Exhibit 4.3
ASSET PURCHASE AGREEMENT
THIS AGREEMENT made as of the 2nd day of July, 2001
BETWEEN:
X-XXXXXXX.XXX INC.,
a corporation incorporated under the laws of Canada
(hereinafter referred to as the "Purchaser")
AND:
XXXXXX CAREER MARKETING INC.,
a corporation incorporated under the laws of the State of Florida
(hereinafter referred to as the "Vendor")
WHEREAS:
A. The Vendor carries on the business of resume distribution services
the ("Business");
B. The Vendor wishes to sell and assign to the Purchaser, and the
Purchaser wishes to purchase and assume from Vendor certain of the
assets of such Business on the terms and subject to the conditions
hereinafter contained.
NOW THEREFORE in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration paid by each of the parties
hereto to each of the other parties hereto (the receipt and sufficiency of which
are hereby acknowledged), it is agreed among the parties hereto as follows:
1. INTERPRETATION
1.1. SCHEDULES. The Schedules that are attached to this
Agreement are incorporated in this Agreement by reference
and are deemed to be part hereof.
1.2. CURRENCY. Unless otherwise indicated, all dollar amounts
referred to in this Agreement are in lawful money of the
United States of America.
1.3. CHOICE OF LAW AND ATTORNMENT. This Agreement shall be
governed by and construed and enforced in accordance with
the laws of Ontario, Canada.
1.4. TIME OF ESSENCE. Time shall be of the essence.
2. PURCHASE AND SALE
2.1. PURCHASED ASSETS. On the terms and subject to the
fulfilment of the conditions, the Vendor hereby agrees to
sell, transfer and assign to the Purchaser, and the
Purchaser hereby agrees to purchase and accept from the
Vendor as of the * day of * , 2001 (the "Closing Date"),
assets, rights and interests of the Vendor listed in
Schedule 2.1, as attached hereto (the "Purchased Assets").
2.2. EXCLUDED LIABILITIES AND INDEMNITY. The Purchaser will not
assume and will not be liable for, and the Vendor will
indemnify the Purchaser from and against, all obligations,
commitments and liabilities of and claims against the
Vendor (whether absolute, accrued or contingent) relating
to the Purchased Assets.
2.3. PURCHASE PRICE. The price payable by the Purchaser to the
Vendor for the Purchased Assets will be the sum of
$168,000.
2.4. PAYMENT OF PURCHASE PRICE AND HOLD BACK. Purchaser and
Vendor mutually agree that the Purchase Price, less the
Hold Back Funds (as herein described) will be paid and
satisfied at the Closing Time by certified check or bank
draft. Of the Purchase Price, $108,000.00 shall be
retained by the Purchaser (the "Hold Back Funds"). The
Purchaser shall pay $9,000.00 of the Hold Back Funds each
month for a period of twelve (12) months from the Closing
Time. Any claims for indemnification arising out of this
Agreement made by the Purchaser which are not settled by
the Vendor or the Shareholders may be paid out of the Hold
Back Funds.
2.5. ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated among the Purchased Assets in the manner
provided by Schedule 2.5 attached hereto. The Vendor and
the Purchaser shall file their respective tax returns
prepared in accordance with such allocation.
2.6. PAYMENT OF TAXES. The Purchaser shall be liable for and
shall pay all applicable federal and state sales taxes,
excise taxes and all other taxes (other than income taxes
of the Vendor), duties and other like charges properly
payable on and in connection with the conveyance and
transfer of the Purchased Assets to the Purchaser. The
Vendor will do and cause to be done such things as are
reasonably requested to enable the Purchaser to comply
with such obligation in an efficient manner.
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3. REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES BY THE VENDOR. The Vendor
hereby represents and warrants to the Purchaser as
follows, and confirms that the Purchaser is relying upon
the accuracy of each of such representations and
warranties in connection with the purchase of the
Purchased Assets and the completion of the other
transactions hereunder:
3.1.1. Corporate Authority and Binding Obligation. The
Vendor has good right, full corporate power and
absolute authority to enter into this Agreement
and to sell, assign and transfer the Purchased
Assets to the Purchaser in the manner
contemplated herein and to perform all of the
Vendor's obligations under this Agreement. The
Vendor and its shareholders and board of
directors have taken all necessary or desirable
actions, steps and corporate and other
proceedings to approve or authorize, validly
and effectively, the entering into of, and the
execution, delivery and performance of, this
Agreement and the sale and transfer of the
Purchased Assets by the Vendor to the
Purchaser. This Agreement is a legal, valid and
binding obligation of the Vendor, enforceable
against it in accordance with its terms.
3.1.2. Contractual and Regulatory Approvals. The
Vendor is not under any obligation, contractual
or otherwise, to request or obtain the consent
of any person, and no permits, licences,
certifications, authorizations or approvals of,
or notifications to, any federal, state,
municipal or local government or governmental
agency, board, commission or authority are
required to be obtained by the Vendor.
3.1.3. Status and Governmental Licences.
3.1.3.1. The Vendor is a corporation duly
incorporated, validly existing and
in good standing in all respects
under the laws of its jurisdiction
of incorporation. The Vendor has all
necessary corporate power to own,
lease and operate its assets,
properties and business and to carry
on its business as it is now being
conducted and is in good standing in
every jurisdiction in which the
nature of its business or the
location of its properties requires
such qualification or licensing.
3.1.3.2. The Vendor holds all necessary
licences, registrations and
qualifications in each jurisdiction
in which,
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(i) it owns any of the Purchased Assets,
or
(ii) the nature of the Purchased Assets
or any part thereof, makes such
qualification necessary or desirable
to enable the Purchased Assets to be
owned and operated.
The Vendor is in compliance with all terms and
conditions of the licences, registrations and
qualifications. There are no proceedings in
progress, pending or, to the best of the
knowledge of the Vendor, threatened, which
could result in the revocation, cancellation or
suspension of any of the licences,
registrations or qualifications.
3.1.4. Compliance with Constating Documents, Agreements and Laws.
The execution, delivery and performance of this Agreement
and each of the other agreements contemplated or referred
to herein by the Vendor, and the completion of the
transactions contemplated hereby, will not constitute or
result in a violation, breach or default, or cause the
acceleration of any obligations under:
3.1.4.1. any term or provision of any of the articles,
by-laws or other constating documents of the
Vendor,
3.1.4.2. the terms of any indenture, agreement (written
or oral), instrument or understanding or other
obligation or restriction to which the Vendor
is a party or by which it is bound including,
or
3.1.4.3. any term or provision of any licences or any
order of any court, governmental authority or
regulatory body or any law or regulation of any
jurisdiction in which the Business is carried
on.
3.1.4.4. Absence of Undisclosed Liabilities. There are
no liabilities (contingent or otherwise) of the
Vendor of any kind whatsoever in respect of
which the Purchaser may become liable on or
after the consummation of the transactions
contemplated by this Agreement.
3.1.5. Litigation. There are no actions, suits or proceedings,
judicial or administrative (whether or not purportedly on
behalf of the Vendor) pending or, to the best of the
knowledge of the Vendor, threatened, by or against or
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affecting the Vendor which relate to the Purchased Assets,
at law or in equity, or before or by any court or any
federal, state, municipal or other governmental
department, commission, board, bureau, agency or
instrumentality, domestic or foreign. There are no grounds
on which any such action, suit or proceeding might be
commenced with any reasonable likelihood of success.
3.1.6. Title to Assets. The Vendor is the owner of and has good
and marketable title to all of the Purchased Assets.
3.1.7. Works Orders and Deficiencies. There are no outstanding
work orders, non-compliance orders, deficiency notices or
other such notices relative to the Purchased Assets which
have been issued by any regulatory authority, police or
fire department, sanitation, environment, labour, health
or other governmental authorities or agencies. There are
no matters under discussion with any such department or
authority relating to work orders, non-compliance orders,
deficiency notices or other such notices. None of the
Purchased Assets are being operated, in a manner which is
in contravention of any statute, regulation, rule, code,
standard or policy.
3.1.8. Intellectual Property.
3.1.8.1. Schedule 3.1.8 attached hereto lists and
contains a complete description of:
(i) all patents, patent applications and
registrations, trade marks, trade
xxxx applications and registrations,
copyrights, copyright applications
and registrations, trade names and
industrial designs, domestic or
foreign, owned or used by the Vendor
relating to the Purchased Assets,
(ii) all trade secrets, know-how,
inventions and other intellectual
property owned or used by the Vendor
relating to the Purchased Assets;
and
(iii) all computer systems and application
software, including without
limitation all documentation
relating thereto and the latest
revisions of all related object and
source codes therefor, owned or used
by the Vendor relating to the
Purchased Assets,
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(all of the foregoing being collectively called
the "Intellectual Property").
3.1.8.2. The Vendor has good and valid title to all of
the Intellectual Property, free and clear of
any and all Encumbrances, except in the case of
any Intellectual Property licensed to the
Vendor. Complete and correct copies of all
agreements whereby any rights in any of the
Intellectual Property have been granted or
licensed to or from the Vendor have been
provided to the Purchaser. No royalty or other
fee is required to be paid by the Vendor to any
other person in respect of the use of any of
the Intellectual Property except as provided in
such agreements delivered to the Purchaser. The
Vendor has protected its rights in the
Intellectual Property. The Vendor has the
exclusive right to use all of the Intellectual
Property and has not granted any licence or
other rights to any other person in respect of
the Intellectual Property. Complete and correct
copies of all agreements whereby any rights in
any of the Intellectual Property have been
granted or licensed by the Vendor to any other
person have been provided to the Purchaser. The
Vendor is entitled to assign all of its rights
and interest in and to the Intellectual
Property to the Purchaser.
3.1.8.3. There are no restrictions on the ability of the
Vendor or any successor to or assignee from the
Vendor to use and exploit all rights in the
Intellectual Property. All statements contained
in all applications for registration of the
Intellectual Property were true and correct as
of the date of this Agreement of such
applications. Each of trade marks and trade
names included in the Intellectual Property is
in use.
3.1.8.4. The use of the Purchased Assets and the use of
the Intellectual Property does not infringe,
and the Vendor has not received any notice,
complaint, threat or claim alleging
infringement of, any patent, trade xxxx, trade
name, copyright, industrial design, trade
secret or other Intellectual Property or
propriety right of any other person, and the
use of the Purchased Assets does not include
any activity which may constitute passing off.
3.1.9. Partnerships or Joint Ventures. The Vendor is not, in
relation to the Purchased Assets, a partner or participant
in any partnership, joint venture, profit-sharing
arrangement or other association of any kind and is not
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party to any agreement under which the Vendor agrees to
carry on any part of the Business in such manner or by
which the Vendor agrees to share any revenue or profit of
the Business with any other person.
3.1.10. Customers. The Vendor has previously delivered to the
Purchaser a true and complete list of all customers of the
Business as of the date of this Agreement. The Vendor is
the sole and exclusive owner of, and has the unrestricted
right to use, such customer list. Neither the customer
list nor any information relating to the customers of the
Business have, within three years prior to the date of
this Agreement, been made available to any person other
than the Purchaser. The Vendor has no knowledge of any
facts that could reasonably be expected to result in the
loss of any customers or sources of revenue of the
Purchased Assets that, in the aggregate, would be material
to the condition of the Purchased Assets.
3.1.11. Licences, Agency and Distributorship Agreements. There are
no agreements to which the Vendor is a party or by which
it is bound under which the right to manufacture, use or
market any product, service, technology, information,
data, computer hardware or software or other property used
in or produced or sold in relation to the Purchased Assets
has been granted, licensed or otherwise provided to the
Vendor or by the Vendor to any other person, or under
which the Vendor has been appointed or any person has been
appointed by the Vendor as an agent, distributor, licensee
or franchisee for any of the foregoing.
3.1.12. Outstanding Agreements. The Vendor is not a party to or
bound by any outstanding or executory agreement, contract
or commitment, whether written or oral, relating to the
Purchased Assets, except for any contract or agreement
described or referred to in this Agreement or in the
Schedules hereto.
3.1.13. Good Standing of Agreements. The Vendor is not in default
or breach of any of its obligations under any one or more
contracts, agreements (written or oral), commitments,
indentures or other instruments to which it is a party or
by which it is bound relating to the Purchased Assets, and
there exists no state of facts which, after notice or
lapse of time or both, would constitute such a default or
breach. All such contracts, agreements, commitments,
indentures and other instruments are now in good standing
and in full force and effect without amendment thereto,
the Vendor is entitled to all benefits thereunder and, to
the best of the knowledge of the Vendor, the other parties
to such contracts, agreements, commitments, indentures and
other instruments are not in default or breach of any of
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their obligations thereunder. There are no contracts,
agreements, commitments, indentures or other instruments
relating to the Purchased Assets under which the Vendor's
rights or the performance of its obligations are dependent
on or supported by the guarantee of or any security
provided by any other person.
3.1.14. Compliance with Laws. In relation to the Purchased Assets,
the Vendor is not in violation of any federal, state or
other law, regulation or order of any government or
governmental or regulatory authority, domestic or foreign.
3.1.15. Disclosure. No representation or warranty contained in
this Section 3.1, and no statement contained in any
Schedule, certificate, list, summary or other disclosure
document provided or to be provided to the Purchaser
pursuant hereto, or in connection with the transactions
contemplated hereby, contains or will contain any untrue
statement of a material fact, or omits or will omit to
state any material fact which is necessary in order to
make the statements contained therein not misleading.
3.2. REPRESENTATIONS AND WARRANTIES BY THE PURCHASER. The Purchaser hereby
represents and warrants to the Vendor as follows, and confirms that
the Vendor is relying on the accuracy of each of such representations
and warranties in connection with the sale of the Purchased Assets
and the completion of the other transactions hereunder:
3.2.1. Corporate Authority and Binding Obligation. The Purchaser
is a corporation duly incorporated and validly subsisting
in all respects under the laws of its jurisdiction of
incorporation. The Purchaser has good right, full
corporate power and absolute authority to enter into this
Agreement and to purchase the Purchased Assets from the
Vendor in the manner contemplated herein and to perform
all of the Purchaser's obligations under this Agreement.
The Purchaser and its shareholders and board of directors
have taken all necessary or desirable actions, steps and
corporate and other proceedings to approve or authorize,
validly and effectively, the entering into of, and the
execution, delivery and performance of, this Agreement and
the purchase of the Purchased Assets by the Purchaser from
the Vendor. This Agreement is a legal, valid and binding
obligation of the Purchaser, enforceable against it in
accordance with its terms.
3.2.2. Contractual and Regulatory Approvals. The Purchaser is not
under any obligation, contractual or otherwise to request
or obtain the consent of any person, and no permits,
licences, certifications, authorizations or approvals of,
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or notifications to, any federal, state, municipal or
local government or governmental agency, board, commission
or authority are required to be obtained by the Purchaser
in connection with the execution, delivery or performance
by the Purchaser of this Agreement or the completion of
any of the transactions contemplated herein. Complete and
correct copies of any agreements under which the Purchaser
is obligated to request or obtain any such consent have
been provided to the Vendor.
3.2.3. Compliance with Constating Documents, Agreements and Laws.
The execution, delivery and performance of this Agreement
and each of the other agreements contemplated or referred
to herein by the Purchaser, and the completion of the
transactions contemplated hereby, will not constitute or
result in a violation or breach of or default under:
3.2.3.1. any term or provision of any of the articles,
by-laws or other constating documents of the
Purchaser,
3.2.3.2. the terms of any indenture, agreement (written
or oral), instrument or understanding or other
obligation or restriction to which the
Purchaser is a party or by which it is bound,
or
3.2.3.3. any term or provision of any licences,
registrations or qualification of the Purchaser
or any order of any court, governmental
authority or regulatory body or any applicable
law or regulation of any jurisdiction.
4. SURVIVAL AND LIMITATIONS OF REPRESENTATIONS AND WARRANTIES
4.1. SURVIVAL OF WARRANTIES BY THE VENDOR. The representations
and warranties made by the Vendor and contained in this
Agreement, or contained in any document or certificate
given in order to carry out the transactions contemplated
hereby, will survive the closing of the purchase of the
Purchased Assets provided for herein and, notwithstanding
such closing or any investigation made by or on behalf of
the Purchaser or any other person or any knowledge of the
Purchaser or any other person, shall continue in full
force and effect for the benefit of the Purchaser,
provided that no Warranty Claim ("Warranty Claim" means a
claim made by either the Purchaser or the Vendor based on
or with respect to the inaccuracy or non-performance or
non-fulfillment or breach of any representation or
warranty made by the other party contained in this
Agreement or contained in any document or certificate
given in order to carry out the transactions contemplated
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herein.) may be made or brought by the Purchaser after the
date which is two years following the Closing Date.
4.2. SURVIVAL OF WARRANTIES BY PURCHASER. The representations
and warranties made by the Purchaser and contained in this
Agreement or contained in any document or certificate
given in order to carry out the transactions contemplated
hereby will survive the closing of the purchase and sale
of the Purchased Assets provided for herein and,
notwithstanding such closing or any investigation made by
or on behalf of the Vendor or any other person or any
knowledge of the Vendor or any other person, shall
continue in full force and effect for the benefit of the
Vendor; provided that no Warranty Claim may be made or
brought by the Vendor after the date which is two years
following the Closing Date.
4.3. LIMITATIONS ON WARRANTY CLAIMS.
4.3.1. The Purchaser shall not be entitled to make a
Warranty Claim if the Purchaser has been
advised in writing or otherwise has actual
knowledge prior to the Closing Date of the
inaccuracy, non-performance, non-fulfillment or
breach, which is the basis for such Warranty
Claim and the Purchaser completes the
transactions hereunder notwithstanding such
inaccuracy, non-performance, non-fulfillment or
breach.
4.3.2. The amount of any damages that may be claimed
by the Purchaser pursuant to a Warranty Claim
shall be calculated to be the cost or loss to
the Purchaser after giving effect to any
insurance proceeds available to the Purchaser
in relation to the matter which is the subject
of the Warranty Claim.
4.3.3. Notwithstanding any other provisions of this
Agreement or of any agreement, certificate or
other document made in order to carry out the
transactions contemplated hereby, the maximum
aggregate liability of the Vendor together in
respect of all Warranty Claims by the Purchaser
will be limited to the Purchase Price.
5. COVENANTS
5.1. COVENANTS BY THE VENDOR. The Vendor covenants to the
Purchaser that it will do or cause to be done the
following:
5.1.1. Investigation of Business and Examination of
Documents. During the period from and including
the date of this Agreement to and including the
Closing Date (the "Interim Period"), the Vendor
will provide access to and will permit the
Purchaser, through its representatives, to make
such investigation of, the operations,
properties, assets and records of the Business
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and of its financial and legal condition as the
Purchaser deems necessary or advisable to
familiarize itself with such operations,
properties, assets, records and other matters.
Without limiting the generality of the
foregoing, during the Interim Period the Vendor
will permit the Purchaser and its
representatives to have access to the premises
used in connection with the Business and will
produce for inspection and provide copies to
the Purchaser of any and all documents in the
possession of the Vendor relating to the
Business.
5.1.2. such investigations and inspections shall not
mitigate or affect the representations and
warranties of the Vendor hereunder, which shall
continue in full force and effect.
5.1.3. Transfer of Purchased Assets. At or before the
Closing Date, the Vendor will cause all
necessary steps and corporate proceedings to be
taken in order to permit the Purchased Assets
to be duly and regularly transferred to the
Purchaser.
5.1.4. Forms of Conveyance. On the Closing Date, the
Vendor will deliver to the Purchaser good and
marketable title to and exclusive possession of
the Purchased Assets, free and clear of any and
all mortgages, charges, pledges, security
interests, liens, encumbrances, actions,
claims, demands and equities of any nature
whatsoever or howsoever arising and any rights
or privileges capable of becoming any of the
foregoing. On the Closing Date, the Vendor will
execute and deliver to the Purchaser one or
more forms of general conveyance, or bills of
sale, deeds, transfers and other documents
reasonably requested by the Purchaser in
respect of the assignment, conveyance, transfer
and delivery of the Purchased Assets to the
Purchaser in form which is registrable and
acceptable to the Purchaser.
5.2. COVENANTS BY THE PURCHASER. The Purchaser covenants to the
Vendor that it will do or cause to be done the following:
5.2.1. Confidentiality. Prior to and including the
Closing Date and, if the transaction
contemplated hereby is not completed, at all
times after the Closing Date, the Purchaser
will keep confidential all information obtained
by it relating to the Business, except such
information which:
5.2.1.1. prior to the date of this Agreement
was already in the possession of the
Purchaser, as demonstrated by
written records,
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5.2.1.2. is generally available to the public,
other than as a result of a disclosure by the
Purchaser, or
5.2.1.3. is made available to the Purchaser
on a non-confidential basis from a
source other than the Vendor or its
representatives.
The Purchaser further agrees that such
information will be disclosed only to those of
its employees and representatives of its
advisors who need to know such information for
the purposes of evaluating and implementing the
transaction contemplated hereby.
Notwithstanding the foregoing provisions of
this paragraph, the obligation to maintain the
confidentiality of such information will not
apply to the extent that disclosure of such
information is required in connection with
governmental or other applicable filings
relating to the transactions hereunder,
provided that, in such case, unless the Vendor
otherwise agrees, the Purchaser will, if
possible, request confidentiality in respect of
such governmental or other filings. If the
transactions contemplated hereby are not
consummated for any reason, the Purchaser will
return forthwith, without retaining any copies,
all information and documents obtained from the
Vendor.
6. CONDITIONS
6.1. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER.
Notwithstanding anything herein contained, the obligation
of the Purchaser to complete the transactions provided for
herein will be subject to the fulfilment of the following
conditions by the Vendor at or prior to the Closing Date.
6.1.1. Accuracy of Representations and Warranties and
Performance of Covenants. The representations
and warranties of the Vendor contained in this
Agreement or in any documents delivered in
order to carry out the transactions
contemplated hereby shall be true and accurate
on the date and at the Closing Date with the
same force and effect as though such
representations and warranties had been made as
of the Closing Date (regardless of the date as
of which the information in this Agreement or
in any Schedule or other document made pursuant
hereto is given). In addition, the Vendor shall
have complied with all covenants and agreements
herein agreed to be performed or caused to be
performed by it at or prior to the Closing
Date. In addition, the Vendor shall have
delivered to the Purchaser a certificate in the
form of Schedule 6.1.1 attached hereto
confirming that the facts with respect to each
of such representations and warranties by the
Vendor are as set out herein at the Closing
Date and that the Vendor has performed all
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covenants required to be performed by it
hereunder.
6.1.2. Material Adverse Changes. During the Interim
Period there will have been no change in the
condition of the Purchased, howsoever arising,
except changes which have occurred in the
ordinary course of the Business and which,
individually or in the aggregate, have not
affected and may not affect the condition of
the Purchased Assets in any material adverse
respect. Without limiting the generality of the
foregoing, during the Interim Period no damage
to or destruction of any material part of the
Purchased Assets shall have occurred, whether
or not covered by insurance.
6.1.3. No Restraining Proceedings. No order, decision
or ruling of any court, tribunal or regulatory
authority having jurisdiction shall have been
made, and no action or proceeding shall be
pending or threatened which, in the opinion of
counsel to the Purchaser, is likely to result
in an order, decision or ruling, to disallow,
enjoin, prohibit or impose any limitations or
conditions on the purchase and sale of the
Purchased Assets contemplated hereby or the
right of the Purchaser to own the Purchased
Assets.
6.1.4. Consents. All consents required to be obtained
in order to carry out the transactions
contemplated hereby in compliance with all laws
and agreements binding on the parties hereto
shall have been obtained.
6.1.5. Assignment and Waiver of Intellectual Property
Rights. At the Closing Time, the Vendor shall
have delivered to the Purchaser a certificate
of the Vendor in the form of the draft attached
hereto as Schedule 6.1.5, whereby the Vendor
assigns all of its intellectual property rights
in the Purchased Assets.
6.1.6. Further Assurances. On and at any time after
the Closing Date, the Vendor shall furnish the
Purchaser at no additional charge with such
further written documentation in order to
enable the Purchaser to establish, prove or
perfect the Purchaser's ownership of any of the
assets herein conveyed.
6.2. WAIVER OR TERMINATION BY PURCHASER. The conditions
contained in Section 6.1 are inserted for the exclusive
benefit of the Purchaser and may be waived in whole or in
part by the Purchaser at any time. The Vendor acknowledges
that the waiver by the Purchaser of any condition or any
part of any condition shall constitute a waiver only of
such condition or such part of such condition, as the case
may be, and shall not constitute a waiver of any covenant,
agreement, representation or warranty made by the Vendor
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herein that corresponds or is related to such condition or
such part of such condition, as the case may be. If any of
the conditions contained in Section 6.1 are not fulfilled
or complied with as herein provided, the Purchaser may, at
or prior to the Closing Date at its option, rescind this
Agreement by notice in writing to the Vendor and in such
event the Purchaser shall be released from all obligations
hereunder and, unless the condition or conditions which
have not been fulfilled are reasonably capable of being
fulfilled or caused to be fulfilled by the Vendor, then
the Vendor shall also be released from all obligations
hereunder.
6.3. CONDITIONS TO THE OBLIGATIONS OF THE VENDOR.
Notwithstanding anything herein contained, the obligations
of the Vendor to complete the transactions provided for
herein will be subject to the fulfilment of the following
conditions at or prior to the Closing Date, and the
Purchaser will use its best efforts to ensure that such
conditions are fulfilled.
6.3.1. Accuracy of Representations and Warranties and
Performance of Covenants. The representations
and warranties of the Purchaser contained in
this Agreement or in any documents delivered in
order to carry out the transactions
contemplated hereby will be true and accurate
on the date and at the Closing Date with the
same force and effect as though such
representations and warranties had been made as
of the Closing Date (regardless of the date as
of which the information in this Agreement or
any such Schedule or other document made
pursuant hereto is given). In addition, the
Purchaser shall have complied with all
covenants and agreements herein agreed to be
performed or caused to be performed by it at or
prior to the Closing Date. In addition, the
Purchaser shall have delivered to the Vendor a
certificate in the form of Schedule 6.3.1
attached hereto confirming that the facts with
respect to each of the representations and
warranties of the Purchaser are as set out
herein at the Closing Date and that the
Purchaser has performed each of the covenants
required to be performed by it hereunder.
6.3.2. No Restraining Proceedings. No order, decision
or ruling of any court, tribunal or regulatory
authority having jurisdiction shall have been
made, and no action or proceeding shall be
pending or threatened which, in the opinion of
the Vendor, is likely to result in an order,
decision or ruling, to disallow, enjoin or
prohibit the purchase and sale of the Purchased
Assets contemplated hereby.
6.3.3. Consents. All consents required to be obtained
in order to carry out the transactions
contemplated hereby in compliance with all laws
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and agreements binding upon the parties hereto
shall have been obtained.
6.4. WAIVER OR TERMINATION BY VENDOR. The conditions contained
in Section 6.3 are inserted for the exclusive benefit of
the Vendor and may be waived in whole or in part by the
Vendor at any time. The Purchaser acknowledges that the
waiver by the Vendor of any condition or any part of any
condition shall constitute a waiver only of such condition
or such part of such condition, as the case may be, and
shall not constitute a waiver of any covenant, agreement,
representation or warranty made by the Purchaser herein
that corresponds or is related to such condition or such
part of such condition, as the case may be. If any of the
conditions contained in Section 6.3 are not fulfilled or
complied with as herein provided, the Vendor may, at or
prior to the Closing Date at their option, rescind this
Agreement by notice in writing to the Purchaser and in
such event the Vendor shall each be released from all
obligations hereunder, unless the condition or conditions
which have not been fulfilled are reasonably capable of
being fulfilled or caused to be fulfilled by the
Purchaser, then the Purchaser shall also be released from
all obligations hereunder.
7. CLOSING
7.1. CLOSING ARRANGEMENTS. Subject to the terms and conditions,
the transactions contemplated herein shall be closed on
the Closing Date at the offices of Xxxxxx-Xxxxxxxxx, Xxxx
& XxXxxxxxx LLP, 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX
X0X 0X0, Xxxxxx or at such other place or places as may be
mutually agreed on by the Vendor and the Purchaser.
7.2. DOCUMENTS TO BE DELIVERED. At or before the Closing Date,
the Vendor shall execute, or cause to be executed, and
shall deliver, or cause to be delivered, to the Purchaser
all documents, instruments and things which are to be
delivered by the Vendor pursuant to the provisions of this
Agreement, and the Purchaser shall execute, or cause to be
executed, and shall deliver, or cause to be delivered, to
the Vendor all cheques or bank drafts and all documents,
instruments and things which the Purchaser is to deliver
or to cause to be delivered pursuant to the provisions of
this Agreement.
8. INDEMNIFICATION AND SET-OFF
8.1. INDEMNITY BY THE VENDOR.
8.1.1. The Vendor hereby agrees to indemnify and save
the Purchaser harmless from and against any
claims, demands, actions, causes of action,
damage, loss, deficiency, cost, liability and
expense which may be made or brought against
the Purchaser or which the Purchaser may suffer
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or incur as a result of, in respect of or
arising out of:
8.1.1.1. any non-performance or
non-fulfilment of any covenant or
agreement on the part of the Vendor
contained in this Agreement or in
any document given in order to carry
out the transactions contemplated
hereby;
8.1.1.2. any misrepresentation, inaccuracy,
incorrectness or breach of any
representation or warranty made by
the Vendor contained in this
Agreement or contained in any
document or certificate given in
order to carry out the transactions
contemplated hereby;
8.1.1.3. any non-compliance with any federal,
state, local, municipal, foreign,
international or other
administrative order, constitution,
law, ordinance, statute, or treaty
applicable to Vendor in the carrying
out of the transaction contemplated
herein;
8.1.1.4. any claim for a debt, obligation or
liability which is not specifically
assumed by Purchaser pursuant to
this Agreement;
8.1.1.5. except relates to liabilities
expressed assumed herein, any suit,
action, proceeding, claim,
investigation pending or threatened
against or affecting the Purchased
Assets, regardless of whether such
is disclosed in a Schedule hereto,
that arises from the conduct of the
Business prior to the Closing Date;
and
8.1.1.6. all costs and expenses including,
without limitation, attorney's fees,
incidental to, arising from or in
respect of the foregoing.
8.1.2. The obligations of indemnification by the
Vendor pursuant to paragraph 8.1.1 of this
section will be:
8.1.2.1. subject to the limitations referred
to in Section 4.1 with respect to
the survival of the representations
and warranties by the Vendor;
8.1.2.2. subject to the limitations referred
to in Section 4.3; and
8.1.2.3. subject to the provisions of Section
8.2.
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8.2. PROVISIONS RELATING TO INDEMNITY CLAIMS. The following
provisions will apply to any claim by the Purchaser for
indemnification by the Vendor pursuant to Section 8.1 (an
"Indemnity Claim").
8.2.1. Promptly after becoming aware of any matter
that may give rise to an Indemnity Claim, the
Purchaser will provide to the Vendor written
notice of the Indemnity Claim specifying (to
the extent that information is available) the
factual basis for the Indemnity Claim and the
amount of the Indemnity Claim or, if an amount
is not then determinable, an estimate of the
amount of the Indemnity Claim, if an estimate
is feasible in the circumstances.
8.2.2. If an Indemnity Claim relates to an alleged
liability to any other person (a "Third Party
Liability"), including without limitation any
governmental or regulatory body or any taxing
authority, which is of a nature such that the
Purchaser is required by applicable law to make
a payment to a third party before the relevant
procedure for challenging the existence or
quantum of the alleged liability can be
implemented or completed, then the Purchaser
may, notwithstanding the provisions of sections
8.2.3. and 8.2.4 of this section, make such
payment and forthwith demand reimbursement for
such payment from the Vendor in accordance with
this Agreement; provided that, if the alleged
Third Party Liability as finally determined on
completion of settlement negotiations or
related legal proceedings is less than the
amount which is paid by the Vendor in respect
of the related Indemnity Claim, then the
Purchaser shall forthwith following the final
determination pay to the Vendor the amount by
which the amount of the Third Party Liability
as finally determined is less than the amount
which is so paid by the Vendor.
8.2.3. The Purchaser shall not negotiate, settle,
compromise or pay (except in the case of
payment of a judgement) any Third Party
Liability as to which it proposes to assert an
Indemnity Claim, except with the prior consent
of the Vendor (which consent shall not be
unreasonably withheld or delayed), unless there
is a reasonable possibility that such Third
Party Liability may materially and adversely
affect the condition of the Purchased Assets or
the Purchaser, in which case the Purchaser
shall have the right, after notifying the
Vendor, to negotiate, settle, compromise or pay
such Third Party Liability without prejudice to
its rights of indemnification hereunder. The
Purchaser shall notify the Vendor within one
(1) week of any third party claims being
asserted.
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8.2.4. With respect to any Third Party Liability,
provided the Vendor first admit the Purchaser's
right to indemnification for the amount of such
Third Party Liability which may at any time be
determined or settled, then, in any legal,
administrative or other proceedings in
connection with the matters forming the basis
of the Third Party Liability, the following
procedures will apply:
8.2.4.1. except as contemplated by
subparagraph 8.2.4.3 of this
section, the Vendor will have the
right to assume carriage of the
compromise or settlement of the
Third Party Liability and the
conduct of any related legal,
administrative or other proceedings,
but the Purchaser shall have the
right and shall be given the
opportunity to participate in the
defence of the Third Party
Liability, to consult with the
Vendor in the settlement of the
Third Party Liability and the
conduct of related legal,
administrative and other proceedings
(including consultation with
counsel) and to disagree on
reasonable grounds with the
selection and retention of counsel,
in which case counsel satisfactory
to the Vendor and the Purchaser
shall be retained by the Vendor;
8.2.4.2. the Vendor will co-operate with the
Purchaser in relation to the Third
Party Liability, will keep it fully
advised with respect thereto, will
provide it with copies of all
relevant documentation as it becomes
available, will provide it with
access to all records and files
relating to the defence of the Third
Party Liability and will meet with
representatives of the Purchaser at
all reasonable times to discuss the
Third Party Liability; and
8.2.4.3. notwithstanding subparagraphs
8.2.4.1 and 8.2.4.2 of this
paragraph, the Vendor will not
settle the Third Party Liability or
conduct any legal, administrative or
other proceedings in any manner
which could, in the reasonable
opinion of the Purchaser, have a
material adverse affect on the
Condition of the Business or the
Purchaser, except with the prior
written consent of the Purchaser.
8.2.5. If, with respect to any Third Party Liability,
the Vendor does not admit the Purchaser's right
to indemnification or decline to assume
carriage of the settlement or of any legal,
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administrative or other proceedings relating to
the Third Party Liability, then the following
provisions will apply:
8.2.5.1. the Purchaser, at its discretion,
may assume carriage of the
settlement or of any legal,
administrative or other proceedings
relating to the Third Party
Liability and may defend or settle
the Third Party Liability on such
terms as the Purchaser, acting in
good faith, considers advisable; and
8.2.5.2. any cost, lost, damage or expense
incurred or suffered by the
Purchaser in the settlement or
defence of such Third Party
Liability or the conduct of any
legal, administrative or other
proceedings shall be added to the
amount of the Indemnity Claim.
8.2.6. RIGHT OF SET-OFF. The Purchaser shall have the
right to satisfy any amount from time to time
owing by it to the Vendor by way of set-off
against any amount from time to time owing by
the Vendor to the Purchaser, including any
amount owing to the Purchaser pursuant to the
Vendor's indemnification pursuant to Section
8.1.
9. GENERAL PROVISIONS
9.1. FURTHER ASSURANCES. Each of the Vendor and the Purchaser
hereby covenants and agrees that at any time and from time
to time after the Closing Date it will, on the request of
the others, do, execute, acknowledge and deliver or cause
to be done, executed, acknowledged and delivered all such
further acts, deeds, assignments, transfers, conveyances
and assurances as may be required for the better carrying
out and performance of all the terms of this Agreement.
9.2. NOTICES. Any demand, notice or other communications to be
given in connection with this Agreement shall be given in
writing and may be given by personal delivery or by
registered mail addressed to the recipient at the
recipient's last known address or such other address or
individual as may be designated by notice by any party to
the other. Any communication given by personal delivery
shall be conclusively deemed to have been given on the day
of actual delivery thereof and, if given by registered
mail, on the third (3rd) business day following the
deposit thereof in the mail. If the party giving any
communication knows or ought reasonably to know of any
difficulties with the postal system which might affect the
delivery of mail, any such communication shall not be
mailed but shall be given by personal delivery.
9.3. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which so executed shall be deemed to
19
be an original, and such counterparts together shall
constitute but one and the same instrument.
9.4. EXPENSES OF PARTIES. Each of the parties hereto shall bear
all expenses incurred by it in connection with this
Agreement including, without limitation, the charges of
their respective counsel, accountants, financial advisors
and finders.
9.5. BROKERAGE AND FINDER'S FEES. The Vendor agrees to
indemnify the Purchaser and hold it harmless in respect of
any claim for brokerage or other commissions relative to
this Agreement or the transactions contemplated hereby
which is caused by actions of the Vendor. The Purchaser
will indemnify the Vendor and hold it harmless in respect
of any claim for brokerage or other commissions relative
to this Agreement or to the transactions contemplated
hereby which is caused by actions of the Purchaser.
9.6. ANNOUNCEMENTS. No announcement with respect to this
Agreement will be made by any party hereto without the
prior approval of the Purchaser. The foregoing will not
apply to any announcement by any party required in order
to comply with laws pertaining to timely disclosure,
provided that such party consults with the other parties
before making any such announcement.
9.7. ASSIGNMENT. The rights of the Vendor hereunder shall not
be assignable without the written consent of the
Purchaser.
9.8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on
and enure to the benefit of the parties hereto and their
respective successors and permitted assigns. Nothing
herein, express or implied, is intended to confer on any
person, other than the parties hereto and their respective
successors and assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
9.9. ENTIRE AGREEMENT. This Agreement and the Schedules
referred to herein constitute the entire agreement between
the parties hereto and supersede all prior agreements,
representations, warranties, statements, promises,
information, arrangements and understandings, whether oral
or written, express or implied, with respect to the
subject-matter. None of the parties hereto shall be bound
or charged with any oral or written agreements,
representations, warranties, statements, promises,
information, arrangements or understandings not
specifically set forth in this Agreement or in the
Schedules, documents and instruments to be delivered on or
before the Closing Date pursuant to this Agreement. The
parties hereto further acknowledge and agree that, in
entering into this Agreement and in delivering the
Schedules, documents and instruments to be delivered on or
before the Closing Date, they have not in any way relied,
and will not in any way rely, on any oral or written
agreements, representations, warranties, statements,
20
promises, information, arrangements or understandings,
express or implied, not specifically set forth in this
Agreement or in such Schedules, documents or instruments.
9.10. WAIVER. Any party hereto which is entitled to the benefits
of this Agreement may, and has the right to, waive any
term or condition at any time on or prior to the Closing
Time; provided, however, that such waiver shall be
evidenced by written instrument duly executed on behalf of
such party.
9.11. AMENDMENTS. No modification or amendment to this Agreement
may be made unless agreed to by the parties hereto in
writing.
IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement under seal as of the day and year first above written.
X-XXXXXXX.XXX INC.
by: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxx
XXXXXX CAREER MARKETING INC.
by: /s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
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