EXHIBIT 10.9
AGREEMENT
THIS AGREEMENT made as of the 29th day of February, 2000.
B E T W E E N:
STAKE TECHNOLOGY LTD., a corporation organized under the laws of
Canada
(hereinafter referred to as "Stake")
OF THE FIRST PART
- and -
XXXXXX X. XXXXXXXX, INC., a corporation organized under the laws
of the State of Delaware, one of the United States of America
(hereinafter referred to as the "Vendor")
OF THE SECOND PART
- and -
U.S. SILICA COMPANY, a corporation organized under the laws of
the State of Delaware, one of the United States of America
(hereinafter referred to as "U.S. Silica")
OF THE THIRD PART
- and -
XXXXXX X. XXXXXXXX (CANADA) LIMITED, a corporation organized
under the laws of the Province of Ontario
(hereinafter referred to as the "Company")
OF THE FOURTH PART
WHEREAS the Vendor owns all of the issued and outstanding shares of
the Company, being 200 common shares without par value;
AND WHEREAS the Vendor wishes to sell such shares to Stake for
$4,700,000
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants contained herein, and other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged), the parties
hereto agree as follows:
1 DEFINED TERMS AND INTERPRETATION
1.1 Definitions. Whenever used in this Agreement, unless there is something in
the subject matter or context inconsistent therewith, the following words and
terms shall have the following meanings, respectively:
(1) "Assets" means, with respect to the Company, all the undertaking,
property and assets of the Company as the case may be, including,
without limitation, all proprietary rights, trade secrets and other
property and assets, real and personal, applicable to or used in
connection with the Business, whether owned, licensed or leased, of
every kind and description and wheresoever situated;
(2) "Balance Sheet Date" means December 31, 1999;
(3) "Business" means the businesses carried on by the Company at the
date hereof;
(4) "Best Knowledge" of the Vendor (or words of like import) means, when
used in connection with a representation or warranty, and except as
otherwise provided herein, the actual knowledge of the persons set
forth in Schedule "I" hereto;
(5) "Business Day" means a day on which the principal commercial banks
located at Toronto, Ontario and Berkely Spring, West Virginia are
open for business during normal banking hours;
(6) "Closing" means the completion of the sale and purchase contemplated
by this Agreement;
(7) "Closing Date" means February 29, 2000, or such earlier or later
date as may be mutually acceptable to the Parties;
(8) "Company" means Xxxxxx X. Xxxxxxxx (Canada) Ltd.;
(9) "Company's Financial Statements" means the balance sheet of the
Company as at December 31, 1999 and the accompanying statement of
income for the period then ended, which balance sheet and
accompanying income statement are annexed hereto as Schedule A;
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(10) "Consents" means consents, approvals, authorizations, orders,
registrations and filings, permits, or licences required by any
applicable regulatory authority with relation to the transactions
contemplated by this Agreement;
(11) "Contingent Liability" means any liability which, under Generally
Accepted Accounting Principles, would be considered a contingent
liability of the Company or a Person as the case may be hereunder
and, without limiting the generality of the foregoing, includes any
potential claim or liability under litigation or regulatory
proceedings or in respect of any uninsured claim or in respect of
any insured claim (such as co-insurance, a deductible or a policy
limit);
(12) "Contractual or Other Right or Obligation" means any form of
agreement, contract, instrument, license, permit, registration,
judgment, order, decree, indenture, lease, engagement, commitment or
franchise;
(13) "Debt" with respect to the Company hereunder means (i) any
indebtedness, liability or obligation of such Person which, under
Generally Accepted Accounting Principles, would be considered a
liability for the purpose of balance sheet presentation, (ii) all
indebtedness, liability or obligations of the Company or any such
Person secured by any Encumbrance, whether or not the same is shared
by the Company or any other Person, and (iii) all indebtedness,
liability or obligation of the type referred to in (i) and (ii) of
this definition of another Person which the Company has, directly or
indirectly, guaranteed, acted as surety or indemnitee, endorsed,
assumed, accepted, factored with recourse, agreed to purchase or
repurchase, or in respect of which the Company or such Person has
agreed to provide any other form of financial assistance (including,
without limitation, supplying or advancing funds, or maintaining
solvency or working capital or equity or "take-or-pay" agreements or
"keep-well" agreements) under which the Company or that Person is or
may become liable;
(14) "Encumbrance" means any form of mortgage, charge, security interest,
lien, adverse claim, pledge, encumbrance or right or privilege
affecting or capable of affecting the title or right of ownership or
ability to transfer or convey any property or asset;
(15) "Environmental Laws" means all federal, provincial, municipal, local
or foreign laws, statutes, ordinances, by-laws and regulations and
orders, directives and decisions rendered by, and policies,
instructions, guidelines and similar guidance of, any ministry,
department or administrative or regulatory agency or other
governmental authority, each as supplemented or amended from time to
time and the common law to the extent relating to pollution or the
protection of the environment or natural resources, occupational or
public health and safety or the manufacture, processing,
distribution, use, treatment, storage, disposal, discharge,
packaging, transport, handling, containment, clean-up or other
remediation or corrective action
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of any pollutants, contaminants, chemicals or wastes or substances,
including, without limitation, industrial, toxic, hazardous or
radioactive wastes or substances and including any admixture thereof
and specifically including petroleum and all fractions and
derivatives thereof or synthetic substitutes therefor and asbestos
or asbestos containing materials;
(16) "Generally Accepted Accounting Principles" means with respect to the
Company at any time, accounting principles, practices and procedures
generally accepted in Canada, applied on a basis consistent with
those applied in previous years, as authorized by the Canadian
Institute of Chartered Accountants;
(17) "Material Adverse Effect" means such events or circumstances in the
aggregate which has had or will have a material adverse effect on
the property, assets, Business or financial condition of the
Company;
(18) "Parties" means, collectively, the parties to this Agreement and
"Party" means any of them;
(19) "Permitted Encumbrances" means:
(a) liens for taxes, assessments and governmental charges due and
being contested in good faith and diligently by appropriate
proceedings (and for the payment of which adequate provision
has been made);
(b) servitudes, easements, restrictions, rights-of-way and other
similar rights in real property or any interest therein,
provided the same are not of such nature as to materially
adversely affect the use of the property subject thereto by
the Company;
(c) liens for taxes either not due and payable or due but for
which notice of assessment has not been given;
(d) undetermined or inchoate liens, charges and privileges
incidental to current construction or current operations and
statutory liens, charges, adverse claims, security interests
or encumbrances of any nature whatsoever claimed or held by
any governmental authority which have not at the time been
filed or registered against the title to the asset or served
upon the Company pursuant to law or which relate to
obligations not due or delinquent;
(e) assignments of insurance provided to landlords (or their
mortgagees) pursuant to the terms of any lease and liens or
rights reserved in any lease for rent or for compliance with
the terms of such lease;
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(f) security given in the ordinary course of the Business to any
public utility, municipality or government or to any statutory
or public authority in connection with the operations of the
Business, other than security for borrowed money; and
(g) the Permitted Encumbrances described in Schedule T;
(20) "Person" means in the context of the applicable provisions
hereunder, Stake, the Vendor and the Company and any other
individual, corporation, partnership, unincorporated syndicate,
unincorporated organization, trust, trustee, executor,
administrator, or other legal representative, government or
governmental agency, department or instrumentality, or any group or
combination thereof;
(21) "Premises" means the premises located at 62, 66 and 00 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx owned by the Company at which it conducts the
Business;
(22) "Purchase Price" means the sum of $4,700,000 to be paid by Stake for
the Purchased Shares;
(23) "Purchased Shares" means 200 common shares of the Company to be
purchased by Stake hereunder;
(24) "Shares" means 200 common shares of the Company;
(25) "Stake" means Stake Technology Ltd., a Party to this Agreement;
(26) "Taxes" means any and all income, profits, use, occupancy, transfer,
franchise, withholding, payroll, employment, corporate, capital,
stamp, business, realty, sales, fuel, excise or other taxes, duties,
fees, surtaxes, assessments, levies, imposts or charges payable to
or exigible by any governmental agency, authority or
instrumentality, domestic or foreign;
(27) "this Agreement", "herein", "hereto", "hereby", "hereunder",
"hereof" and similar expressions refer to this Agreement and not to
any particular clause, subclause, section, subsection or paragraph
or other portion hereof, and include amendments hereto, any
agreement which is supplementary to or an amendment or confirmation
of this Agreement and any schedules hereto or thereto;
(28) "Time of Closing" means 10:00 a.m. (Hamilton time) on the Closing
Date or such other time as may be mutually acceptable to the
Parties;
1.2 Gender and Number. Any reference in this Agreement to gender shall include
all genders and words used herein importing the singular number only shall
include the plural and vice versa.
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1.3 Headings, Etc. The division of this Agreement into Articles, Sections,
Subsections and other subdivisions and the insertion of headings are for
convenience of reference only and shall not affect or be utilized in the
construction or interpretation hereof.
1.4 Currency. All references in this Agreement to dollars, unless otherwise
specifically indicated, are expressed in Canadian currency.
1.5 Governing Law. This Agreement shall be construed, interpreted and the rights
of the Parties determined in accordance with the laws, other than the conflicts
of laws rules, of the Province of Ontario and the laws of Canada applicable
therein and shall be treated in all respects as an Ontario contract.
1.6 Schedules. The following are the Schedules attached to and incorporated in
this Agreement by reference and deemed to be a part hereof:
Schedules Documentation
A Company's Financial Statements
B Intentionally Deleted
C Inventory Valuation Practices
D Non-Realty Encumbrances
E Real Property and Realty Encumbrances
F Real Property Leases
G Personal Property Leases
H Contracts
I Best Knowledge
J Intellectual Property
K Customers and Suppliers
L Bank Accounts and Loan Agreements
M Intentionally Deleted
N Legal Opinions
O Taxes
P Intentionally Deleted
Q Intentionally Deleted
R Pre-Closing Activities
S Distributorship Agreement and Supply Agreement
T Permitted Encumbrances
U Intentionally Deleted
V Environmental Reports
1.7 Calculation of Time. When calculating the period of time within which or
following which an act is to be done or steps taken pursuant to this Agreement,
the date which is the reference date
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in calculating such period shall be excluded. If the last day of such period is
not a Business Day, the period in question shall end on the next Business Day.
If the day on which an act is to be done or steps taken pursuant to this
Agreement is not a Business Day, such day shall be deemed to be the next
Business Day.
2 PURCHASE AND SALE OF PURCHASED SHARES
2.1 Purchase and Sale of Purchased Shares. Subject to the terms and conditions
hereof, the Vendor covenants and agrees to sell, assign and transfer to Stake,
and Stake covenants and agrees to purchase from the Vendor, at the Time of
Closing, all of the Purchased Shares..
2.2 Purchase Price. The aggregate purchase price payable by Stake to the Vendor
for the Purchased Shares (the "Purchase Price") shall be $4,700,000, which shall
be payable by certified cheque or bank draft or wire transfer on Closing.
3 REPRESENTATIONS AND WARRANTIES OF U.S. SILICA
The Vendor represents and warrants to Stake as at the date hereof and at
the Time of Closing as follows, and U.S. Silica represents and warrants to Stake
as to Section 3.3:
3.1 Intellectual Property. All patents, patents pending, trade names, trade
marks, copyrights or other intellectual property owned by, or applied for, the
Company are set out in Schedule J and, to the Best Knowledge of the Vendor, no
claim of any infringement or breach of or in respect of any such property, has
been made against the Company.
3.2 Due Incorporation and Subsistence of the Company. The Company is a
corporation duly incorporated and validly subsisting and in good standing under
the Business Corporations Act (Ontario). The Company has all necessary corporate
power and authority to own or lease its property and assets and to carry on the
Business as now being conducted by it and is duly qualified, licensed or
registered to carry on the Business as now being conducted and is in good
standing in all jurisdictions in which the nature of the businesses conducted by
it or the property owned or leased by it makes such qualification, licensing or
registration necessary, where the failure to be so qualified, licensed or
registered would have a Material Adverse Effect.
3.3 Authorized Capital of the Company. The authorized capital of the Company
consists of 1,000 Shares, without par value, of which 200 Shares have been
validly issued and are outstanding as fully paid and non-assessable. 800 Shares
are held in the Treasury. Except for Stake pursuant to this Agreement, no Person
has any agreement or option or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming an agreement or option,
including convertible securities, warrants or convertible obligations of any
nature for the purchase, subscription, allotment
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or issuance of any of the Shares or securities convertible into unissued Shares
in the capital of the Company.
3.4 Validity of Agreement.
(1) the Vendor has the necessary right, power and authority to enter
into, execute and deliver this Agreement and to perform its
obligations hereunder and Stake may rely on the signature of the
Vendor as evidence thereof.
(2) The entry into, execution and delivery of this Agreement and all
other agreements and documents required to be delivered by the
Vendor hereunder, the performance by the Vendor of its obligations
hereunder and the consummation of the transactions contemplated
hereby: (i) have been and will be duly authorized by all necessary
action, corporate or otherwise, on the part of the Vendor and (ii)
do not or will not conflict with or constitute a breach of or a
default under or create any Encumbrance under (or would not with the
passage of time or the giving of notice, or both, conflict with or
constitute a breach of or a default under or create any Encumbrance
under, other than a Permitted Encumbrance) any of the terms or
provisions of the constating documents ("constating documents" being
the charter documents and by-laws of the Company) or resolutions of
the Company or of any Contractual or Other Right or Obligation to
which the Company or any of the Assets are bound or of any laws or
regulations applicable to the Company or any of the Assets, where
such breach or default would have a Material Adverse Effect.
(3) Each of this Agreement and all other agreements and documents
required to be delivered by the Vendor constitutes, or on delivery
will constitute, a legal, valid and binding obligation of the
Vendor, enforceable against it in accordance with its terms, subject
however to limitations with respect to enforcement imposed by law in
connection with bankruptcy, insolvency and creditors' rights
generally and to general principles of equity, including the
availability of equitable remedies such as specific performance and
injunctive relief which are in the discretion of the court from
which they are sought.
3.5 Consents. There are no material Consents or filings that should be obtained
or made by the Vendor or the Company in order to complete the transactions
contemplated by this Agreement.
3.6 Changes since Balance Sheet Date. Except as disclosed in Schedule R, since
the Balance Sheet Date:
(1) there has been no material adverse change in the financial position
of the Company, nor has there been any material adverse change in
the affairs, liabilities, Assets, operations or condition, financial
or otherwise, of the Company arising as a result of revocation of
any license or right to do business, fire, explosion, accident,
casualty,
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labour trouble, flood, drought, riot, storm, condemnation, act of
God, except changes occurring in the ordinary course of business
which changes, in the aggregate, have not had, and will not have a
Material Adverse Effect;
(2) the Company has not entered into, agreed to enter into or authorized
any material agreement, commitment or transaction other than in the
ordinary course of business;
(3) the Company has not created, assumed or incurred, any Debt or
Contingent Liability other than in the ordinary course of business;
(4) the Company has not, directly or indirectly, declared or paid any
dividends or declared or made any other distribution on any of its
Shares and has not, directly or indirectly, redeemed, purchased or
otherwise acquired any of its Shares or agreed to do so;
(5) the Business has been carried on in the ordinary course; and
(6) no payments have been made or authorized by the Company and no
benefits have been conferred or authorized to be conferred upon and
no transactions have been entered into with or have otherwise
involved any of the Company's current or former officers, directors,
the Vendor or employees or any Person not dealing at "arm's length"
with the Company or any of the foregoing or any Person who would be
considered a "related party" of the Company under Generally Accepted
Accounting Principles, except, in the case of employment-related
items, in the ordinary course of business and at the regular rates
payable to them as salary, pension, bonuses or other remuneration or
reimbursement of any nature.
3.7 Litigation. There is no action, suit, proceeding, at law or in equity, claim
or demand by any Person or entity, or to the Best Knowledge of the Vendor any
investigation, arbitration or any administrative or other proceeding by or
before (or any investigation by) any governmental or other instrumentality or
agency, pending, or threatened against or affecting the Shares and the Vendor
does not know of any valid basis therefor. Neither of the Vendor nor the Company
is subject to any judgment, order or decree entered in any law suit or
proceeding which would, or with the elapse of time could, in any way affect the
title of the Vendor to the Shares or completion of the transaction contemplated
by this Agreement.
3.8 Company's Financial Statements. The Company's Financial Statements have been
prepared in accordance with Generally Accepted Accounting Principles (except for
the absence of notes) and present fairly in all material respects on a
consistent basis:
(1) the assets and liabilities (whether accrued, absolute, contingent or
otherwise) of and all known claims against the Company as of the
date of the statement;
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(2) the financial position and condition of the Company as at the date
of the statement; and
(3) the sales, earnings and results of operations of the Company for the
periods ended at the date of the statements.
3.9 Inventories. To the Vendor's Best Knowledge, the inventories, raw materials,
in-process and finished products of the Company are currently in good condition,
are not obsolete, are useable or saleable in the ordinary course of business
consistent with past practice, and the amount and mix of items in the
inventories of supplies, in-process and finished products is consistent with the
Company's past business practices and are valued in accordance with Schedule C.8
3.10 Accounts Receivable. All accounts receivable, book debts and other debts
due to or accruing to the Company are bona fide.
3.11 Books and Records. All accounts, books, ledgers and other financial and
accounting records of the Company have been fully, properly and accurately kept
and completed and are in all material respects up-to-date. The Company has not
had any of its records, systems, controls, data or information recorded, stored,
maintained, operated or otherwise wholly or partly dependent upon or held by any
means (including any electronic, mechanical or photographic process, whether
computerized or not) which (including all means of access thereto and therefrom)
are not under the exclusive ownership and direct control of the Company, as the
case may be. The Company has taken reasonable steps to ensure that it has
recognized and dealt with all potential Year 2000 problems.
3.12 Assets.
(1) The Company has beneficial ownership or a valid leasehold interest
in:
(a) all the Assets (real and personal, tangible and intangible,
including leasehold interests), including, without limitation,
all the properties and assets reflected in the balance sheets
forming part of the Company's Financial Statements, except as
indicated in the notes thereto, and
(b) all the Assets purchased by the Company since the Balance
Sheet Date,
in each case subject to no Encumbrance of any kind or character
except for:
(a) the Encumbrances described in Schedules D, E and L hereto,
(b) Permitted Encumbrances; or
(c) Assets disposed of in the ordinary course of Business.
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Except for working capital, the Assets are adequate and sufficient for the
conduct of the Business substantially in the manner presently carried on by the
Company.
3.13 Leases. The Company is not a party to any lease, agreement to lease or
agreement in the nature of a lease, whether as lessor or lessee, except as set
forth in Schedules F and G hereto. The Company is exclusively entitled to all
rights and benefits as lessee under the leases and has not sublet, assigned,
licensed or otherwise conveyed any rights in the leases to any other Person,
except as noted in Schedules F and G hereto. The names of the other parties to
the leases, the term, rent and other amounts payable under the leases and all
renewal options available under the leases are accurately described in Schedules
F and G.
3.14 Contracts. Other than the leases of real and personal property set forth in
Schedules F, G, and contracts set forth in Schedule H or in the Company's
Financial Statements, there are no material contracts, agreements, engagements
or commitments to which the Company is a party or by which it is bound which
cannot be terminated on 30 days notice.
3.15 No Breach of Contracts. Each contract or agreement set forth in Schedules
F, G and H is in full force and effect and unamended, the Company is entitled to
all rights and benefits thereunder and there exists no material default or event
of default or event, occurrence, condition or act which, with the giving of
notice, the lapse of time or the happening of any other event or condition,
would become a material default or event of default thereunder and the terms and
conditions of such contracts and agreements will not be affected by the
completion of the transactions contemplated hereunder which default or event of
default would have a Material Adverse Effect. For the purposes of this Section
3.15, the term "material" shall include, without limitation, any event of
default or event, occurrence, condition or act which, with the giving of notice,
the lapse of time, or the happening of any further event or condition, would
entitle the other party to such contract or agreement to terminate same or
accelerate any payments due thereunder.
3.16 Restrictive Documents. Other than its loan arrangements with Banque
Nationale de Paris, which will be discharged on or before closing, as provided
in Schedule R, the Company is not subject to, or a party to, any charter or
by-law restriction, Encumbrance, Contractual or Other Right or Obligation, law,
rule, ordinance, regulation, or any other restriction of any kind or character
which would prevent the consummation of the transactions contemplated by this
Agreement, compliance by the Company with the terms, conditions and provisions
hereof .
3.17 Taxes. The Company has duly filed within the times it has filed such
returns in the past without objection from applicable taxing authorities and
within the manner prescribed by law, all federal, provincial, local and foreign
tax returns and tax reports which are required to be filed by or with respect to
the Company. The information contained in such returns and reports is true and
correct in all material respects and reflects accurately, in all material
respects, all liability for Taxes of the Company for the periods covered
thereby. All Taxes, assessments and reassessments (including charges, interest,
dues, fines, and penalties) payable by, or due from, the Company on or before
the date hereof have been fully paid or adequately disclosed and fully provided
for in the
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books and financial statements of the Company as the case may be. No examination
by Revenue Canada of any tax return of the Company is currently in progress,
there are no outstanding agreements or waivers extending the statutory period
providing for an extension of time with respect to the assessment or
re-assessment of any Taxes or the filing of any tax return by, or any payment of
any Taxes by, or levying of any governmental charge against, the Company, and
there are no actions, audits, assessments, re-assessments, suits, proceedings,
investigations or claims now pending or threatened, against the Company in
respect of Taxes or governmental charges or any matters under discussion with
any governmental authority relating to Taxes or governmental charges asserted by
any such authority, except as set forth in Schedule O. The Company has withheld
from each payment made by it the amount of all Taxes and other deductions
required to be withheld therefrom and has paid the same to the proper taxing or
other authority within the time prescribed under any applicable legislation or
regulation except as set out in Schedule O. For the avoidance of doubt, this
representation does not extend to any tax return filed by Stake under Section
8.4.
3.18 Employment Relations.
(1) The Company is in all material respects in compliance with all
federal, provincial, or other applicable laws respecting employment
and employment practices, terms and conditions of employment and
wages and hours.
(2) No unfair labour practice, complaint or grievance against the
Company is pending or threatened in writing before any labour
relations board or similar government tribunal or agency.
(3) There is no labour strike, dispute, slowdown or stoppage actually
pending or threatened against or involving the Company.
(4) No grievance which would have a Material Adverse Effect exists, no
arbitration proceeding arising out of or under any collective
agreement is pending and no claim therefore has been asserted which
would have a Material Adverse Effect.
(5) The Company has not made nor is it negotiating any collective
agreements with any labour union or employee association involving
its employees, except for the Collective Agreement with the United
Steelworkers of America, Local 16506 effective February 14, 1999.
(6) No employee, except Xxxx X. Xxxxxxxx, of the Company has any
agreement as to length of notice required to terminate his or her
employment, other than such as results by law from the employment of
an employee without agreement as to such notice or as to length of
employment.
3.19 No Loans to Officers or Directors. The Company does not have any loan or
Debt outstanding (other than the normal salaries, bonuses, year-end
distribution, fringe benefits and obligations to
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reimburse for expenses incurred on behalf of the Company, as the case may be, in
the normal course of employment) which has been made to any director, officer,
shareholder, or employee, to any former director, officer, shareholder, or
employee of the Company or to any Person not dealing at "arm's length" with any
of the foregoing other than described in Schedules A or H hereto.
3.20 Customers and Suppliers. Annexed hereto as Schedule K is a list setting
forth the ten largest customers and suppliers of the Company, by dollar amount,
over the twelve month fiscal period ended December 31, 1999.
3.21 Vacation Pay. All required vacation pay, bonuses, commissions and other
employee benefit payments are reflected and have been accrued in the books of
account of the Company as at the Balance Sheet Date.
3.22 Copies of Documents. The Company has offered to deliver to Stake or caused
to be made available for inspection and copying by Stake and its counsel, true,
complete and correct copies of all contracts, leases and documents listed in all
Schedules hereto and all other documents referred to herein.
3.23 Subsidiaries. The Company does not have any subsidiaries nor are there any
agreements of any nature to acquire any subsidiary or to acquire or lease any
other business operations.
3.24 Bank Accounts. The only banks, trust companies or similar institutions in
which the Company has accounts or safe deposit boxes are listed in Schedule L.
3.25 Powers of Attorney. There are no Persons holding a general or special power
of attorney from the Company.
3.26 Compliance with Laws; Licences. Except to the extent such matters have been
specifically addressed in other representations and warranties contained herein,
the Company has complied with all laws, statutes, ordinances, regulations,
rules, judgments, decrees or orders applicable to the Business or the Company
where the failure to do so would have a Material Adverse Effect. The Company
holds all material licences, permits, approvals, consents, certificates,
registrations and authorizations (whether governmental, regulatory or otherwise)
(the "Licences") necessary to carry on the Business or to own or lease any of
the property or assets utilized by the Company. The Company is not in default or
breach of any Licence and, to the knowledge of the Vendor, no proceeding is
pending or threatened to revoke or limit any Licence, the revocation of which
would have a Material Adverse Effect.
3.27 Debts. There are no material Debts of any kind whatsoever in respect of
which the Company is liable at the date hereof or may become liable on or after
the consummation of the transactions contemplated by this Agreement other than:
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(1) Debts disclosed on, reflected in or provided for in the Company's
Financial Statements,
(2) Debts disclosed or referred to in this Agreement or in Schedules A,
D and E or in the other Schedules attached hereto, and
(3) Debts incurred in the ordinary course of business and attributable
to the period since the Balance Sheet Date.
3.28 Environmental Matters.
(1) To the Best Knowledge of the Vendor, except as set forth in the
environmental reports listed in Schedule V:
(i) the Company is in full compliance with all applicable laws,
regulations and orders relating to the environment, storage
and transportation of goods and product safety;
(ii) the Company has complied with all reporting and inspection
requirements of all governmental authorities having
jurisdiction over the Company under all applicable laws,
regulations and orders relating to the environment; and
(iii) the Company maintains all operating records and reports,
including environmental monitoring and reporting records, in
accordance with all applicable laws, regulations and orders
relating to the environment, storage and transportation of
goods and employee and product safety,
where non-compliance or the failure to maintain such records, as the
case may be, would have a Material Adverse Effect;
(2) To the Best Knowledge of the Vendor, except as set forth in the
environmental reports listed in Schedule V:
(i) since July 23, 1998, there has not been release of any
hazardous substance into the environment from or deposit or
disposal of any hazardous substance on the Premises or any
other property owned or leased by the Company;
(ii) since July 23, 1998, there has not been any underground or
surface storage tanks, urea formaldehyde foam insulation
asbestos, polychlorinated biphenyls or radioactive substances
on the Premises;
(iii) there are no restrictions of an environmental nature
specifically identifying
14
the Premises and limiting their use, whether arising under
private contract, public law or legislation of any nature or
kind; and
(iv) there is no hazardous substance originating from the Premises
and transported to or deposited at any unlicensed waste
disposal site or facility;
which would have a Material Adverse Effect.
(3) For the purposes of this section, "hazardous substance" means any
hazardous waste, dangerous substance or toxic waste or substance.
3.29 Title to Purchased Shares. The Vendor is the registered and beneficial
owner of the Purchased Shares and has a valid title to the Purchased Shares,
free and clear of any and all Encumbrances of any kind whatsoever other than
Permitted Encumbrances. No Person, other than the Vendor, has any interest,
direct or indirect, beneficial or otherwise, in the Purchased Shares.
The foregoing representations and warranties (including, without
limitation, sections 3.26 and 3.27 shall not apply to, or be construed as
relating to, any compliance or non-compliance of the Company, the Business or
any properties or operations of the Company, or any violation of or Debts or
other liabilities under, any Environmental Law or the holding by the Company of
any licenses, permits, approvals, consents, certificates, registrations or other
authorizations under any Environmental Laws, it being understood and agreed that
the Purchaser is assuming all risks associated with matters relating to
Environmental Laws.
4 REPRESENTATIONS AND WARRANTIES OF STAKE
Stake represents and warrants to the Vendor as of the date hereof and at
the Time of Closing as follows:
4.1 Due Incorporation and Subsistence. Stake is a corporation duly incorporated
and validly subsisting and in good standing under the laws of Canada.
4.2 Consents. There are no Consents or filings that should be obtained or made
by Stake in order to complete the transactions contemplated by this Agreement.
4.3 Authority. This Agreement has been duly executed and delivered by duly
authorized representatives of Stake.
4.4 Validity of Agreement.
15
(1) Stake has the necessary right, power and authority to enter into,
execute and deliver this Agreement and to perform its obligations
hereunder and the Vendor may rely on the signature of Stake as
evidence thereof.
(2) The entry into, execution and delivery of this Agreement and all
other agreements and documents required to be delivered by Stake
hereunder, the performance by Stake of its obligations hereunder and
the consummation of the transactions contemplated hereby: (i) have
been and will be duly authorized by all necessary action, corporate
or otherwise, on the part of Stake and (ii) do not or will not
conflict with or constitute a breach of or a default under or create
any Encumbrance under (or would not with the passage of time or the
giving of notice, or both, conflict with or constitute a breach of
or a default under or create any Encumbrance under, other than a
Permitted Encumbrance) any of the terms or provisions of the
constating documents ("constating documents" being the charter
documents and by-laws of Stake) by-laws or resolutions of Stake to
which Stake is bound or of any laws or regulations applicable to
Stake. Any such breach or default would have a Material Adverse
Effect.
(3) Each of this Agreement and all other agreements and documents
required to be delivered by Stake constitutes, or on delivery will
constitute, a legal, valid and binding obligation of Stake,
enforceable against it in accordance with its terms, subject however
to limitations with respect to enforcement imposed by law in
connection with bankruptcy, insolvency and creditors' rights
generally and to general principles of equity, including the
availability of equitable remedies such as specific performance and
injunctive relief which are in the discretion of the court from
which they are sought.
5 CONDITIONS PRECEDENT
5.1 Conditions Precedent to Closing. The obligation of the Vendor or Stake to
complete the sale and purchase of the Purchased Shares hereunder shall be
subject to the satisfaction of, or compliance with, at or before the Time of
Closing, each of the following conditions precedent each of which is separate,
is provided for the exclusive benefit of Stake or the Vendor, as the case may
be, and may be waived by the Party for whose benefit the same is given.
(1) all corporate, legal and regulatory proceedings, approvals and
consents as are reasonably considered necessary by the Vendor's or
Stake's counsel as the case may be shall have been taken or obtained
to permit the consummation of the transactions contemplated herein,
including the acquisition of the Purchased Shares by Stake without
adversely affecting, or resulting in the cancellation or termination
or adverse variation thereof of any license, permit or material
contract held by the Company;
16
(2) the Parties shall have fulfilled and/or complied with all terms,
conditions, covenants and agreements herein contained to be
performed or caused to be performed by them;
(3) all documentation relating to the due authorization (including,
without limitation, the due authorization by and completion of the
sale and purchase hereunder) of the Purchased Shares and all actions
and proceedings taken on or prior to the Time of Closing in
connection with the performance by the Parties of their obligations
under this Agreement shall be satisfactory to each of the Parties
and their respective counsel, both acting reasonably, and each of
the Vendor and Stake shall have received copies of all such
documentation or other evidence as they or it may reasonably request
in order to establish the consummation of the transactions
contemplated hereby and the taking of all corporate proceedings in
connection therewith in compliance with these conditions, in form
(as to certification and otherwise) and substance satisfactory to
each of the Vendor and Stake, acting reasonably, and their counsel;
(4) the Vendor and Stake shall have received opinions dated the Closing
Date, in form and substance as set forth in Schedule N attached;
(5) there shall have been no material adverse change in the business,
affairs and conditions of the Company, whether financial or
otherwise since the date of the Company's Financial Statements
except as set out in Schedules Q and R;
(6) all Consents (including all required regulatory consents), licences,
permits and certificates of any Persons and all filings and
notifications to any Persons required in connection with the
completion of the transactions contemplated by this Agreement, the
execution and delivery of this Agreement, the Closing or the
performance of any of the terms and conditions hereof shall have
been obtained on or before the Time of Closing;
(7) the written consent (in form and substance satisfactory to counsel)
of any lessor or landlord pursuant to all leases shall have been
delivered insofar as such consent is required due to the change in
shareholdings of the Company together with an estoppel certificate
of each such lessor, landlord or other party to the effect that the
respective lease agreement is in good standing, that all obligations
of the Company thereunder have been performed to the Time of Closing
and that the Company is not in default thereunder at the Time of
Closing;
(8) the Vendor shall have executed and delivered such conveyances,
assurances, assignments, transfers and other instruments of
conveyance necessary or reasonably required effectively to transfer
the Purchased Shares to Stake with a good marketable title free and
clear of all Encumbrances of any kind whatsoever.
17
5.2 Additional Condition Precedent to Closing in Favour of the Vendor. The
obligation of the Vendor to complete the purchase and sale of the Purchased
Shares hereunder shall be subject to the satisfaction of or compliance with, at
or before the time of Closing, the following condition precedent, which is
provided for the exclusive benefit of the Vendor and may be waived by the
Vendor:
(1) Stake and the Company shall have executed and delivered a
distributorship agreement ("Distributorship Agreement") and supply
agreement ("Supply Agreement") substantially in the form of the
draft distributorship agreement and draft supply agreement annexed
as Schedule S to this Agreement.
5.3 Conditions to the Obligations of All Parties. The obligations of all Parties
to complete the transactions contemplated herein shall be subject to the
satisfaction of, or compliance with, at or before the Time of Closing each of
the following, each of which is a true condition precedent and may not be
waived:
(1) no action or proceeding, at law or in equity, and no investigation
shall be pending or threatened by any Person to restrain, restrict
or prohibit or materially adversely affect the consummation of any
of the transactions contemplated hereby, or the right of Stake or
the Company to carry on the Business in the same manner as it has
been carried on in the past.
6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
6.1 Survival. All covenants, representations and warranties made herein or in
any agreement, certificate or other document delivered or given pursuant to this
Agreement (other than those which are expressly waived in writing as part of the
Closing herein) shall survive the execution and delivery of this Agreement and
the completion of the transactions contemplated by this Agreement and,
notwithstanding such completion or any investigation made by or on behalf of the
Party to whom or in whose favour such covenants, representations and warranties
were made, shall continue in full force and effect for the respective benefit of
Stake and the Vendor, as the case may be, for a period ending February 28, 2001,
excepting those representations and warranties given by the Vendor in Sections
3.4(1) and 3.4(3) and those given by Stake in Sections 4.4(1)and 4.4(3)which
never expire, after which period the respective Parties shall be released from
their respective obligations and liabilities hereunder, except in respect of
claims made in writing prior to expiry of such period.
6.2 Indemnification. Subject to the Limitation of Losses as discussed below,
each of the Parties agrees to indemnify and save the other Party and its
representatives, successors and assigns harmless of and from any liability,
obligation, cost, expenses, damage or loss whatsoever arising out of, under, or
pursuant to:
18
(1) any incorrectness in, or breach of, or default under, any
representation or warranty or covenant made by such Party hereunder
or in any certificate or other document delivered pursuant hereto;
(2) all claims, demands, suits, causes of action, proceedings,
judgments, costs and expenses or other liabilities of any kind
whatsoever in respect of the foregoing, including reasonable legal
fees and disbursements in connection with the foregoing; and
(3) the non-fulfillment of any condition contained herein for which it
is solely responsible (excluding therefrom the conditions precedent
contained in Section 5 except to the extent such condition(s) are
not met by reason of its default).
Stake will maintain in force the Company's present errors and omissions coverage
for officers and directors.
6.3 Limitation of Losses. No claim for indemnity under this Article 6 may be
made for loss of profits or consequential losses or damages, or exemplary or
punitive damages, it being the intention of the Parties to limit such claims to
direct liabilities, obligations, costs, expenses, damages or losses suffered as
a result of any breach, default or non-fulfillment contemplated by Articles 3
and 4.
6.4 Limitation of Indemnities. The obligations of the Vendor or U.S. Silica to
Stake pursuant to this Article 6, shall not apply until the claims and damages
of Stake (excluding any amount to be paid by U.S. Silica to Stake under the
agreement between U.S. Silica and Stake dated the date hereof relating to the
option granted to Xxxxxx Xxxxx in respect of Part Xxx 000, Xxxx 00, Xxxx Xxxxxxx
Xx. 0, Xxxx of Xxxxxxxx, Regional Municipality of Xxxxxxxx-Xxxxxxxxx) sought to
be indemnified exceed, in the aggregate, One Hundred Thousand ($100,000)
Dollars, and in such event, such obligations shall apply only to the extent of
the amounts over and above One Hundred Thousand ($100,000) Dollars, up to an
aggregate maximum of $1,000,000. The obligations of Stake to the Vendor pursuant
to this Article 6, shall not apply until the claims and damages of the Vendor
sought to be indemnified exceed, in the aggregate, One Hundred Thousand
($100,000) Dollars, and in such event, such obligations shall apply only to the
extent of the amounts over and above One Hundred Thousand ($100,000) Dollars.
Notwithstanding anything in this Agreement to the contrary: (i) the Indemnified
Party (as hereinafter defined) shall act in good faith and in a commercially
reasonable manner to mitigate any damages it may suffer and (ii) the Vendor
shall not be liable to Stake for any claims or damages (A) to the extent that
they relate to any act or omission of Stake or any of its affiliates or the
agents of any of them or (B) arising from any incorrectness in, breach of or
default under any representation or warranty referred to in section 6.2(1) and
to the extent that the primary cause of such incorrectness, breach or default
was a fact or circumstance known to Stake at or prior to the Time of Closing.
6.5 Notice of Claim.
19
(1) In the event that a party (the "Indemnified Party") shall become
aware of any claim, proceeding or other matter (a "Claim") in
respect of which it in good faith believes another party (the
"Indemnifying Party") has agreed to indemnify the Indemnified Party
pursuant to this Agreement, the Indemnified Party shall promptly
give written notice thereof to the Indemnifying Party. Such notice
shall specify whether the Claim arises as a result of a claim by a
Person against the Indemnified Party (a "Third Party Claim") or
whether the Claim does not so arise (a "Direct Claim"), and shall
also specify with reasonable particularity (to the extent that the
information is available) the factual basis for the Claim and the
amount of the Claim, if known.
(2) If, through the fault of the Indemnified Party, the Indemnifying
Party does not receive notice of any Claim in time to contest
effectively the determination of any liability susceptible of being
contested, the Indemnifying Party shall be entitled to set off
against the amount claimed by the Indemnified Party the amount of
any losses or damage incurred by the Indemnifying Party resulting
from the Indemnified Party's failure to give such notice on a timely
basis.
6.6 Direct Claims. With respect to any Direct Claim, following receipt of notice
from the Indemnified Party of the Claim, the Indemnifying Party shall have 60
days to make such investigation of the Claim as is considered necessary or
desirable. For the purpose of such investigation, the Indemnified Party shall
make available to the Indemnifying Party the information relied upon by the
Indemnified Party to substantiate the Claim, together with all such other
information as the Indemnifying Party may reasonably request. If both parties
agree at or prior to the expiration of such 60-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such Claim, the
Indemnifying Party shall immediately pay to the Indemnified Party the full
agreed upon amount of the Claim, failing which the matter shall be referred to
binding arbitration in such manner as the parties may agree or shall be
determined by a court of competent jurisdiction.
6.7 Third Party Claims. With respect to any Third Party Claim, the Indemnifying
Party shall have the right, at its expense, to participate in or assume control
of the negotiation, settlement or defence of the Claim. If the Indemnifying
Party elects to assume such control, the Indemnified Party shall have the right
to participate in the negotiation, settlement or defence of such Third Party
Claim and to retain counsel to act on its behalf, provided that the fees and
disbursements of such counsel shall be paid by the Indemnified Party unless the
named parties to any action or proceeding include both the Indemnifying Party
and the Indemnified Party and the representation of both the Indemnifying Party
and the Indemnified Party by the same counsel would be inappropriate due to a
conflict of interest not waived by the affected party. If the Indemnifying
Party, having elected to assume such control, thereafter fails to defend the
Third Party Claim within a reasonable time, the Indemnified Party shall be
entitled to assume such control, and the Indemnifying Party shall be bound by
the results obtained by the Indemnified Party with respect to such Third Party
Claim.
6.8 Settlement of Third Party Claims. If the Indemnifying Party fails to assume
control of the
20
defence of any Third Party Claim, the Indemnified Party shall have the exclusive
right to contest, settle or pay the amount claimed. Whether or not the
Indemnifying Party assumes control of the negotiation, settlement or defence of
any Third Party Claim, the Indemnifying Party shall not settle any Third Party
Claim (other than one involving only the payment of monies) without the written
consent of the Indemnified Party, which consent shall not be unreasonably
withheld or delayed; provided, however, that the liability of the Indemnifying
Party shall be limited to the proposed settlement amount if any such consent is
not obtained for any reason.
6.9 Co-operation. The Indemnified Party and the Indemnifying Party shall
co-operate fully with each other with respect to Third Party Claims, and shall
keep each other fully advised with respect thereto (including supplying copies
of all relevant documentation promptly as it becomes available).
6.10 Exclusivity. The provisions of this Article 6 shall apply to any Claim for
breach of covenant, representation, warranty or other provision of this
Agreement or any agreement, certificate or other document delivered pursuant
hereto (other than a claim for specific performance or injunctive relief) with
the intent that all such claims shall be subject to the limitations and other
provisions contained in this Article 6.
7 CLOSING ARRANGEMENTS AND TERMINATION
7.1 Closing. The Closing of the sale and purchase contemplated by this Agreement
shall take place at the Time of Closing on the Closing Date at Hamilton, Ontario
or at such other place and/or time as the Parties may mutually agree upon and in
such manner as the Parties may agree at such time. The Closing shall be deemed
effective as of the end of the Closing Date.
7.2 Closing Delivery. At the Time of Closing, the Vendor shall deliver or cause
to be delivered to Stake:
(1) share certificates representing the Purchased Shares duly endorsed
in blank for transfer;
(2) the legal opinion referred to in subsection 5.1(4);
(3) evidence satisfactory to Stake that the Company has entered into a
binding agreement with Xxxx X. Xxxxxxxx that he will retire from the
Company forthwith after Closing and deliver a full release of all
claims against it;
(4) evidence satisfactory to Stake that it has repaid or arranged to
repay all monies owing to the Company by it and all monies owed by
the Company to Banque National de Paris as provided in Schedule R;
21
and upon the fulfillment of the foregoing provisions of this Section 7.2, Stake
shall deliver to the Vendor:
(5) its certified cheque or bank draft or wire transfer aggregating
$4,700,000 to the Vendor or as directed;
(6) the legal opinion referred to in subsection 5.1(4); and
(7) executed copies of the Distributorship Agreement and Supply
Agreement.
7.3 Following Closing. Immediately following the Closing, the Parties shall take
the following steps:
(1) all directors of the Company shall deliver resignations as directors
seriatim and elect nominees of Stake to fill the vacancies thereby
created and all directors and officers shall deliver releases of all
claims against the Company (other than claims against the errors and
omissions policy referred to in Section 6.2) and the Company shall
deliver to such directors and officers a complete release of all
claims against them.
8 MISCELLANEOUS
8.1 Publicity. Except as is required by law or by any stock exchange, none of
the Parties shall issue any press release or make any other public statement or
announcement relating to or connected with or arising out of this Agreement or
the matters contained herein without obtaining the prior written approval of the
Vendor, or Stake, as the case may be, which approval shall not be unreasonably
withheld. The provision of this section 8.1 expire on Closing.
8.2 Pre-Closing Activities. It is agreed that, notwithstanding any other
provision hereof, the Vendor and the Company may effect the steps set forth in
Schedule R hereto.
8.3 Use of Name. Stake covenants and agrees to cause the Company to change its
corporate name to a name that does not contain the words "Xxxxxx X. Xxxxxxxx"
within 30 Business Days after Closing. Stake further covenants and agrees to
cause the Company to cease to carry on business under, or otherwise use in the
Business, the name "Xxxxxx X. Xxxxxxxx" provided that the Company may,
subsequent to Closing, distribute in the ordinary course of business any
letterhead, invoices, brochures or other similar written materials in existence
at Closing bearing such name until they have been used up or it has obtained
replacements therefor which do not bear such name but in any event no longer
than 45 days after Closing. Stake may also continue to use "Xxxxxx X. Xxxxxxxx"
name on existing products for a period of up to 90 Business Days after Closing
and on all packaged products forming the inventory of the Company at Closing
until the supply of the same has become exhausted.
22
Stake may continue to market all products under the name "Pecal" and the
Vendor and U.S. Silica agrees that it will not, individually or collectively,
market any products in Canada following Closing under the name "Pecal".
8.4 Tax Periods Ending on or Before the Closing Date. Stake shall prepare or
cause to be prepared and file or cause to be filed all Tax Returns for the
Company for all periods ending on or prior to the Closing Date which are filed
after the Closing Date. Stake shall permit the Vendor to review and comment on
each such Tax Return described in the preceding sentence prior to filing.
8.5 Further Assurances. To the extent reasonably practicable in the
circumstances or permitted by law each of the Parties upon the request of the
other 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.
8.6 Time. Time shall be of the essence hereof.
8.7 Successors in Interest. This Agreement and the provisions hereof shall enure
to the benefit of and be binding upon the Parties and their respective
successors and permitted assigns.
8.8 Notices. Any notice, document or other communication required or permitted
by this Agreement to be given by a party hereto shall be in writing and is
sufficiently given if delivered personally, or if transmitted by any form of
telecommunication (which is tested prior to transmission, confirms to the sender
the receipt of the entire transmission by the recipient and reproduces a
complete written version of the transmission at the point of reception) to such
party addressed as follows:
(1) in the case of the Vendor or the Company to them at:
Xxxxxx X. Xxxxxxxx, Inc.
X.X. XXX 000
Xxxxxxxx Xxxxxx, Xxxx Xxxxxxxx 0000
X.X.X.
with a copy to:
Telecopy: (000)000-0000
(2) in the case of Stake to it at:
0000 Xxxxxxx 0
Xxxxxx, Xxxxxxx
X0X 0X0
23
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: X. Xxxxxxxxx
Telecopy: (000) 000-0000
Notice transmitted by a form of recorded telecommunication or delivered
personally shall be deemed received on the day of transmission or personal
delivery, as the case may be or if not received or delivered on a Business Day,
on the next succeeding Business Day. Any party may from time to time notify the
others in the manner provided herein of any change of address which thereafter,
until changed by like notice, shall be the address of such party for all
purposes hereof.
8.9 Expenses. Except as otherwise expressly provided hereby, all costs and
expenses (including without limitation, the fees and disbursements of legal
counsel, investment advisers and auditors) incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the Party
incurring such expenses.
8.10 Broker's or Finder's Fees. Each of the Parties hereto covenants and agrees
with the other that it will pay and satisfy any commission or broker's or
finder's fee of any agent, broker, person or firm acting solely on its behalf in
connection with any of the transactions contemplated herein and agrees to
indemnify and save the other Parties harmless from and against any and all
costs, claims and expenses in connection therewith. Each of the Parties
represents and warrants to the other that it has not done, and is not aware of,
any act which might give rise to a claim for any finder's or brokerage fee in
connection with this Agreement or any of the transactions contemplated herein.
8.11 Assignment. This Agreement may not be assigned by any Party except by Stake
to a Designated Affiliate without the prior written consent of others.
Notwithstanding any such assignment, Stake shall remain responsible for all its
obligations hereunder.
8.12 Execution in Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts or duplicates each of which when so executed and
delivered shall be an original, but all such counterparts or duplicates shall
together constitute one and the same instrument.
8.13 Entire Agreement. This Agreement (including the Schedules hereto) together
with any agreements or other documents to be delivered pursuant hereto sets
forth the entire agreement among
24
the Parties pertaining to the specific subject matter hereof and replaces and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the Parties, and there are no warranties,
representations or other agreements, whether oral or written, express or
implied, statutory or otherwise, between the Parties in connection with the
subject matter hereof except as specifically set forth herein.
8.14 Amendments. No supplement, modification, waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to be bound
thereby.
8.15 Waiver. No delay or failure of any party in exercising any right or remedy
hereunder and no partial exercise of any such right or remedy shall be deemed to
constitute a waiver of such right or remedy or any other rights or remedies of
such party hereunder. 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. Any consent by a party to or any waiver by a Party of any
breach of any provision of this Agreement shall not constitute a consent to or
waiver of any subsequent, further or other breach of the provisions of this
Agreement.
8.16 Severability. Each of the provisions of this Agreement (and each part of
each such provision) is severable from every other provision hereof (and every
other part thereof). In the event that any provision (or part thereof) contained
in this Agreement or the application thereof to any circumstance shall be
invalid, illegal or unenforceable, in whole or in part, in any relevant
jurisdiction and to any extent:
(1) the validity, legality or enforceability of such provision (or such
part thereof) in any other relevant jurisdiction and of the
remaining provisions contained in this Agreement (or the remaining
parts of such provision, as the case may be) shall not in any way be
affected or impaired thereby;
(2) the application of such provision (or such part thereof) to
circumstances other than those as to which it is held invalid,
illegal or unenforceable shall not in any way be affected or
impaired thereby;
(3) such provision (or such part thereof) shall be severed from this
Agreement and ineffective to the extent of such invalidity,
illegality or unenforceability in such jurisdiction and in such
circumstances; and
(4) the remaining provisions of this Agreement (or the remaining parts
of such provision, as the case may be) shall nevertheless remain in
full force and effect.
8.17 Consent to Transfer. The Company joins in this Agreement for the purpose of
providing its covenant to provide the required consent to the transfer of the
Shares contemplated hereby.
25
8.18 Third Party Beneficiaries. Each Party intends that this Agreement or any
agreement entered into pursuant to this Agreement shall not benefit or create
any right or cause of action in or on behalf of any Person, other than the
Parties, and no Person, other than the Parties, shall be entitled to rely on the
provisions hereof or any agreement entered into pursuant hereto in any action,
proceeding, hearing, or other forum.
IN WITNESS WHEREOF the Parties have executed this Agreement as of
the date first above written.
SIGNED, SEALED & DELIVERED )
)
in the presence of )
) STAKE TECHNOLOGY LTD.
)
)
) Per: /s/ X.X. Xxxxxxx
) ------------------------------
)
)
) XXXXXX X. XXXXXXXX, INC.
)
)
) Per: /s/ [ILLEGIBLE]
) ------------------------------
)
) U.S. SILICA COMPANY
)
)
) Per: /s/ [ILLEGIBLE]
) ------------------------------
) XXXXXX X. XXXXXXXX (CANADA)
) LIMITED
)
)
) Per: /s/ [ILLEGIBLE]
------------------------------
26
