Exhibit No. 10.3
----------------
SUBSCRIPTION AGREEMENT MADE AND ENTERED INTO IN THE CITY AND DISTRICT OF
MONTREAL, ON THE 2ND DAY OF OCTOBER, 1996
BY AND AMONG: THE WIDECOM GROUP INC., a body politic and corporate duly
constituted according to the laws of Ontario, having its
head office and principal place of business in the City of
Mississauga, Province of Ontario,
(hereinafter referred to as "Widecom")
PARTY OF THE FIRST PART
-----------------------
AND: 3294340 CANADA INC., a body politic and corporate, duly
incorporated according to the Canadian Business
Corporations Act, having its head office and principal
place of business in the City of Montreal, Province of Quebec,
(hereinafter referred to as the "Corporation")
PARTY OF THE SECOND PART
------------------------
SECTION 7 - PREAMBLE
- ----------------------
7.1 WHEREAS Widecom wishes to subscribe for shares from the treasury of
the Corporation at the price set forth hereinafter, the whole on the terms
and conditions hereinafter set out in this Agreement.
7.2 WHEREAS concurrently with the execution of this Agreement, Innovatech
entered into a Subscription Agreement (the "Innovatech Subscription
Agreement") with the Corporation providing for the subscription by
Innovatech for shares from the treasury of the Corporation.
7.3 WHEREAS concurrently with the execution of this Agreement, 3294412
Canada Inc. ("Finger Print") entered into a Rollover Agreement with the
Corporation pursuant to which Finger Print sold its technology to the
Corporation in consideration of the issuance by the Corporation to Finger
Print of 50 Class A Shares in the capital stock of the Corporation (the
"Finger Print Rollover Agreement").
7.4 WHEREAS concurrently with the execution of this Agreement, 3294421
Canada Inc. ("Flat Panel") entered into a Rollover Agreement with the
Corporation pursuant to which Flat Panel sold its technology to the
Corporation in consideration of the issuance by the Corporation to Flat
Panel of 50 Class A Shares in the capital stock of the Corporation (the
"Flat Panel Rollover Agreement").
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
SECTION 8. - INTERPRETATION
- -----------------------------
8.1 Definitions. In this Agreement:
8.1.1 "Agreement" shall mean this Subscription Agreement and all
instruments supplemental hereto or in amendment or confirmation
hereof; "herein", "hereof", "hereto", "hereunder" and similar
expressions mean and refer to this Agreement and not to any particular
Section, subsection or other subdivision; "Section", "subsection" or
other subdivision of this Agreement means and refers to the specified
Section, subsection or other subdivision of this Agreement;
8.1.2 "Business Day" shall mean any day, other than a Saturday or
Sunday or a day on which the principal commercial banks in the
Province of Quebec are not open for business during normal banking
hours;
8.1.3 "Class A Shares" shall have the meaning ascribed thereto in
the Articles of Incorporation of the Corporation;
8.1.4 "Dollar", "Dollars" and the sign "$" shall, unless otherwise
indicated, each mean lawful money of Canada;
8.1.5 "Finger Print Rollover Agreement" shall have the meaning
ascribed thereto in subsection 1.3;
8.1.6 "Flat Panel Rollover Agreement" shall have the meaning
ascribed thereto in subsection 1.4;
8.1.7 "Governmental Body" shall mean (i) any domestic or foreign
national, federal, provincial, state, municipal or other government or
body, (ii) any multinational, multilateral or international body,
(iii) any subdivision, agent, commission, board, instrumentality or
authority of any of the foregoing governments or bodies, (iv) any
quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of
the foregoing governments or bodies, or (v) any domestic, foreign,
international, multilateral or multinational judicial, quasi-judicial,
arbitration or administrative court, tribunal, commission, board or
panel;
8.1.8 "Innovatech" shall mean Societe Innovatech du Grand Montreal;
8.1.9 "Innovatech Subscription Agreement" shall have the meaning
ascribed thereto in subsection 1.2;
8.1.10 "Person" shall mean an individual, corporation, company,
cooperative, partnership, trust, unincorporated association, entity
with judicial personality, Governmental Body; and pronouns when they
refer to a Person have a similarly extended meaning;
8.1.11 "Shareholders Agreement" shall mean the Memorandum of
Agreement of even date among the parties hereto, Finger Print, Flat
Panel and Innovatech setting forth the terms and conditions which will
govern the relationship of the Investor, Finger Print, Flat Panel and
Innovatech as shareholders of the Corporation;
8.1.12 "Widecom Shares" shall have the meaning ascribed thereto in
subsection 3.1.
8.2 Gender. Any reference in this Agreement to any gender shall include
both genders and the neutral, and words used herein importing the singular
number only shall include the plural and vice versa.
8.3 Headings. The division of this Agreement into Sections, subsections
and other subdivisions, and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in the construction or
interpretation of this Agreement.
8.4 Severability. Any Section, subsection or other subdivision of this
Agreement or any other provision of this Agreement which is, or becomes,
illegal, invalid or unenforceable shall be severed therefrom and shall be
ineffective to the extent of such illegality, invalidity or unenforceability
and shall not affect or impair the remaining provisions hereof, which
provisions shall be severed from an illegal or unenforceable Section,
subsection or other subdivision of this Agreement or any other provisions of
this Agreement.
8.5 Entire Agreement. This Agreement together with any other instruments
to be delivered pursuant hereto, constitute the entire agreement among the
parties pertaining to the subject matter hereof and supersede all prior
agreements, understandings, negotiations, and discussions, whether oral or
written, among any or all of the parties.
8.6 Amendments. No amendment of this Agreement shall be binding unless
otherwise expressly provided in an instrument duly executed by each of the
parties hereto.
8.7 Waiver. Except as otherwise provided in this Agreement, no waiver of
any of the provisions of this Agreement shall be deemed to constitute a
waiver of any other provisions (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided in
an instrument duly executed by the parties.
8.8 Delays. When calculating the period of time within which or
following which any act is to be done or step taken pursuant to this
Agreement, the day which is the reference day in calculating such period
shall be excluded. If the day on which such delay expires is not a Business
Day, then the delay shall be extended to the next succeeding Business Day.
8.9 Preamble. The preamble hereof shall form an integral part of this
Agreement.
8.10 Governing Law. This Agreement shall be governed by and interpreted
and enforced in accordance with the laws of the Province of Quebec and the
laws of Canada applicable therein.
SECTION 9. - SUBSCRIPTION
- ---------------------------
9.1 Widecom subscription. Widecom hereby subscribes for four hundred and
fifty (450) Class A Shares (collectively the "Widecom Shares") of the
Corporation's share capital at the aggregate subscription price of two
million and five hundred thousand dollars ($ 2,500,000.00). The Corporation
hereby accepts the subscription of Widecom for the Widecom Shares subject to
the terms and conditions contained herein.
9.2 Payment and Issue of Widecom Shares. Widecom hereby agrees to remit
to the Corporation on the date hereof the aggregate subscription price set
forth in subsection 3.1, and the Corporation shall, upon receipt of a cheque
for the aggregate subscription price set forth in subsection 3.1, issue the
Widecom Shares to Widecom and deliver share certificates representing same.
SECTION 10. - REPRESENTATIONS AND WARRANTIES
- ----------------------------------------------
10.1 Representations and Warranties of Widecom. Widecom hereby
represents and warrants to the Corporation, and acknowledges and confirms
that the Corporation is relying upon such representations and warranties in
connection herewith and would not have entered into this Agreement without
such representations and warranties:
10.1.1 Widecom is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation;
10.1.2 Widecom has the necessary corporate power and authority to
execute this Agreement and to perform its obligations hereunder. The
execution of this Agreement by Widecom and the performance by Widecom
of its obligations hereunder have been duly authorized by all
necessary action on its part. The execution of this Agreement by
Widecom and performance by Widecom of its obligations hereunder do not
require any action or consent of, any registration with, or
notification to any Person, or any action or consent under any laws to
which Widecom is subject;
10.1.3 the execution of this Agreement, the consummation of the
transactions contemplated herein, the performance by Widecom of its
obligations hereunder and the compliance by it with this Agreement do
not:
10.1.3.1 violate, contravene or breach, or constitute a
default under, the constating documents or by-laws of Widecom;
or
10.1.3.2 violate, contravene or breach any laws to which
Widecom is subject;
10.1.4 neither Widecom nor any of its shareholders, directors,
officers, employees or agents has employed or incurred any liability
to any broker, finder or agent for any brokerage fees, finder's fees,
commissions or other amounts with respect to this Agreement or any of
the transactions contemplated hereby.
10.2 Representations and Warranties of the Corporation. The Corporation
hereby represents and warrants as follows to Widecom and acknowledges and
confirms that Widecom is relying upon such representations and warranties in
connection herewith and would not have entered into this Agreement without
such representations and warranties:
10.2.1 the Corporation:
10.2.1.1 is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation;
and
10.2.1.2 has not carried on any business since its
incorporation;
10.2.2 the Corporation has the necessary corporate power and
authority to execute this Agreement and to perform its obligations
hereunder. The execution of this Agreement by the Corporation and the
performance by the Corporation of its obligations hereunder have been
duly authorized by all necessary action on its part. The execution of
this Agreement by the Corporation and performance by the Corporation
of its obligations hereunder do not require any actions or consent of,
any registration with, or notification to, any Person, or any action
or consent under any laws to which the Corporation is subject;
10.2.3 the execution of this Agreement, the consummation of the
transactions contemplated herein, the performance by the Corporation
of its obligations hereunder and the compliance by it with this
Agreement do not:
10.2.3.1 violate, contravene or breach, or constitute a
default under, the constating documents or by-laws of the
Corporation;
10.2.3.2 violate, contravene or breach, or constitute a
default under any contract, agreement, indenture, instruments,
or commitment to which the Corporation may be a party, or its
properties may be subject, or by which it is bound or affected;
or
10.2.3.3 violate, contravene or breach any applicable laws to
which the Corporation is subject;
10.2.4 the authorized capital of the Corporation consists of an
unlimited number of Class A Shares, an unlimited number of Class B
Shares, an unlimited number of Class C Shares, an unlimited number of
Class D Shares, an unlimited number of Class E Shares and an unlimited
number of Class F Shares. After giving effect to this Agreement, the
Finger Print Rollover Agreement, the Flat Panel Rollover Agreement and
the Innovatech Subscription Agreement, the only shares of the
Corporation which are issued and outstanding are the Widecom Shares,
the fifty (50) Class A shares issued to Finger Print pursuant to the
Finger Print Rollover Agreement, the fifty (50) Class A shares issued
to Flat Panel pursuant to the Flat Panel Rollover Agreement and the
four hundred and fifty (450) Class A shares issued to Innovatech
pursuant to the Innovatech Subscription Agreement, which shares are
fully paid and non-assessable;
10.2.5 no Person has any agreement, option, right or privilege
(whether pre-emptive or contractual) capable of becoming an agreement
for the purchase from the Corporation of any securities of the
Corporation other than as provided in the Shareholders Agreement;
10.2.6 neither the Corporation nor any of its respective directors,
officers, employees or agents has employed or incurred any liability
to any broker, finder or agent for any brokerage fees, finder's fees,
commissions or other amounts with respect to this Agreement or any of
the transactions contemplated hereby;
10.2.7 the Corporation is not a non-resident of Canada within the
meaning of the Income Tax Act (Canada).
10.3 Reliance on Representations and Warranties. Notwithstanding any
investigation conducted prior or subsequent to the date hereof, the parties
shall be entitled to rely upon the representations and warranties set forth
herein and the obligations of the parties with respect thereto shall survive
the execution of this Agreement for a period of three (3) years except for
the representations and warranties set forth in subsections 4.2.4 and 4.2.5
which shall survive indefinitely.
SECTION 11. - GENERAL PROVISIONS
- ----------------------------------
11.1 Further Assurances. Each party upon the request of the other, shall
do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged or delivered all such further acts, deeds, documents,
assignments, transfers, conveyances, powers of attorney and assurances as
may be reasonably necessary or desirable to effect complete consummation of
the transactions contemplated by this Agreement.
11.2 Successors in Interest. This Agreement and the provisions hereof
shall enure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns.
11.3 Arbitration. Any dispute or controversy between the Corporation and
the Investor relating to any matter arising out of or connected with the
rights and obligations of the parties hereto under this Agreement shall be
settled in accordance with the provisions of subsection 6.11 (if applicable)
and Section 17 of the Shareholders Agreement.
11.4 Notices. All offers, acceptances, rejections, notices, requests,
authorizations, permissions directions, demands and other communications
hereunder shall be given in writing and shall be given by telecopier, or
delivered by hand, to the other party at the following addresses:
if to Widecom: The Widecom Group Inc.
55 City Centre Dr.
Suite 500
Mississauga, Ontario
L5B 1M3
Attention: President
Telecopier: (905) 566-0181
if to the Corporation: 3294340 Canada Inc.
55 City Centre Dr.
Suite 500
Mississauga, Ontario
L5B 1M3
Attention: President
Telecopier: (905) 566-0181
with a copy in all cases to: LAPOINTE ROSENSTEIN
1250 Rene-Levesque Blvd. West
Suite 1400
Montreal, Quebec
H3B 5E9
Attention: Perry Kliot
Telecopier: (514) 925-9001
or at such other address as the parties may have previously indicated to the
other parties in writing in conformity with the foregoing. Any such notice,
request, demand or other communication shall be deemed to have been received
on the date of delivery if delivered by hand, or the next Business Day
immediately following the date of transmission if sent by telecopier. The
original copy of any notice sent by telecopier shall be forwarded to the
other party by registered mail, receipt return requested.
11.5 Time of the essence. Time shall be of the essence in this
Agreement.
11.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same document.
11.7 Language. The parties hereto state their express wish that this
Agreement as well as all documentation contemplated hereby or pertaining
hereto or to be executed in connection herewith be drawn up in the English
language; les parties expriment leur desir explicite a l'effet que cette
convention de meme que tous documents envisages par les presentes ou y ayant
trait ou qui seront signes relativement aux presentes soient rediges en
anglais.
IN WITNESS WHEREOF, the parties have signed at the place and on the
date first hereinabove mentioned.
THE WIDECOM GROUP INC.
Per:
Raja S. Tuli
3294340 CANADA INC.
Per:
Raja S. Tuli