SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "Agreement") is made and entered into as of
October 10, 2000, by and between Tece Inc, formerly Internet Food Co. Inc., a
company incorporated under the laws of the State of Nevada ("IFCO"), 3786137
Canada Inc. ("Teccan"), a corporation incorporated under the laws of Canada, Tec
Xxxxxxxxxxxxxxxxxxx.xxx Corporation ("Tec"), a corporation incorporated under
the laws of Canada, and Manitex Capital Inc. a corporation incorporated under
the laws of Canada and the Tec Shareholders who have signed Exhibit A
(collectively "Manitex").
RECITALS
A. The Boards of Directors of IFCO, Tec and Teccan deem it advisable and
in the best interests of such corporations, and their respective
shareholders, that Tec become a subsidiary of IFCO.
B. Pursuant to this Share Exchange, all of the shareholders of Tec will be
proposed to exchange their Tec Common Shares for Exchangeable Shares of
Teccan, which shall be exchangeable into shares of IFCO's Common Stock
in accordance with the terms and conditions of this Agreement.
C. The Share Exchange is being undertaken by the parties in order to
facilitate the aggregate investment of a minimum of US$ 4,000,000 in
IFCO and Tec by private investors (colletively referred to as the
"Investors").
D. In order to facilitate the Share Exchange, IFCO has agreed to enter
into the Exchange and Voting Agreement and the Support Agreement to
guarantee certain rights to the holders of Exchangeable Shares,
including the right to receive shares of IFCO Common Stock in exchange
for their Exchangeable Shares.
E. In order to facilitate the Share Exchange, Manitex has agreed to
transfer to Teccan, contemporaneously with the signing of this
Agreement, the Tec Common Shares listed in Exhibit A, in exchange for
Exchangeable Shares, thereby giving effective control of Tec to Teccan.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
promises set forth in this Agreement, the parties agree as follows:
ARTICLE I
DEFINITIONS
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When used in this agreement, or any Exhibit or Schedule in which terms are not
otherwise defined, each of the following terms will have the meaning ascribed to
it in this Article I.
1.1 ACT means the Canada Business Corporations Act.
1.2 AGREEMENT means this Share Exchange Agreement, including all Exhibits.
1.3 CLOSING DATE means the date of closing for the Share Exchange pursuant
to the Offer. The parties have targeted and agree to a closing date at
the latest within a maximum delay of 60 days of the Effective Date,
unless otherwise agreed to by both parties in writing.
1.4 EFFECTIVE DATE means the date on which this Agreement becomes effective
in accordance with Article II, which will be 5:00 p.m., Montreal time,
on the date of signing of this Agreement, or such other date and time
as the parties may agree in writing.
1.5 EXCHANGE AND VOTING AGREEMENT means the Agreement reproduced in Exhibit
1.5, with such changes therein as the parties thereto mutually agree
under the procedures set forth in that Agreement.
1.6 EXCHANGE RIGHTS means the right of holders of Exchangeable Shares to
exchange their Exchangeable Shares for IFCO's Common Stock in
accordance with the Exchange and voting Agreement.
1.7 EXCHANGEABLE SHARES means Class A preferred shares of Teccan having the
rights and privileges specified in Exhibit 1.7.
1.8 IFCO'S COMMON STOCK means shares of IFCO's common stock.
1.9 INVESTORS means the investors who will acquire Units in IFCO on or
before the Effective Date
1.10 OFFER means the offer to complete the Share Exchange which will be made
to the Tec shareholders by Teccan in accordance with this Agreement and
the provisions of the Act.
1.11 QSA means the Securites Act (Quebec).
1.12 SHARE EXCHANGE means the exchange of shares of Tec's Common Stock by
the Tec's Shareholders for Exchangeable Shares of Teccan pursuant to
the Offer.
1.13 SUPPORT AGREEMENT means the Agreement reproduced in Exhibit 1.13, with
such changes therein as the parties thereto mutually agree under the
procedures set forth in that Agreement.
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1.14 TEC COMMON SHARES means common shares with no par value of Tec and
includes for greater certainty all instruments convertible into common
shares of Tec, on the assumption that they are converted in accordance
with their terms and conditions.
1.15 TEC SHAREHOLDERS means the holders of Tec Common Shares.
1.16 TRANSACTIONS means the transactions contemplated in Article II of this
Agreement.
1.17 TRUSTEE has the meaning set forth in the Exchange and Voting Agreement.
1.18 UNITS means the 1,000,000 units of IFCO which will be sold to the
Investors, at a price of US $4.00, each Unit being comprised of one
common share of IFCO and one common share purchase warrant entitling
the holder thereof to subscribe to one additional common share of IFCO
at a price of US $5.00.
All of the Exhibits forming part of this Agreement are listed at the end of this
Agreement.
ARTICLE II
EFFECTIVE DATE
For good and valuable consideration, the sufficiency of which is acknowledged,
the parties agree that subject to the terms and conditions of this Agreement, on
the Effective Date, or as soon as practical following the Effective Date, they
will take all necessary steps to cause the following to occur:
2.1 Manitex will transfer to Teccan the Tec Common Shares listed in Exhibit
A, and Teccan will issue to Manitex, as sole consideration for the said
transfer, Exchangeable Shares on the basis of one Exchangeable Share
for each two Tec Common Shares transferred (assuming the conversion of
the convertible debentures of Tec held by Manitex into Tec Common
Shares in accordance with their terms and conditions);
2.2 Teccan shall make the Offer to the shareholders of Tec, in accordance
with the applicable provisions of the Act and the QSA, to acquire all
of the outstanding Tec Common Shares in exchange for Exchangeable
Shares, on the basis of one Exchangeable Share for each two Tec Common
Shares held;
2.3 The existing Board of Directors of IFCO will be replaced by a board of
5 members consisting of Xxxxx Xxxxxx and Xxxxxx Forget;
2.4 The existing Board of Directors of Teccan will be replaced by a board
of 3 members consisting of Xxxxx Xxxxxx and Xxxxxx Forget;
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2.5 IFCO and Teccan shall execute the Support Agreement and the Exchange
and Voting Agreement in order to grant the Exchange Rights to the
holders of Exchangeable Shares;
2.6 IFCO will complete the private placement of Units with the Investors
and will advance the net proceeds to Teccan as non-interest bearing
demand loan; and
2.7 Teccan and IFCO agree that if, at any time after the Effective Time,
Teccan or IFCO, considers or is advised that any further agreements,
deeds, assignments, or assurances are necessary or desirable to carry
out the purpose of this Agreement, Teccan and IFCO and their proper
officers and directors shall execute and deliver all such proper
agreements, deeds, assignments, and assurances and do all other things
necessary or desirable to carry out the purpose of this Agreement,
including the filing of all application or documentation necessary
under the Act or the QSA.
ARTICLE III
EXCHANGE OF SHARES
At the Closing Date and subject to the terms and conditions of this Agreement
and the Offer,
3.1 Teccan shall acquire, from the Tec Shareholders who will have tendered
their Tec Common Shares, all of the Tec Common Shares so tendered, in
accordance with the applicable provisions of the Act and the QSA, and
will issue one Exchangeable Share for each two Tec Common Shares so
tendered.
3.2 Teccan will file the prescribed joint election form under section 85(1)
of the Income tax Act (Canada) so that the Tec Common Shares are deemed
to be disposed of for income tax purposes at their cost amount.
3.3 Each Tec Shareholder owning shares of Tec Common Shares will execute
and deliver to the trustee an "Acceptance of Exchange Offer" in the
form attached hereto as Exhibit 3.3.
3.4 IFCO will establish a Stock Option Plan for the purpose of providing
incentive compensation to management and key employees in all of the
Tec companies. The grant of options will be made by the Board of
Directors of IFCO.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TECCAN
Teccan hereby represents and warrants to IFCO and Manitex as follows, with "to
the best knowledge
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of Teccan" meaning that Teccan does not know, after having made all relevant
inquiries, and it has no reasonable basis to believe, that such statement is
false;
4.1 ORGANIZATION, STANDING, AND POWER. Teccan is a corporation duly
organized, validly existing and in good standing under the laws of
Canada and is qualified and in good standing in all jurisdictions in
which the failure so to be qualified would have a material adverse
effect upon its business. Teccan has the corporate power and corporate
authority to hold, own, operate, and lease its properties and otherwise
carry on its business as presently conducted, to execute and deliver
this Agreement, and to carry out the transactions contemplated in this
Agreement.
4.2 AUTHORITY. The execution, delivery and performance of this Agreement
and all other agreements contemplated in this Agreement and the
consummation of the Share Exchange have been duly and validly
authorized by the Board of Directors of Teccan. and, assuming due
authorization, execution, and delivery by the parties, this Agreement
will constitute a legal, valid, and binding agreement of Teccan,
enforceable against Teccan in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, and similar laws
affecting creditors' rights to enforce remedies generally and to
equitable principles limiting the availability of the remedy of
specific performance.
4.3 NO CONFLICTS. The execution, delivery, and performance by Teccan of
this Agreement and any other agreement executed by Teccan in connection
with the consummation of the Share Exchange, (a) have not violated and
will not violate, conflict with, or breach any provision of the
Articles of Incorporation or the By-laws of Teccan or any presently
existing order, writ, injunction, judgment, decree, law, ordinance,
rule, or regulation applicable to Teccan or any of its properties, or
(b) after a lapse of time, due notice or otherwise, will not violate,
require consent under, conflict with, breach, cause a default, or
provide grounds for termination, cancellation, or acceleration of
performance in respect of, or result in the creation or imposition of a
lien or other encumbrance pursuant to, any agreement or understanding
to which Teccan is a party or to which it or any of its properties may
be subject.
4.4 NO UNDISCLOSED LIABILITIES. Teccan has no material liabilities or
obligations, secured or unsecured, whether accrued, absolute,
contingent, or otherwise.
4.5 CAPITALIZATION. The authorized capital stock of Teccan is comprised of
an unlimited number of common Shares and an unlimited number of
Exchangeable Shares of which only one hundred common shares are
presently issued and outstanding. All such outstanding shares of Teccan
have been validly issued as fully paid and non-assessable to IFCO.
Except as provided for under this Agreement, there are no outstanding
warrants, options, rights, agreements, convertible securities, or other
commitments pursuant to which Teccan is or may be obligated to issue
any securities. There are no outstanding agreements, arrangements,
commitments, or understandings of any kind affecting or relating to the
voting, issuance,
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purchase, redemption, repurchase, or transfer of Teccan's securities,
except as contemplated in this Agreement. No shares of Teccan have been
issued in violation of any securities laws, agreements binding on
Teccan, or preemptive or similar right.
4.6 LITIGATION. Teccan is not a party to, nor are any of the properties or
assets of Teccan subject to, any pending or, to the best knowledge of
Teccan, threatened actions, claims, suits, proceedings, arbitration,
investigations, or other litigation, whether instituted by or against
Teccan or any such person or entity, and Teccan knows of no basis for
any such action.
4.7 TAXES. All federal, state, local, foreign, and other tax returns and
reports which Teccan has been required to file have been duly filed,
and all such returns and reports are true and correct.
4.8 COMPLIANCE. Teccan has complied, or prior to the Closing Date will have
complied, and is or will be at the Closing Date in compliance in all
material respects, with all material laws, ordinances, regulations, and
rules, and all orders, writs, injunctions, awards, judgments, and
decrees applicable to it or to the assets, properties, and business of
Teccan.
4.9 FULL DISCLOSURE. The representations and warranties of Teccan contained
in this Agreement do not contain any untrue statement of a material
fact or omit any material fact necessary to make any such statement or
omission not misleading in view of the circumstances under which the
were made.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF IFCO
IFCO hereby represents and warrants to Teccan as follows, except as set forth in
the IFCO Schedule of Exceptions attached hereto as Exhibit 5.0 with "to the best
knowledge of IFCO" meaning that IFCO does not know, after having made all
relevant inquiries, and it has no reasonable basis to believe, that such
statement is false:
5.1 ORGANIZATION, STANDING, AND POWER. IFCO is a company duly organized,
validly existing and in good standing under the laws of the State of
Nevada, and is qualified and in good standing in all jurisdictions in
which the failure so to be qualified would have a material adverse
effect upon its business. IFCO has the corporate power and corporate
authority to hold, own, operate, and lease its properties and otherwise
carry on its business as presently conducted, to execute and deliver
this Agreement, and to carry out the transactions contemplated in this
Agreement.
5.2 CAPITALIZATION. The authorized capital stock of IFCO is comprised of
100,000,000 shares of Common Stock, of which only 9,475,000 shares are
presently issued and outstanding. All
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such outstanding shares of IFCO Common Stock have been validly issued
and fully paid and non-assessable. Except as provided for under this
Agreement or in the IFCO Financial Statements, there are no outstanding
warrants, options, rights, agreements, convertible securities, or other
commitments pursuant to which IFCO is or may be obligated to issue any
securities. There are no outstanding agreements, arrangements,
commitments, or understandings of any kind affecting or relating to the
voting, issuance, purchase, redemption, repurchase, or transfer of
IFCO's Common Stock or any other securities of IFCO, except as
contemplated in this Agreement. No IFCO Common Stock has been issued in
violation of any securities laws, agreements binding on IFCO, or
preemptive or similar right.The shares of IFCO's Common Stock to be
issued pursuant to the Exchange and Voting Agreement will, when issued,
be fully paid and non-assessable.
5.3 AUTHORITY. IFCO has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement and all other
agreements contemplated in this Agreement have been duly and validly
authorized by the Board of Directors of IFCO and, assuming due
authorization, execution, and delivery by the parties, this Agreement
will constitute a legal, valid, and binding agreement of IFCO,
enforceable against IFCO in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, and similar laws
affecting creditors' rights to enforce remedies generally and to
equitable principles limiting the availability of the remedy of
specific performance.
5.4 NO CONFLICTS. The execution, delivery, and performance by IFCO of this
Agreement and any other agreement executed by IFCO in connection with
the consummation of the Share Exchange, (a) have not violated and will
not violate, conflict with, or breach any provision of the Articles of
Incorporation or the By-laws of IFCO or any presently existing order,
writ, injunction, judgment, decree, law, ordinance, rule, or regulation
applicable to IFCO or any of its properties, or (b) after a lapse of
time, due notice or otherwise, will not violate, require consent under,
conflict with, breach, cause a default, or provide grounds for
termination, cancellation, or acceleration of performance in respect
of, or result in the creation or imposition of a right of first
refusal, lien or other encumbrance pursuant to, any agreement or
understanding to which IFCO is a party or to which it or any of its
properties may be subject.
5.5 FINANCIAL STATEMENTS. A copy of IFCO's audited financial statements for
the period ended December 31, 1999 ("IFCO Financial Statements"), which
financials have been approved by Teccan is reproduced as Exhibit 5.5.
Such financial statements (a) agree with IFCO's books and records, (b)
have been prepared in accordance with generally accepted accounting
principles consistently applied, and (c) are complete and accurate in
all material respects, and present fairly the financial position of
IFCO as of the dates indicated and the results of operations and
changes in financial position for the periods indicated.
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5.6 NO UNDISCLOSED LIABILITIES. Except to the extent accrued for or
disclosed in the IFCO Financial Statements, IFCO has no material
liabilities or obligations, secured or unsecured, whether accrued,
absolute, contingent, or otherwise.
5.7 ABSENCE OF MATERIAL ADVERSE CHANGE. Since December 31, 1999, there has
been no material adverse change in the business, condition, operations,
assets, properties, or commitments of IFCO, and IFCO currently is not
aware of any fact or condition which might cause such adverse change in
the future. Since such date, except as set forth in the exhibits
attached to this Agreement, IFCO has consummated only such transactions
as are in the ordinary course of business, and IFCO has not (a)
declared or made payment of, or set aside for payment, any dividends or
distributions of any assets of any kind whatsoever, or purchased,
redeemed, or otherwise acquired any of its capital stock, any
securities convertible into capital stock, or any other securities; (b)
written down the value of any assets or properties or written off as
uncollectible any notes or accounts receivable, except write- downs and
write-offs in the ordinary course of business, none of which,
individually or in the aggregate, are material to it; (c) made capital
expenditures or entered into commitments for capital expenditures,
aggregating more than $10,000.00; or, (d) made any material change in
any method of accounting or application of accounting practice.
5.8 LITIGATION. IFCO is not a party to, nor are any of the properties or
assets of IFCO subject to, any pending or, to the best knowledge of
IFCO, threatened actions, claims, suits, proceedings, arbitration,
investigations, or other litigation, whether instituted by or against
IFCO or any such person or entity, and IFCO knows of no basis for any
such action.
5.9 TAXES. All federal, state, local, foreign, and other tax returns and
reports which IFCO has been required to file have been duly filed, and
all such returns and reports are true and correct.
5.10 COMPLIANCE. IFCO has complied and is in compliance in all material
respects, with all material laws, ordinances, regulations, and rules,
and all orders, writs, injunctions, awards, judgments, and decrees
applicable to it or to the assets, properties, and business of IFCO,
including for greater certainty all applicable rules of the NASDN.
5.11 REPORTING. IFCO has complied and is in compliance in all material
respects, with all material laws, regulations and rules of regulatory
authorities having jurisdiction over the issuance and the trading of
its securities; the shares of common stock of IFCO are admitted for
trading on the Over the Counter Bulletin Board ("OTCBB") in the United
States and the shares of IFCO's common stock to be issued on the
exchange of the Exchangeable Shares will be admissible for trading on
the OTCBB, subject to any applicable hold periods under US securities
laws and to compliance with the rules and regulations of the NASDN.
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5.12 MINUTE BOOKS. The minute books of IFCO are complete and correct in all
material respects and contain the minutes of all meetings and all
resolutions of the directors and shareholders thereof;
5.13 CEASE TRADE ORDERS. No securities commission or similar regulatory
authority has issued any order preventing or suspending trading in any
securities of IFCO and there is currently no reasonable basis for such
order;
5.14 FULL DISCLOSURE. The representations and warranties of IFCO contained
in this Agreement and other documents delivered by or on behalf of IFCO
pursuant to this Agreement, do not contain any untrue statement of a
material fact or omit any material fact necessary to make any such
statement or omission not misleading in view of the circumstances under
which the were made.
5.15 BROKERS AND FINDERS. IFCO has not incurred any liability for brokerage
fees, commissions, or finders' fees, in connection with the
transactions contemplated in this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF MANITEX
Manitex hereby represents and warrants to Teccan as follows with "to the best
knowledge of Manitex" meaning that Manitex does not know, after having made all
relevant inquiries, and it has no reasonable basis to believe, that such
statement is false:
6.1 ORGANIZATION, STANDING, AND POWER. Manitex is a corporation duly
organized, validly existing and in good standing under the laws of
Canada, and is qualified and in good standing in all jurisdictions in
which the failure so to be qualified would have a material adverse
effect upon its business. Manitex has the corporate power and corporate
authority to hold, own, operate, and lease its properties and otherwise
carry on its business as presently conducted, to execute and deliver
this Agreement, and to carry out the transactions contemplated in this
Agreement.
6.2 AUTHORITY. The execution, delivery and performance of this Agreement
and all other agreements contemplated in this Agreement have been duly
and validly authorized by the Board of Directors of Manitex. This
Agreement will have been duly and validly authorized by all necessary
corporate action on the part of Manitex and, assuming due
authorization, execution, and delivery by the parties, this Agreement
will constitute a legal, valid, and binding agreement of Manitex,
enforceable against Manitex in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, and similar laws
affecting creditors' rights to enforce remedies generally and to
equitable principles limiting the availability of the remedy of
specific performance.
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6.3 TITLE. Manitex has good title to its shares of Tec and has full power
to transfer said shares to Teccan and Teccan will acquire good title to
such shares, free and clear of liens, encumbrances and adverse claims.
6.4 NO CONFLICTS. The execution, delivery, and performance by Manitex of
this Agreement and any other agreement executed by Manitex in
connection with consummation of the Share Exchange, (a) have not
violated and will not violate, conflict with, or breach any provision
of the Articles of Incorporation or the By-laws of Manitex or any
presently existing order, writ, injunction, judgment, decree, law,
ordinance, rule, or regulation applicable to Manitex or any of its
properties, or (b) after a lapse of time, due notice or otherwise, will
not violate, require consent under, conflict with, breach, cause a
default, or provide grounds for termination, cancellation, or
acceleration of performance in respect of, or result in the creation or
imposition of a lien or other encumbrance pursuant to, any agreement or
understanding to which Manitex is a party or to which it or any of its
properties may be subject.
ARTICLE VII
CONDITIONS TO PRECEDENT
7.1 CLOSING DATE. Subject to the fulfilment or waiver by all parties of
conditions set forth below, the Effective Date will take place as soon
as possible after the date of the signing of this Agreement.
7.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF TECCAN. The obligations of
Teccan and Manitex to consummate the Transactions are subject to the
satisfaction of each of the following, on or prior to the Effective
Date, except as otherwise waived in writing by them:
7.2.1 Authorization. All necessary action will have been taken to
authorize the execution, delivery and performance by IFCO of
this Agreement and the Transactions.
7.2.2 Capital Contribution by the Investors. The Investors will have
acquired and paid for a minimum of 1,000,000 Units .
7.2.3 Representations, Warranties and Performance. Each of the
representations and warranties of IFCO set forth in this
Agreement will be true and correct in all material respects as
of the Effective, except as permitted by this Agreement. IFCO
will have performed in all material respects each covenant and
agreement contained in this Agreement to be performed by it
prior to the Effective Date.
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7.2.4 Consents and Approvals. All contractual and non-contractual
authorizations, consents and approvals, including those
required under any applicable securities laws, if any, of any
local, state, federal or government agency, regulatory body,
official or any person or entity necessary for the valid
consummation of the Transactions in accordance with this
Agreement will have been obtained and will be in full force
and effect.
7.2.5 Litigation. No suit, action, proceeding, arbitration or other
litigation will have been commenced or threatened to be
commenced against Teccan or IFCO which, in the opinion of
Teccan or Manitex, would pose a material restriction on or
impair consummation of the Transactions, performance of this
Agreement, or create a risk of subjecting Manitex or its
shareholders, officers, directors or agents to material
damages, costs, liabilities or other relief in connection with
the Share Exchange or this Agreement.
7.2.6 Opinion of Counsel to IFCO. Manitex will have received a
written opinion dated as of the Effective Date from IFCO
Counsel, substantially to the effect set forth in Exhibit
7.2.6.
7.2.7 No Material Adverse Change. There will not have occurred any
material loss or destruction or any material adverse change in
the financial condition or properties, business or operations
of IFCO from that shown in the IFCO Financial Statements.
7.2.8 Officer Certificate. Manitex will have received a certificate
dated as of the Effective Date from a senior officer of IFCO,
substantially in the form set forth in Exhibit 7.2.8.
7.3 CONSENTS. IFCO and Teccan will use their commercial best efforts,
within reasonable costs, to obtain all such consents and approvals and
to take all such actions, including those required under any applicable
securities law, as may be necessary or appropriate to consummate the
transactions contemplated in this Agreement. IFCO and Teccan will take
all actions and execute all documents, and will use their best efforts
to have their respective shareholders take all actions and execute all
documents, that either party reasonably requests in order to obtain all
such consents and approvals.
7.4 PRESS RELEASES. All press releases or other announcements by the
parties, to their employees or vendors or otherwise, as to the
transactions contemplated by this Agreement will be in a form mutually
agreeable to IFCO and Teccan.
7.5 REASONS FOR TERMINATION. The Offer will be terminated and the Share
Exchange abandoned at any time prior to the Closing as follows:
(a) By action of the Boards of Directors of IFCO and Teccan;
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(b) By Teccan, if any of the conditions precedent to its
obligations set forth above have not been satisfied in all
material respects on or before the Closing Date;
(c) By IFCO, if any of the conditions precedent to its obligations
set forth above have not been satisfied in all material
respects on or before the Closing Date; and
(d) By either IFCO or Teccan, if the Share Exchange has not become
effective for any reason by no later than 60 days after the
Effective Date.
7.6 SURVIVAL OF REPRESENTATIONS. All representations, warranties and
covenants of Teccan and IFCO contained in this Agreement will remain
operative and in full force and effect, regardless of any investigation
made by or on behalf of the parties to this Agreement, until the
earlier of the termination of this Agreement or the Closing Date,
whereupon such representations, warranties and covenants will expire.
ARTICLE VIII
MISCELLANEOUS
8.1 WAIVER AND AMENDMENT. This Agreement may be amended by action of the
Boards of Directors of all of the parties without action by the
shareholders of such parties; any right granted by this Agreement may
be waived by the party or on behalf of the shareholders for whose
benefit such right was granted. The waiver of any such right must be in
writing and signed by the party electing to exercise its right of
waiver.
8.2 ENTIRE AGREEMENT; REFERENCES. This Agreement, including all Exhibits
hereto, each of which is incorporated herein by reference, constitutes
the entire agreement between the parties with respect to the
Transactions and the Share Exchange and supersedes all prior or
concurrent arrangements, letters of intent or understandings relating
thereto. Unless otherwise specified herein, references to "Sections"
and "Exhibits" are to Sections of and Exhibits to this Agreement.
8.3 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be an original, but all of which when
taken together will constitute one and the same agreement. This
Agreement will become effective when one or more counterparts has been
signed by each of the parties and delivered to each of the other
parties.
8.4 EFFECT OF HEADINGS. The headings in this Agreement have been inserted
for reference purposes only and will not affect the meaning or
construction of any provision of this Agreement.
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8.5 NOTICES. Any notice or other communication required or permitted to be
given under this Agreement will be in writing, will be delivered
personally or by registered or certified mail, postage prepaid and will
be deemed given upon delivery, if delivered personally, or three days
after deposit in the mail, if mailed, to the following addresses:
(i) if to IFCO :
0000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxx
with a copy to :
Xx Xxxxxxxx Chaurette Xxxxxxxx
0000, XxXxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx (Quebec)
H3A 3H3
Attention: Xxxxxx Xxxxxxx
(ii) if to Teccan:
De Grandpre Chaurette Xxxxxxxx
0000, XxXxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx (Quebec)
H3A 3H3
Attention: Xxxxxx Xxxxxxx
(iii) if to Manitex:
0, Xxxxx Xxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx (Xxxxxx)
X0X 0X0
Attention: Xxxxx Xxxxx
or to such other address as a party may have furnished to the other
parties in writing pursuant to this Section 8.5.
8.6 NO WAIVER. No waiver by any party of any condition, or the breach of
any term, covenant, agreement, representation or warranty contained in
this Agreement, in any one or more instances, will be deemed to be a
further or continuing waiver of any such condition or
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breach of any other term, covenant, agreement, representation or
warranty contained in this Agreement.
8.7 SUCCESSORS AND ASSIGNS. No party may assign any of its rights or
obligations under this Agreement without the prior written consent of
the other parties. This Agreement will be binding upon and enure to the
benefit of the parties to this Agreement and their respective
successors, personal representatives and permitted assigns.
8.8 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the Province of Quebec
excluding that body of law pertaining to conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written, subject to acceptance and initialling of each of the
exhibits hereto.
MANITEX CAPITAL INC.
/s/ Xxxxx Xxxxxx
------------------------
XXXXX XXXXXX, PRESIDENT
3786137 CANADA INC.
/s/ Xxxxxx Xxxxxxx
-------------------------
XXXXXX XXXXXXX, PRESIDENT
TECE INC.
/s/ Xxxxxx Xxxxxxx
--------------------------
XXXXXX XXXXXXX, ATTORNEY
- 15 -
LIST OF EXHIBITS
to the Share Exchange Agreement Entered into as of October 10, 2000 between Tece
Inc., formerly Internet Food Co, 3786137 Canada Inc, Tec
XxxxxxxxxxXxxxxxxxxx.xxx Corporation and Manitex Capital Inc.
Acceptance of Exchange......................................................A
Exchange and voting Agreement.............................................1.5
Exchangeable shares of Teccan.............................................1.7
Support Agreement........................................................1.13
Acceptance of Exchange Offer............................................. 3.3
IFCO's Schedule of Exceptions............................................ 5.0
IFCO's Financial Statements.............................................. 5.5
Opinion of IFCO's Counsel to Manitex....................................7.2.6
Officer's Certificate of IFCO to Manitex................................7.2.8
- 16 -
EXHIBIT A
to the Share Exchange Agreement entered into as of October 10, 2000 between Tece
Inc, formerly Internet Food Co, 3786137 Canada Inc, Tec XxxxxxxxxxXxxxxxxxxx.xxx
Corporation and Manitex Capital Inc. (the "Exchange Agreement")
ACCEPTANCE OF EXCHANGE
TO: Teccan Inc.
AND TO: Xxxxxx Xxxxxxx, as trustee under the Exchange and Voting Agreement
RE: TECCAN CORPORATION
Gentlemen:
The undersigned hereby irrevocably accept and agree to sell to Teccan all of
their Tec Common Shares held as of this date and to receive as sole
consideration Exchangeable Shares of Teccan, which are exchangeable subject to
certain terms and conditions into shares of common stock of Tece Inc as
described and under the terms of the Exchange Agreement, receipt of a copy of
which is hereby acknowledged.
Each of the undersigned is delivering this Acceptance which constitutes the
undersigned's instructions to you to effect the Exchange with respect to all of
the Tec shares held by the undersigned for shares of IFCO subject to the terms
and conditions of the Exchange Agreement.
Each of the undersigned hereby represents and warrants to Teccan and IFCO that
he has good title to the Tec Common Shares and has full power to transfer said
shares to Teccan and Teccan will acquire good title free and clear of liens,
encumbrances and adverse claims. Each of the undersigned covenants that he will,
upon request, execute any additional documents, necessary or desirable to
complete the transfer and exchange of the Teccan Common Shares.
Each of the undersigned, as holder of Exchangeable Shares, whether of record or
beneficial, acknowledges becoming and being a party to the Exchange and Voting
Agreement, acknowledges and accepts the Insolvency Exchange Right, the Automatic
Exchange Rights and the Voting Rights granted to the holders of Exchangeable
Shares by IFCO. As consideration for the granting of such rights, the
undersigned hereby grants to IFCO the Call Rights described in the Exchange and
Voting Agreement and acknowledges the overriding nature thereof in connection
with the retraction of Exchangeable Shares, as the case may be, and accepts to
be bound thereby in favour of IFCO, Inc in accordance with the terms and
conditions of the priviledges attached to the Exchangeable Shares.
The undersigned each agree to the provisions of the Exchange Agreement and
hereby irrevocably appoint Xxxxxx Xxxxxxx of the law firm Xx Xxxxxxxx Chaurette
Xxxxxxxx as his, her or its
- 17 -
representative and attorney to (i) effect the Exchange; (ii) to endorse for
transfer to Teccan the undersigned's certificate evidencing the Tec Common
Shares being exchanged; and (iii) to sign any other document necessary or useful
for the purpose of implementing the Exchange and in accordance with the Exchange
and Voting Agreement, such power of attorney not being invalidated by the death
or the incapacity of the undersigned.
Dated: , 2000
SIGNATURE : TEC COMMON SHARES TRANSFERRED Number of
--------- ----------------------------- ---------
Exchangeable
Shares issued
Manitex Capital Inc. per: - 6,560,812 Common Shares
- CAN $75,000 convertible
/s/ Illegible debenture with accrued interest 4,284,441
------------------------ - US $375,000 convertible
debenture with accrued interest
Intasys Corporation per: - One Common Share
- US $2,625,000 convertible
/s/ Illegible debenture with accrued interest 6,522,710
------------------------
/s/ Xxx Xxxxxx - 2,211,977 Common Shares 1,105,989
------------------------
Xxx Xxxxxx
------------------------------------------ ------------------------------------------------ -------------------------
TOTAL: 11,913,140
------------------------------------------ ------------------------------------------------ -------------------------
- 18 -
EXHIBIT 1.5
to the Share Exchange Agreement Entered into as of October 10, 2000 between Tece
Inc., formerly Internet Food Co, 3786137 Canada Inc, Tec
XxxxxxxxxxXxxxxxxxxx.xxx Corporation and Manitex Capital Inc.
EXCHANGE AND VOTING AGREEMENT
- 19 -
EXHIBIT 1.7
to the Share Exchange Agreement Entered into as of October 10, 2000 between Tece
Inc., formerly Internet Food Co, 3786137 Canada Inc, Tec
XxxxxxxxxxXxxxxxxxxx.xxx Corporation and Manitex Capital Inc.
EXCHANGEABLE SHARES OF TECCAN
- 20 -
EXHIBIT 1.13
to the Share Exchange Agreement Entered into as of October 10, 2000 between Tece
Inc., formerly Internet Food Co, 3786137 Canada Inc, Tec
XxxxxxxxxxXxxxxxxxxx.xxx Corporation and Manitex Capital Inc.
SUPPORT AGREEMENT
- 21 -
EXHIBIT 3.3
to the Share Exchange Agreement entered into as of October 10, 2000 between Tece
Inc, formerly Internet Food Co, 3786137 Canada Inc, Tec XxxxxxxxxxXxxxxxxxxx.xxx
Corporation and Manitex Capital Inc.
SHAREHOLDER ACCEPTANCE OF EXCHANGE OFFER
TO: Teccan Inc.
AND TO: Montreal Trust Company of Canada
Montreal, Quebec
RE: TECCAN CORPORATION
Gentlemen:
The undersigned hereby irrevocably accepts and agrees to exchange (the
"Exchange") all of his, her or its shares held as of this date in Tec
XxxxxxxxxxXxxxxxxxxx.xxx Corporation ("Tec"), for Class A Preferred Shares (the
"Exchangeable Shares") of 3786137 Canada Inc. ("Teccan"), which are exchangeable
subject to certain terms and conditions into shares of common stock of Tece Inc,
a Nevada Corporation formerly known as Internet Food Co. ("IFCO"), as described
and under the terms of that certain Share Exchange Agreement (the "Exchange
Agreement") between Teccan and IFCO, receipt of a copy of which is hereby
acknowledged.
The undersigned is delivering this Acceptance which constitutes the
undersigned's instructions to you to effect the Exchange with respect to all of
the Teccan shares held by the undersigned for shares of IFCO and subject to the
terms of the Exchange Agreement.
If the transactions contemplated by the Exchange as described in the Exchange
Agreement are completed, then you are to deliver certificates of stock
representing the number of Exchangeable Shares to the undersigned issued in the
name and at the address given below.
The undersigned hereby represents and warrants to Teccan and IFCO that the
undersigned has good title to his Tec Common Shares and has full power to accept
the Exchange and to transfer said shares to Teccan and Teccan will acquire good
title free and clear of liens, encumbrances and adverse claims. The undersigned
will, upon request, execute any additional documents, necessary or desirable to
complete the transfer and exchange of the Teccan Common Shares.
The undersigned, as holder of Exchangeable Shares, whether of record or
beneficial, by virtue of having accepted the Offer, acknowledges becoming and
being a party to the Exchange and Voting Agreement, acknowledges and accepts the
Insolvency Exchange Right, the Automatic Exchange Rights and the Voting Rights
granted to the holders of Exchangeable Shares by IFCO. As consideration for
- 22 -
the granting of such rights, the undersigned hereby grants to IFCO the Call
Rights described in the Exchange and Voting Agreement and acknowledges the
overriding nature thereof in connection with the retraction of Exchangeable
Shares, as the case may be, and accepts to be bound thereby in favour of IFCO,
Inc in accordance with the terms and conditions of the priviledges attached to
the Exchangeable Shares.
The undersigned each agree to the provisions of the Exchange Agreement and
hereby irrevocably appoint Xxxxxx Xxxxxxx of the law firm Xx Xxxxxxxx Chaurette
Xxxxxxxx as his, her or its representative and attorney to (i) effect the
Exchange; (ii) to endorse for transfer to Teccan the undersigned's certificate
evidencing the Tec Common Shares being exchanged; and (iii) to sign any other
document necessary or useful for the purpose of implementing the Exchange and in
accordance with the Exchange and Voting Agreement, such power of attorney not
being invalidated by the death or the incapacity of the undersigned.
Dated: , 2000
--------------------------------------------
- 23 -
EXHIBIT 5.0
to the Share Exchange Agreement Entered into as of October 10, 2000 between Tece
Inc., formerly Internet Food Co, 3786137 Canada Inc, Tec
XxxxxxxxxxXxxxxxxxxx.xxx Corporation and Manitex Capital Inc.
IFCO'S SCHEDULE OF EXCEPTIONS
- 24 -
EXHIBIT 5.5
to the Share Exchange Agreement Entered into as of October 10, 2000 between Tece
Inc., formerly Internet Food Co, 3786137 Canada Inc, Tec
XxxxxxxxxxXxxxxxxxxx.xxx Corporation and Manitex Capital Inc.
IFCO'S FINANCIAL STATEMENTS
- 25 -
EXHIBIT 7.2.6
to the Share Exchange Agreement Entered into as of October 10, 2000 between Tece
Inc, formerly Internet Food Co, 3786137 Canada Inc, Tec XxxxxxxxxxXxxxxxxxxx.xxx
Corporation and Manitex Capital Inc.
IFCO'S COUNSEL'S OPINION
Xx. Xxxxxx Xxxxxxx
Xx Xxxxxxxx Chaurette Xxxxxxxx
2000, XxXxxx College
Suite 1600
Montreal (Quebec)
H3A 3H3
Manitex Capital Inc
0, Xxxxx Xxxxx-Xxxxx
Xxxxx 0000
Xxxxxxxx (Xxxxxx)
X0X 0X0
Gentlemen:
We have acted as general counsel for Tece Inc. ("Tece") and, as such capacities,
we are pleased to render the following opinion.
1) Tece has been duly incorporated, organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own, lease and
operate its property and assets, to conduct its business
2) Tece has an authorized capital stock of 50,000,000 shares of common
stock of which the only issued and outstanding shares are o shares of
common stock, all of which have been duly authorized and validly issued
and are fully paid and non-assessable,
- 2 -
3) o shares of IFCO's common stock have been validly and legally reserved
for issuance to the shareholders of 3786137 Canada Inc upon the
exchange of the Class A preferred Shares of 3786137 Canada Inc held by
them and upon suh issuance the said shares of common stock will be
issued as fully paid and non assessable;
4) IFCO is not in violation of its constating documents, by-laws or
resolutions of its directors or shareholders
5) There are no legal or governmental proceedings pending to which IFCO is
a party and no such proceedings are, to the best of counsel's
knowledge, after having made all inquiries and verifications deemed
appropriate, threatened (implicitly or otherwise) or contemplated by
governmental authorities or any other parties.
6) IFCO is not in violation of any law, ordinance, administrative or
governmental rule or regulation or court decree applicable to it, nor
is it in default of complying with any term or condition of, nor has it
failed to obtain, any licence, permit, franchise or administrative or
governmental authorization necessary to the ownership of its property
or to the conduct of its business
7) Except as a result of the Exchange Agreement, there are no outstanding
(a) securities or obligations of IFCO convertible into or exchangeable
for any shares of the capital stock of IFCO, (b) warrants, rights or
options to subscribe for or purchase from IFCO any such shares of the
capital stock of IFCO or any other securities of IFCO or any such
convertible or exchangeable securities or obligations, or (c)
obligations for IFCO to issue, purchase or redeem such shares, other
securities, any such convertible or exchangeable securities or
obligations, or any such warrants, rights, options or obligations.
8) all relevant documents have been filed with the regulatory authorities
having jurisdiction and all steps necessary have been taken in order to
permit the issuance of the shares of IFCO to shareholders of 3786137
Canada, as part of the Share Exchange;
9) the certificates for the Common Stock of IFCO are in due and proper
form under the laws governing IFCO, including applicable securities
laws and the rules and regulations of the NASDN;
10) no order preventing or suspending the trading of the securities of IFCO
has been issued by a securities commission or similar regulatory
authority and counsel is unaware of any justification for such an order
to be issued;
11) The documents filed with the regulatry authorities in connection with
the Share Exchange conform to the requirements of applicable
securities laws and all regulations thereunder;
12) The following persons are the only directors and officers of IFCO and
they have been validly appointed or elected in accordance with the
by-laws of IFCO:
- 3 -
13) to the best of counsel's knowledge, after having made all inquiries and
verifications deemed appropriate, there are no material contract or
obligation to which IFCO was a party as of o, 2000 other than the Share
Exchange.
14) The Share Exchange and the performance of the transactions described
therein does not breach the laws of the State of Nevada, the laws of
the United States of America and the rules and regulations of the NASDN
or of any other regulatory authority having jurisdiction over the
affairs or the trading in the securities of IFCO;
15) The shares of IFCO issued to the shareholders of 3786137 Canada under
the Share Exchange will be free from any trading restrictions under the
laws of the State of Nevada, the laws of the United States of America
and the rules and regulations of the NASDN and of any other regulatory
authority having jurisdiction over the affairs or the trading in the
securities of IFCO, with the exception that such shares constitute
"Restricted Securities" within the meaning of Regulation 144 under the
Securities Act;
- 28 -
EXHIBIT 7.2.8
to the Share Exchange Agreement Entered into as of October 10, 2000 between Tece
Inc, formerly Internet Food Co, 3786137 Canada Inc, Tec XxxxxxxxxxXxxxxxxxxx.xxx
Corporation and Manitex Capital Inc.
OFFICER'S CERTIFICATE OF IFCO TO MANITEX
