encumbrances............................................................. 33
Section 7.8 Directors and Officers................................................... 33
Section 7.9 Closing Agreements....................................................... 33
ARTICLE 8. VENDOR'S CONDITIONS PRECEDENT.............................................................. 34
Section 8.1 Truth and Accuracy of Representations of the Purchaser at Closing Time... 34
Section 8.2 Performance of Obligations............................................... 34
Section 8.3 Receipt of Closing Documentation......................................... 34
Section 8.4 Opinion of Counsel for Purchaser......................................... 35
Section 8.5 Consents, Authorizations and Registrations............................... 35
Section 8.6 No Proceedings........................................................... 35
Section 8.7 Closing Agreements....................................................... 35
Section 8.8 Xxxxxxxxx ROFR........................................................... 35
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PAGE
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ARTICLE 9. OTHER COVENANTS OF THE PARTIES............................................................. 36
Section 9.1 Conduct of Business Prior to Closing..................................... 36
Section 9.2 Access for Investigation................................................. 37
Section 9.3 Actions to Satisfy Closing Conditions.................................... 37
Section 9.4 Preservation of Records and Access to Personnel.......................... 37
Section 9.5 Stub Period Returns...................................................... 38
Section 9.6 Purchaser's Option if Damage, Etc........................................ 38
Section 9.7 Consent to Jurisdiction.................................................. 38
Section 9.8 Defamation Insurance..................................................... 39
Section 9.9 Change of Web site Address and Masthead.................................. 39
Section 9.10 Non-Competition, Non-Solicitation and Confidentiality.................... 39
Section 9.11 Schedule 4.5............................................................. 41
Section 9.12 Guarantee................................................................ 41
Section 9.13 Deficiencies............................................................. 42
Section 9.14 Transitional Services Agreement.......................................... 42
Section 9.15 Operational Service Agreements........................................... 42
Section 9.16 No Accrued Interest...................................................... 42
Section 9.17 Inter-Affiliate Accounts................................................. 42
ARTICLE 10. INDEMNIFICATION............................................................................ 43
Section 10.1 Indemnification for Breaches of Covenants and Warranty, etc.............. 43
Section 10.2 Indemnification Procedures for Third Party Claims........................ 44
ARTICLE 11. GENERAL.................................................................................... 45
Section 11.1 Public Notices........................................................... 45
Section 11.2 Expenses................................................................. 45
Section 11.3 Notices.................................................................. 46
Section 11.4 Assignment............................................................... 46
Section 11.5 Arbitration.............................................................. 47
Section 11.6 Amendment................................................................ 47
Section 11.7 Further Assurances....................................................... 47
Section 11.8 Language................................................................. 47
Section 11.9 Execution and Counterparts............................................... 47
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THIS SHARE PURCHASE AGREEMENT is made August 8, 2002.
BETWEEN:
GLOBAL COMMUNICATIONS LIMITED, a corporation governed by the
laws of Manitoba, (the "VENDOR")
- and -
G. T. C. TRANSCONTINENTAL GROUP LTD., a corporation governed
by the laws of Canada, (the "PURCHASER")
- and -
CANWEST GLOBAL COMMUNICATIONS CORP., a corporation governed by
the laws of Canada, ("CANWEST")
RECITALS:
A. The Vendor beneficially owns and controls all of the issued and
outstanding shares of the corporations listed in Exhibit A, each of
which is governed by the laws of Canada (the "COMPANIES").
B. The Vendor has agreed to sell to the Purchaser and the Purchaser has
agreed to purchase from the Vendor all of the issued and outstanding
shares and the Vendor's interest in the shareholder loans of the
Companies, on the terms and conditions of this Agreement.
THEREFORE, the parties agree as follows:
ARTICLE 1.
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
SECTION 1.1 DEFINITIONS
Whenever used in this Agreement, the following words and terms have the
meanings set out below:
"ACCOUNTS PAYABLE" means amounts due and owing by any of the Companies
to Employees, traders, suppliers and other Persons in the ordinary
course of business but, for certainty, not including the Shareholder
Loans;
"ACCOUNTS RECEIVABLE" means accounts receivable, bills receivable,
trade accounts, book debts and insurance claims recorded as receivable
in the books and records of any of the Companies and any other amount
due to any of the Companies including any refunds and rebates, and the
benefit of all security (including cash deposits), guarantees and other
collateral held by any of the Companies;
"ACCRUED LIABILITIES" means accrued liabilities of each of the
Companies incurred in the ordinary course of business, including all
Tax liabilities (whether as an actual liability for Taxes or an
adequate provision for taxes not yet due or payable), liabilities
associated with prepaid subscriptions, deferred circulation and
advertising revenue, accruals for Employees (including vacation pay),
customer rebates and allowances other than deferred income taxes but,
for certainty, not including the Shareholder Loans;
"AFFILIATE" has the meaning given in the Canada Business Corporations
Act, as amended from time to time;
"AGREEMENT" means this Share Purchase Agreement, including all
schedules, and all amendments or restatements, as permitted, and
references to "ARTICLE" or "SECTION" mean the specified Article or
Section of this Agreement;
"ARBITRATION PROCEDURES" means the procedures described in Schedule
1.1(a);
"ARM'S LENGTH" means arm's length as defined in the Income Tax Act
(Canada);
"AUDITOR" means PricewaterhouseCoopers LLP, Chartered Accountants;
"BALANCE SHEETS" means the unaudited balance sheet of each of the
Companies as at December 31, 2001, forming part of the Financial
Statements;
"BENEFIT PLANS" means all plans, arrangements, agreements, programs,
policies, practices or undertakings, to or by which any of the
Companies or the Vendor is a party or bound or under which any of the
Companies or the Vendor has any liability, relating to: (a) Pension
Plans; (b) Insurance Plans; or (c) Compensation Plans, with respect to
any Employees or former employees of any of the Companies (or any
dependants or beneficiaries of any such Employees or former employees),
other than Union Plans and Statutory Plans;
"BUSINESS DAY" means any day, other than a Saturday or Sunday, on which
the principal commercial banks in the Cities of Toronto and Winnipeg
are open for commercial banking business during normal banking hours;
"CANWEST/SOUTHAM INTELLECTUAL PROPERTY" means all intellectual property
rights of CanWest and any of its Affiliates which (i) are used by more
than one of CanWest's Affiliates (not comprising the Companies) and
(ii) are not used principally by any of the Companies;
"CLAIMS" means any claim, demand, action, cause of action, damage,
loss, costs, grievances, complaints, liability or expense, including
reasonable professional fees, legal fees on a solicitor and client
basis and all costs incurred in investigating or pursuing any of the
foregoing or any proceeding relating to any of the foregoing;
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"CLOSING" means the completion of the sale to and purchase by the
Purchaser of the Purchased Shares under this Agreement;
"CLOSING AGREEMENTS" means the Pension and Employee Benefits Plans
agreement substantially in the form of that appended in Schedule A and
the Transitional Services Agreement;
"CLOSING DATE" means August 8, 2002 provided that, if Competition Act
Approval shall not have been obtained by such date, the Closing Date
shall be the earlier of August 30, 2002 and the third Business Day
following receipt of Competition Act Approval, or such other date as
the Parties may agree in writing as the date upon which the Closing
shall take place;
"CLOSING STATEMENT" has the meaning given in Section 3.3;
"CLOSING TIME" means 10:00 o'clock a.m., Toronto time, on the Closing
Date or such other time on such date as the Parties may agree in
writing as the time at which the Closing shall take place;
"CLOSING NET WORKING CAPITAL" has the meaning given in Section 3.1;
"COLLECTIVE AGREEMENTS" means collective agreements and memoranda of
settlement for the renewal of collective agreements with trade unions
acting as bargaining agents for Employees by which any of the Companies
is bound;
"COMPANIES" has the meaning given it in Recital A;
"COMPENSATION PLANS" means any and all employment benefits relating to
bonus, commission, incentive pay or compensation, performance
compensation, deferred compensation, profit sharing or deferred profit
sharing, share purchase, share option, stock appreciation, phantom
stock, vacation or vacation pay, sick pay, severance or termination
pay, employee loans or separation from service benefits, or any other
type of arrangement providing for compensation or benefits additional
to base pay or salary;
"COMPETITION ACT APPROVAL" means:
(a) the issuance of an advance ruling certificate ("ARC") pursuant
to Section 102 of the Competition Act (Canada) (the
"Competition Act") by the Commissioner of Competition
appointed under the Competition Act (the "Commissioner") to
the effect that he is satisfied that he would not have
sufficient grounds upon which to apply to the Competition
Tribunal for an order under Section 92 of the Competition Act
with respect to the transactions contemplated by this
Agreement; or
(b) the waiver by the Commissioner under Section 113(c) of the
Competition Act of the obligation to notify the Commissioner
because substantially similar information was previously
supplied in relation to a request for an ARC, or that
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the waiting period under Section 123 of the Competition Act
has expired and the Purchaser shall not have been advised in
writing by the Commissioner that the Commissioner has
determined to make an application for an order under Section
92 of the Competition Act in respect of the transactions
contemplated by this Agreement.
"CONTENT" means all primed or electronic text, data, information and
graphics included in any newspapers, magazines, publications,
databases, archives or websites published or operated by or for any of
the Companies;
"CONTRACT" means any contract, license, lease, agreement, commitment,
entitlement or engagement, written or oral, to which any of the
Companies is a party or by which any of the Companies is bound or under
which any of the Companies has, or will have, any liability or
contingent liability, and includes any quotation, order or tender for
any contract which remains open for acceptance and any warranty,
guarantee or commitment (express or implied), including the Equipment
Contracts;
"EMPLOYEES" means those individuals employed or retained by the
Companies on a full-time, part-time or temporary basis, including those
employees on disability leave, parental leave or other authorized
absence;
"ENCUMBRANCE" means any pledge, lien, prior claim, hypothecation,
charge, security interest, lease, title retention agreement, mortgage,
restriction, development or similar agreement, easement, right-of-way,
title defect, option or adverse claim, or encumbrance of any kind or
character whatsoever, including the Xxxxxxxxx ROFR;
"ENVIRONMENT" means the natural environment as defined in any
Environmental Laws and includes air, surface water, ground water, land
surface, soil, subsurface strata and any sewer system;
"ENVIRONMENTAL APPROVAL" means any approval, permit, certificate,
license, authorization, consent, agreement, instruction, direction,
registration, or approval issued, granted, conferred or required by a
Governmental Authority pursuant to an Environmental Law with respect to
the operations, business or assets of any of the Companies;
"ENVIRONMENTAL LAWS" means those Laws relating to the Environment, and
includes any Laws relating to the storage, generation, use, handling,
manufacture, processing, labelling, advertising, sale, display,
transportation, treatment, reuse, recycling, Release and disposal of
Hazardous Substances, and excludes Occupational Health and Safety Laws;
"EQUIPMENT CONTRACTS" means motor vehicle leases, equipment leases,
conditional sales contracts, title retention agreements and other
similar agreements relating to equipment used by any of the Companies;
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"ESTIMATED NET WORKING CAPITAL" means the Net Working Capital
calculated on a combined basis using the internally prepared statement
of current assets and current liabilities of each of the Companies as
at the last day of the month immediately preceding the Closing Date;
"FINANCIAL STATEMENTS" means (a) the unaudited financial statements of
each of the Companies for the period ended December 31, 2001, and (b)
the audited consolidated financial statements of (i) the Companies in
the Maritime region and (ii) the Companies in Saskatchewan for the
period ended December 31, 2001, in each case including the notes to
such financial statements together with the report of the Auditors
thereon; copies of which are annexed as Schedule 4.10;
"FIXED ASSETS" means fixed assets, machinery, equipment (including any
computer hardware and devices), fixtures, furniture, furnishings,
vehicles, material handling equipment, implements, parts, tools, jigs,
dies, moulds, patterns and tooling, owned or used or held by any of the
Companies, including any which are in storage or in transit, and other
tangible property and facilities used by any of the Companies whether
located in or on the premises of any of the Companies or elsewhere;
"GAAP" means the accounting principles recommended, from time to time,
in the Handbook of the Canadian Institute of Chartered Accountants and,
in respect of each of the Companies, the accounting policies of such
particular Company, in all cases applied on a basis consistent with the
basis used in connection with the preparation of the Financial
Statements of such particular Company;
"GOVERNMENTAL AUTHORITY" means any government, regulatory authority,
governmental department, agency, commission, board, tribunal, dispute
settlement panel or body, bureau, official, minister, Crown
corporation, court or other law, rule or regulation making entity
having or purporting to have jurisdiction on behalf of any nation, or
province, state, municipal or other geographic or political subdivision
thereof;
"GOVERNMENTAL AUTHORIZATION" means any authorization, approval,
including any Environmental Approval, certificate, order, consent,
directive, notice, license, permit, variance, registration or similar
right issued to or required by any of the Companies by or from any
Governmental Authority;
"GUARANTEES" means (i) the guarantee agreements by each of the
Companies and each of its respective predecessors, each dated as of
November 16, 2000 or November 22, 2000, made in favour of The Bank of
Nova Scotia, as administrative agent, and concerning senior secured
credit facilities of CanWest Media Inc., an Affiliate of CanWest and
(ii) the guarantee provided by each of the Companies in connection with
senior subordinated notes due in 2011 issued by CanWest Media Inc.
pursuant to an Indenture dated as of May 17, 2001;
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"HAZARDOUS SUBSTANCE" means any pollutant, contaminant, waste of any
nature, hazardous substance, hazardous material, toxic substance,
prohibited substance, dangerous substance or dangerous good as defined,
judicially interpreted or identified in any Environmental Laws
including any asbestos or asbestos-containing materials;
"XXXXXXXXX ROFR" means the right of first refusal of Xxxxxxxxx Inc. and
certain of its Affiliates to acquire the assets of each of the
Companies;
"INTELLECTUAL PROPERTY" means all patents, copyrights, Trade-marks
(including registrations of and applications for all of the foregoing
in any jurisdiction and renewals, divisions, extensions and reissues,
where applicable, relating thereto), trade secrets, confidential
information, Technology, Content and all other intellectual property
rights of any kind or nature owned or used by any of the Companies,
other than CanWest/Southam Intellectual Property;
"INSURANCE PLANS" means any and all employment benefits relating to
disability or wage continuation during periods of absence from work
(including short-term disability, long-term disability and workers'
compensation), hospitalization, health, eye care, medical or dental
treatments or expenses, life insurance, death or survivor's benefits
and supplementary employment insurance, in each case regardless of
whether or not such benefits are insured or self-insured;
"INTER-AFFILIATE ACCOUNTS" has the meaning given it in Section 9.17;
"INTEREST RATE" means the rate per annum equal to the rate quoted by
the Canadian Imperial Bank of Commerce on the Closing Date as the
reference rate of interest it uses for determining interest rates on
Canadian dollar commercial loans in Canada and designated as such
Bank's prime rate;
"INVENTORIES" means the inventories of each of the Companies of every
kind and nature and wheresoever situate, including inventories of raw
materials, work-in-progress, finished goods and by-products, spare
parts, operating supplies and packaging materials;
"LAWS" means any requirements of any Governmental Authority having the
force of law, including applicable laws, statutes, by-laws, rules,
regulations, orders, ordinances, protocols, codes, treaties, notices,
directions and judicial, arbitral, administrative, ministerial or
departmental judgements or awards;
"LEASED REAL PROPERTY" means premises used by any of the Companies
which are leased, subleased, licensed or otherwise occupied by any of
the Companies and the interest of any of the Companies in all fixtures
and improvements situate on or forming part of such premises;
"LENDERS" means the lenders to CanWest and/or its Affiliates under its
senior secured lending facility, its senior subordinated notes and its
subordinated notes;
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"MATERIAL ADVERSE EFFECT" means any condition, event or development
which is or reasonably could be expected to result in or represent a
material adverse effect or change, individually or in the aggregate, on
or in the financial condition, assets, business, operations or
prospects, results of operations, liabilities or rights of a Person or
which has a significant adverse effect on the value of the business of
such Person, other than those resulting from industry-wide conditions
or general economic conditions affecting the industry in which the
businesses of the Person is carried on;
"MATERIAL CONTRACT" means any (a) Collective Agreement; (b) Real
Property Lease in respect of which the annual rent exceeds $25,000; (c)
Intellectual Property license; (d) Pension Plan; and (e) Contract (i)
involving a one-time cost or annual payments to or by any of the
Companies in excess of $25,000, (ii) involving rights or obligations of
any of the Companies that may reasonably extend beyond one (1) year
which cannot be terminated without penalty on less than three (3)
months notice and which has annual payments in excess of $25,000, (iii)
which is outside the ordinary course of business, or (iv) containing
any material restriction on the ability of any of the Companies to
carry on its business;
"NET WORKING CAPITAL" means the aggregate value of all Accounts
Receivable of all of the Companies, less a proper and reasonable
allowance for doubtful accounts (consistent with the allowances taken
in the Balance Sheets); plus the aggregate value of all Inventories of
all of the Companies; plus the aggregate value of prepaid expenses of
all of the Companies; plus the aggregate amounts of all cash and cash
equivalents of the Companies; less the aggregate value of all Accounts
Payable and Accrued Liabilities of all of the Companies, the whole as
determined in accordance with GAAP. For greater certainty, the Net
Working Capital can be a negative or a positive amount;
"NOTICE" has the meaning given in Section 11.3;
"OCCUPATIONAL HEALTH AND SAFETY LAWS" means all Laws relating in full
or in part to the protection of employee or worker health and safety;
"OPERATIONAL SERVICES AGREEMENTS" means the following agreements, each
dated as of April 30, 2002 (a) the Advertising Representation Agreement
between CanWest Media Sales Limited and each of the Companies; (b) the
Southam News Agreement between Southam Publications Inc. and each of
the Companies in the Maritime region; (c) the Southam Editorial
Services Agreement between Southam Publications Inc. and each of the
Companies; (d) the Electronic Distribution Agreement between Infomart
Limited and each of the Companies; (e) the xxxxxx.xxx Services
Agreement between xxxxxx.xxx New Media Inc. and each of the Companies;
(f) the National Post Distributorship Agreement between The National
Post Company and each of Charlottetown Guardian Group Inc., Halifax
Daily News Group Inc., and Newfoundland Newspapers Group Inc., and (g)
the National Post Printing Agreement between The National Post Company
and each of Halifax Daily News Group Inc., and Newfoundland Newspapers
Group Inc.;
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"OWNED REAL PROPERTY" means real property owned by any of the Companies
including all fixtures and improvements situate on or forming part of
such real property;
"PARTIES" means the Vendor and the Purchaser collectively, and "Party"
means any one of them;
"PENSION PLANS" means all benefit plans relating to retirement or
retirement savings including pension plans, pensions or supplemental
pensions, "registered retirement savings plans" (as defined in the
Income Tax Act (Canada)), "registered pension plans" (as defined in the
Income Tax Act (Canada)) and "retirement compensation arrangements" (as
defined in the Income Tax Act (Canada)) including SERAs;
"PERMITTED ENCUMBRANCES" means the Encumbrances listed in Schedule
1.1(b);
"PERSON" means any individual, sole proprietorship, partnership, firm,
entity, unincorporated association, unincorporated syndicate,
unincorporated organization, trust, body corporate, Governmental
Authority, and where the context requires, any of the foregoing when
acting as trustee, executor, administrator or other legal
representative;
"PURCHASE PRICE" has the meaning given in Section 3.1;
"PURCHASED SHARES" means all of the issued and outstanding shares in
the capital of each of the Companies;
"REAL PROPERTY" means the Owned Real Property and the Leased Real
Property;
"REAL PROPERTY LEASES" means all agreements to lease, leases, subleases
or licences or other agreements or rights pursuant to which any of the
Companies uses or occupies the Leased Real Property;
"RELEASE" has the meaning prescribed in any Environmental Laws and
includes, any sudden, intermittent or gradual release, spill, leak,
pumping, addition, pouring, emission, emptying, discharge, injection,
escape, leaching, disposal, dumping, deposit, spraying, burial,
abandonment, incineration, seepage, placement or introduction, whether
accidental or intentional;
"REMEDIAL ORDER" means any administrative complaint, direction, order
or sanction issued, filed, imposed or threatened by any Governmental
Authority pursuant to any Environmental Laws and includes, any order
requiring investigation or remediation of any site or any remediation
or clean-up of any Hazardous Substance, or requiring that any Release
or any other activity be reduced, modified or eliminated or requiring
any form of payment or co-operation be provided to any Governmental
Authority;
"SERA" means a supplemental executive retirement arrangement;
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"SHAREHOLDER LOANS" means the indebtedness of each of the Companies to
the Vendor pursuant, in respect of each of the Companies, to a note
dated November 3, 2000, including all principal and interest owing
thereon;
"STATUTORY PLANS" means statutory benefit plans with which any of the
Companies is required to comply, including the Canada Pension Plan and
plans administered pursuant to applicable health tax, workers'
compensation and unemployment insurance legislation;
"TAX RETURNS" has the meaning given it in Section 4.30;
"TAX" or "TAXES" means taxes, duties, fees, premiums, assessments,
reassessment, imposts, levies and other charges of any kind whatsoever
imposed by any Governmental Authority, including all interest,
penalties, fines, additions to tax or other additional amounts imposed
in respect thereof, including those levied on, or measured by, or
referred to as, income, gross receipts, profits, capital, transfer,
land transfer, sales, goods and services, harmonized sales, use,
value-added, excise, stamp, withholding, business, franchising,
property, employer health, payroll, employment, health, social
services, education and social security taxes, all surtaxes, all
customs duties and import and export taxes, all licence, franchise and
registration fees and all employment insurance, health insurance and
Canada, Quebec and other government pension plan premiums or
contributions;
"TECHNOLOGY" means any computer software and hardware, equipment,
device, tool, method, process, procedure, technique, formula, design,
plan, technical information, research data, discovery, know-how,
concept or invention, whether or not patentable, and any other subject
matter of a technical or functional nature, owned or used by any of the
Companies but not including any CanWest/Southam Intellectual Property;
"TRADE-MARKS" means trade-marks, brand names, business names, internet
domain names, trade names, slogans, URLs, designs, graphics and logos,
and other indicia of origin, whether or not registered, owned or used
by any of the Companies, but not including any CanWest/Southam
Intellectual Property used by the Companies;
"TRANSITIONAL SERVICES AGREEMENT" has the meaning given it in Section
9.14;
"UNION PLANS" means benefit plans which are or are required to be
established and maintained pursuant to a Collective Agreement and which
are not maintained or administered by the Companies or any of their
Affiliates.
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SECTION 1.2 CERTAIN RULES OF INTERPRETATION
In this Agreement:
(a) CONSENT - Whenever a provision of this Agreement requires an
approval or consent and such approval or consent is not
delivered within the applicable time limit, then, unless
otherwise specified, the Party whose consent or approval is
required shall be conclusively deemed to have withheld its
approval or consent.
(b) CURRENCY - Unless otherwise specified, all references to money
amounts are to lawful currency of Canada.
(c) GOVERNING LAW - This Agreement is a contract made under and
shall be governed by and construed in accordance with the laws
of the Province of Ontario and the federal laws of Canada
applicable in the Province of Ontario.
(d) HEADINGS - Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
(e) INCLUDING - Where the word "including" or "includes" is used
in this Agreement, it means "including (or includes) without
limitation".
(f) NO STRICT CONSTRUCTION - The language used in this Agreement
is the language chosen by the Parties to express their mutual
intent, and no rule of strict construction shall be applied
against any Party.
(g) NUMBER AND GENDER - Unless the context otherwise requires,
words importing the singular include the plural and vice versa
and words importing gender include all genders.
(h) SEVERABILITY - If, in any jurisdiction, any provision of this
Agreement or its application to any Party or circumstance is
restricted, prohibited or unenforceable, such provision shall,
as to such jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability without
invalidating the remaining provisions of this Agreement and
without affecting the validity or enforceability of such
provision in any other jurisdiction or without affecting its
application to other Parties or circumstances.
(i) STATUTORY REFERENCES - A reference to a statute includes all
regulations made pursuant to such statute and, unless
otherwise specified, the provisions of any statute or
regulation which amends, supplements or supersedes any such
statute or any such regulation.
(j) TIME - Time is of the essence in the performance of the
Parties' respective obligations.
-10-
(k) TIME PERIODS - Unless otherwise specified, time periods within
or following which any payment is to be made or act is to be
done shall be calculated by excluding the day on which the
period commences and including the day on which the period
ends and by extending the period to the next Business Day
following if the last day of the period is not a Business Day.
(l) GAAP - All accounting terms not otherwise defined in this
Agreement have the meanings assigned to them in accordance
with
GAAP.
(m) KNOWLEDGE - Reference to the knowledge of the Vendor means (i)
the actual knowledge, information and belief of Xxxxxx Xxxxxxx
and Xxxxxx Xxxxxx and (ii) the knowledge, information and
belief any of Xxxxxx Xxxxxxx and Xxxxxx Xxxxxx would have
obtained after making reasonable inquiry of the relevant
senior management of the Companies and relevant senior
management of CanWest with respect to the particular matter in
question.
(n) MADE AVAILABLE - Any reference to information or materials
being made available by the Vendor to the Purchaser shall mean
that such information or materials were placed in the due
diligence data room at the offices of Osler, Xxxxxx & Harcourt
LLP, counsel to the Vendor, or provided directly to the
Purchaser by CanWest or its Affiliates or any of their
respective representatives.
(o) MARITIMES - Reference to the "Maritimes" or the "Maritime
provinces" means any or all, as the case may be, of Nova
Scotia, New Brunswick, Xxxxxx Xxxxxx Island and Newfoundland
and Labrador.
SECTION 1.3 ENTIRE AGREEMENT
This Agreement, together with the agreements and other documents
required to be delivered pursuant to this Agreement, constitutes the entire
agreement between the Parties and set out all the covenants, promises,
warranties, representations, conditions, understandings and agreements between
the Parties pertaining to the subject matter of this Agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written. There are no covenants, promises, warranties, representations,
conditions, understandings or other agreements, oral or written, express,
implied or collateral between the Parties in connection with the subject matter
of this Agreement except as specifically set forth in this Agreement and any
document required to be delivered pursuant to this Agreement.
SECTION 1.4 SCHEDULES
The schedules to this Agreement, as listed below, are an integral part
of this Agreement:
SCHEDULE DESCRIPTION
-------- -----------
Schedule A Form of Pension and Employee Benefits Plans
Agreement
-11-
SCHEDULE DESCRIPTION
-------- -----------
Schedule 1.1(a) Arbitration Procedures
Schedule 1.1(b) Permitted Encumbrances
Schedule 3.5 Allocation of Purchase Price
Schedule 4.4 Capitalization
Schedule 4.5 CanWest Assets
Schedule 4.10 Financial Statements
Schedule 4.18 Governmental Authorizations
Schedule 4.19 Intellectual Property
Schedule 4.20 Owned Real Property
Schedule 4.21 Leased Real Property
Schedule 4.23 Environmental Matters
Schedule 4.24 Employment Matters
Schedule 4.26 Pension and Benefit Plans
Schedule 4.28 Material Contracts
Schedule 4.29 Litigation
Schedule 4.30 Tax Matters
Schedule 4.33 Shareholder Loans
Schedule 9.15 Amendments to Operational Services Agreements
-12-
ARTICLE 2.
PURCHASE AND SALE
SECTION 2.1 ACTION BY VENDOR AND PURCHASER
Subject to the provisions of this Agreement, at the Closing Time:
(a) PURCHASE AND SALE OF PURCHASED SHARES - the Vendor shall sell
and the Purchaser shall purchase the Purchased Shares and the
Vendor's rights under the Shareholder Loans;
(b) PAYMENT OF PURCHASE PRICE - the Purchaser shall pay the
Purchase Price to the Vendor as provided in Sections 3.2 and
3.3;
(c) TRANSFER AND DELIVERY OF THE PURCHASED SHARES AND SHAREHOLDER
LOANS - the Vendor shall transfer and deliver to the Purchaser
(i) share certificates representing the Purchased Shares duly
endorsed in blank for transfer, or accompanied by irrevocable
security transfer powers of attorney duly executed in blank,
in either case by the holders of record, and shall take such
steps as shall be necessary to cause each of the Companies to
enter the Purchaser or its nominee(s) upon the books of each
of the Companies as the holder of the Purchased Shares and to
issue one or more share certificates to the Purchaser or its
nominee(s) representing the Purchased Shares; and (ii) an
assignment of the Vendor's rights under the Shareholder Loans;
and
(d) OTHER DOCUMENTS - the Vendor and Purchaser shall deliver such
other documents as may be necessary to complete the
transactions provided for in this Agreement.
SECTION 2.2 PLACE OF CLOSING
The Closing shall take place at the Closing Time at the offices of
Osler, Xxxxxx & Harcourt LLP, counsel to the Vendor, located at 0 Xxxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx, or at such other place as may be agreed upon by the
Vendor and the Purchaser.
SECTION 2.3 TENDER
Any tender of documents or money under this Agreement may be made upon
the Parties or their respective counsel and money may be tendered by official
bank draft drawn upon a Canadian chartered bank or by negotiable cheque payable
in Canadian funds and certified by a Canadian chartered bank or trust company
or, with the consent of the Party entitled to payment, by wire transfer of
immediately available funds to the account specified by that Party.
-13-
ARTICLE 3.
PURCHASE PRICE
SECTION 3.1 PURCHASE PRICE
The amount payable by the Purchaser for the Purchased Shares and the
Vendor's rights under the Shareholder Loans (the "PURCHASE PRICE") shall be the
amount of $255 million, plus (or minus, as the case may be) the amount of the
Net Working Capital as at the close of business on the Closing Date (the
"CLOSING NET WORKING CAPITAL").
SECTION 3.2 SATISFACTION OF PURCHASE PRICE
Subject to Section 3.3, the Purchaser shall pay and satisfy the
Purchase Price by payment to the Vendor at the Closing Time of $255 million plus
(or minus, as the case may be) an amount equal to the Estimated Net Working
Capital and payment, if applicable, to the Vendor of the balance, if any, in
accordance with Section 3.3. The Vendor shall provide Notice of the Estimated
Net Working Capital to the Purchaser no later than three Business Days prior to
Closing.
SECTION 3.3 NET WORKING CAPITAL ADJUSTMENT
As soon as reasonably practical after the Closing Date and in any event
not later than sixty (60) days thereafter, the Vendor shall prepare and deliver
to the Purchaser an audited statement of the assets and liabilities of the
Companies, including a statement of the Closing Net Working Capital ("CLOSING
STATEMENT") (but, for certainty, not including any audit of the retained
earnings of the Companies). The Vendor and the Purchaser and their respective
auditors shall cooperate in the preparation of the Closing Statement. Subject to
Section 3.4, within ten (10) days after delivery by the Vendor to the Purchaser
of the Closing Statement, if the Closing Net Working Capital exceeds the
Estimated Net Working Capital, the Purchaser shall pay to the Vendor the amount
of the excess and if the Closing Net Working Capital is less than the Estimated
Net Working Capital then the Vendor shall pay the Purchaser the amount of the
difference. The amounts paid as adjustments under this Section 3.3 shall be paid
together with an additional amount compounded monthly from the Closing Date to
the date of payment at a rate of interest equal to the Interest Rate. For
purposes of determining the Closing Net Working Capital, in respect of any
Accounts Receivable from any Affiliate of CanWest other than the Companies, such
Accounts Receivable shall not include any amounts which (a) are overdue as of
the Closing Date, applying for those purposes the payment terms of the
Operational Services Agreements as amended and restated as of the Closing Date;
or (b) are not receivable in connection with services provided under the
Operational Services Agreements or Closing Agreements.
SECTION 3.4 OBJECTION TO CLOSING STATEMENT
(a) DELIVERY OF OBJECTION NOTICE - In the event that the Purchaser
objects in good faith to any aspect of the Closing Statement,
the Purchaser shall so advise the Vendor by delivery to the
Vendor of a written notice (the "OBJECTION NOTICE") within
fifteen (15) days after the delivery to the Purchaser of the
Closing
-14-
Statement. The Objection Notice shall set out the reasons for
the Purchaser's objection, as well as the amount under dispute
and reasonable details of the calculation of such amount. Any
amount not in dispute must be paid in the manner set forth in
Section 3.3.
(b) AGREEMENT OF PARTIES - In the event that the Parties agree on
a resolution of the dispute set out in the Objection Notice,
the Parties shall confirm this resolution in writing and shall
thereafter be bound by such resolution.
(c) ARBITRATION - In the event that the Parties are unable to
settle any dispute with respect to the Closing Statement
within fifteen (15) days after the delivery by the Purchaser
to the Vendor of the Objection Notice, the dispute shall
forthwith, and in any event within thirty (30) days after the
delivery by the Purchaser to the Vendor of the Objection
Notice, be referred to an international accounting firm with
no recent connection to either of the Parties to be chosen by
lot as arbitrator. The arbitration shall, except to the extent
provided for in this Section 3.4(c), be conducted in Toronto
in accordance with the Arbitration Procedures. Arbitration
under this Section 3.4(c) shall be in substitution for and
precludes the bringing of any action in any court in
connection with any objection made by the Purchaser pursuant
to this Section 3.4(c).
(d) DETERMINATION OF ARBITRATOR - The determination of the
arbitrator shall be made within thirty (30) days after the
date on which the dispute was referred to it and the
determination of the arbitrator shall be final and binding on
all Parties. The Closing Statement and the Purchase Price
shall be adjusted in accordance with the determination of the
arbitrator.
(e) PAYMENT IN ACCORDANCE WITH DETERMINATION - Within five (5)
days after resolution, by agreement of the Parties, of the
dispute which was the subject of the Objection Notice or,
failing such resolution, within five (5) days after the final
determination of the arbitrator, the Vendor or the Purchaser,
as the case may be, shall pay to the other the amount by which
the Purchase Price is to be adjusted as a result of such
resolution or final determination in the manner contemplated
by Section 3.3.
SECTION 3.5 ALLOCATION OF PURCHASE PRICE
The Purchase Price shall be allocated in accordance with the provisions
of Schedule 3.5. The Vendor and the Purchaser agree to report the purchase and
sale of the Purchased Shares and the Vendor's rights under the Shareholder
Loans, in any returns required to be filed under the Income Tax Act (Canada) and
other taxation statutes in accordance with the provisions of Schedule 3.5.
-15-
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor represents and warrants to the Purchaser, the matters set
out below.
SECTION 4.1 INCORPORATION AND REGISTRATION
Each of the Companies is a corporation duly continued and validly
existing under the laws of Canada and has all necessary corporate power,
authority and capacity to own its property and assets and to carry on its
business as presently conducted. Neither the nature of the business of each of
the Companies nor the location or character of the property owned or leased by
each of the Companies requires it to be registered, licensed or otherwise
qualified as an extra-provincial or foreign corporation in any jurisdiction and
other than jurisdictions where the failure to be so registered, licensed or
otherwise qualified would not have a Material Adverse Effect on the Company that
is not registered, licensed or otherwise qualified.
SECTION 4.2 RESIDENCE OF THE VENDOR
The Vendor is not a non-resident of Canada for the purposes of the
Income Tax Act (Canada).
SECTION 4.3 RIGHT TO SELL
The Vendor is a corporation duly continued and validly existing under
the laws of Manitoba. The Vendor is the sole beneficial and registered owner of
the Purchased Shares and of the Vendor's rights under the Shareholder Loans free
and clear of all Encumbrances other than the Permitted Encumbrances. The Vendor
has the exclusive right to dispose of the Purchased Shares and the Vendor's
rights under the Shareholder Loans as provided in this Agreement and such
disposition will not violate, contravene, breach or offend against in any
material respect or result in any material default under any indenture,
mortgage, lease, agreement, obligation, commitment, instrument, charter or
by-law provision, order, judgment, decree, licence, permit or Laws, to which the
Vendor is a party or subject or by which the Vendor is bound or affected other
than under the Permitted Encumbrances which will be discharged prior to Closing.
The Purchased Shares are not subject to the terms of any shareholders agreement
or unanimous shareholder declaration.
SECTION 4.4 CAPITALIZATION
The authorized and issued share capital of each of the Companies is as
set forth in Schedule 4.4. All of the Purchased Shares have been duly created,
authorized and validly issued and are outstanding as fully paid and
non-assessable shares. No options, warnings or other rights to purchase shares
or other securities (issued or unissued) of any of the Companies and no
securities or obligations convertible into or exchangeable for shares or other
securities (issued or unissued) of any of the Companies have been authorized or
agreed to be issued or are outstanding, other than the Xxxxxxxxx ROFR.
-16-
SECTION 4.5 TITLE TO THE ASSETS
Except as identified in Schedule 4.5, each of the Companies is the sole
beneficial and legal owner of all of the assets, whether real or personal,
tangible and intangible (other than the Intellectual Property), and which are
(i) reflected on its Balance Sheet, or (ii) acquired after the date of such
Balance Sheet, except for those assets sold for fair value in the ordinary
course of business after the Balance Sheet date, with good valid title, free and
clear of all Encumbrances other than Permitted Encumbrances. All of the tangible
assets of the Companies are located in or on the Real Properties and all of the
tangible assets located in or on the Real Properties are owned or leased by one
of the Companies, except for those assets identified in Schedule 4.5. In
particular, without limiting the generality of the foregoing, there has been no
assignment, subletting or granting of any licence (of occupation or otherwise)
of or in respect of any of the Companies' assets or any granting of any
agreement or right capable of becoming an agreement or option for the purchase
of any of such assets other than (a) pursuant to the provisions of, or as
disclosed in, this Agreement, or (b) by reason of certain Permitted Encumbrances
which will be discharged prior to Closing.
SECTION 4.6 DUE AUTHORIZATION
The Vendor has all necessary corporate power, authority and capacity to
enter into this Agreement and to carry out its obligations under this Agreement.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of the Vendor.
SECTION 4.7 ENFORCEABILITY OF OBLIGATIONS
This Agreement constitutes a valid and binding obligation of the Vendor
enforceable against it in accordance with its terms.
SECTION 4.8 ABSENCE OF CONFLICTING AGREEMENTS
Except for the Permitted Encumbrances, and the requirement for
Competition Act Approval, none of the Companies is a party to, bound or affected
by or subject to any indenture, mortgage, lease, agreement, obligation,
instrument, charter or by-law provision, order, judgment, decree, licence, Laws
or Governmental Authorizations which (a) would be violated, contravened,
breached in any material respect by, or (b) under which a material default would
occur or an Encumbrance would be created as a result of, or (c) under which any
third party would have the right to terminate, modify or accelerate any material
obligation thereunder as a result of, or (d) would require any material
authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with (in this section, a "Consent"), any Person, as a
result of the execution and delivery of this Agreement or any other agreement to
be entered into under the terms of this Agreement, or the performance by the
Vendor or of any of the Companies of any of its obligations under this Agreement
or any other agreement to be entered into under the terms of this Agreement.
-17-
SECTION 4.9 REGULATORY APPROVALS
Other than Competition Act Approval, no approval, order, consent of or
filing with any Governmental Authority is required on the part of the Vendor or
any of the Companies in connection with the execution, delivery and performance
of this Agreement or any other documents and agreements to be delivered under
this Agreement or the performance of the Vendor's obligations under this
Agreement or any other documents and agreements to be delivered under this
Agreement.
SECTION 4.10 FINANCIAL STATEMENTS
The Financial Statements have been prepared in accordance with GAAP and
present fairly:
(a) the assets, liabilities and financial position as at December
31, 200l; and
(b) the sales, earnings, results of operations and (in the case of
the audited statements) changes in financial position for the
twelve month period ended December 31, 2001.
True, correct and complete copies of the Financial Statements are
attached as Schedule 4.10.
SECTION 4.11 ABSENCE OF UNDISCLOSED LIABILITIES
None of the Companies has incurred any liabilities or obligations which
is required by GAAP to be disclosed on a balance sheet or in the notes thereto
(whether accrued, absolute, contingent or otherwise) which continue to be
outstanding, except as disclosed in the Financial Statements or those incurred
in the ordinary course of business since the date of the Balance Sheets and
which will be disclosed on the Closing Statement.
SECTION 4.12 ABSENCE OF CHANGES AND UNUSUAL TRANSACTIONS
Since the date of the Balance Sheets, except as set out in or
contemplated by this Agreement:
(a) there has not been any material change in the financial
condition, or operations of any of the Companies other than
changes in the ordinary course of business, or changes
affecting all industry participants;
(b) there has not been any damage, destruction, loss, labour
dispute, organizing drive, application for certification or
other event, development or condition of any character
(whether or not covered by insurance) that has had or is
likely to result in a Material Adverse Effect on any of the
Companies;
(c) none of the Companies has transferred, assigned, sold or
otherwise disposed of any of its assets including any of those
shown or reflected in the Balance Sheets
-18-
or cancelled any debts or entitlements except, in each case,
in the ordinary course of business and consistent with past
practices;
(d) none of the Companies has granted any bonuses or made any
general wage or salary increases in respect of its Employees,
other than as provided for in the Collective Agreements, or
changed the terms of employment for any Employee, except in
the ordinary course of business and consistent with past
practice;
(e) as of the date of this Agreement, none of the Companies has
entered into or agreed to enter into any collective agreement
or other agreement or understanding concerning the renewal of
any collective agreement with any bargaining agent for
Employees;
(f) except as disclosed as a Permitted Encumbrance, none of the
Companies has mortgaged, pledged, hypothecated, subjected to
lien, granted a security interest in or otherwise encumbered
any of its assets or property, whether real or personal,
tangible or intangible;
(g) except for the advances or transfers of cash from the
Companies to the Vendor, none of the Companies, directly or
indirectly, has declared or paid any dividends or declared or
made any other payments or distributions on or in respect of
any of its shares nor have any of them, directly or
indirectly, purchased or otherwise acquired any of its shares;
(h) none of the Companies has made, incurred or assumed any
commitment, obligation or liability which is outside the
ordinary course of business or not consistent with its past
practices;
(i) none of the Companies has modified its constating instruments,
by-laws or capital structure;
(j) none of the Companies has incurred any indebtedness,
obligation or liability which is required by GAAP to be
disclosed on a balance sheet or in the notes thereto, other
than Accounts Payable and Accrued Liabilities that will be
fully disclosed on the Closing Statement; and
(k) none of the Companies has authorized, agreed or otherwise
become committed to do any of the foregoing.
SECTION 4.13 ABSENCE OF GUARANTEES
Except in respect of Permitted Encumbrances which will be discharged on
or prior to Closing, none of the Companies has given or agreed to give, or is a
party to or bound by, any guarantee, surety or indemnity in respect of
indebtedness, or other obligations, of any Person, or any other commitment by
which it is, or is contingently, responsible for such indebtedness or other
obligations.
-19-
SECTION 4.14 CONDITION OF ASSETS
To the knowledge of the Vendor, other than Fixed Assets which are under
construction, the Fixed Assets taken as a whole are in good condition, repair
and (where applicable) proper working order, having regard to their use and age,
normal wear and tear excepted.
SECTION 4.15 INVENTORIES
All Inventories are valued on the books of the Companies at cost.
Inventories are merchantable or usable and are in quantities usable or saleable
in the ordinary course of business.
SECTION 4.16 COLLECTIBILITY OF ACCOUNTS RECEIVABLE
The Accounts Receivable are good and collectible at the aggregate
recorded amounts, except to the extent of any reserves provided for such
accounts in the books and records of the Companies and are not subject to any
defence, counterclaim or set off which has been asserted in writing. The
reserves provided for such accounts are consistent with those reflected in the
Financial Statements.
SECTION 4.17 BUSINESS IN COMPLIANCE WITH LAW
To the knowledge of the Vendor, the operations of each of the Companies
have been since November 15, 2000 and are now conducted in compliance, in all
material respects, with all Laws of each jurisdiction in which the Companies
carry on or have carried on business. None of the Companies has received any
notice of any alleged violation of any such Laws which has not been cured.
SECTION 4.18 GOVERNMENTAL AUTHORIZATIONS
To the knowledge of the Vendor, (a) the Governmental Authorizations
listed in Schedule 4.18 are all the material authorizations required by each of
the Companies to enable it to carry on its business in material compliance with
all Laws; (b) such Governmental Authorizations are in full force and effect in
accordance with their terms; and (c) there have been no material violations of
such Governmental Authorizations and no proceedings are pending or, to the
knowledge of the Vendor, threatened, which could result in their revocation or
limitation.
SECTION 4.19 INTELLECTUAL PROPERTY
(a) Schedule 4.19 sets forth a complete list and brief description
of all Intellectual Property which has been registered by or
on behalf of each of the Companies or for which applications
for registration have been filed (the "LISTED INTELLECTUAL
PROPERTY").
(b) The registrations of Listed Intellectual Property are valid
and subsisting. All applications for Listed Intellectual
Property have been duly filed and are being diligently
prosecuted and, to the knowledge of the Vendor, there is no
material objection or opposition to registration of such
Intellectual Property. None of the Companies registers
copyrights in the normal course of operations. The practice
-20-
of each of the Companies with respect to registering or
applying to register Intellectual Property is consistent with
practices generally prevailing in the newspaper publishing
industry in Canada.
(c) Except as disclosed in Schedule 4.19, each of the Companies is
the beneficial owner of all right, title and interest in and
to the Intellectual Property except for any Intellectual
Property licensed to the Companies. The Intellectual Property
which is not owned by the Companies is being used by the
Companies only with the consent of or licence from the
rightful owner and all such licences are in full force and
effect.
(d) Schedule 4.19 sets forth an accurate and complete list of (i)
all material licences or other agreements with third persons
pursuant to which the Companies have acquired rights to use
Intellectual Property owned by third persons, and (ii) all
material licences or other agreements pursuant to which the
Companies have granted any third Persons the right to use any
Intellectual Property owned by the Companies. All such
material licences and agreements are in writing, valid and
binding on the other parties to such agreements and except as
disclosed in Schedule 4.19, assignable to the Purchaser.
Copies of all material third party licences have been
delivered to the Purchaser.
(e) Except as disclosed in Schedule 4.19, the Intellectual
Property owned or used by each of the Companies is in full
force and effect in all material respects and none of such
Intellectual Property that is material to the business of any
of the Companies has been used or enforced or failed to be
used or enforced in a manner that would result in its
abandonment, cancellation or unenforceability.
(f) Except as disclosed in Schedule 4.19, there is no material
claim of adverse ownership, invalidity or other opposition to
or conflict with any Intellectual Property owned by any of the
Companies nor of any pending or, to the knowledge of the
Vendor, threatened material claim against any of the Companies
relating to the Intellectual Property.
(g) Except as disclosed in Schedule 4.19 or in any other schedule
to this Agreement, none of the products or services which any
of the Companies produces, uses, sells or distributes, the
processes, methods, or materials used by any of the Companies,
including the Content, or the use of any of the Intellectual
Property by any of the Companies (1) to the knowledge of the
Vendor breaches, violates, infringes or interferes with any
intellectual property rights of any third Person in any
material respect or (2) requires any material payment for the
use of any intellectual property right of a third Person
(except for payment for Content to third Party providers of
Content in the ordinary course of business).
(h) Except as disclosed in Schedule 4.19, the Listed Intellectual
Property together with the Intellectual Property being the
subject matter of the Material Contracts and the licences or
other agreements listed in Schedule 4.19 constitute all of the
intellectual property rights necessary for the operation by
each of the Companies
-21-
of its business as presently operated, including without
limitation the production, use, sale, distribution and other
commercial exploitation of all products and services of each
of the Companies and constitute all of the intellectual
property rights necessary to operate such business after the
Closing in substantially the same manner as such business
heretofore has been operated by each of the Companies.
SECTION 4.20 OWNED REAL PROPERTY
Schedule 4.20 sets forth a complete list of the Owned Real Property.
One of the Companies is the legal and beneficial owner of the Owned Real
Property with a good and valid title thereto, free and clear of all Encumbrances
other than Permitted Encumbrances.
SECTION 4.21 LEASED REAL PROPERTY
(a) Schedule 4.21 sets forth a complete list of the Leased Real
Property by reference to municipal address and Real Property
Leases by reference to all relevant documents including
details of parties thereto and dates of documents.
(b) The Real Property Leases have not been altered or amended
except as set out in Schedule 4.21 and are in full force and
effect.
(c) There are no material agreements or understandings between the
landlord and tenant, or sublandlord and subtenant, or other
relevant parties, other than as contained in the Real Property
Leases, pertaining to the rights and obligations of the
parties thereto relating to the use and occupation of the
Leased Real Property.
(d) All interests held by each of the Companies as lessee or
occupant under the Real Property Leases are free and clear of
all Encumbrances other than Permitted Encumbrances.
(e) All payments required to be made by each of the Companies
pursuant to the Real Property Leases have been paid and none
of the Companies has been notified in writing or, to the
knowledge of the Vendor, in any other manner by any landlord
or other relevant party that it is in default in any material
respect in meeting any of its obligations under any of the
Real Property Leases.
(f) To the knowledge of the Vendor, none of the landlords or
sublandlords under any of the Real Property Leases is in
default in any material respect in meeting any of its
obligations under Real Property Leases to which it is a party.
(g) None of the Companies has any option, right of first refusal
or other contractual right relating to the Leased Real
Property, other than as set out in the Real Property Leases.
-22-
SECTION 4.22 REAL PROPERTY GENERALLY
(a) The improvements and fixtures situated on the Real Property
are in good condition and repair, having regard to their use
and age, normal wear and tear excepted.
(b) Each of the Companies has such rights of entry and exit to and
from the Real Property as are reasonably necessary to carry on
its business upon the Real Property as it is currently carried
on.
(c) No written Notice has been received by any of the Companies
alleging that any Person has any right to purchase any of the
Real Property, and no Person other than the Companies is using
or has any right to use, as tenant, or is in possession or
occupancy of, any part of such Real Property.
(d) Except for the Permitted Encumbrances, none of the Companies
has granted any option, right of first refusal or other
contractual rights with respect to the acquisition of any of
the Real Property.
(e) Except for the Permitted Encumbrances, none of the Companies
has entered into any agreement to sell, transfer, encumber, or
otherwise dispose of or impair the right, title and interest
of the Companies in and to the Real Property.
(f) No part of the Real Property is subject to any building or use
restriction that restricts or would restrict in any material
respect or prevent the use and operation of the Real Property
as it has been used or operated in the ordinary course in the
past by the Companies.
(g) All accounts for work and services performed or materials
placed or furnished upon or in respect of the construction and
completion of any of the buildings, improvements or other
structures constructed on the Real Property have been fully
paid and no one is entitled to claim a lien under the
Construction Lien Act (Ontario) or other similar legislation
in other provinces for such work performed by or on behalf of
the Companies.
(h) There are no matters affecting the right, title and interest
of any of the Companies in and to the Real Property which, in
the aggregate, would materially and adversely affect the
ability of any of the Companies after the Closing Date, to
carry its business upon the Real Property as it has been
carried on in the ordinary course in the past.
SECTION 4.23 ENVIRONMENTAL MATTERS
Except as disclosed or indicated in any of the environmental reports or
other materials listed in Schedule 4.23:
(a) To the knowledge of the Vendor, all operations of the
Companies conducted on the Real Property and the Real Property
itself while occupied by the Companies
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have been and are now in material compliance with all
Environmental Laws and any Release by the Companies of any
Hazardous Substance into the Environment complied and complies
in all material respects with all Environmental Laws.
(b) To the knowledge of the Vendor, all material Environmental
Approvals have been obtained, are valid and in full force and
effect, have been and are being complied with in all material
respects and there have been and are no proceedings commenced
or, to the knowledge of the Vendor, threatened to revoke or
amend any material Environmental Approval.
(c) None of the Companies or any of their operations are or have
been the subject of any Remedial Order nor, to the knowledge
of the Vendor, has any threat of any such Remedial Order been
made and, to the knowledge of the Vendor, there is no
circumstance or basis for such Remedial Order to be issued.
(d) None of the Companies has been prosecuted for or convicted of
any offence under any Environmental Law, nor has any of the
Companies been found liable in any proceeding to pay any fine,
penalty, damages, amount or judgment to any Person as a result
of any Release or threatened Release or as a result of the
breach of any Environmental Law and, to the knowledge of the
Vendor, there is no basis for any such proceeding or action.
(e) To the knowledge of the Vendor, except in material compliance
with Environmental Laws, no part of the Real Property or any
other of the assets of any of the Companies have been used by
any other Person as a landfill or for the disposal of waste or
Hazardous Substance.
(f) To the knowledge of the Vendor, except in material compliance
with Environmental Laws, no asbestos or asbestos containing
materials are used, stored or otherwise present in or on the
Real Property or any other assets of the Companies and no
equipment, waste or other material containing polychlorinated
biphenyls (PCBs) are used, stored or otherwise present in or
on the Real Property or any other assets of the Companies.
(g) All material environmental data and studies (including the
results of any environmental audit assessment or environmental
management system) which may disclose a materially adverse
condition in respect of the Real Property in the possession of
the Vendor or any of the Companies have been delivered or made
available to the Purchaser.
(h) To the knowledge of the Vendor, no Hazardous Substance is in,
on or under the Real Property or any other assets of the
Companies at concentrations which exceed any applicable
standards under Environmental Law.
(i) To the knowledge of the Vendor, there are no underground
storage tanks ("USTs") on the Real Property.
-24-
(j) To the knowledge of the Vendor, there is no Hazardous
Substance originating from any neighbouring or adjoining
properties which has migrated onto, into or under or is
migrating towards any of the Real Property or any other assets
of the Companies at concentrations which exceed any applicable
standards under Environmental Law.
(k) To the knowledge of the Vendor, there is no Hazardous
Substance originating from any of the Real Property or any
other assets of the Companies which has migrated onto, or is
migrating towards any neighbouring and/or adjoining properties
concentrations which exceed any applicable standards under
Environmental Law.
Notwithstanding anything else in this Agreement, the representations and
warranties made in this Section 4.23 are the exclusive and only representations
and warranties made to the Purchaser pertaining to the Environment or compliance
with Environmental Laws.
SECTION 4.24 EMPLOYMENT MATTERS
(a) A complete list of the Employees together with their titles,
service dates and base salaries has been made available to the
Purchaser. Except as disclosed in Schedule 4.24, no Employee
is on short-term or long-term disability leave, parental leave
or receiving benefits pursuant to the Workplace Safety and
Insurance Act (Ontario) or similar workers' compensation
legislation in other jurisdictions.
(b) There are no contracts of employment which are not terminable
on the giving of reasonable notice in accordance with
applicable Law, nor are there any Employees with contracts of
employment providing for cash or other compensation or
benefits upon the consummation of the transactions
contemplated by this Agreement.
(c) Except for the Benefit Plans or as disclosed in Schedule 4.24,
there are no employment policies or plans, which are binding
upon any of the Companies.
(d) Each of the Companies has been, since November 15, 2000 and is
being operated in material compliance with all Laws relating
to employees, including employment standards, Occupational
Health and Safety Laws, workers compensation legislation,
human rights, labour relations, and pay equity. There have
been no material Claims nor, to the knowledge of the Vendor,
are there any threatened material complaints or investigations
under employment-related Laws against any of the Companies.
(e) All current assessments under the Workplace Safety and
Insurance Act (Ontario) and any similar workers' compensation
legislation in other provinces in relation to each of the
Companies and all of their respective contractors and
subcontractors have been paid or accrued and none of the
Companies has been subject to any special or penalty
assessment under such legislation which has not been paid.
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SECTION 4.25 COLLECTIVE AGREEMENTS
(a) Current and complete copies of all Collective Agreements have
been made available to the Purchaser.
(b) There are no outstanding or, to the knowledge of the Vendor,
threatened unfair labour practices or complaints or
applications of any kind, including any proceedings which
could result in certification of a trade union as bargaining
agent for any Employees of any of the Companies, not already
covered by the Collective Agreements.
(c) As of the date of this Agreement, there is no strike,
slowdown, picketing, work stoppage or lock out occurring or,
to the knowledge of the Vendor, affecting any of the
Companies.
(d) Except as disclosed in Schedule 4.24, none of the Companies
has any pending arbitration cases that might materially affect
its employment cost, or lead to an interruption of its
operations, in whole or in part, at any location, or change
the manner of operating its business as presently conducted.
SECTION 4.26 PENSION AND OTHER BENEFITS
(a) Schedule 4.26 sets forth a complete list of the Benefit Plans.
(b) Current and complete copies of all written Benefit Plans have
been delivered or made available to the Purchaser together
with current and complete copies of the following documents
relating to the Benefit Plans:
(i) the most recent trust agreements and funding
agreements;
(ii) the most recent insurance contracts, investment
management agreements, subscription and participation
agreements;
(iii) the most recent financial statements and actuarial
reports;
(iv) the most recent annual information returns or other
filings and material correspondence with any
regulatory authority with whom the Benefit Plan is
registered; and
(v) all booklets, summaries and manuals distributed to
any Employees or former employees concerning any
Benefit Plans.
(c) Except as disclosed in Schedule 4.26, each Benefit Plan is,
and has been, established, registered (where required),
qualified, administered and invested, in material compliance
with the terms of such Benefit Plan and all Laws.
(d) Except as disclosed in Schedule 4.26 or in other documents
disclosed to the Purchaser (i) there have been no
improvements, increases or changes to, or
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promised improvements, increases or changes to, the benefits
provided under any Benefit Plan; and (ii) none of the Benefit
Plans provide for benefit increases or the acceleration of, or
an increase in, funding obligations that are contingent upon
or will be triggered by the entering into of this Agreement or
the completion of the transactions contemplated herein.
(e) All employer or employee payments, contributions or premiums
required to be remitted, paid to or in respect of each Benefit
Plan have been paid or remitted in a timely fashion in
accordance with its terms and all Laws, and no Taxes,
penalties or fees are owing or exigible under any Benefit
Plan.
(f) There is no investigation by a Governmental Authority, or
Claim (other than routine claims for payment of benefits)
pending or, to the knowledge of the Vendor, threatened
involving any Benefit Plan or their assets.
(g) None of the Companies has received, or applied for, any
payment of surplus out of any Benefit Plan.
(h) All Employee data necessary to administer each Benefit Plan is
in the possession of the Companies and is complete, correct
and in a form which is sufficient for the proper
administration of the Benefit Plan in accordance with its
terms and all Laws.
SECTION 4.27 INSURANCE
The Vendor on behalf of each of the Companies maintains such policies
of insurance, issued by responsible insurers, as are appropriate to its
operations, property and assets, in such amounts and against such risks as are
customarily carried and insured against by owners of comparable businesses,
properties and assets, and all such policies of insurance are in full force and
effect and neither the Vendor in respect of the Companies, nor any of the
Companies is in default, as to the payment of premium or otherwise, under the
terms of any such policy.
SECTION 4.28 MATERIAL CONTRACTS
Schedule 4.28 sets forth a complete list of the Material Contracts that
have not been listed on any other Schedule. The Material Contracts listed in
Schedule 4.28 are all in full force and effect unamended and there are no
material outstanding defaults or violations under any such Material Contract on
the part of any of the Companies or, to the knowledge of the Vendor, on the part
of any other party to such Contracts. To the knowledge of the Vendor, no
consents to the change of control of the Companies are required under any of the
Material Contracts.
SECTION 4.29 LITIGATION
Except as disclosed in Schedule 4.29, there are no Claims,
investigations, complaints, grievances or other legal or administrative
proceedings of any nature whatsoever, including appeals and applications for
review, in progress, pending or, to the knowledge of the Vendor, threatened
against or relating to any of the Companies before any Governmental Authority,
which, if determined adversely to the Companies, would,
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(a) have a material effect on any of the Companies,
(b) enjoin, restrict or prohibit the transfer of all or any part
of the Purchased Shares or Shareholder Loans as contemplated by this Agreement,
or
(c) prevent the Vendor or the Companies from fulfilling any of its
obligations set out in this Agreement or arising from this Agreement.
SECTION 4.30 TAX MATTERS
(a) Computation, Preparation and Payment - Each of the Companies
has correctly computed all Taxes, prepared and duly and timely filed (or if not
timely filed, all late filing penalties relating to such return were paid), all
federal, state, provincial, municipal, local and foreign returns, information
statements, elections, designations, reports and any other related filings ("TAX
RETURNS"), required to be filed by it, has timely paid all Taxes which are or
may become due and payable and has made adequate provision in the Financial
Statements for the payment of all Taxes payable for any taxation year ending on
or prior to December 31, 200l. Each of the Companies has made adequate and
timely payments of instalments of Taxes required to be paid (or if not timely
made, all late payment penalties relating to such instalments were paid).
(b) Accrued Taxes - With respect to any periods for which Tax
Returns have not yet been required to be filed or for which Taxes are not yet
due and payable, each of the Companies has only incurred liabilities for Taxes
in the ordinary course of business and in a manner and at a level consistent
with prior periods. The Closing Statement will contain (as an Accrued Liability)
an adequate provision for the payment of all Taxes not yet due and payable in
respect of all periods ending on or prior to the Closing Date.
(c) Status of Assessments - All Tax Returns of each of the
Companies have been assessed through and including each of the dates set forth
in Schedule 4.30 annexed hereto, and there are no outstanding waivers of any
limitation periods or agreements providing for an extension of time for the
filing of any Tax Return or the payment of any Tax by each of the Companies or
any outstanding objections to any assessment or reassessment of Taxes. Any
deficiencies proposed as a result of such assessments or reassessments of the
Tax returns through and including the dates set forth in Schedule 4.30 annexed
hereto have been paid and settled.
(d) Withholdings - Each of the Companies has duly and timely
withheld from any amount paid or credited by it to any Person, including any
Employees, officers or directors and any non-resident Person, the amount of all
Taxes and other deductions required by any Laws to be withheld from any such
amount and has duly and timely remitted the same to the appropriate Governmental
Authority when due, in the form required under the appropriate legislation, or
made adequate provision for the payment of such amounts to the proper receiving
authorities. The amount of Tax withheld but not remitted by each of the
Companies will be retained in its accounts and will be remitted by it to the
appropriate Governmental Authority when due.
(e) Collection and Remittance - Each of the Companies has
collected from each receipt from any of its past and present customers (or other
Persons paying amounts to each of the Companies) the amount of all Taxes
(including goods and services tax and provincial sales
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taxes) required to be collected and has paid and remitted such Taxes when due,
in the form required under the appropriate legislation or made adequate
provision for the payment of such amounts to the proper receiving authorities.
The amount of Tax collected but not remitted by each of the Companies will be
retained in its accounts and remitted by it to the appropriate Governmental
authority when due.
(f) Assessments - None of the Companies is or to the knowledge of
the Vendor will be subject to any assessments, reassessments, levies, penalties
or interest with respect to Taxes which will result in any liability on its part
in respect of any period ending on or prior to the Closing Date in excess of the
amount specifically recorded as an Accrued Liability for Taxes in the Closing
Statement.
(g) Forgiveness of Debt - None of the Companies has at any time
benefited from a forgiveness of debt or entered into any transaction or
arrangement (including conversion of debt into shares of their share capital)
which could have resulted in the application of Section 80 and following of the
ITA.
(h) Deferred Taxes Liability - The deferred taxes liabilities of
each of the Companies will not exceed as at the Closing Date the amount of
deferred tax liability set forth in their respective Balance Sheets, except as a
result of the Companies' carrying on their respective businesses in the ordinary
course.
SECTION 4.31 TRADE ALLOWANCES
No customers of any of the Companies are entitled to or customarily
receive discounts, allowances, volume rebates or similar reductions in price or
other trade terms except as are consistent with industry practice.
SECTION 4.32 INDEBTEDNESS
Except for the Shareholder Loans, Inter-Affiliate Accounts and the
Guarantees (i) none of the Companies has any obligation or liability in
connection with any indebtedness for borrowed money, and (ii) none of the
Companies has any indebtedness, liability or obligation to the Vendor or its
Affiliates, except for amounts payable pursuant to the Operational Services
Agreements or other agreements contemplated by this Agreement and to be set out
in the closing agenda for this transaction or other financial arrangements with
Affiliates of the Vendor including the Inter-Affiliate Accounts, which will be
paid and satisfied before Closing or included as Accounts Payable or Accrued
Liabilities on the Closing Statement.
SECTION 4.33 SHAREHOLDER LOANS
Schedule 4.33 sets forth, in respect of each of the Companies, the
aggregate principal amount of the Shareholder Loans in respect of such
particular Company.
SECTION 4.34 LENDERS' CONSENT
The Lenders to the Vendor have provided and not revoked any necessary
approvals in respect of the transactions contemplated by this Agreement.
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ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Vendor the matters
set out below:
SECTION 5.1 INCORPORATION
The Purchaser is a corporation duly incorporated and validly existing
under the laws of Canada.
SECTION 5.2 DUE AUTHORIZATION
The Purchaser has all necessary corporate power, authority and capacity
to enter into this Agreement and to carry out its obligations under this
Agreement. The execution and delivery of this Agreement and the consummation of
the transaction contemplated under this Agreement have been duly authorized by
all necessary corporate action of the Purchaser.
SECTION 5.3 ENFORCEABILITY OF OBLIGATIONS
This Agreement constitutes a valid and binding obligation of the
Purchaser enforceable against it in accordance with its terms.
SECTION 5.4 ABSENCE OF CONFLICTING AGREEMENTS
The Purchaser is not a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, obligation, instrument, charter or by-law
provision, statute, regulation, order, judgment, decree, license, permit or law
which would be violated, contravened or breached by, or under which any default
would occur or a Claim, restriction or Encumbrance would be created as a result
of the execution and delivery by it of this Agreement or the performance by it
of any of the terms of this Agreement.
SECTION 5.5 INVESTMENT CANADA
The Purchaser is Canadian within the meaning of the Investment Canada
Act (Canada).
SECTION 5.6 LITIGATION
There are no Claims, investigations, complaints or proceedings in
progress or, to the knowledge of the Purchaser, pending or threatened against or
relating to the Purchaser, before any Governmental Authority, which, if
determined adversely to the Purchaser, would,
(a) prevent the Purchaser from paying the Purchase Price to the
Vendor;
(b) enjoin, restrict or prohibit the transfer of all or any part
of the Purchased Shares or the Vendor's rights under the Shareholder Loans as
contemplated by this Agreement; or
(c) prevent the Purchaser from fulfilling any of its obligations
set out in this Agreement or arising from this Agreement,
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and the Purchaser has no knowledge of any existing ground on which any such
action, suit, litigation or proceeding might be commenced with any reasonable
likelihood of success.
ARTICLE 6.
NON-WAIVER, SURVIVAL
SECTION 6.1 NON-WAIVER
(a) Except as expressly provided in this Agreement, no
investigations made by or on behalf of the Purchaser at any time shall have the
effect of waiving, diminishing the scope or otherwise affecting any
representation or warranty made by the Vendor in or pursuant to this Agreement
and no waiver of any condition or other provisions, in whole or in part, shall
constitute a waiver of any other condition or provision (whether or not similar)
nor shall such waiver constitute a continuing waiver.
(b) Except as expressly provided in this Agreement, no
investigations made by or on behalf of the Vendor at any time shall have the
effect of waiving, diminishing the scope or otherwise affecting any
representation or warranty made by the Purchaser in or pursuant to this
Agreement.
SECTION 6.2 NATURE AND SURVIVAL
(a) Subject to subsection (b), all representations and warranties
contained in this Agreement on the part of each of the Parties shall survive the
Closing, the execution and delivery under this Agreement of any share or
security transfer instruments or other documents of title to any of the
Purchased Shares, the assignment of the Vendor's rights under the Shareholder
Loans, and the payment of the Purchase Price.
(b) Representations and warranties set forth in Sections 4.1, 4.3,
4.4, 4.5, 4.6 and 4.7 shall survive indefinitely. Representations and warranties
relating to or impacted by tax matters including those set out in Section 4.30
shall survive for a period of ninety (90) days after the relevant authorities
shall no longer be entitled to assess liability for tax against the particular
Company for any particular taxation year ended on or prior to the Closing Date,
provided that the survival of such representations and warranties shall not be
extended by virtue only of any waiver given by the Company after the Closing
Date without the consent of the Vendor, such consent not to be unreasonably
withheld. Representations and warranties relating to or impacted by
environmental matters, including those set out in Section 4.23, shall survive
for a period of three (3) years from the Closing Date. All other representations
and warranties shall only survive for a period of two (2) years from the Closing
Date. If no claim shall have been made under this Agreement against a Party for
any incorrectness in or breach of any representation or warranty made in this
Agreement prior to the expiry of these survival periods, such Party shall have
no further liability under this Agreement with respect to such representation or
warranty.
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ARTICLE 7.
PURCHASER'S CONDITIONS PRECEDENT
The obligation of the Purchaser to complete the purchase of the
Purchased Shares and the Vendor's rights under the Shareholder Loans under this
Agreement shall be subject to the satisfaction of, or compliance with, at or
before the Closing Time, each of the following conditions precedent (each of
which is acknowledged to be inserted for the exclusive benefit of the Purchaser
and may be waived by it in whole or in part).
SECTION 7.1 TRUTH AND ACCURACY OF REPRESENTATIONS OF VENDOR AT THE CLOSING
TIME
The representations and warranties of the Vendor made in or pursuant to
this Agreement which are qualified by "Material Adverse Effect", "material" "in
all material respects" and words or phrases of similar import, shall be true and
correct and any other representations and warranties which are not qualified by
"Material Adverse Effect", "material", "in all material respects" and words and
phrases of similar import shall be true and correct in all material respects, in
all cases as at the Closing Time and with the same effect as if made at and as
of the Closing Time (except as such representations and warranties may be
affected by the occurrence of events or transactions expressly permitted by this
Agreement) and the Purchaser shall have received a certificate from a senior
officer of the Vendor confirming, to his or her knowledge and without personal
liability, the truth and correctness as set forth above of the representations
and warranties of the Vendor and the satisfaction of the other conditions set
forth in Sections 7.2, 7.5 and 7.6.
SECTION 7.2 PERFORMANCE OF OBLIGATIONS
The Vendor shall have performed or complied with, in all material
respects, all its obligations and covenants under this Agreement.
SECTION 7.3 RECEIPT OF CLOSING DOCUMENTATION
All documentation relating to the due authorization and completion of
the sale and purchase of the Purchased Shares and the Vendor's rights under the
Shareholder Loans under this Agreement and all actions and proceedings taken on
or prior to the Closing in connection with the performance by the Vendor of its
obligations under this Agreement, shall be satisfactory to the Purchaser, acting
reasonably, and the Purchaser shall have received copies of all such
documentation or other evidence as it may reasonably request in order to
establish the consummation of the transactions contemplated by this Agreement
and the taking of all corporate proceedings in connection with such transactions
in compliance with these conditions, in form (as to certification and otherwise)
and substance satisfactory to the Purchaser.
SECTION 7.4 OPINION OF COUNSEL FOR VENDOR
The Purchaser shall have received an opinion dated the Closing Date
from counsel for the Vendor on terms usual and customary for transactions of
this nature and otherwise reasonably satisfactory to the Purchaser.
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SECTION 7.5 CONSENTS, AUTHORIZATIONS AND REGISTRATIONS
All material consents, approvals, orders and authorizations of any
Person (and registrations, declarations, filings or recordings with any
Governmental Authority), including the waiver or termination of the Xxxxxxxxx
ROFR, required in connection with the completion of any of the transactions
contemplated by this Agreement (other than with respect to the Pension Plans or
Benefit Plans), the execution of this Agreement, the Closing or the performance
of any of the terms and conditions of this Agreement, including Competition Act
Approval shall have been obtained at or before the Closing Time on terms
acceptable to the Purchaser, acting reasonably.
SECTION 7.6 NO PROCEEDINGS
There shall be no injunction or restraining order issued preventing,
and no pending or threatened Claim, or proceeding, judicial or administrative or
investigation against any Party by any Person, for the purpose of enjoining or
preventing the consummation of the transactions contemplated by this Agreement
or claiming (a) material damages against the Purchaser in respect of the
transactions contemplated by this Agreement, or (b) damages against any of the
Companies which, in the opinion of counsel, is reasonably likely to be
successful in an amount which would constitute a Material Adverse Effect in
respect of the Companies, or otherwise claiming that this Agreement or the
consummation of such transactions is improper or would give rise to proceedings
under any Laws.
SECTION 7.7 ENCUMBRANCES
The Purchaser shall have received evidence reasonably satisfactory to
it that all Encumbrances, other than the Permitted Encumbrances listed in
Section B of Schedule 1.1(b), have been discharged and that the assets of each
of the Companies are free and clear of all Encumbrances other than the Permitted
Encumbrances listed in Section B of Schedule 1.1(b) or, in the case of the
registrations or filings with respect to the Encumbrances listed in paragraph 2
or 3 of Section A of Schedule 1.1(b), the Purchaser shall, in respect only of
such registrations or filings, have received an undertaking, executed by the
relevant creditor parties, to discharge such registrations or filings
immediately after Closing, in each case in form and substance reasonably
satisfactory to it.
SECTION 7.8 DIRECTORS AND OFFICERS
The Board of Directors of each of the Companies at the Closing Time
shall consist of individuals nominated by the Purchaser and there shall have
been delivered to the Purchaser on or before the Closing Time the resignations
of all individuals who are prior to the Closing Time directors or officers of
the Companies and duly executed comprehensive releases from each such individual
of any claims, against the Companies.
SECTION 7.9 CLOSING AGREEMENTS
The Vendor shall have executed and delivered the Closing Agreements.
If any of the foregoing conditions in this Article has not been
fulfilled by Closing, the Purchaser may terminate this Agreement by notice in
writing to the Vendor, in which event the
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Purchaser is released from all obligations under this Agreement, and unless the
Purchaser can show that the condition relied upon could reasonably have been
performed by the Vendor, the Vendor is also released from all obligations under
this Agreement, provided that, in respect of the conditions specified in
Sections 7.1, 7.2 and 7.3, unless the breach (a) is a wilful breach; or (b)
results in a Material Adverse Effect on the Companies as a whole (the existence
of such a Material Adverse Effect to be determined by the Purchaser acting
reasonably), the Purchaser will be required to complete the purchase of the
Purchased Shares under this Agreement notwithstanding the failure to fulfil one
or more of such conditions and, in such event, the Purchaser shall have recourse
only to a claim for damages subject to the application of Section 10.1 (other
than Section 10.1(g)). However, the Purchaser may waive compliance with any
condition in whole or in part if it sees fit to do so, without prejudice to its
rights of termination in the event of non-fulfilment of any other condition, in
whole or in part, or to its rights to recover damages for the breach of any
representation, warranty, covenant or condition contained in this Agreement.
ARTICLE 8.
VENDOR'S CONDITIONS PRECEDENT
The obligations of the Vendor to complete the sale of the Purchased
Shares and the Vendor's rights under the Shareholder Loans under this Agreement
shall be subject to the satisfaction of or compliance with, at or before the
Closing Time, each of the following conditions precedent (each of which is
acknowledged to be inserted for the exclusive benefit of the Vendor and may be
waived by it in whole or in part).
SECTION 8.1 TRUTH AND ACCURACY OF REPRESENTATIONS OF THE PURCHASER AT
CLOSING TIME
All of the representations and warranties of the Purchaser made in or
pursuant to this Agreement shall be true and correct as at the Closing Time and
with the same effect as if made at and as of the Closing Time and the Vendor
shall have received a certificate of the Purchaser confirming the truth and
correctness in all material respects of such representations and warranties, and
the satisfaction of the other conditions set forth in Sections 8.2 and 8.5.
SECTION 8.2 PERFORMANCE OF OBLIGATIONS
The Purchaser shall have performed or complied with, in all respects,
all its obligations and covenants under this Agreement.
SECTION 8.3 RECEIPT OF CLOSING DOCUMENTATION
All documentation relating to the due authorization and completion of
the sale and purchase of the Purchased Shares and the Vendor's rights under the
Shareholder Loans under this Agreement and all actions and proceedings taken on
or prior to the Closing in connection with the performance by the Purchaser of
its obligations under this Agreement, shall be satisfactory to the Vendor,
acting reasonably, and the Vendor shall have received copies of all such
documentation or other evidence as it may reasonably request in order to
establish the consummation of the transactions contemplated by this Agreement
and the taking of all
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corporate proceedings in connection with such transactions in compliance with
these conditions, in form (as to certification and otherwise) and substance
satisfactory to the Vendor.
SECTION 8.4 OPINION OF COUNSEL FOR PURCHASER
The Vendor shall have received an opinion dated the Closing Date, from
counsel for the Purchaser, on terms usual and customary for transactions of this
nature and otherwise reasonably satisfactory to the Vendors.
SECTION 8.5 CONSENTS, AUTHORIZATIONS AND REGISTRATIONS
All consents, approvals, orders and authorizations of any Person (and
registrations, declarations, filings or recordings with any Governmental
Authority), required in connection with the completion of any of the
transactions contemplated by this Agreement (other than with respect to the
Pension Plans or Benefit Plans), the execution of this Agreement, the Closing or
the performance of any of the terms and conditions of this Agreement, including
Competition Act Approval and any consents required under Material Contracts
shall have been obtained at or before the Closing Time on terms acceptable to
the Vendor, acting reasonably.
SECTION 8.6 NO PROCEEDINGS
There shall be no injunction or restraining order issued preventing,
and no pending or threatened Claim, or proceeding, judicial or administrative or
investigation against any Party by any Person, for the purpose of enjoining or
preventing the consummation of the transactions contemplated by this Agreement
or claiming (a) material damages against the Vendor in respect of the
transactions contemplated by this Agreement, or (b) damages against any of the
Companies which, in the opinion of counsel, is reasonably likely to be
successful in an amount which would constitute a Material Adverse Effect in
respect of the Companies, or otherwise claiming that this Agreement or the
consummation of such transactions is improper or would give rise to proceedings
under any Laws.
SECTION 8.7 CLOSING AGREEMENTS
The Purchaser shall have executed and delivered the Closing Agreements.
SECTION 8.8 XXXXXXXXX ROFR
Xxxxxxxxx International Inc. shall have waived its rights under the
Xxxxxxxxx ROFR or such rights shall have terminated.
If any of the foregoing conditions in this Article has not been
fulfilled by Closing, the Vendor may terminate this Agreement by notice in
writing to the Purchaser, in which event the Vendor is released from all
obligations under this Agreement, and unless the Vendor can show that the
condition relied upon could reasonably have been performed by the Purchaser, the
Purchaser is also released from all obligations under this Agreement. However,
the Vendor may waive compliance with any condition in whole or in part if it
sees fit to do so, without prejudice to its rights of termination in the event
of non-fulfilment of any other condition in whole or in
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part or to its rights to recover damages for the breach of any representation,
warranty, covenant or condition contained in this Agreement.
ARTICLE 9.
OTHER COVENANTS OF THE PARTIES
SECTION 9.1 CONDUCT OF BUSINESS PRIOR TO CLOSING
During the period from the date of this Agreement to the Closing Time,
the Vendor shall cause each of the Companies to do the following:
(a) CONDUCT BUSINESS IN THE ORDINARY COURSE - except as otherwise
contemplated or permitted by this Agreement, conduct its
business in the ordinary course and not, without the prior
written consent of the Purchaser, enter into any transaction
which, if effected before the date of this Agreement, would
constitute a breach of the representations, warranties or
agreements of the Vendor contained in this Agreement;
(b) MAINTAIN GOOD RELATIONS - use all reasonable efforts to
maintain good relations with the Employees, its customers and
suppliers;
(c) CONTINUE INSURANCE - continue in force all policies of
insurance maintained by or for the benefit of the Companies,
give all notices and present claims under all insurance
policies in a timely fashion and cooperate with the Purchaser
in effecting replacement insurance coverage for the Companies;
(d) PERFORM OBLIGATIONS - comply in all material respects with all
Laws affecting the operation of the Companies;
(e) PREVENT CERTAIN CHANGES - not, without the prior written
consent of the Purchaser, take any of the actions, do any of
the things or perform any of the acts described in Section
4.12;
(f) APPROVALS - co-operate with the Purchaser and use all
commercially reasonable efforts and diligently pursue
obtaining Competition Act Approval;
(g) INTERIM FINANCIAL STATEMENTS - deliver to the Purchaser within
twenty (20) days after the end of each month, unaudited
internally prepared financial statements of each of the
Companies, including a balance sheet and a statement of income
and which, in the case of the interim financial statements
delivered immediately prior to Closing, shall be dated not
more than forty (40) days prior to the date of Closing. Such
financial statements shall be in a form consistent with the
unaudited internally prepared interim financial statements
made available to the Purchaser; and
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(h) NO COLLECTIVE AGREEMENTS - not execute or permit the Companies
to execute any collective agreement without the consent of the
Purchaser, such consent not to be unreasonably withheld.
SECTION 9.2 ACCESS FOR INVESTIGATION
(a) The Vendor shall permit the Purchaser and its representatives,
between the date of this Agreement and the Closing Time, without interference to
the ordinary conduct of business, to have reasonable access during normal
business hours to the management, senior personnel and books and records of each
of the Companies and the properties and assets used by each of the Companies,
provided that the Vendor shall not be required to disclose any information,
records, files or other data to the Purchaser where prohibited by any Laws. The
Purchaser shall provide not less than two (2) Business Days' Notice of its
desire for such access.
(b) If any consent of any Person or Governmental Authority is
required to permit the Vendor to release any information to the Purchaser, the
Vendor shall make all reasonable efforts to obtain such consent.
SECTION 9.3 ACTIONS TO SATISFY CLOSING CONDITIONS
(a) Each of the Parties shall take all such commercially
reasonable actions as are within its power to control, and use reasonable
commercial efforts to cause other actions to be taken which are not within its
power to control, so as to ensure compliance with each of the conditions and
covenants set forth in Article 7, Article 8 or Article 9 which are for the
benefit of any other Party.
(b) Without limiting the generality of subsection 9.3(a), the
Purchaser shall, with the assistance of the Vendor, submit a short form
pre-merger notification and/or an application for an advance ruling certificate
to the Commissioner of Competition under the Competition Act in complete form no
later than fourteen (14) days after the date of this Agreement and use its
commercially reasonable efforts to expedite Competition Act Approval (which for
greater certainty shall not require the Purchaser or any of its Affiliates
(including any of the Companies) to divest any asset or suffer or incur any
other burden or disadvantage). The Purchaser shall provide copies of all filings
and correspondence with the Competition Bureau (except those containing
competitively sensitive information) to the Vendor or Vendor's counsel.
SECTION 9.4 PRESERVATION OF RECORDS AND ACCESS TO PERSONNEL
The Purchaser shall take all reasonable steps to preserve and keep the
records of each of the Companies delivered to it in connection with the
completion of the transactions contemplated by this Agreement for a period of
six (6) years from the Closing Date, or for any longer period as may be required
by any Laws or Governmental Authority, and shall make such records and the
employees of the Companies available to the Vendor, at the expense of Vendor, as
may be reasonably required by the Vendor, including in connection with a Claim
by the Purchaser against the Vendor under this Agreement. The Vendor
acknowledges that the Purchaser shall not be liable to the Vendor in the event
of any destruction of such records, caused otherwise than by the gross
negligence of the Purchaser.
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SECTION 9.5 STUB PERIOD RETURNS
The Vendor shall cause to be prepared and Purchaser shall cause to be
filed on a timely basis, all Tax Returns for each of the Companies for any
period which ends on or before the Closing Date and for which Tax Returns have
not been filed as of such date. The Vendor shall also cause to be prepared and
filed on a timely basis, all Tax Returns of each of the Companies for periods
beginning before and ending after the Closing Date. The Vendor and the Purchaser
shall cooperate fully with each other and make available to each other in a
timely fashion such data and other information as may reasonably be required for
the preparation of any Tax Return of each of the Companies for a period ending
on, prior to or including the Closing Date and shall preserve such data and
other information until the expiration of any applicable limitation period under
any applicable law with respect to Taxes.
SECTION 9.6 PURCHASER'S OPTION IF DAMAGE, ETC.
If the assets of any of the Companies, or a portion of them are damaged
or destroyed or appropriated, expropriated or seized by any Person, on or prior
to the Closing Date, the Vendor shall give the Purchaser notice thereof
forthwith after such action comes to its attention and the Purchaser shall have
the option:
(a) to reduce the Purchase Price by an amount equal to the
deductible amounts of the relevant insurance policies and to
complete the purchase, in which event, all proceeds of
insurance paid to the Companies and all right and claims of
the Companies to any such amounts not paid by the Closing Date
shall be assigned to the Purchaser; or
(b) to reduce the Purchase Price by the amount of the damage and
to complete the purchase, in which event the Vendor shall have
sole entitlement to the proceeds of insurance and the
Purchaser shall release its interest (if any) therein.
SECTION 9.7 CONSENT TO JURISDICTION
(a) Each of the Parties irrevocably attorns and submits to the
exclusive jurisdiction of any Ontario court sitting in Toronto in any action or
proceeding arising out of or related to this Agreement and irrevocably agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such Ontario court. Each of the Parties irrevocably waives, to the
fullest extent it may effectively do so, the defence of an inconvenient forum to
the maintenance of such action or proceeding. The Vendor irrevocably appoints
Osler, Xxxxxx & Harcourt LLP (THE "VENDOR PROCESS AGENT"), with an office as of
the date of this Agreement at Xxxxx 0000, Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx, for the attention of Xxxxx X. Xxxxxxxx as its agent to receive on
behalf of it and its property service of copies of the statement of claim and
any other process which may be served in any such action or proceeding. Such
service may be made by delivering a copy of such process to the Vendor in care
of the Vendor Process Agent at the Vendor Process Agent's above address, and the
Vendor irrevocably authorizes and directs the Vendor Process Agent to accept
such service on its behalf. The Vendor agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
The Purchaser
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agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
SECTION 9.8 DEFAMATION INSURANCE
The Vendor shall be responsible for any and all defamation claims
against the Companies and any of its Employees in respect of an occurrence on or
prior to the Closing Date. The Purchaser shall be responsible for any and all
defamation claims made or brought against the Companies and any of its Employees
in respect of an occurrence after the Closing Date. The Purchaser shall make
available to the Vendor and its insurers and their respective counsel the
services of the Employees necessary to defend any such defamation action
together with all relevant books and records, the whole at the expense of the
Vendor.
SECTION 9.9 CHANGE OF WEB SITE ADDRESS AND MASTHEAD
No later than ninety (90) days after Closing, the Purchaser shall cause
the Companies to change the name of its web site to reflect a name that does not
include the name "Southam", "CanWest", or other CanWest/Southam Intellectual
Property and shall cause the Companies to change the masthead references on the
publications to reflect the new publisher.
SECTION 9.10 NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY
(a) Non-Competition. In consideration of the Purchaser agreeing to
purchase the Purchased Shares and all of the rights of the Vendor to and in the
Shareholder Loans pursuant to this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
for so long as all of the Southam News Services Agreements between Southam
Publications Inc. and each of the Companies dated as of April 30, 2002 as such
agreements have been amended and restated as of the Closing Date, are in full
force and effect or until the third anniversary of the Closing Date whichever is
the longer period (the "NON-COMPETE PERIOD"), CanWest shall not, and shall not
allow any of its Affiliates to engage (whether as an owner, operator, manager,
shareholder, guarantor, lender, consultant, advisor, representative or
otherwise), directly or indirectly, in any of the provinces of New Brunswick,
Nova Scotia, Xxxxxx Xxxxxx Island, Newfoundland or Saskatchewan (other than in
the market areas of Regina and Saskatoon) (the "TERRITORY"), in (i) the
publication, distribution or sale of any English language print newspaper (or
any section thereof, including classified or job advertisements) or other print
publication (including either partial or total market coverage) (other than an
incidental distribution of a newspaper which is intended to be distributed
primarily outside the Territory), or (ii) the distribution of flyers, inserts,
(including either partial or total market coverage), or (iii) the printing of
any product of any kind (each a "COMPETITIVE ACTIVITY"). This clause will not
prevent or restrict CanWest or its Affiliates from (a) acquiring and holding as
a passive investment, in the aggregate, less than 10% of the shares of any
publicly traded corporation, (b) continuing to own and operate in the normal
course the balance of its current newspaper businesses and interests remaining
after the completion of the transactions contemplated by this Agreement,
including the printing, publication, and distribution of the National Post and
National Post Business Magazine and any successor to either of such publications
or any other publication, which is distributed in more than one region, in each
case provided the principal market for which is not any of the Maritime
provinces or Saskatchewan;
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or (c) acquiring a business involved in a Competitive Activity in the Territory
(in this section, a "Competing Business") as part of the acquisition of, or
merger with another business where: (1) the value of such Competing Business at
the time of the acquisition represented less than 15% of the total value of the
transaction or group of related transactions in which CanWest or its Affiliate
acquired the Competing Business; or (2) the revenues of the Competing Business
represent less than 15% of the consolidated annual revenues of the acquired
business as a whole.
(b) Non-Solicitation.
(i) For the period beginning on the Closing Date and
ending on the second anniversary of the Closing Date (the "NON-SOLICITATION
PERIOD"), CanWest shall not, and shall not permit any of its Affiliates,
directly or indirectly, to contact, approach or solicit for the purpose of
offering employment to any Person (whether as an employee, consultant, agent,
independent contractor or otherwise) who is employed by or providing services to
any of the Companies, at any time during the Non-Solicitation Period, without
the prior written consent of the Purchaser, unless the employee has been
dismissed by the Purchaser or the Company. This clause will not apply in respect
of any employees of the Companies who apply to CanWest or an Affiliate for a
position (i) on an unsolicited basis, (ii) in response to an advertisement, or
(iii) through an arm's length executive recruitment process normally carried on
by CanWest or its Affiliate, in each case provided CanWest or the Affiliate,
directly or indirectly, has not initiated the contact with the employee.
(ii) Notwithstanding clause (i) of this subparagraph (b),
unless the employment of the employee has been terminated by the Purchaser or
one of the Companies, CanWest shall not, without the prior written consent of
the Purchaser, actually hire any Person (whether or not contacted, approached or
solicited by CanWest or any of its Affiliates) that is employed by any of the
Companies during the Non-Solicitation Period who occupies a position falling in
any of the following categories: (i) editor, (ii) reporter, (iii) salesperson,
(iv) manager, or (v) publisher.
(c) Confidentiality. CanWest shall, and shall cause its Affiliates
to treat and hold as confidential during the Non-Compete Period any information
concerning any of the Companies or their business that is not generally
available to the public (the "CONFIDENTIAL INFORMATION"), and refrain from using
any of the Confidential Information except in connection with this Agreement. In
the event that CanWest or any of its Affiliates is requested or required (by
oral question or request for information or documents in any legal proceeding,
interrogatory, subpoena, civil investigative demand, or similar process) to
disclose any Confidential Information, CanWest shall notify the Purchaser
promptly of the request or requirement so that the Purchaser may seek an
appropriate protective order to waive compliance with the provisions of this
Section 9.10. If, in the absence of a protective order or the receipt of a
waiver hereunder, CanWest or any of its Affiliates is, on the advise of counsel,
compelled to disclose any Confidential Information to any Governmental
Authority, the disclosing Person may disclose the Confidential Information to
the Governmental Authority; provided that such disclosing Person shall use its
best efforts to obtain, at the request of the Purchaser, an order or other
assurance that confidential treatment shall be accorded to such portion of the
Confidential Information required to be disclosed as the Purchaser shall
designate.
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(d) Acknowledgement. CanWest expressly acknowledges and agrees
that each and every restriction imposed by this Section 9.10 is reasonable with
respect to subject matter, time period and geographical area.
(e) Remedy for Breach. CanWest acknowledges and agrees that in the
event of a breach or threatened breach of any of the provisions of this Section
9.10, monetary damages shall not constitute a sufficient remedy. Consequently,
in the event of any such breach or threatened breach, Purchaser and/or their
respective successors or assigns may, in addition to other rights and remedies
existing in their favour, apply to any court of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof, in each case without the
requirement of posting a bond or proving actual damages.
(f) Enforcement. If the final judgment of an authority of
competent jurisdiction declares that any term or provision of this Section 9.10
is invalid or unenforceable, CanWest and the Purchaser agree that the court
making the determination of invalidity or unenforceability shall have the power
to reduce the scope, duration, or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid.
SECTION 9.11 SCHEDULE 4.5
(a) For so long as the National Post Printing Agreement dated
April 30, 2002 between The National Post Company and Halifax Daily News Group
Inc. in the case of the assets located at its premises and Newfoundland
Newspaper Group Inc. in the case of the assets located at its premises is in
full force and effect, and subject to those agreements, the Vendor shall allow
and cause its Affiliates to allow, each such Companies to continue to use, at no
cost to the Companies or the Purchaser, the assets located at its premises
described in Schedule 4.5, provided that such usage shall be consistent with the
use of such assets, by the Companies prior to the Closing Date.
(b) The Purchaser shall and shall cause each of the Companies
which have TV cameras owned by an Affiliate of CanWest located at its premises
to permit access to the CanWest Affiliate to have access to such premises for
purposes of maintaining the cameras and/or removing the cameras in the event the
Parties are unable to agree on arrangements for their continued use by the
Companies and the CanWest Affiliate.
SECTION 9.12 GUARANTEE
For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, CanWest hereby unconditionally, irrevocably, and jointly
and severally with the Vendor guarantees the performance of all of the
obligations of the Vendor under this Agreement and under the Closing Agreements,
including the payment by the Vendor of any amount it may owe to the Purchaser or
any of the Companies pursuant to or under this Agreement. CanWest covenants with
the Purchaser that CanWest is jointly and severally bound with the Vendor for
the fulfilment of all obligations of the Vendor under this Agreement and under
the Closing
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Agreements. In the enforcement of its rights hereunder, the Purchaser may
proceed against CanWest as if CanWest were named as the Vendor under this
Agreement or the Closing Agreements, CanWest waives any rights to require the
Purchaser to proceed against the Vendor or to proceed against or to exhaust any
security held from the Vendor or to pursue any other remedy whatsoever which may
be available to the Purchaser before proceeding against CanWest.
SECTION 9.13 DEFICIENCIES
The Vendor hereby covenants and agrees to cure, prior to the Closing
Date, any material deficiencies in the minute books of any of the Companies.
SECTION 9.14 TRANSITIONAL SERVICES AGREEMENT
At the request of the Purchaser, the Vendor and its Affiliates shall
provide the Companies with certain transitional administrative and commercial
services for a period of no more than eighteen (18) months after the Closing
Date, such services to be of a type and in scope no more extensive than those
currently provided to the Companies for fees which shall be equal to those
currently charged by the Vendor or its Affiliates for such services. The
Purchaser shall advise the Vendor which services will be required no later than
ten days prior to the Closing Date and the Parties shall enter into an agreement
("TRANSITIONAL SERVICES AGREEMENT") on Closing on terms and conditions
consistent with this Section 9.14 and otherwise on terms and conditions usual
and customary for such agreements.
SECTION 9.15 OPERATIONAL SERVICE AGREEMENTS
On or prior to Closing, CanWest shall amend the Operational Service
Agreements in accordance with Schedule 9.15 and other amendments as may be
agreed.
SECTION 9.16 NO ACCRUED INTEREST
All accrued interest on the Shareholder Loans shall be paid or
otherwise extinguished prior to Closing.
SECTION 9.17 INTER-AFFILIATE ACCOUNTS
Notwithstanding any other provision of this Agreement, CanWest and the
Vendor will complete a pre-closing transaction or series of transactions so as
to reduce or eliminate the accounts between the Companies and its Affiliates
("INTER-AFFILIATE ACCOUNTS") and, in that connection, may cause the Companies to
declare and pay such dividends or pay down the principal of the Shareholder
Loans or effect a set-off of the Inter-Affiliate Accounts or do such other
transactions to obtain such reduction or elimination, provided that:
(a) the Vendor shall submit to the Purchaser a detailed
description of the steps to be taken and obtain the prior
written approval of the Purchaser before implementing the
transactions, such consent not to be unreasonably withheld if
the transaction has no adverse impact on any of the Companies
or, if there is any adverse impact, if the Vendor compensates
the Companies for such adverse impact;
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(b) none of the Purchaser and the Companies shall have any
liabilities except to the extent that they are reflected in
the Net Working Capital or otherwise made whole, relating or
arising from such pre-closing transactions; and
(c) CanWest and Vendor shall jointly and severally indemnify and
hold harmless each of the Companies for any adverse impact
arising from such pre-closing transactions.
ARTICLE 10.
INDEMNIFICATION
SECTION 10.1 INDEMNIFICATION FOR BREACHES OF COVENANTS AND WARRANTY, ETC.
The Vendor shall indemnify and save harmless each of the Companies, the
Purchaser, their directors, officers, employees, agents and shareholders, and
the Purchaser shall indemnify and save harmless the Vendor, its directors,
officers, employees, agents and shareholders (the party or parties so
covenanting and agreeing to indemnify another Party being referred to in this
Section as the "Indemnifying Party" and the party to be indemnified being called
the "INDEMNIFIED PARTY"), from and against all Claims which may be made or
brought against the Indemnified Party, or which it may suffer or incur, directly
or indirectly as a result of or in connection with any non-fulfilment of any
covenant or agreement on the part of the Indemnifying Party under this Agreement
or any incorrectness in or breach of any representation or warranty of the
Indemnifying Party contained in this Agreement or in any certificate or other
document furnished by the Indemnifying Party pursuant to this Agreement. The
foregoing obligation of indemnification in respect of such Claims shall be
subject to:
(a) the limitation contained in Section 6.2 respecting the
survival of the representations and warranties of the Parties;
(b) the requirement that the Indemnifying Party shall, in respect
of any Claim made by any third Person, be afforded an
opportunity, at its sole expense, to resist, defend and
compromise such Claim, subject to the provisions of Section
10.2 of this Agreement;
(c) the limitation that, for Claims made in connection with any
representation or warranty (except for Claims made in
connection with any representation and warranty set forth in
Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.16, and 4.30 in
respect of which such limitation shall not apply), the
Indemnifying Party shall not be required to pay any such
amount until the aggregate of such Claims exceeds $1 million
and upon the aggregate of such Claims exceeding $1 million the
Indemnifying Party shall be required to pay the amount owing
in respect of all of such Claims including the $1 million;
(d) the limitation that, for Claims made in connection with the
representations and warranties set forth in Section 4.30, the
Indemnifying Party shall not be required to pay any such
amount until the aggregate of such Claims exceeds $250,000 and
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upon the aggregate of such Claims exceeding $250,000 the
Indemnifying Party shall be required to pay the amount owing
in respect of all of such Claims including the $250,000;
(e) the limitation that the Vendor will not be liable for an
amount exceeding the aggregate of the Purchase Price;
(f) the limitation that the Indemnifying Party shall not be liable
for any special, indirect, consequential, punitive or
aggravated damages, including damages for loss of profit,
except in respect of a Claim made by any third Person;
(g) the limitation that the Vendor shall have no obligation to
indemnify any Person in respect of any breach of a
representation or warranty of which Xxxxx Xxxxxxxxxxx and
Xxxxx Xxxxxxx had actual knowledge of such breach prior to
Closing provided, however, that the Vendor shall have the
burden of proof with respect thereto; and
(h) the proviso that in respect of any claim under the
representations and warranties contained in Sections 4.19(g);
4.23(a), (b, first reference), (e), (f), (h), (i), (k), 4.28
and 4.30(f), the representation and warranty shall be read
without regard to the words "to the knowledge of the Vendor".
SECTION 10.2 INDEMNIFICATION PROCEDURES FOR THIRD PARTY CLAIMS
(a) In the case of Claims made by a third party with respect to
which indemnification is sought, the Party seeking indemnification (in this
Section, the "INDEMNIFIED PARTY") shall give prompt notice, and in any event
within twenty (20) days, to the other Party (in this Section, the "INDEMNIFYING
PARTY") of any such Claims made upon it. If the Indemnifying Party fails to give
such notice, such failure shall not preclude the Indemnified Party from
obtaining such indemnification but its right to indemnification may be reduced
to the extent that such delay prejudiced the defence of the Claim or increased
the amount of liability or cost of defence and provided that no claim for
indemnity in respect of the breach of any representation or warranty contained
in this Agreement may be made unless notice of such Claim has been given prior
to the expiry of the survival period applicable to such representation and
warranty pursuant to Section 6.2.
(b) The Indemnifying Party shall have the right, by notice to the
Indemnified Party given not later than thirty (30) days after receipt of the
notice described in subsection (a), to assume the control of the defence,
compromise or settlement of the Claim, provided that (i) such assumption shall,
by its terms, be without cost to the Indemnified Party and (ii) no compromise or
settlement of the Claim may be made by the Indemnifying Party except in
compliance with this Section 10.2(b). The Indemnifying Party shall be entitled
to compromise or settle a Claim if (1) there is no admission of any violation of
Laws or any violation of the rights of any Person and no adverse effect on any
other claims that may be made by or against the Indemnified Party; (2) the sole
relief provided is monetary damages that are paid in full by the Indemnifying
Party and (3) the Indemnified Party's prior written consent shall have been
obtained (which consent shall not be unreasonably withheld), provided that: if
(A) the conditions of (1) and (2) have been
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satisfied and (B) the Indemnified Party refuses to provide such consent the
Indemnifying Party shall not be required to indemnify in respect of any amount
in excess of the settlement amount proposed by the Indemnifying Party which the
claimant under the Claim is prepared to accept.
(c) Upon the assumption of control of any Claim by the
Indemnifying Party as set out in subsection (b), the Indemnifying Party shall
diligently proceed with the defence, compromise or settlement of the Claim at
its sole expense, including if necessary, employment of counsel reasonably
satisfactory to the Indemnified Party and, in connection therewith, the
Indemnified Party shall cooperate fully, but at the expense of the Indemnifying
Party with respect to any out-of-pocket expenses incurred, to make available to
the Indemnifying Party all pertinent information and witnesses under the
Indemnified Party's control, make such assignments and take such other steps as
in the opinion of counsel for the Indemnifying Party are reasonably necessary to
enable the Indemnifying Party to conduct such defence. The Indemnified Party
shall also have the right to participate in the negotiation, settlement or
defence of any Claim at its own expense.
(d) The final determination of any Claim pursuant to this Section,
including all related costs and expenses, shall be binding and conclusive upon
the Parties as to the validity or invalidity, as the case may be of such Claim
against the Indemnifying Party.
(e) If the Indemnifying Party does not assume control of the Claim
as permitted in subsection (b), the Indemnified Party shall not be entitled to
any indemnity from the Indemnifying Party in respect of such Claim if the
Indemnified Party settles such Claim without the consent of the Indemnifying
Party, such consent not to be unreasonably withheld.
ARTICLE 11.
GENERAL
SECTION 11.1 PUBLIC NOTICES
All public notices to third parties and all other publicity concerning
the transactions contemplated by this Agreement shall be jointly planned and
coordinated by the Vendor and the Purchaser and no Party shall act unilaterally
in this regard without the prior approval of the other Party, such approval not
to be unreasonably withheld, except where required to do so by law or by the
applicable regulations or policies of any provincial or Canadian or other
regulatory agency of competent jurisdiction or any stock exchange in
circumstances where prior consultation with the other Party is not practicable.
SECTION 11.2 EXPENSES
Each of the Parties shall pay their respective legal, accounting, and
other professional advisory fees, costs and expenses incurred in connection with
the purchase and sale of the Purchased Shares and the preparation, execution and
delivery of this Agreement and all documents and instruments executed pursuant
to this Agreement and any other costs and expenses incurred. In particular, the
Vendor shall be responsible for any fees and expenses of
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any broker or investment advisor retained in connection with the sale of the
Purchased Shares and such fees and expenses shall not constitute an obligation
of the Companies or the Purchaser.
SECTION 11.3 NOTICES
Any notice, consent or approval required or permitted to be given in
connection with this Agreement (in this Section referred to as a "Notice") shall
be in writing and shall be sufficiently given if delivered (whether in person,
by courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail:
(a) in the case of a Notice to the Vendor at:
x/x XxxXxxx Xxxxxx Xxxxxxxxxxxxxx Xxxxxxx
00xx Xxxxx, Xxxxxxx-Xxxxxxxx Centre
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx X0X 0X0
Attention: Vice-President and General Counsel with a
copy to the Director, Corporate Development
E-mail: xxxxxxxx@xxxxxxx.xxx
cc: xxxxxxxxx@xxxxxxx.xxx
Facsimile: (000) 000-0000
(b) in the case of a Notice to the Purchaser at:
c/o G.T.C. Transcontinental Group Ltd.
0 Xxxxx Xxxxx-Xxxxx, Xxxxx 0000
Xxxxxxxx (Xxxxxx) X0X 0X0
Attention: Vice President, Legal Affairs and
Administration and Corporate Secretary
E-mail: xxxxxxxx@xxxxxxxxxxxxxxxx.xx
Facsimile: (000) 000-0000
Any Notice delivered or transmitted to a Party as provided above shall
be deemed to have been given and received on the day it is delivered or
transmitted, provided that it is delivered or transmitted on a Business Day
prior to 5:00 p.m. local time in the place of delivery or receipt. However, if
the Notice is delivered or transmitted after 5:00 p.m. local time or if such day
is not a Business Day then the Notice shall be deemed to have been given and
received on the next Business Day.
Any Party may, from time to time, change its address by giving Notice
to the other Parties in accordance with the provisions of this Section.
SECTION 11.4 ASSIGNMENT
Neither this Agreement nor any benefits or burdens under this Agreement
shall be assignable by any Party without the prior written consent of the other
Party, which consent may
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be withheld in the sole discretion of the consenting Party. The Purchaser may at
any time, in its sole discretion, assign, in whole or in part, its rights and
obligations under this Agreement to one or more of its Affiliates without the
prior written consent of the Vendor, provided that the Purchaser shall not by
reason of any such assignment and transfer be released from its obligations
hereunder. Subject to the foregoing, this Agreement shall enure to the benefit
of and be binding upon the Parties and their respective successors (including
any successor by reason of amalgamation of any Party) and permitted assigns.
SECTION 11.5 ARBITRATION
In the event that the Parties are unable to settle any dispute relating
to construction or application of any provisions of the Agreement, or the
rights, duties or obligations of any Party associated therewith or derived
therefrom, the dispute shall forthwith be referred to arbitration in accordance
with the Arbitration Procedures, provided that nothing in this Section 11.5 will
preclude a Party from seeking interim relief by way of an injunction (mandatory
or otherwise) or other interim equitable relief in the Ontario Superior Court in
connection with this Agreement which court will have exclusive jurisdiction in
respect of all such matters.
SECTION 11.6 AMENDMENT
No amendment, supplement, modification or waiver or termination of this
Agreement and, unless otherwise specified, no consent or approval by any Party,
shall be binding unless executed in writing by the Party to be bound thereby.
SECTION 11.7 FURTHER ASSURANCES
The Parties shall, with reasonable diligence, do all such things and
provide all such reasonable assurances as may be required to consummate the
transactions contemplated by this Agreement, and each Party shall provide such
further documents or instruments required by any other Party as may be
reasonably necessary or desirable to effect the purpose of this Agreement and
carry out its provisions, whether before or after the Closing.
SECTION 11.8 LANGUAGE
The Parties confirm that it is their wish that this Agreement, as well
as any other documents relating to this Agreement, including notices, schedules
and authorizations, have been and shall be drawn up in the English language
only. Les signataires confirment leur volonte que la presente convention, de
meme que tous les documents s'y rattachant, y compris tout avis, annexe et
autorisation, soient rediges en anglais seulememt.
SECTION 11.9 EXECUTION AND COUNTERPARTS
This Agreement may be executed by the Parties in counterparts and may
be executed and delivered by facsimile and all such counterparts and facsimiles,
shall together constitute one and the same agreement.
SIGNATURE PAGE FOLLOWS
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IN WITNESS OF WHICH the Parties and CanWest have executed this Share
Purchase Agreement.
GLOBAL COMMUNICATIONS LIMITED
By: /s/ P.A. Xxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Secretary
G.T.C. TRANSCONTINENTAL GROUP LTD. (on its
own behalf and, for the purposes of
accepting the benefit of Article 10 of the
Agreement, on behalf of each of Atlantic
Newspaper Group Inc., Charlottetown
Guardian Group Inc., Halifax Daily News
Group Inc., Newfoundland Newspaper Group
Inc., Summerside Newspaper Group Inc., Ad
Ventures Inc., Moose Jaw Times-Herald Group
Inc., Prince Xxxxxx Daily Herald Group
Inc., and Swift Current Newspaper Group
Inc.)
By: /s/ XXXXX XXXXXXX
_______________________________________
Name: Xxxxx Xxxxxxx
Title: Vice President, Mergers &
Acquisitions
By: /s/ XXXXXXXX XXXXXXX
_______________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Director, Mergers & Acquisitions
CANWEST GLOBAL COMMUNICATIONS CORP.
By: /s/ XXXXXXX X. XXXXXXX
_______________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & General Counsel
LIST OF SCHEDULES AND EXHIBITS
EXHIBITS DESCRIPTION
-------- -----------
Exhibit A Purchased Companies
SCHEDULES DESCRIPTION
--------- -----------
Schedule A Form of Pension and Employee Benefit Plans Agreement
Schedule 1.1(a) Arbitration Procedures
Schedule 1.1(b) Permitted Encumbrances
Schedule 3.5 Allocation of Purchase Price
Schedule 4.4 Capitalization
Schedule 4.5 CanWest Assets
Schedule 4.10 Financial Statements
Schedule 4.18 Governmental Authorizations
Schedule 4.19 Intellectual Property
Schedule 4.20 Owned Real Property
Schedule 4.21 Leased Real Property
Schedule 4.23 Environmental Matters
Schedule 4.24 Employment Matters
Schedule 4.26 Pension and Benefit Plans
Schedule 4.28 Material Contracts
Schedule 4.29 Litigation
Schedule 4.30 Tax Matters
Schedule 4.33 Shareholders Loans
Schedule 9.15 Amendments to Operational Services Agreements
EXHIBIT A
PURCHASED COMPANIES
1. Atlantic Newspaper Group Inc.
2. Charlottetown Guardian Group Inc.
3. Halifax Daily News Group Inc.
4. Newfoundland Newspaper Group Inc.
5. Summerside Newspaper Group Inc.
6. Ad Ventures Inc.
7. Moose Jaw Times-Herald Group Inc.
8. Prince Xxxxxx Daily Herald Group Inc.
9. Swift Current Newspaper Group Inc.
