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EXHIBIT 2.1
SHARE EXCHANGE AGREEMENT
ENTERED INTO AT MONTREAL, PROVINCE OF QUEBEC, ON NOVEMBER 8, 2000;
AMONG: XX.XXX, a corporation incorporated under the laws of the State of
California, United States of America, having its principal place of
business in Reykjavik, Iceland, (the "PURCHASER");
AND: MICROCELL CAPITAL II INC., a corporation incorporated under the laws of
Canada, having its registered office in Montreal, Quebec,
("MICROCELL");
WITNESSETH:
WHEREAS Microcell owns 69 Common Shares in the capital stock of MCE Holding
Corporation, a corporation incorporated under the laws of the State of Delaware,
United States of America, having its head office in the State of Delaware,
("USCO");
WHEREAS Microcell wishes to sell to the Purchaser all the Common Shares held by
it in the capital stock of UsCo;
WHEREAS the Purchaser wishes to purchase all the Common Shares held by Microcell
in the capital stock of UsCo;
WHEREAS UsCo owns all the issued and outstanding shares of the capital of
3044016 Nova Scotia Company, an unlimited liability company incorporated under
the laws of Nova Scotia, having a place of business in Xxxxxxxx, Xxxxxx, Xxxxxx
("NEWCO CANADA");
WHEREAS this Agreement and the Share Exchange Agreement between Purchaser and
Ericsson Canada Inc. of even date herewith are intended to constitute a plan of
reorganization within the meaning of the United States Internal Revenue Code.
NOW THEREFORE the parties hereto hereby covenant and agree as follows.
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS - As used in this Agreement, the following terms have the
following meaning:
1.1.1 "AGREEMENT" means this Share Exchange Agreement including its
recitals, its Schedules and all written instruments
supple-mental hereto signed by all the parties hereto, and any
amendment or confirmation hereof;
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1.1.2 "BUSINESS DAY" means any day, other than a Saturday, Sunday,
or other day on which the majority of the branches of the
principal commercial banks located in Montreal, Quebec are not
open for business during normal banking hours;
1.1.3 "CLOSING DATE" means the date of this Agreement, and "Closing"
means the completion of all the transactions contemplated
hereby at the time of closing on the Closing Date;
1.1.4 "CLOSING PLACE" means the offices of Stikeman, Xxxxxxx in
Montreal, Quebec;
1.1.5 "GOVERNMENTAL BODY" means (i) any domestic or foreign
national, federal, provincial, state or municipal or other
local government or body, (ii) any international or
multilateral body, (iii) any subdivision, agent, commission,
board, instrumentality or authority of any of the foregoing
governments or bodies, (iv) any quasi-governmental or private
body exercising any regulatory, expropriation or taxing
authority under or for the account of any of the foregoing
governments or bodies, or (v) any domestic, foreign,
international, multilateral, or multinational judicial,
quasi-judicial, arbitration or administrative court, tribunal,
commission, board or panel;
1.1.6 "LAWS" means:
(a) all constitutions, treaties, laws, statutes, codes,
ordinances, orders, decrees, rules, regulations, and
municipal by-laws, whether domestic, foreign or
international;
(b) all judgments, orders, injunctions, decisions,
rulings, decrees, and awards of any Governmental
Body; and
(c) all provisions of the foregoing;
in each case binding on the party or Person referred to in the
context in which such word is used; and "Law" means any one of
them;
1.1.7 "LIENS" means (i) all hypothecs, mortgages, pledges,
privileges, liens, security interests, transfers of property
in stock, security granted under the Bank Act (Canada),
charges, leases, occupation rights, restrictive covenants,
title defects and other encumbrances or rights of others of
any nature whatsoever or however arising, and (ii) all
actions, claims or demands of any nature whatsoever or
howsoever arising; and "Lien" means any one of them;
1.1.8 "XX.XXX SHARES" means 11,405,860 fully paid and non-assessable
shares of Common Stock of the Purchaser issued to Microcell
pursuant to this Agreement;
1.1.9 "PARTIES" means Microcell and the Purchaser and "Party" means
any one of them;
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1.1.10 "PERSON" means an individual, a corporation, a partnership, a
trustee or any unincorporated organization;
1.1.11 "PURCHASE PRICE" has the meaning ascribed thereto in Section
3.1;
1.1.12 "PURCHASED SHARES" as the meaning ascribed thereto in Section
2.1;
1.1.13 "TAXES" means all taxes (including without limitation, income,
corporation, capital, value added, sales, withholding,
franchise, profits, gross receipts, excise, property, stamp,
transfer, land transfer, water, business and goods and
services taxes), imposts, duties, levies, deductions,
withholdings, charges, assessments, reassessments or fees of
any nature (including, without limitation, interest, penalties
and additions) that are imposed by any relevant taxing
authority; and "Tax" means any one of them;
1.2 APPLICABLE LAW - This Agreement shall be construed and enforced in
accordance with, and the rights of the Parties shall be construed and
governed by, the laws of the Province of Quebec and the laws of Canada
applicable therein.
1.3 CURRENCY - In this Agreement, all money amounts are expressed in United
States dollars unless otherwise provided.
1.4 RECITALS AND SCHEDULES - The recitals and the Schedules hereto form an
integral part of this Agreement. The Schedules to this Agreement are:
5.4 Issued and Outstanding shares of UsCo
6.5 Authorized and issued Capital of the Purchaser
6.6 Form 10 - SB
1.5 HEADINGS - The titles and headings in this Agreement are solely for
reference and shall not affect the scope, intention or interpretation
of the provisions hereof.
1.6 GENDER - In all cases where the context of this Agreement requires or
permits same, the singular shall include the plural and the masculine
shall include the feminine.
1.7 ENTIRE AGREEMENT - This Agreement, and the agreements and other
documents to be delivered pursuant hereto, constitute the entire
agreement between the Parties pertaining to the subject matter hereof
and supersede all prior agreements, and there are no warranties,
representations or other agreements between the Parties in connection
with the subject matter hereof except as specifically set forth herein
and, the other documents to be delivered pursuant hereto.
1.8 SEVERABILITY - Each provision of this Agreement shall be interpreted
separately and the nullity of any provision of this Agreement shall not
render the remaining parts of the Agreement null.
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1.9 WAIVER - No supplement, modification or waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to
be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
(whether or not similar) nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
1.10 TIME - shall be of the essence of this Agreement.
ARTICLE 2
PURCHASE AND SALE
2.1 Upon and subject to the terms and conditions hereof, Microcell hereby
agrees to sell to the Purchaser, and the Purchaser hereby agrees to
purchase from Microcell 69 Common Shares of the share capital of UsCo
(the "PURCHASED SHARES").
ARTICLE 3
PURCHASE PRICE
3.1 PURCHASE PRICE - The purchase price for the Purchased Shares is
fourteen million two hundred and fifty-seven thousand three hundred and
twenty-four dollars ($14,257,324) (the "PURCHASE PRICE").
ARTICLE 4
PAYMENT OF PURCHASE PRICE
4.1 PAYMENT OF THE PURCHASE PRICE - The Purchase Price for the Purchased
Shares shall be paid to Microcell by the Purchaser, at the time of
Closing by the delivery to Microcell of the XX.XXX Shares.
ARTICLE 5
WARRANTIES AND REPRESENTATIONS OF MICROCELL
Microcell warrants and represents to the Purchaser as follows and
acknowledges that the Purchaser is relying upon such representations and
warranties in connection with the purchase by the Purchaser of the Purchased
Shares and that the Purchaser would not have entered into this Agreement without
the full benefit of such warranties and representations.
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5.1 CORPORATE STATUS - UsCo is a corporation duly incorporated, organized
and validly subsisting under the laws of the State of Delaware. UsCo is
in good standing under the laws of each jurisdiction in which it is
carrying on business or in which it owns or holds property of a
material nature, and UsCo has all necessary power and authority to own,
lease and operate its property.
5.2 SUBSIDIARIES - UsCo owns one hundred percent (100%) of the issued and
outstanding capital stock of Newco Canada. UsCo presently neither owns
nor controls, directly or indirectly, any interest in any other
corporation, association or other business entity. Newco Canada is an
unlimited liability company duly organized, validly existing and in
good standing under the laws of the Province of Nova Scotia, Canada.
Newco Canada is duly qualified to transact business and is in good
standing in each jurisdiction in which it owns or holds property of a
material nature, and Newco Canada has all necessary power and authority
to own, lease and operate its property.
5.3 POWERS AND AUTHORIZATIONS - Microcell has the corporate capacity, power
and authority and full legal right to enter into and execute this
Agreement and all ancillary documents hereto and to perform all of its
obligations thereunder. Microcell has taken all necessary action to
authorize the execution of this Agreement and its ancillary documents
on its behalf by its officers, directors and shareholders and to
authorize the performance of all of its obligations thereunder; this
Agreement and such ancillary documents have been duly executed by a
duly authorized person on behalf of Microcell and this Agreement and
its ancillary documents constitute valid and legally binding
obligations of Microcell enforceable against it in accordance with
their terms, except as enforcement may be limited by bankruptcy,
insolvency, and other laws affecting the rights of creditors generally
and except that equitable remedies may be granted only in the
discretion of a court of competent jurisdiction.
5.4 AUTHORIZED AND ISSUED CAPITAL - The authorized and issued capital stock
of UsCo consists of a limited number of 1,000 Common Shares, per value
of $0.01 per share and of a limited number of 1,000 Preferred Shares,
per value of $0.01 of which 100 Common Shares are issued and
outstanding, fully-paid and non-assessable. All of the issued and
outstanding shares of UsCo are registered in the books of UsCo and
beneficially owned, as set forth on Schedule 5.4 hereto. The authorized
and issued capital stock of Newco Canada consists of a limited number
of 1,000,000 common shares without nominal value and of a limited
number of 1,000,000 preferred shares without nominal value of which 100
common shares are issued and outstanding, fully-paid and
non-assessable. All of the issued and outstanding shares of Newco
Canada are registered in the books of Newco Canada and beneficially
owned by UsCo. The consideration received by Newco Canada in respect of
the issuance by it of the issued and outstanding shares of its share
capital is as set forth on Schedule 5.4.
5.5 TITLE TO PURCHASED SHARES - Microcell shall transfer to the Purchaser
good and valid title to such Purchased Shares, free and clear of all
Liens.
5.6 NO OPTIONS - To the best of Microcell's knowledge, there is no:
(a) outstanding security convertible or exchangeable into any
share or shares of the capital stock of UsCo or Newco Canada;
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(b) outstanding subscription, option, warrant, call, commitment or
agreement obligating UsCo or Newco Canada to issue any share
or shares of its capital stock or any security of any class or
kind or which in any way relate to the authorized or issued
capital stock of UsCo or Newco Canada;
(c) agreement (other than this Agreement) that grants to any
Person the right to purchase or otherwise acquire any share or
shares issued and outstanding of the capital stock of UsCo or
Newco Canada; or
(d) voting trust, voting agreement, pooling agreement or proxy
with respect to any Purchased Shares or the outstanding
capital stock of Newco Canada.
5.7 CORPORATE RECORDS - The minute books of UsCo and Newco Canada are
complete and accurate, and contain copies of all by-laws and
resolutions passed by its stockholders and directors since the date of
its incorporation; all of which by-laws and resolutions have been duly
passed.
The share certificate books, registers of stockholders, registers of
transfers and registers of directors are complete and accurate.
5.8 APPROVALS AND COMPLIANCE - No consent, notification or approval of any
regulatory authority or agency having any jurisdiction over Microcell
or over the property rights and assets of Microcell or of any party to
any agreement which Microcell is a party or by which any of its
property, rights or assets are bound or affected, is required to be
obtained in connection with the execution of this Agreement and all
ancillary documents hereto or in connection with the performance of
Microcell's obligations thereunder; the execution of this Agreement and
all ancillary documents hereto and the performance of the obligations
hereunder or thereunder by Microcell is not and will not be in
contravention or in conflict with the constating documents, by-laws or
the resolutions of its directors or shareholders nor with the
provisions of any indenture, mortgage, lease, agreement, statute,
regulation, judgment, decree or order to which Microcell or UsCo is a
party or by which it or any of its property, rights or assets are bound
or affected.
5.9 ABSENCE OF CONFLICTING AGREEMENTS ETC. - Save and except as may result
from the identity of the Purchaser or its attributes or actions, the
execution and performance of this Agreement as well as of all the
documents relating thereto shall not (i) place Microcell in a situation
of default under any agreement, contract or obligation of any kind,
(ii) result in the creation of, or require the creation of any Lien
upon the Purchased Shares, (iii) result in the termination,
cancellation, modification, amendment, or renegotiations of any
contract, agreement, indenture, instrument or commitment to which the
Purchased Shares are subject, or (iv) to the knowledge of Microcell,
give to any Person the right to terminate, cancel, modify, amend, vary
or renegotiate any contract, agreement, indenture, instrument or
commitment to which UsCo or Newco Canada is a party.
5.10 RESIDENCE OF MICROCELL - Microcell is a resident of Canada within the
meaning of the Income Tax Act (Canada).
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5.11 ADHERENCE TO LAWS, REGULATIONS AND CONTRACTS - Microcell, UsCo and
Newco Canada have complied with all Laws, the non-compliance with which
would have a materially adverse effect on UsCo or Newco Canada.
5.12 BROKER'S COMMISSION - None of Microcell or to the knowledge of UsCo or
Newco Canada has entered into any agreement that would entitle any
Person to make any valid claim against the Purchaser for a broker's
commission, finder's fee or any like payment in respect of the purchase
and sale of the Purchased Shares or any other transaction contemplated
by this Agreement.
5.13 VALUE OF THE XX.XXX SHARES - Microcell has received and reviewed to
Microcell's satisfaction such documents and corporate and financial
records of the Purchaser, and has had answered all questions with
regard thereto that Microcell deemed necessary or appropriate to
evaluate the business, operations and assets of the Purchaser and the
value of its Common Stock. Microcell is relying solely on its own
evaluation and analysis in determining the value of the XX.XXX Shares
and not on any representation of value or worth made by the Purchaser,
or any of its officers, employees, representatives or agents.
5.14 INVESTMENT REPRESENTATIONS -Microcell is acquiring the XX.XXX Shares
for investment purposes only for Microcell's own accounts, and not on
behalf of any other Person nor with a present view to, or for resale in
connection with any distribution thereof. Microcell understands that
the certificates representing the XX.XXX Shares will be stamped with a
legend substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
5.15 TRUE AND COMPLETE REPRESENTATIONS AND WARRANTIES - The representations
and warranties of Microcell contained in this Agreement are true,
accurate and complete in all material respects and there has been no
omission by Microcell to state any fact that would make them
misleading.
ARTICLE 6
WARRANTIES AND REPRESENTATIONS OF THE PURCHASER
The Purchaser warrants and represents to Microcell as follows and acknowledges
that Microcell is relying upon such representations and warranties in connection
with the sale to the Purchaser of the Purchased Shares and that Microcell would
not have entered into this Agreement without the full benefit of such warranties
and representations.
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6.1 CORPORATE STATUS - The Purchaser is a corporation duly incorporated,
organized and is validly existing under the laws of California (United
States of America) and is in good standing under the laws of each
jurisdiction in which it is carrying on business or in which it owns or
holds property of a material nature, and has all necessary power and
authority to own, lease and operate its property.
6.2 CORPORATE POWERS AND AUTHORIZATIONS -The Purchaser has the corporate
capacity, power and authority and full legal right to enter into and
execute this Agreement and all ancillary documents hereto and to
perform all of its obligations thereunder. The Purchaser has taken all
necessary action to authorize the execution of this Agreement and its
ancillary documents on its behalf by its officers, directors and
shareholders and to authorize the performance of all of its obligations
thereunder; this Agreement and such ancillary documents have been duly
executed by a duly authorized person on behalf of the Purchaser and
this Agreement and its ancillary documents constitute valid and legally
binding obligations of the Purchaser enforceable against it in
accordance with their terms, except as enforcement may be limited by
bankruptcy, insolvency, and other laws affecting the rights of
creditors generally and except that equitable remedies may be granted
only in the discretion of a court of competent jurisdiction.
6.3 APPROVALS AND COMPLIANCE - Save and except for consent and approval
which may be required by reason of any of the action or attribute of
Microcell, no consent or approval from any Person is required to be
obtained in connection with the execution of this Agreement and all
ancillary documents hereto or in connection with the performance of
Purchaser's obligations thereunder; the execution of this Agreement and
all ancillary documents hereto and the performance of the obligations
hereunder or thereunder by Purchaser is not and will not be in
contravention or in conflict with the Articles of incorporation,
by-laws, resolutions of the Purchaser, its directors or its
shareholders, nor with the provisions of any indenture, mortgage,
lease, agreement, statute, regulation, judgment, decree or order to
which the Purchaser is a party or by which it or any of its property,
rights or assets are bound or affected.
6.4 ABSENCE OF CONFLICTING AGREEMENTS ETC. - Save and except as may result
from the identity of Microcell or its attributes or actions, the
execution and performance of this Agreement as well as of all the
documents relating thereto shall not (i) place the Purchaser in a
situation of default under any agreement, contract or obligation of any
kind, (ii) result in the creation of, or require the creation of any
Lien upon the XX.XXX Shares, (iii) result in the termination,
cancellation, modification, amendment or renegotiations of any
contract, agreement, indenture, instrument or commitment to which the
XX.XXX Shares are subject, or (iv) to the knowledge of the Purchaser,
give to any Person the right to terminate, cancel, modify, amend, vary
or renegotiate any contract, agreement, indenture, instrument or
commitment to which the Purchaser is a party.
6.5 AUTHORIZED AND ISSUED CAPITAL OF THE PURCHASER - The authorized, issued
and outstanding capital of the Purchaser consists of 275,000,000 shares
of Common Stock, of which 71,124,865 shares are issued and outstanding,
and 25,000,000 shares of Preferred Stock, of which 5,000,000 shares are
undesignated and 20,000,000 shares have been designated Series A
Convertible Stock, 15,480,964 of which are issued and outstanding.
Except as disclosed in Schedule 6.5, no share of the capital stock of
the Purchaser is reserved for issuance and there is no authorized or
outstanding
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subscription, option, warrant, call, contract, demand, commitment,
convertible security or other agreement or arrangement of any character
or nature whatsoever under which the Purchaser is or may become
obligated to issue, sell, assign, pledge, mortgage, or otherwise
transfer or encumber any shares of the capital stock of the Purchaser
or by which any shareholder of the Purchaser may be required to do any
of the foregoing. Purchaser warrants that the XX.XXX Shares, when
issued pursuant to the terms hereof, shall constitute nine percent (9%)
of the "fully diluted capital" of XX.XXX, as of August 30, 2000, as
more particularly described on Schedule 6.5.
6.6 BUSINESS - Attached as Schedule 6.6 is Form 10-SB, as amended and filed
by the Purchaser before the U.S. Securities and Exchange Commission
("SEC"). Such Form 10-SB is the most recent Form 10-SB filed by
Purchaser and fairly describes the business affairs and financial
position of the Purchaser as of July 21, 2000 and Purchaser has
complied with the SEC requirements regarding updating of such Form
10-SB.
6.7 ADHERENCE TO LAWS, REGULATIONS AND CONTRACTS - The Purchaser has
complied with all laws, the non-compliance with which would have a
materially adverse effect on the Purchaser.
6.8 INVESTMENT CANADA - The Purchaser is not a Canadian within the meaning
of the Investment Canada Act.
6.9 VALID ISSUANCE OF SHARES - The board of directors of the Purchaser has
duly authorized and issued to Microcell, in accordance with all
relevant and applicable corporate and securities Laws, the XX.XXX
Shares, as fully paid and non-assessable.
6.10 BROKER'S COMMISSION - The Purchaser has not entered into any agreement
that would entitle any Person to any valid claim against Microcell or
the Purchaser for a broker's commission, finder's fee or any like
payment in respect of the purchase and sale of the Purchased Shares or
any other matter contemplated by this Agreement.
6.11 VALUE OF THE PURCHASED SHARES - Purchaser has received and reviewed to
Purchaser's satisfaction such documents and corporate and financial
records of UsCo and Newco Canada, and has had answered all questions
with regard thereto that Purchaser deemed necessary or appropriate to
evaluate the business, operations and assets of the UsCo and Newco
Canada and the value of the Purchased Shares. Purchaser is relying
solely on its own evaluation and analysis in determining the value of
the Purchased Shares and not on any representation of value or worth
made by Microcell, or any of their respective officers, employees,
representatives or agents.
6.12 INVESTMENT REPRESENTATIONS - The offer and sale to Purchaser of the
Purchased Shares have not been registered under the 1933 Act, or
registered or qualified under applicable state securities or "Blue Sky"
laws, and, therefore, the Purchased Shares cannot be reoffered and
resold unless either the reoffer and resale thereof are subsequently
registered and qualified under the 1933 Act and said Blue Sky laws or
an exemption from such registration and qualification is available.
Purchaser may have to bear the economic risk of holding the Purchased
Shares for an indefinite period of time. Further, Purchaser is
acquiring the Purchased Shares for investment purposes only for
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Purchaser's own account, and not on behalf of any other person nor with
a view to, or for resale in connection with any distribution thereof.
Purchaser understands that the certificates representing the Purchased
Shares will be stamped with a legend substantially in the following
form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT
OR AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE ISSUER
THAT SUCH REGISTRATION IS NOT REQUIRED.
6.13 FAIRNESS - No U.S. Federal or state agency in the United States of
America has passed upon the Purchased Shares, made any finding or
determination as to the fairness of the transaction set forth herein,
or passed on the adequacy of the information received by Microcell.
6.14 REPRESENTATIONS AND WARRANTIES - The representations and warranties of
Purchaser contained in this Agreement are true, accurate and complete
in all material respects and there has been no omission by Purchaser to
state any fact that would make them misleading.
ARTICLE 7
CLOSING
7.1 CLOSING - At the time of closing on the Closing Date, Microcell shall:
(a) take all necessary steps and proceedings as may be
required in the opinion of the legal counsel of the
Purchaser, acting reasonably, to permit the Purchased
Shares to be duly and validly transferred to, and
registered in the name of, the Purchaser;
(b) deliver to the Purchaser at the place of Closing
certified copies of resolutions (in form and
substance satisfactory to the Purchaser's legal
counsel, acting reasonably) authorizing and approving
the sale, of the Purchased Shares to the Purchaser;
(c) deliver to the Purchaser, the actual possession of
the certificates representing the Purchased Shares,
duly endorsed for transfer to the Purchaser.
7.2 CLOSING - At the time of closing on the Closing Date, the Purchaser
shall:
(a) deliver a share certificate evidencing the XX.XXX
Shares in the name of Microcell;
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(b) deliver to Microcell at the place of Closing
certified copies of the resolutions of the directors
of the Purchaser authorizing and approving (i) the
purchase of the Purchased Shares by the Purchaser,
and (ii) the issuance of the XX.XXX Shares in the
capital stock of the Purchaser to Microcell.
7.3 CONDITIONS - The purchase and sale of the Purchased Shares in
accordance with the terms of this Agreement are subject to the
following terms and conditions. Such condition must have been performed
or complied with prior or concurrently with the execution of this
Agreement:
7.3.1 THIRD PARTY APPROVALS - There must have been obtained from all
appropriate Persons all such approvals, consents and
assurances, in order to permit the change of ownership of the
Purchased Shares contemplated herein to be completed without
affecting or resulting in the termination, cancellation,
modification, amendment, variation or renegotiations of this
Agreement.
7.3.2 OTHER CLOSING - Closing shall have taken place on the same
date with respect to the agreement whereby Ericsson Canada
Inc. sells to XX.XXX all the issued and outstanding shares it
holds in the capital stock of UsCo.
ARTICLE 8
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES - All the warranties and
representations and covenants and agreements made and given hereunder
or in any agreement contemplated hereby shall continue to have full
force and effect from the date of execution hereof, notwithstanding any
verification made by any of the Parties, the whole subject to the
following terms and conditions:
8.1.1 NO TIME LIMIT - All of the warranties and representations set
out in Sections 5.1, 5.3, 5.4, 5.5, 6.1, 6.2, 6.5 and 6.9
shall continue to have full force and effect for an unlimited
period of time. Also, there shall be no time limit on
representations and warranties of Microcell or the Purchaser
based upon any willful misrepresentation of such nature as to
constitute fraud;
8.1.2 TIME LIMIT - All of the warranties and representations set out
in Section 5.10 shall continue to have full force and effect
for the periods prescribed by Law with respect to assessments
and reassessments for Taxes;
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8.1.3 TIME LIMIT - Subject to Subsections 8.1.1 and 8.1.2 above, all
warranties and representations set out herein shall continue
to have full force and effect for a period of twenty-four (24)
months from the Closing Date.
ARTICLE 9
ACKNOWLEDGEMENT
9.1 BY THE PARTIES. The Parties acknowledge that the issuance to Microcell
of the XX.XXX Shares have not been registered under the Securities Act
of 1933, as amended (the "1933 ACT"), or registered or qualified under
applicable state securities or "Blue Sky" laws, and, therefore, the
XX.XXX Shares cannot be reoffered and resold unless either the reoffer
and resale thereof are subsequently registered and qualified under the
1933 Act and said Blue Sky laws or an exemption from such registration
and qualification is available. The Purchaser has no intention of
registering or qualifying under the 1933 Act Microcell's reoffer and
resale of any of the XX.XXX Shares and no exemption from registration
or qualification may be available under the 1933 Act or such Blue Sky
laws to Microcell at the time it wishes to dispose of such XX.XXX
Shares; accordingly, Microcell may have to bear the economic risk of
holding the XX.XXX Shares for an indefinite period of time.
ARTICLE 10
PUT
10.1 PUT. If, prior to February 15, 2002, the Purchaser fails to consummate
(a) a firmly underwritten public offering pursuant to an
effective registration statement under the Securities
Act of 1933, as amended; or
(b) a public offering in connection with which the
Purchaser's shares are listed or otherwise designated
for trading on any "designated offshore securities
market" as such term is defined in Regulation S
promulgated under the Securities Act of 1933, as
amended,
provided that in either case such offering covers the offer and sale of
Common Stock for the account of the Purchaser that results in a market
capitalization of the Purchaser of not less than $225,000,000, then, at
any time during the period starting on February 15, 2002, and ending on
April 15, 2002, Microcell shall be entitled, upon a notice in writing
(a "PUT NOTICE") to require the Purchaser , if the Purchaser is
permitted to do so, by Corporate California laws, to purchase all the
shares held by Microcell in the capital stock of the Purchaser (the
"SHARES"). Upon receipt of such Put Notice, the Purchaser shall
purchase from Microcell and Microcell shall sell to the Purchaser the
Shares upon
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the terms and conditions set forth in Sections 10.2 through 10.6 (the
"SALE TRANSACTION").
Should the Purchaser not being authorized to purchase the Shares
because of the Corporate California laws, then the Purchaser shall
promptly notify Microcell in writing (the "NOTIFICATION") when the
Event is no longer in force and effect. Microcell shall then have the
right to send a Put Notice to the Purchaser within 30 days following
receipt of the Notification.
10.2 PURCHASE PRICE. The purchase price for the Shares under Section 10.1
(the "PUT PRICE") shall be $4,500,000.
10.3 CLOSING. The closing of the Sale Transaction contemplated by Section
10.1 shall take place on the date which is five (5) Business Days after
the delivery of the Put Notice (the "DATE OF CLOSING").
10.4 PAYMENT OF PUT PRICE. The Put Price shall be paid quarterly by the
Purchaser in installment of $750,000 each, starting on the date which
is 30 days from the date of the Put Notice. The Purchaser however
agrees to pay in advance the first quarterly payment at the Date of
Closing.
10.5 OBLIGATION OF MICROCELL. On the Date of Closing, Microcell shall:
(a) assign and transfer to the Purchaser the Shares and
deliver the share certificate(s) representing the
Shares duly endorsed for transfer to the Purchaser or
as directed by it; and
(b) do all other things required in order to deliver the
Shares to the Purchaser free and clear of any Lien
whatsoever.
10.6 OBLIGATIONS OF THE PURCHASER. On the Date of Closing, the Purchaser
shall deliver to Microcell a certified cheque in the amount of
$750,000.
ARTICLE 11
COVENANTS
11.1 PROMOTION. Microcell agrees to cooperate to help the Purchaser promote
and sell its wireless Internet applications solutions to Affiliates of
Microcell (as the term "AFFILIATE" is defined in the Canada Business
Corporations Act) and to Telesystem International Wireless Corporation,
Voicestream Wireless Corporation and other North American GSM carriers.
11.2 CUSTOMER PROFILING DATA AND TECHNOLOGY. Microcell shall use its best
efforts and agrees, if legally and technically feasible, to provide the
Purchaser with customer profiling data related to the Purchaser
services and, if possible, access to the customer
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profiling technology to incorporate into the Purchaser's products,
subject to commercial terms and conditions to be negotiated between
parties or their affiliates in good faith.
11.3 NON COMPETE. For a period of two (2) years from the date of this
Agreement, neither Microcell Telecommunications Inc. or any of its
subsidiaries (as this term is defined in the Canada Business
Corporations Act), excluding GSM Capital and Argo II, venture capital
funds, and Telecom Investment Inc., shall throughout Canada, directly
or indirectly, compete with the business of the Purchaser's development
center in Canada (referred to in Section 11.4) or any of its subsidiary
(as such term is defined in the Canada Business Corporations Act),
including without limitation, with respect to iPulse and mPresence
products as they exist as of the date of this Agreement. For a period
of two (2) years from the date of this Agreement, the Purchaser agrees
not to provide directly or indirectly similar applications as those
that will be provided under the terms of that certain General
Co-Operation and Development Agreement of even date entered into
between Microcell Labs Inc. and Newco Canada or any related Specific
Agreement, to wireless operators in Canada that would compete directly
with Microcell or any of its Affiliates in offering said applications
to its customers.
11.4 DEVELOPMENT CENTRE. Subject to the provisions of this Section 11.4,
including Purchaser's obligation to sell the development centre, the
Purchaser undertakes, during a period of 3 years from the date hereof,
to establish and maintain, fully operational with approximately 35
employees, a development centre in Montreal for the purpose of
providing the services to Microcell. Microcell acknowledges that the
development centre is not currently fully staffed and that it will not
have at least 35 employees for some time. The Purchaser hereby grants,
during a period of 3 years from the date hereof, to Microcell a right
of first refusal on such development centre, whereby if the Purchaser
undertakes to dispose directly or indirectly of such development centre
to a third party, the Purchaser shall offer to Microcell the right to
acquire such development centre, for the same consideration and at the
same terms and conditions as the Purchaser otherwise would have
received from said third party. Notwithstanding the time period
described in the first sentence of this Section 11.4, it is understood
between the Parties that Purchaser's undertakings pursuant to this
Section 11.4 shall commence on the date Microcell has recruited 35
employees for the Purchaser's activities in Canada.
ARTICLE 12
CLOSING ARRANGEMENTS
12.1 PLACE AND TIME OF CLOSING - The Closing of this transaction shall take
place at 11:00 a.m. on the Closing Date immediately following the
execution hereof, at the offices of Stikeman, Xxxxxxx in Montreal or at
such time and place as may be approved in writing by the Parties
hereto.
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ARTICLE 13
MISCELLANEOUS
13.1 PRESS RELEASE - Any press release or any public announcement, statement
or publicity with respect to the transaction contemplated in this
Agreement shall be made only with the prior consent of the Parties
unless such release or announcement is required by Law, in which case
the Party required to make such release or announcement shall use its
best efforts to obtain the approval of the other Parties to the form,
nature and extent of such disclosure, which approval shall not be
unreasonably withheld.
13.2 FURTHER ASSURANCES - Each of the Parties upon the request of any other
Party, whether before or after the Closing, shall do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged or
delivered all such further acts, deeds, documents, assignments,
transfers conveyances and assurances as may be reasonably necessary or
desirable to effect complete consummation of the transactions
contemplated by this Agreement.
13.3 SUCCESSORS IN INTEREST - This Agreement and the provisions hereof shall
ensure to the benefit of and be binding upon the Parties and their
respective successors and assigns. The Purchaser and Microcell may not
assign this Agreement or any of its rights and obligations hereunder
without the prior consent of the other party, except pursuant to the
Reorganization.
13.4 NOTICES - Any notice, direction or other instrument required or
permitted to be given hereunder shall be in writing and shall be
delivered either by personal delivery or by telex, telecopier or
similar telecommunication device and addressed as follows:
(a) in the case of Microcell, to it at:
MICROCELL CAPITAL II INC.
1000 de la Gauchetiere Xxxx
00xx Xxxxx, Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Secretary
Telecopier: (000) 000-0000
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(b) in the case of the Purchaser, to it at:
XX.XXX
Xxxxxxxxxxx 00
XX-000 Xxxxxxxxx
Xxxxxxx
Attention: General Counsel
Telecopier: (000) 000-0000
Any notice, direction or other instrument aforesaid shall be deemed to have been
given and received, if sent by telex, telecopier or similar telecommunications
device on the next Business Day following receipt of such transmission or, if
delivered, to have been given and received on the date of such delivery. Any
Party may change its address for service by written notice given as aforesaid.
13.5 EXPENSES - Each of Microcell and the Purchaser shall bear and pay its
respective costs, expenses and fees (including, without limitation,
legal counsel and accounting fees and disbursements) incurred by it in
connection with the preparation, execution and consummation of this
Agreement and the transactions contemplated hereunder.
13.6 COUNTERPARTS - This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed an
original, and such counterparts together shall constitute one and the
same instrument.
13.7 NO THIRD PARTY BENEFICIARIES - Except as otherwise indicated herein,
nothing in this Agreement shall confer any rights upon any Person or
entity not a party or a permitted transferee of a party to this
Agreement.
13.8 FAIRNESS - The Parties hereby acknowledge that, to their knowledge,
there has been no finding or determination as to the fairness of the
transactions set forth herein as provided for in the California
Corporations Code.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and at
the place first above mentioned.
MICROCELL CAPITAL II INC.
By: /s/ XXXX XXXXXXX
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OZ. COM
By: /s/ GUNNAR THORODSSEN
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