Exhibit 2.5
DATED: JUNE 14, 2000
AXIDATA (1998) INC.
AND
MIAMI COMPUTER SUPPLY CORPORATION
AND
UNITED STATIONERS SUPPLY CO.
------------------------
ASSET PURCHASE AGREEMENT
------------------------
FRASER MILNER CASGRAIN
P.O. Box 100
One First Canadian Place
Toronto, Ontario
M5X 1B2
TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
1.1 Definitions.....................................................................................1
1.2 Gender and Number...............................................................................6
1.3 Currency........................................................................................6
1.4 Headings........................................................................................6
ARTICLE 2
SCHEDULES
2.1 Description of Schedules........................................................................6
ARTICLE 3
AGREEMENT OF PURCHASE AND SALE
3.1 Property and Assets to be Purchased and Sold....................................................7
3.2 Excluded Assets.................................................................................9
ARTICLE 4
PURCHASE PRICE
4.1 Purchase Price..................................................................................9
4.2 Allocation of Purchase Price and Tax Elections..................................................9
4.3 Transfer Taxes.................................................................................10
4.4 Purchase Price Adjustment......................................................................10
4.5 Accounts Receivable............................................................................12
4.6 Inventories....................................................................................13
4.7 Other Adjustments..............................................................................13
ARTICLE 5
LIABILITIES
5.1 Assumption of Liabilities......................................................................13
ARTICLE 6
PAYMENT OF PURCHASE PRICE
6.1 Payment of the Purchase Price..................................................................14
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF THE VENDOR
7.1 Representations and Warranties of the Vendor...................................................14
7.2 No Other Representations and Warranties........................................................24
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
8.1 Representations and Warranties of the Purchaser................................................24
ARTICLE 9
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
9.1 Survival of Representations and Warranties of the Vendor.......................................26
9.2 Survival of Representations and Warranties of the Purchaser....................................26
ARTICLE 10
COVENANTS OF THE VENDOR
10.1 Covenants of the Vendor........................................................................26
ARTICLE 11
COVENANTS OF THE PURCHASER
11.1 Covenants of the Purchaser.....................................................................29
ARTICLE 12
EMPLOYEE MATTERS
12.1 Employees and Transferred Employees............................................................30
ARTICLE 13
BULK SALES LEGISLATION
13.1 Bulk Sales Compliance..........................................................................31
ARTICLE 14
PURCHASER'S CONDITIONS OF CLOSING
14.1 Conditions for the Benefit of the Purchaser....................................................32
14.2 Non-Fulfilment of Conditions, etc. for the Benefit of the Purchaser............................34
ARTICLE 15
VENDOR'S CONDITIONS OF CLOSING
15.1 Conditions for the Benefit of the Vendor.......................................................34
15.2 Non-Fulfilment of Conditions etc. for the Benefit of the Vendor...............................36
ARTICLE 16
CLOSING ARRANGEMENTS
16.1 Date, Time and Place of Closing................................................................36
16.2 Closing Arrangements...........................................................................36
ARTICLE 17
INDEMNIFICATION
17.1 Indemnification by Vendor......................................................................37
17.2 Indemnification by Purchaser...................................................................38
17.3 Procedure for Indemnification..................................................................39
17.4 Subsequent Recovery............................................................................40
17.5 Details of Claims..............................................................................40
17.6 De Minimis/Limitation..........................................................................40
17.7 Escalation Procedure...........................................................................40
ARTICLE 18
MIAMI GUARANTEE
18.1 Miami Guarantee................................................................................41
18.2 Miami Representations..........................................................................41
ARTICLE 19
MISCELLANEOUS
19.1 Risk of Loss...................................................................................42
19.2 Brokerage, Commissions, etc....................................................................42
19.3 Further Assurances.............................................................................42
19.4 Assignment of Contracts........................................................................42
19.5 Announcements..................................................................................43
19.6 Notices........................................................................................43
19.7 Time of the Essence............................................................................45
19.8 Costs and Expenses.............................................................................45
19.9 Applicable Law.................................................................................45
19.10 Entire Agreement...............................................................................45
19.11 Severability...................................................................................45
19.12 Effect of Closing..............................................................................46
19.13 Counterparts...................................................................................46
19.14 Assignment.....................................................................................46
19.15 Parties in Interest............................................................................46
19.16 Third Parties..................................................................................47
THIS AGREEMENT dated the 14th day of June, 2000
BETWEEN:
AXIDATA (1998) INC., a corporation incorporated
under the laws of Canada
(the "VENDOR")
- and -
MIAMI COMPUTER SUPPLY CORPORATION, a
corporation incorporated under the
laws of the State of Ohio, U.S.A.
("MIAMI")
- and -
UNITED STATIONERS SUPPLY CO., a corporation
incorporated under the laws of the State of
Illinois, U.S.A.
(the "PURCHASER").
WHEREAS the Vendor, through its Azerty Division (the
"DIVISION"), carries on in Canada a wholesale computer supplies business
under the name "Azerty" (hereinafter called the "BUSINESS");
AND WHEREAS the Purchaser desires to purchase and the
Vendor desires to sell certain property and assets of the Business for the
purchase price and upon the terms and conditions hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in
consideration of the covenants, agreements and payments hereinafter set
forth, the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
Whenever used in this Agreement, unless there is something
in the subject matter or context inconsistent therewith, the following words
and phrases shall have the respective meanings ascribed to them as follows:
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"ACCOUNTS RECEIVABLE" means the trade accounts receivable of the Business
forming part of the Purchased Assets as described in paragraph (c) of Section
3.1 as the same exist at the Effective Time;
"AFFILIATE" has the meaning ascribed thereto in the CANADA BUSINESS CORPORATIONS
ACT.
"AGREEMENT" means this asset purchase agreement, and any instrument amending
this Agreement as referred to in Section 19.10, and all Schedules or Exhibits
attached thereto; "hereof", "hereto", "hereunder" and similar expressions mean
and refer to this Agreement and not to a particular article or section; and the
expression "Article" or "Section" followed by a number means and refers to the
specified article or section of this Agreement.
"ASSUMED LIABILITIES" means the liabilities and obligations of the Business to
be assumed by the Purchaser as described in Section 5.1.
"BULK SALES LEGISLATION" means the BULK SALES ACT (Ontario) and the
corresponding laws and regulations of any other jurisdiction, domestic or
foreign.
"BUSINESS" has the meaning described in the preamble hereto.
"BUSINESS DAY" means a day other than a Saturday, Sunday or any other day on
which the principal banks located at the Cities of Toronto or Chicago are not
open for business during normal banking hours.
"CLOSING" means the completion of the transactions herein contemplated,
including the sale to and purchase by the Purchaser of the Purchased Assets
hereunder as herein contemplated.
"CLOSING DATE" means July 1, 2000 or such earlier or later date as may be
agreed upon.
"CLOSING DATE NET ASSET LISTING" has the meaning set out in Section 4.4(a).
"CLOSING NET ASSETS" means the assets of the Business, other than the
Excluded Assets, less the liabilities of the Business, as at the Effective
Time, as shown on the Closing Date Net Asset Listing.
"COMPU-REDI/TENEX BUSINESS" means the business of the Vendor consisting of
the sale and distribution of computer supplies to customers who do not buy
such supplies for re-sale carried on in Canada through its Compu-Redi/Tenex
division under the name Compu-Redi/Tenex.
"CONFIDENTIAL INFORMATION" means any information relating to the Business,
the disclosure of which would result in the violation of any confidentiality
covenant to which the Vendor is a party.
"CONFIDENTIALITY AGREEMENT" means the confidentiality agreement made the 12th
of January, 2000 between Miami Computer Supply Corporation and the Purchaser.
"DEBT INSTRUMENT" means any bond, debenture, promissory note or other
instrument evidencing indebtedness for borrowed money or other liability.
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"DECEMBER NET ASSETS" means the assets of the Business, other than the
Excluded Assets, less the liabilities of the Business, as at December 31,
1999, as shown on the December Net Asset Listing.
"DECEMBER NET ASSET LISTING" means the net asset listing of the Business as at
December 31, 1999 included in Schedule 7.
"DIVISION" means the Azerty Division of the Vendor.
"EFFECTIVE TIME" means 12:01 a.m. on the Closing Date.
"EMPLOYEE BENEFITS" means:
(a) salaries, wages, bonuses, vacation entitlements, commissions,
fees, stock option plans, stock purchase plans, incentive
plans, deferred compensation plans, profit-sharing plans and
other similar benefits, plans or arrangements;
(b) insurance, health, welfare, disability, pension, retirement,
travel, hospitalization, medical, dental, legal, counselling,
eye care and other similar benefits, plans or arrangements;
and
(c) agreements or arrangements with any labour union or employee
association, written or oral employment agreements or
arrangements and agreements or arrangements for the retention
of the services of independent contractors, consultants or
advisors.
"EMPLOYMENT LEGISLATION" means, collectively, the LABOUR RELATIONS ACT
(Ontario), the Ontario HUMAN RIGHTS CODE, the OCCUPATIONAL HEALTH AND SAFETY ACT
(Ontario), the PAY EQUITY ACT (Ontario), the EMPLOYMENT STANDARDS ACT (Ontario),
the PENSION BENEFITS ACT (Ontario), the WORKPLACE SAFETY AND INSURANCE ACT
(Ontario) and the EMPLOYMENT INSURANCE ACT (Canada), the LABOUR CODE (Quebec),
the CHARTER OF HUMAN RIGHTS AND FREEDOMS (Quebec), the OCCUPATIONAL HEALTH AND
SAFETY ACT (Quebec), the PAY EQUITY ACT (Quebec), the LABOUR STANDARDS ACT
(Quebec), the SUPPLEMENTARY PENSION PLANS Act (Quebec), and the ACT RESPECTING
INDUSTRIAL ACCIDENTS AND OCCUPATIONAL DISEASES (Quebec), the LABOUR RELATIONS
CODE (B.C.), HUMAN RIGHTS CODE (B.C.), EMPLOYMENT STANDARDS ACT (B.C.), PENSION
BENEFITS STANDARDS ACT (B.C.), WORKERS COMPENSATION ACT and OCCUPATIONAL HEALTH
AND SAFETY REGULATIONS (B.C.).
"ENCUMBRANCE" means any mortgage, charge, easement, encroachment, lien, adverse
claim, assignment by way of security, security interest, servitude, pledge,
hypothecation, conditional sale agreement, security agreement, title retention
agreement, financing statement or other encumbrance.
"ENVIRONMENTAL REMEDIATION" means the remediation project which is being managed
by or under the direction of Abitibi-Consolidated Inc. to remediate the historic
leakage of toluene at the leased premises of the Vendor located at 45 Commander
Boulevard, Scarborough in compliance with Environmental Laws in effect on
December 1, 1998, the date the Vendor acquired the Business.
4
"EXCLUDED ASSETS" means the property and assets referred to in Section 3.2.
"FINANCIAL STATEMENTS" means the internal unaudited financial statements of
the Division for the period ended December 31, 1999 prepared by the Vendor, a
copy of which is annexed hereto as Schedule 1.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means the accounting principles so
described and promulgated by the Canadian Institute of Chartered Accountants
which are applicable as at the date on which any calculation made hereunder is
to be effective or as at the date of any financial statements referred to
herein, as the case may be.
"GST" means taxes, interest, penalties and fines imposed under Part IX of the
EXCISE TAX ACT (Canada) and the regulations made thereunder (collectively the
"GST LEGISLATION").
"INCOME TAX ACT (CANADA)" means, collectively, the INCOME TAX ACT (Canada) and
the INCOME TAX REGULATIONS, all as amended to date.
"INTERIM FINANCIAL STATEMENTS" means the condensed interim internal unaudited
financial statements of the Business for the period January 1, 2000 through May
31, 2000, to include net sales, gross margins and direct freight and selling
expenses, a copy of which is annexed hereto as Schedule 1A.
"INVENTORIES" means the inventories relating to the Business as described in
Section 4.6.
"LEASED PROPERTY" means all the right, title and interest of the Vendor in and
to the subject matter of the Lease.
"LEASE" means the lease dated November 15, 1999 between the Vendor and WHBP
Realty Company and 630416 Alberta Ltd. of the premises located at 3950 Cote
Vertu, St. Laurent, Quebec.
"LEGAL PROCEEDING" means any litigation, action, suit, investigation, hearing,
claim, complaint, grievance, arbitration proceeding or other proceeding and
includes any appeal or review and any application for same.
"LOGISTICS AGREEMENT" means the Logistics Information Technology Agreement to be
entered into by the parties hereto as described in Sections 10.1.4 and 11.1.4
hereof.
"MAY NET ASSETS" means the assets of the Business, other than the Excluded
Assets, less the liabilities of the Business, as at May 31, 2000, as shown on
the May Net Asset Listing.
"MAY NET ASSET LISTING" means the net asset listing of the Business as at May
31, 2000 included in Schedule 7.
"ORDINARY COURSE", when used in relation to the conduct by the Vendor of the
Business, means any transaction which constitutes an ordinary day-to-day
business activity, conducted in a commercially reasonable and businesslike
manner, having no unusual or special features, and
5
being such as a Person of similar nature and size and engaged in a similar
business might reasonably be expected to carry out from time to time.
"PERSON" means any individual, corporation, limited liability company, firm,
partnership, sole proprietorship, syndicate, joint venture, trustee, trust
and any unincorporated organization or association, any Tribunal; and
pronouns have a similar extended meaning.
"PERSONAL PROPERTY LEASES" means the leases of personal property entered into
by the Vendor as Lessee identified in Schedule 2.
"PURCHASED ASSETS" means the property and assets described in Section 3.1.
"PURCHASE PRICE" means the purchase price payable by the Purchaser to the
Vendor for the Purchased Assets net of Assumed Liabilities as provided for in
Article 4.
"QST" means sales tax payable under the QST Act.
"QST ACT" means An Act respecting the Quebec Sales Tax.
"TAX" or "TAXES" means all tax or taxes payable under any applicable Tax
Legislation, including, without limitation, income taxes, excise taxes, sales
taxes, goods and services taxes, transfer taxes, property and municipal and
school taxes, capital taxes, import and customs, duties and other
governmental charges and assessments, and includes additions by way of
penalties, interest, fines and other amounts with respect thereto.
"TAX LEGISLATION" means, collectively, the INCOME TAX ACT (Canada) and the
statute law, rules, regulations, interpretation bulletins and releases,
orders and decrees of any other jurisdiction, domestic or foreign which may
impose a Tax or Taxes of any kind.
"TAX RETURNS" means all tax returns required to be filed under the provisions
of any applicable Tax Legislation and any tax forms required to be filed,
whether in connection with a Tax Return or not, under any provisions of any
applicable Tax Legislation.
"TIME OF CLOSING" means 10:00 a.m. Toronto time on the Closing Date or such
other time on the Closing Date as the parties may agree as the time at which
the Closing shall take place.
"TRADEMARK" means the Vendor's right to the "Azerty" trade-mark and name in
Canada as set forth in the Trademark Assignment and Administration Agreement.
"TRADEMARK ASSIGNMENT AND ADMINISTRATION AGREEMENT" means the Trademark
Assignment and Administration Agreement dated April 3, 1998 among, inter
alia, Abitibi Consolidated Inc. and United Stationers Supply Co., as assigned
to the Vendor on December 10, 1998.
"TRANSFERRED EMPLOYEES" means all those employees who are employed by the
Vendor in the Business on the Closing Date and who become employees of the
Purchaser pursuant to the terms of this Agreement on the Closing Date.
6
"TRIBUNAL" means:
(a) any court (including a court of equity);
(b) any federal, provincial, state, county, municipal or other
government or governmental department, ministry, commission,
board, bureau, agency or instrumentality;
(c) any securities commission, stock exchange or other regulatory
or self-regulatory body;
(d) any board of trade, chamber of commerce or other business or
professional organization or association;
(e) any arbitrator or arbitration tribunal; and
(f) any other tribunal;
whether domestic or foreign.
"VENDOR SUPPLY AGREEMENTS" means those vendor supply agreements identified on
Schedule 5.
1.2 GENDER AND NUMBER
In this Agreement words importing a specific gender include all
genders and words importing the singular include the plural and vice versa.
1.3 CURRENCY
Unless otherwise indicated all dollar amounts referred to in this
Agreement, including the symbol $, refer to lawful money of Canada.
1.4 HEADINGS
The division of this Agreement into Articles and Sections and the
use of a table of contents and headings are for convenience of reference only
and shall not affect the interpretation of this Agreement.
ARTICLE 2
SCHEDULES
2.1 DESCRIPTION OF SCHEDULES
The following are the Schedules attached to and incorporated in this
Agreement by reference and deemed to be a part hereof:
Schedule 1 - Financial Statements
Schedule 1A - Interim Financial Statements
Schedule 2 - Personal Property Leases
7
Schedule 3 - Machinery, Equipment, etc.
Schedule 3A - May 31, 2000 Trade Accounts Receivable
Schedule 4 - Real Property Lease
Schedule 5 - Agreements, Contracts, Commitments, etc.
Schedule 6 - Allocation of Purchase Price
Schedule 7 - December Net Asset Listing and May Net Asset Listing
Schedule 8 - List of Employees, Employee Benefits, etc.
Schedule 9 - Other Agreements
Schedule 10 - Legal Proceedings and Environmental Matters
Schedule 11 - Insurance Policies, etc.
Schedule 12 - Form of Non-Competition Agreement
Schedule 13 - Form of Logistics Information Technology Agreement
Schedule 14 - Form of Paper Supply Agreement
Schedule 15 - Legal Opinion of Vendor's Counsel
Schedule 16 - Legal Opinion of Purchaser's Counsel
Schedule 17 - Consents Required
ARTICLE 3
AGREEMENT OF PURCHASE AND SALE
3.1 PROPERTY AND ASSETS TO BE PURCHASED AND SOLD
Subject to the terms and conditions hereof, the Vendor agrees to
sell, assign and transfer to the Purchaser and the Purchaser agrees to
purchase as of, at and from the Effective Time the following property and
assets of the Business:
(a) all machinery, equipment (including, without
limitation, telephone switch, office equipment and
computer equipment), furnishings and accessories and
supplies of all kinds owned by the Vendor in
connection with the Business located in or on the
Leased Property, including without limitation those
items relating to the Business included in the list
of assets attached in Schedule 3, as such Schedule
will be updated by the parties at Closing, and to be
determined in accordance with Section 4.4(a);
(b) all Inventories;
(c) all trade accounts receivable due to the Vendor from
customers of the Business relating to the sale of
products in the course of operating the Business, a
list of such trade accounts receivable as at May 31,
2000 being attached as Schedule 3A solely for
identification purposes;
(d) the full benefit of all unfilled orders received by
the Vendor relating to the Business;
(e) subject to Section 11.1.2, all right, title and
interest of the Vendor in, to and under all those
agreements, contracts and commitments set forth and
described in Schedule 5;
8
(f) all the right, title, benefit and interest of the
Vendor in and to the Trademark;
(g) all prepaid expenses and deposits relating to the
Business as disclosed on the Closing Date Net Asset
Listing;
(h) the goodwill of the Business;
(i) the Lease and the Personal Property Leases;
(j) all lists of customers of the Business in the
possession of the Vendor showing, to the extent known
by the Vendor, the names, addresses, phone numbers,
e-mail addresses and contact persons for each
customer of the Business;
(k) all books, records, files and other documentation and
written materials relating exclusively to the
Business and all information and materials in the
possession or control of the Vendor in written or
electronic form in a database or otherwise to the
extent it relates to the Business, except to the
extent the Vendor needs to retain a particular book,
record, file, document or other written or electronic
material to perform services under the Logistics
Agreement or for its continuing business, where the
Vendor shall retain the original thereof and, if
requested by the Purchaser, deliver to the Purchaser
a copy thereof or provide the Purchaser reasonable
access thereto and if such access requires a
separation or extraction of such information or
materials by the Vendor, such separation or
extraction will be done in a reasonably timely manner
and the Purchaser will bear the cost thereof as a
special project and custom work under the Logistics
Agreement; and
(l) all rights of the Vendor in the "www.azertycan.com"
domain name and the following phone and fax numbers
used in the Business:
AZERTY SPECIFIC
(514) 331-1554
1 (800) 361-7057
1 (800) 361-5964
1 (800) 361-0585
(514) 331-2215
1 (800) 463-7975
AXIDATA COTE VERTU OFFICE
(514) 331-2660
1 (800) 361-7715
(514) 331-2998
9
AZERTY-SCARBOROUGH
(416) 291-1551
(416) 291-2484
1 (888) 268-3450
1 (888) 268-3449
except to the extent that any of the foregoing are or relate
to Excluded Assets.
3.2 EXCLUDED ASSETS
There shall be excluded from the purchase and sale of property and
assets herein contemplated any and all assets and property of the Vendor or
the Business not specifically identified in Section 3.1 hereof, including
without limitation, the following:
(a) cash on hand or in banks or other depositories;
(b) term or time deposits and similar cash items of,
owned or held by or for the account of the Vendor;
(c) refundable and creditable taxes and interest thereon
refundable to the Vendor in respect of any period
ending on the Closing Date;
(d) all receivables of the Business, except as
specifically described in clause (c) of Section 3.1,
including without limitation all amounts due from
suppliers by way of volume discounts, refunds or
otherwise;
(e) the assets set out on Schedule 3 that are not located
at the Leased Property or do not relate to the
Business, as determined in accordance with Section
4.4(a); and
(f) all books, records, files or other documentation and
written materials to the extent relating to any
Excluded Assets.
ARTICLE 4
PURCHASE PRICE
4.1 PURCHASE PRICE
The Purchase Price payable by the Purchaser to the Vendor for the
Purchased Assets net of the Assumed Liabilities shall be the sum of
$48,000,000 (subject to adjustment as described in Section 4.4).
4.2 ALLOCATION OF PURCHASE PRICE AND TAX ELECTIONS
The Purchase Price shall be allocated among the Purchased Assets in
accordance with Schedule 6. Schedule 6 shows the allocation of the Purchase
Price based on the Closing
10
Date Payment referred to in Section 6.1. The allocation of the Purchase Price
as finally determined in accordance with Section 4.4 shall be allocated in
the same manner as shown on Schedule 6 based on the final and binding Closing
Date Net Asset Listing. The Vendor and the Purchaser shall co-operate in the
filing of such elections under applicable Tax Legislation as may be necessary
or desirable to give effect to such allocation thereunder. The Vendor and the
Purchaser shall also execute and file an election as to the Accounts
Receivables to the extent permitted under Section 22 of the INCOME TAX ACT
(Canada) or any equivalent election in any other jurisdiction, using as the
consideration paid therefor the amount thereof on the Closing Date Net Asset
Listing. In addition, the Vendor and Purchaser shall execute and file their
respective Tax Returns in a manner consistent with the aforesaid allocations
and elections. If either party fails to file its Tax Returns as aforesaid,
such party shall indemnify and save harmless the other party in respect of
any additional Tax, and legal and/or accounting costs paid or incurred by the
other party as a result of the failure to file as aforesaid.
4.3 TRANSFER TAXES
The Purchaser shall be liable for and shall pay, either to the
Vendor at Closing or directly to the government authority, as required, all
federal and provincial sales taxes and all other Taxes or other like charges
properly payable upon and in connection with the transfer of the Purchased
Assets to the Purchaser, including, but not limited to GST and QST but
excluding any income taxes payable by the Vendor as a result of the
completion of the transactions herein contemplated. The Vendor and Purchaser
shall jointly elect under Section 167(1) of the GST Legislation and section
75(1) of the QST Act following the prescribed form and including the
prescribed information, with respect to the purchase and sale of the
Purchased Assets pursuant to the provisions of this Agreement. Such joint
elections shall be filed in compliance with the requirements of the GST
Legislation and the QST Act.
4.4 PURCHASE PRICE ADJUSTMENT
(a) Within thirty (30) days after the Closing Date, the Vendor
shall prepare (with the full co-operation and assistance of
any employees of the Business as reasonably required and whose
services shall be made available to the Vendor (at no cost to
the Vendor) on reasonable notice to the Purchaser and with
full access to the books and records of the Business) and
deliver to the Purchaser a listing of the Closing Net Assets
(the "CLOSING DATE NET ASSET LISTING"). The Vendor will
prepare the Closing Date Net Asset Listing in accordance with,
and on a consistent basis with, the accounting policies used
in the preparation of the Financial Statements using the same
line items as shown on the May Net Asset Listing, including
for greater certainty, Employee Receivables, Accrued Vacation
Pay and Accrued Commissions and Bonus. For the purposes of
determining the fixed assets of the business to be included in
the Closing Date Net Asset Listing, the parties shall, prior
to closing identify those assets that are to be included in
the Purchased Assets as described in Section 3.1(a) based on
Schedule 3, as updated by the parties to closing. The parties
acknowledge that Schedule 3 is a list of all of the fixed
assets owned by Axidata, the majority of which are not to be
included in the Purchased Assets and are used by Axidata in
the Compu-Redi/Tenex business or are to be used by Axidata for
the purposes of providing the services
11
under Logistics Agreement. Axidata has estimated that the
fixed assets of the Business to be acquired by the Purchaser
on closing have a net book value of approximately $400,000.
For the purpose of preparing the Closing Date Net Asset
Listing, the net book value of the particular asset forming
part of the fixed assets to be acquired by the Purchaser
shall be as shown on Schedule 3.
(b) The Closing Date Net Asset Listing shall, within thirty (30)
days of receipt thereof by the Purchaser, be binding and
conclusive upon, and deemed accepted by, the Purchaser unless
the Purchaser shall have notified the Vendor in writing within
such thirty (30) days of any objection thereto (the "PURCHASER
OBJECTION"). The Purchaser Objection shall set forth a
specific description of the basis of the Purchaser Objection
and the nature of adjustments to the Closing Date Net Asset
Listing that the Purchaser believes should be made. Any items
not specifically disputed during the said thirty (30) day
period shall be deemed to have been accepted by the Purchaser.
(c) If the parties hereto are unable to resolve any dispute within
fifteen (15) days following the Vendor's receipt of the
Purchaser Objection, they shall refer the remaining
differences to Deloitte & Touche (the "ACCOUNTING FIRM") for
decision, which decision shall be final and binding on the
parties. The procedure and schedule under which any dispute
shall be submitted to the Accounting Firm shall be as follows:
(i) within fifteen (15) days following the Purchaser
Objection under paragraph (b) of Section 4.4 above,
the Purchaser shall submit any unresolved elements of
its objection to the Accounting Firm in writing (with
a copy to the Vendor), supported by any documents
and/or affidavits upon which it relies. Failure to do
so without reasonable cause shall constitute a
withdrawal by the Purchaser of the Purchaser
Objection with respect to any unresolved element to
which such failure relates;
(ii) within fifteen (15) days following the Purchaser's
submission of the unresolved elements of the
Purchaser Objection as specified in clause (i) above,
the Vendor shall submit its response to the
Accounting Firm in writing (with a copy to the
Purchaser), supported by any documents and/or
affidavits upon which it relies;
(iii) the Accounting Firm shall deliver its written
determination within twenty (20) days following its
receipt of the information provided for in clauses
(i) and (ii) above, whichever shall be later, or such
longer period of time as the Accounting Firm
reasonably determines is necessary but not to exceed
an additional twenty (20) days without the prior
consent of the Vendor and the Purchaser. The
Purchaser and the Vendor shall make readily available
to the Accounting Firm all relevant books and records
and any work papers (including those of the parties'
respective accountants) relating to the respective
submissions and all other items reasonably requested
by the Accounting Firm; and
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(iv) the expenses relating to the engagement of the
Accounting Firm shall be borne by the Vendor and the
Purchaser in inverse proportion to their respective
successes in the determination of the Accounting
Firm.
(d) The Closing Date Net Asset Listing shall become final and
binding on the parties upon the earliest of:
(i) if no Purchaser Objection has been given, the
expiration of the period within which the Purchaser
must make its objection pursuant to paragraph (b) of
Section 4.4 hereof;
(ii) agreement in writing by the Vendor and the Purchaser
that the Closing Date Net Asset Listing, together
with any modifications thereto agreed by the Vendor
and the Purchaser, shall be final and binding; and
(iii) the date on which the Accounting Firm shall issue its
written determination with respect to any dispute
relating to the Closing Date Net Asset Listing.
The Closing Date Net Asset Listing, as submitted by the Vendor
if no Purchaser Objection has been given, or as adjusted
pursuant to any agreement between the parties or as determined
pursuant to the decision of the Accounting Firm, when final
and binding on all parties shall be used to determine the
Closing Net Assets of the Business.
(e) Within five (5) Business Days following the determination of
Closing Net Assets, an adjustment payment payable pursuant to
this paragraph (e) of this Section 4.4 (the "ADJUSTMENT
PAYMENT") shall be paid by wire transfer, in immediately
available funds, to a bank account designated by the Vendor or
the Purchaser, as the case may be. The Adjustment Payment
shall be the difference between the Closing Net Assets and the
May Net Assets. The Adjustment Payment shall be payable by the
Purchaser to the Vendor, if positive, and by the Vendor to the
Purchaser, if negative. The Adjustment Payment shall be
further adjusted to include any adjustments that have not been
previously made between the Vendor and the Purchaser as
required under Section 4.7 or Section 12.1(b).
4.5 ACCOUNTS RECEIVABLE
After the Effective Time, the Purchaser agrees that it will exercise
reasonable diligence in endeavouring to collect or cause to be collected all
amounts owing in respect of the Accounts Receivable during the period from
the Closing Date to the date that is six (6) months after the Closing Date
(the "COLLECTION PERIOD"). Such diligence shall be no less than the Purchaser
exercises in the collection of its own accounts receivable. Purchaser further
agrees that it shall not waive, settle or compromise the collection of any of
the Accounts Receivable without the consent of the Vendor. The Purchaser may
not grant time, renewals, extensions or indulgences to any customer that has
not paid the Accounts Receivable and may not accept
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compositions from any such customer or give up or modify or abstain from
perfecting or taking advantage of any security or contracts held as
collateral therefor without consent of the Vendor.
Upon the expiry of the Collection Period the Purchaser's obligation
to collect Accounts Receivable shall cease and thereupon the Purchaser shall
assign any uncollected Accounts Receivable to the Vendor and deliver to the
Vendor any books and records necessary for the Vendor to collect such
uncollected Accounts Receivable. Upon such assignment, the Vendor will pay to
the Purchaser the face amount of the uncollected Accounts Receivable plus an
amount equal to any shortfall in collecting the face amount of any Accounts
Receivable as a result of the Vendor's discount policy for early payment
thereof. From and after the expiry of the Collection Period any payments
received by the Purchaser on account of the uncollected Accounts Receivable
assigned to the Vendor shall be received in trust for the Vendor and shall be
remitted forthwith to the Vendor.
To the extent that during the Collection Period any customers return
for refund or credit any goods sold prior to the Closing Date, the Vendor
will pay to the Purchaser the face amount of such refunds or credits less the
realizable value of such returned goods.
4.6 INVENTORIES
For the purposes of determining Inventories to be acquired by the
Purchaser hereunder and to be included in the Closing Date Net Asset Listing,
the amount of all inventories of products held for distribution and/or sale
by the Vendor in both of its businesses (i.e. the Business and the
Compu-Redi/Tenex business) as reflected on the books and records of the
Vendor shall be determined as of the Effective Time and shall then be divided
pro rata by SKUs for all of the products included in the Vendor's inventory
for both businesses among the Business and the Compu-Redi/Tenex business in
the same ratio as the cost of goods sold of the Business is to the cost of
goods sold of the Compu-Redi/Tenex business on a SKU by SKU basis for the
three month period ending on March 31, 2000. If there has been no activity
for a particular SKU during such three month period, the 12 month period
ending December 31, 1999 will be used for the purpose of dividing the SKU pro
rata as described above.
4.7 OTHER ADJUSTMENTS
Water, rental, gas, hydro rates, insurance premiums, realty taxes,
municipal taxes, fuel, common area maintenance reimbursements and other usual
and similar prepaid expenses and accrued liabilities relating to the Leased
Property and any prepaid expenses or accrued liabilities relating to Personal
Property Leases shall be adjusted as between the Vendor and the Purchaser as
at the Effective Time.
ARTICLE 5
LIABILITIES
5.1 ASSUMPTION OF LIABILITIES
The Purchaser shall, from and after the Effective Time:
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(a) subject to Section 11.1.2 hereof, assume, perform and
fulfil to the extent required thereunder all
obligations of the Vendor under each of the
agreements, contracts and commitments referred to in
clause (e) of Section 3.1 and under the Lease and the
Personal Property Leases;
(b) except for that portion of the Business that is to be
performed by the Vendor under the Logistics
Agreement, pay, satisfy, discharge, perform and
fulfil all debts and liabilities incurred after the
Effective Time in connection with the conduct of the
Business;
(c) pay, satisfy and discharge all amounts representing
amounts due to customers for rebates and other
incentive payments as the same are to be reflected on
the Closing Date Net Asset Listing;
(d) assume obligations relating to the Transferred
Employees in accordance with Section 12.1; and
(e) for greater certainty the Purchaser is not assuming
any liabilities in respect of the Excluded Assets.
ARTICLE 6
PAYMENT OF PURCHASE PRICE
6.1 PAYMENT OF THE PURCHASE PRICE
The Purchase Price shall be payable by the delivery by the Purchaser
to the Vendor at the Time of Closing and in accordance with the provisions of
Article 16 of a certified cheque or bank draft payable at par in Toronto to
or to the order of the Vendor for the amount of $46,758,710 (the "CLOSING
DATE PAYMENT") being $48,000,000 minus the amount by which the December Net
Assets are more than the May Net Assets. If the Closing occurs on July 1,
2000, then the Purchaser will add interest of 8% per annum to the Closing
Date Payment for the three-day period July 1 through July 3, 2000, which are
not Business Days.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF THE VENDOR
7.1 REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor hereby represents and warrants to the Purchaser as
follows and acknowledges that the Purchaser is relying on such
representations and warranties in connection with the transactions herein
contemplated:
7.1.1 INCORPORATION, ORGANIZATION AND QUALIFICATION OF THE VENDOR
The Vendor is a corporation duly incorporated or continued and
subsisting under the laws of Canada. No proceedings have been instituted or
are pending for the dissolution or liquidation of the Vendor. The Vendor has
the necessary corporate power, authority and
15
capacity to own or lease the Purchased Assets and to carry on the Business as
now being conducted by it and is qualified to carry on the Business under the
laws of the Provinces of Ontario, Quebec and British Columbia, being the only
jurisdictions in which the nature of the Business as carried on by the Vendor
or the Purchased Assets owned or leased by it makes such qualification
necessary, or where failure to be so qualified would not have a material
adverse effect on the Business.
7.1.2 DUE AUTHORIZATION OF AGREEMENT
The Vendor has the necessary corporate power, authority and capacity
to enter into this Agreement, to sell the Purchased Assets to the Purchaser
as herein contemplated and to perform its other obligations hereunder. The
execution and delivery of this Agreement and the completion of the
transactions herein contemplated have been duly and validly authorized by all
necessary corporate action on behalf of the Vendor and this Agreement has
been duly and validly executed and delivered by the Vendor and is a valid and
binding obligation of the Vendor enforceable against the Vendor in accordance
with its terms.
7.1.3 CONFLICTING INSTRUMENTS
The entering into of this Agreement by the Vendor, the performance
by the Vendor of its obligations hereunder and the completion of the
transactions herein contemplated do not and will not conflict with or result
in the breach or violation of any of the terms and provisions of (i) the
constating documents or by-laws of the Vendor, (ii) subject to obtaining any
consent, approval, permit or acknowledgement which may be required thereunder
in connection with the completion of the transactions herein contemplated,
any licence or registration or any agreement, contract or commitment which
the Vendor is a party to or bound by or subject to, or (iii) any law or
regulation, domestic or foreign, or any judgment, decree, injunction, ruling,
order or award of any Tribunal. Schedule 17 discloses all consents,
approvals, permits or acknowledgements required under (ii) above, except
where the failure to obtain same would not have a material adverse effect on
the Business.
7.1.4 OPTIONS
No Person, other than the Purchaser under this Agreement (or as
otherwise disclosed in this Agreement), has any agreement or option or any
right capable of becoming an agreement or option for the purchase from the
Vendor of any of the Purchased Assets, other than pursuant to purchase orders
accepted by the Vendor in the Ordinary course.
7.1.5 TITLE TO PURCHASED ASSETS
At the Time of Closing, the Vendor will be the owner of the
Purchased Assets free of any Encumbrance (except for the interest of the
lessors under the Lease or the Personal Property Leases), and the Vendor is
exclusively entitled to possess and dispose of the same subject to (i) the
terms of the Trademarks Assignment and Administration Agreement and (ii) the
requirement to obtain consents from third parties as referred to in this
Agreement. The Purchased Assets together with the services to be provided to
the Vendor under the Logistics Agreement and by the employees of the Business
described in Schedule 8 in Section 8(a) thereof are sufficient in all
material respects to carry on the Business in the Ordinary course.
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7.1.6 ACCURACY OF BOOKS AND RECORDS
The books and records, accounting, financial or otherwise, of the
Vendor relating to the Business fairly and correctly set out and disclose in
all material respects the financial position of the Business as at the date
hereof and all material financial transactions of the Vendor relating to the
Business have been accurately recorded in such books and records.
7.1.7 FINANCIAL STATEMENTS, INTERIM FINANCIAL STATEMENTS, DECEMBER NET ASSET
LISTING AND MAY NET ASSET LISTING
The Financial Statements have been prepared in accordance with
generally accepted accounting principles insofar as such principles are
applicable to preparation of divisional statements and present fairly: (a)
all of the assets, liabilities and the financial condition of the Business as
at December 31, 1999; and (b) the revenues, earnings and results of
operations of the Business for the 12 month period ended on the December 31,
1999.
The Interim Financial Statements have been prepared in accordance
with generally accepted accounting principles insofar as such principles are
applicable to preparation of divisional statements and present fairly the net
sales, gross margin and direct freight and selling expenses of the Business
as at May 31, 2000.
The December Net Asset Listing is based on and has been prepared in
accordance with, and on a consistent basis with, the accounting policies used
in the preparation of the Financial Statements.
The May Net Asset Listing is based on and has been prepared in
accordance with, and on a consistent basis with, the accounting policies used
in the preparation of the Interim Financial Statements.
7.1.8 BUSINESS CARRIED ON IN ORDINARY COURSE
The Business has been carried on in the ordinary course since
December 31, 1999. The Vendor has not, since December 31, 1999, sold or
otherwise disposed of any of its property or assets relating to the Business
except in the ordinary course of business. Without limiting the generality of
the foregoing, since December 31, 1999:
(a) there has been no changes in the operations, affairs
or condition (financial or otherwise) of the
Business, except for changes occurring in the
ordinary course of business and which, in the
aggregate, have not materially adversely affected and
will not materially adversely affect the operations,
affairs, or condition (financial or otherwise) of the
Business;
(b) the Vendor has not waived, or agreed or become bound
to waive, any right of substantial value relating to
the Business or entered into any
17
commitment or transaction relating to the Business not
in the ordinary course of business;
(c) the Vendor has not created, or agreed or become bound
to create, or permitted the creation of, any
Encumbrance on any of the Purchased Assets (except
for any lien for unpaid Taxes not yet due);
(d) there has been no material damage, destruction or
loss (whether or not covered by insurance) affecting
the property or assets of the Business;
(e) there has been no labour dispute or labour proceeding
materially adversely affecting the property or assets
of the Business;
(f) there has been no write-down of the value of any
inventory or any write-off as uncollectible of any
accounts or notes receivable or any portion thereof
relating to the Business in amounts exceeding $10,000
in each instance or $50,000 in the aggregate;
(g) there has been no out of the ordinary course general
increase in the compensation of employees of the
Business (including, without limitation, any increase
pursuant to any Employee Benefits), or any out of the
ordinary course increase in any compensation or bonus
payable to any officer, employee, consultant or agent
thereof (having an annual salary or remuneration in
excess of $50,000);
(h) there have been no forward purchase commitments in
excess of the requirements of the Business for normal
operating inventories or at prices higher than the
then current market prices out of the ordinary and
normal course of business;
(i) there have been no forward sales commitments other
than in the ordinary and normal course of the
Business; and
(j) there has been no material change in the credit terms
offered to customers of, or by suppliers to, the
Business.
7.1.9 EMPLOYMENT AND EMPLOYEE BENEFIT MATTERS
(a) Except as set forth and described in Schedule 8, the Vendor is
not:
(i) a party to or bound by or subject to any written or
significant oral agreement or arrangement with
respect to Employee Benefits relating to employees or
independent contractors of or with the Business;
(ii) a party to or bound by or subject to any agreement or
arrangement with any labour union or employee
association relating to employees of the Business and
has made no commitment to or
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conducted any negotiation or discussion with any
labour union or employee association with respect to
any future agreement or arrangement relating to
employees of the Business; or
(iii) required to recognize any labour union or employee
association representing employees of the Business or
any agent having bargaining rights for employees of
the Business and, to the best of the knowledge and
belief of the Vendor, there is no current attempt to
organize or establish any labour union or employee
association with respect to employees of the
Business;
(b) Except for the names of those employees referred to in (d)
below, the names of the employees of the Business, their date
of hire with the Vendor or, to the best of the knowledge of
the Vendor, a predecessor of the Vendor to the Business, their
position or title and the rate of pay and a Summary of the
Employee Benefits to which they are entitled are set forth and
described in Schedule 8.
(c) Section 8(a) of Schedule 8 identifies those employees of the
Business who are to be offered employment with the Purchaser
as required by Section 12.1 hereof.
(d) Section 8(b) of Schedule 8 identifies by position or title
those employees of the Business that are being retained as
employees of the Vendor after Closing primarily for the
purpose of performing services under the Logistics Agreement
and carrying out similar roles for the Compu-Redi/Tenex
business.
(e) Except as disclosed in Schedule 8, there are no employees of
the Business who are currently absent from work and who have
been absent continually from work for a period in excess of
one month, whether on layoff, long-term or short-term
disability, parental leave or otherwise. Except as disclosed
on Schedule 8, no employee of the Business is in receipt of
benefits under any long-term or short-term disability plan
provided by the Vendor, or under the WORKPLACE SAFETY AND
INSURANCE ACT (Ontario), the EMPLOYMENT INSURANCE ACT
(Canada), the Act respecting Industrial Accidents and
Occupational Diseases (Quebec), WORKERS COMPENSATION ACT
(B.C.), or other provincial or federal disability plan.
(f) To the best of the Vendor's knowledge it is in compliance in
all material respects with all Employment Legislation and,
without limiting the generality of the foregoing: (i) all
levies, assessments and penalties made against the Vendor
pursuant to the WORKPLACE SAFETY AND INSURANCE ACT (Ontario)
and the Act respecting Industrial Accidents and Occupational
Diseases, WORKERS COMPENSATION ACT (B.C.) have been paid; (ii)
the Vendor is currently in Rate Group 668 for workers'
compensation purposes in Ontario, in the 71040 unit of
classification for Workers'
19
Compensation purposes in Quebec and in classification unit
742015 for workers' compensation purposes in British Columbia;
(iii) there has been no change in the rating assessment
applicable to the Vendor under the WORKPLACE SAFETY AND
INSURANCE ACT (Ontario) or under the Act respecting Industrial
Accidents and Occupational Diseases (Quebec) since the Vendor
has acquired the Business; and (iv) the Vendor is not aware
of any audit currently being performed by the Workplace Safety
and Insurance Board (Ontario), Workers Compensation Board
(B.C.) or the Commission de la sante et de la securite du
travail (Quebec).
(g) All accruals for unpaid vacation pay, premiums for
unemployment insurance, health premiums, Canada Pension Plan
premiums, Quebec Pension Plan premiums, accrued wages,
salaries and commissions and employee benefit plan payments in
respect of the employees of the Business have been materially
reflected in the books and records of the Vendor.
7.1.10 PENSION AND RETIREMENT PLANS
Except for the Group RRSP identified on Schedule 8 hereto, the Vendor
does not have any pension or retirement plan for the employees of the Business.
7.1.11 MATERIAL CONTRACTS
Except for agreements, contracts and commitments in the Ordinary
course, none of which has a term of more than three months or any agreement,
contract or commitment under which the obligations of the Vendor do not exceed
$50,000 individually, the Vendor is not a party to or bound by or subject to any
agreement, contract or commitment, written or oral, of any nature or kind
relating to the Business except for:
(a) forward commitments by the Vendor for supplies or materials
entered into in the Ordinary course of the Business for use in
the Business;
(b) service contracts on office equipment;
(c) the Personal Property Leases;
(d) the Lease;
(e) insurance policies covering the Business;
(f) the agreements, contracts and commitments set forth and
described in Schedule 5;
(g) employment and other agreements or commitments and benefit
plans identified on Schedule 8; and
20
(h) those other agreements, contracts or commitments disclosed in
Schedule 9.
7.1.12 STATUS OF AGREEMENTS
Each of the agreements, contracts and commitments which the Vendor is a
party to or bound by or subject to relating to the Business referred to in
Section 7.1.11 is valid and subsisting and in good standing, there is no
material default by the Vendor thereunder or, to the best of the knowledge of
the Vendor, any other party thereto, and, to the best of the knowledge of the
Vendor, there are no facts which, after notice or lapse of time or both, would
constitute such a default. The Vendor is entitled to all rights and benefits
under each of such agreements or contracts and commitments. The Vendor has
provided a true copy of all such agreements, contracts and commitments to the
Purchaser.
7.1.13 LEASES
The Lease and the Personal Property Leases are valid and subsisting,
there is no material default thereunder by the Vendor or, to the best of the
knowledge of the Vendor, any other party thereto, and the Vendor is entitled to
all rights and benefits thereunder. The Vendor has the exclusive right to occupy
and use the Leased Premises in accordance with the terms of the Lease. The
Vendor has provided a true copy of the Lease and the Personal Property Leases to
the Purchaser.
7.1.14 TRADEMARK
(a) The trademark "Azerty" is, subject to the terms of the
Trademark Assignment and Administration Agreement, owned by
the Vendor in Canada and is registered in the Canadian
Intellectual Property Office (Trademarks) under Registration
No. TMA294,047.
(b) The use of the Trademark by the Vendor in conducting the
Business does not in any material respect infringe upon or
breach any intellectual property rights of any other person
and the Vendor is not aware of any infringement or violation
by any other person of the rights of the Vendor to the
Trademark.
(c) To the knowledge of the Vendor, the conduct of the Business
does not in any material respect infringe upon or breach any
intellectual property rights of any other person.
(d) The rights, benefits and obligations relating to the Trademark
as set out in the Trademark Assignment and Administration
Agreement have not been modified, limited or affected by the
terms of the asset purchase agreement dated November 17, 1998
made between Axidata Inc., Abitibi-Consolidated Inc., the
Vendor (formerly, 3553906 Canada Inc.) and Miami. No consent
of any party is required in connection with the assignment by
the Vendor to the Purchaser of the Trademark Assignment and
Administration Agreement.
21
(e) Other than the Trademark, there are no other trademarks or
other material intellectual property rights used in the
Business.
(f) Subject to entering into the MicomPro Agreement in form
satisfactory to the Vendor, acting reasonably, as contemplated
in Section 10.1.9, the Vendor has the right to make available
to the Purchaser for the Purchaser's use a copy of the
Interact software currently used by the Vendor in its business
(including a copy of the current object code and source code
with respect thereto) without any third party consent or
notice requirements. To the best of the Vendor's knowledge, no
one has asserted that the Vendor does not have such right or,
except with respect to fees payable to MicomPro Limited, that
the Vendor has any obligation to pay any licensing or other
fees, royalties or similar payments in connection with the
Vendor's use of such software.
7.1.15 ACCOUNTS RECEIVABLE
The Accounts Receivable which are being purchased by the Purchaser have
arisen in the ordinary course of the Business, are bona fide, good and
collectible without set-off or counterclaim.
7.1.16 LEGAL PROCEEDINGS
Except as set forth and described in Schedule 10, there is no Legal
Proceeding (whether or not purportedly on behalf of the Vendor) involving a
claim in excess of $10,000 that is in progress or pending or, to the knowledge
of the Vendor, threatened against or affecting the Vendor relating to the
Business or the Purchased Assets at law or in equity or before or by any
Tribunal. To the best of the knowledge and belief of the Vendor there are no
grounds on which any such Legal Proceeding might be commenced with any
reasonable likelihood of success. Except as set forth and described in Schedule
10, the Vendor has not received notice of any judgment, decree, injunction,
ruling, order or award of any Tribunal outstanding against or affecting the
Vendor relating to the Business or the Purchased Assets.
7.1.17 COMPLIANCE WITHAPPLICABLE LAWS
Except in respect of environmental matters which are separately dealt
with in Section 7.1.18, the Vendor has conducted and is conducting the Business
in compliance in all material respects with all applicable laws, rules and
regulations of each jurisdiction, domestic or foreign, in which the Business is
carried on, is not in breach of any of such laws, rules or regulations, except
for non-compliance or breaches which in the aggregate are not material.
7.1.18 ENVIRONMENTAL MATTERS
(a) The Vendor is not in violation of, and has not violated, in
connection with the operations of the Business any applicable
federal, provincial, municipal or local laws, regulations,
orders, policies or guidelines, permits, licences,
certificates or approvals, domestic or foreign, of any
governmental authorities ("ENVIRONMENTAL LAWS") relating to
the
22
protection of the environment, occupational health and
safety, or the manufacturing, processing, distribution, use,
treatment, storage, disposal, discharge, packaging, transport,
handling, containment, clean-up or other remediation or
corrective action of any pollutants, contaminants, chemicals
or industrial, toxic or hazardous wastes or substances
("HAZARDOUS SUBSTANCES"),
(b) The Vendor has not used or permitted to be used, except in
compliance with all Environmental Laws, any of its properties
or facilities used in connection with the Business to
generate, manufacture, process, distribute, use, treat, store,
dispose of, transport or handle any Hazardous Substance;
(c) To the best of the knowledge of the Vendor, no building,
structure or improvement owned or leased by the Vendor in
connection with the Business is or ever has been insulated
with urea formaldehyde insulation, and none of such buildings
or structures contains or ever has contained asbestos or PCBs;
(d) Except as disclosed in Schedule 10, and with respect to those
matters related to the Environmental Remediation, the Vendor
has not caused or permitted, nor to the knowledge of the
Vendor has there been any, release, emission, spill or
discharge, in any manner whatsoever, of any Hazardous
Substance on, in, around, from or in connection with any of
the properties or assets used in the Business. Except as
disclosed in Schedule 10, all Hazardous Substances and all
other wastes and other materials and substances used in whole
or in part by the Vendor or resulting from the Business have
been disposed of, treated and stored by the Vendor in
compliance with all Environmental Laws; and
(e) There are no orders, rulings or directives issued, pending or
to the Vendor's knowledge threatened against the Vendor under
or pursuant to any Environmental Laws requiring any work,
repairs, construction or capital expenditures with respect to
the operation of the Business.
7.1.19 RESIDENCE OF VENDORS; GST STATUS
The Vendor is not a non-resident of Canada within the meaning of the
INCOME TAX ACT (Canada). The Vendor is registered for purposes of the GST
Legislation and its registration number is 881118228RT0001. The Vendor is
registered for the purposes of the QST and its registration number is
M1021873264.
7.1.20 SALES OF THE BUSINESS
(a) The Vendor together with its affiliates (as such term is used
in the COMPETITION ACT (Canada)) do not, based on their
financial statements for their last completed fiscal year,
have assets in Canada or annual gross revenues from sales in,
from or into Canada which exceed, in either case,
23
$300,000,000 dollars within the meaning of and as determined
by S. 109 of the COMPETITION ACT (Canada) and the regulations
thereto.
(b) Sales in or into the United States attributable to the
Purchased Assets did not aggregate (U.S.) $25 million dollars
or more during the Vendor's most recent fiscal year as set
forth in Rule 802.50(a) of the Exemption Rules promulgated
under the HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT of
1976, as amended.
7.1.21 CUSTOMERS AND SUPPLIERS
In the six month period up to the date hereof, there has been no
termination or cancellation of, and no modification or change in, the Vendor's
business relationship with, any major customer or major supplier of the Business
(being a customer or supplier of the Business accounting for more than $832,000
in annual sales in the case of a customer and $2,164,000 in annual costs in the
case of a supplier). The Vendor has no reason to believe that the relationship
with any of the major customers or major suppliers of the Business will not
continue after the Closing Date in substantially the same manner as immediately
prior to the date of this Agreement.
7.1.22 INSURANCE
The Vendor maintains fire (with extended risk and casualty coverage),
liability, business interruption, use and occupancy and other forms of insurance
with reputable and sound insurers covering the Purchased Assets and protecting
the Business in such amounts and against such losses and claims as are generally
maintained for comparable businesses and properties. Schedule 11 sets forth and
describes all insurance policies currently maintained by the Vendor relating to
the Purchased Assets and the Business. Each of such insurance policies is valid
and subsisting and in good standing and the Vendor is entitled to all rights and
benefits thereunder. Schedule 11 sets forth and describes all pending claims
under any of such insurance policies. The Vendor has not failed to give any
notice or present any claim under any of such insurance policies in due and
timely fashion where such failure would have a material adverse effect on the
Business. No notice of cancellation or non-renewal with respect to, nor
disallowance of any claim under, any of such insurance policies has been
received by the Vendor. To the best of the knowledge and belief of the Vendor
there are no circumstances or occurrences which would or might form the basis of
a material increase in premiums for the current insurance coverage maintained by
the Vendor relating to the Business.
7.1.23 DISCLOSURE
The representations and warranties of the Vendor included in this
Agreement and in any agreement, certificate, affidavit, statutory declaration or
other document delivered or given pursuant to this Agreement are true and
correct and do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements contained in such
representations and warranties not misleading to a prospective purchaser of the
Purchased Assets.
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7.1.24 NO CONFIDENTIAL INFORMATION
The Vendor has no Confidential Information which has not already been
reviewed or made available for review by the Purchaser.
7.2 NO OTHER REPRESENTATIONS AND WARRANTIES
Except for the representations and warranties set forth in this Article
7, the Vendor makes no further representations or warranties to the Purchaser,
whether express or implied, statutory or otherwise, with respect to the
Purchased Assets or the Business.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Vendor as follows
and acknowledges that the Vendor is relying on such representations and
warranties in connection with the transactions herein contemplated:
8.1.1 INCORPORATION, ORGANIZATION AND AUTHORITY OF THE PURCHASER DUE
AUTHORIZATION OF AGREEMENT AND ENFORCEABILITY OF OBLIGATIONS
The Purchaser is a corporation duly incorporated and subsisting under
the laws of the State of Illinois, U.S.A. and has the necessary corporate power,
authority and capacity to enter into this Agreement, to purchase the Purchased
Assets from the Vendor as herein contemplated and to perform its other
obligations hereunder. The execution and delivery of this Agreement and the
completion of the transactions herein contemplated have been duly and validly
authorized by all necessary corporate action on behalf of the Purchaser, and
this Agreement has been duly and validly executed and delivered by the Purchaser
and is a valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms.
8.1.2 CONFLICTING INSTRUMENTS, ETC.
The entering into of this Agreement by the Purchaser and the
performance of its obligations hereunder do not and will not conflict with or
result in the breach or violation of (i) the constating documents or by-laws of
the Purchaser, (ii) subject to obtaining any consent, approval, permit or
acknowledgement which may be required thereunder in connection with the
completion of the transactions herein contemplated, any agreement, contract or
commitment, written or oral, which the Purchaser is a party to or bound by or
subject to, or (iii) any law or regulation, domestic or foreign, or any
judgment, decree, injunction, ruling, order or award of any Tribunal.
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8.1.3 LEGAL PROCEEDINGS
There is:
(a) no Legal Proceeding (whether or not purportedly on
behalf of the Purchaser) in progress, pending,
threatened against or affecting the Purchaser at law
or in equity or before or by any Tribunal and, to the
best of the knowledge and belief of the Purchaser,
there are no grounds on which any such Legal
Proceeding might be commenced with any reasonable
likelihood of success; and
(b) no judgment, decree, injunction, ruling, order or
award of any Tribunal outstanding against or
affecting the Purchaser;
which, in any such case, might adversely affect the ability of the Purchaser to
enter into this Agreement or to perform their respective obligations hereunder.
8.1.4 GST STATUS
The Purchaser is registered for purposes of the GST Legislation and its
registration number is 89555 7759 RT 0001. The Purchaser is registered for the
purposes of the QST and its registration number is 102 346 2059 TQ 0001.
8.1.5 FINANCIAL CAPABILITY
The Purchaser expects to have sufficient funds or capital commitments
in place to purchase the Purchased Assets on the terms and conditions contained
in this Agreement.
8.1.6 INVESTMENT CANADA ACT
The Purchaser is a "non-Canadian" as defined within the INVESTMENT
CANADA ACT.
8.1.7 SALES OF THE BUSINESS
The Purchaser and its other its affiliates (as such term is used in the
COMPETITION ACT (Canada)) do not, based on their financial statements for their
last completed fiscal year, have assets in Canada or annual gross revenues from
sales in, from or into Canada which exceed, in either case, $20,000,000 dollars
within the meaning of and as determined by S. 109 of the COMPETITION ACT
(Canada) and the regulations thereto.
8.1.8 DISCLOSURE
The representations and warranties of the Purchaser included in this
Agreement and in any agreement, certificate, affidavit, statutory declaration or
other document delivered or given pursuant to this Agreement are true and
correct and do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements contained in such
representations and warranties not misleading.
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ARTICLE 9
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The representations and warranties of the Vendor contained in this
Agreement and in any agreement, certificate, affidavit, statutory declaration or
other document delivered or given pursuant to this Agreement (except in respect
of a breach thereof which has been disclosed in writing to the Purchaser prior
to the Time of Closing) shall survive the Closing and, notwithstanding such
Closing or any investigation made by or on behalf of the Purchaser with respect
thereto, shall continue in full force and effect for the benefit of the
Purchaser provided, however, that no claim in respect thereof shall be valid
unless it is made within two (2) years from the Closing Date and in accordance
with the provisions set forth in Article 17 and, upon the expiry of such
limitation period referred to above, the Vendor shall have no further liability
to the Purchaser with respect to any of such representations and warranties,
except in respect of claims which have theretofore been made in accordance with
the provisions set forth above.
9.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The representations and warranties of the Purchaser contained in this
Agreement or in any agreement, certificate, affidavit, statutory declaration or
other document delivered or given pursuant to this Agreement (except in respect
of a breach thereof which has been disclosed in writing to the Vendor prior to
the Time of Closing) shall survive the Closing and, notwithstanding such Closing
or any investigation made by or on behalf of the Vendor with respect thereto,
shall continue in full force and effect for the benefit of the Vendor provided,
however, that no claim in respect thereof shall be valid unless it is made
within a period of two (2) years from the Closing Date and in accordance with
the provisions set forth in Article 17 and, upon the expiry of such limitation
period, the Purchaser shall have no further liability to the Vendor with respect
to any of such representations or warranties, except in respect of claims which
have theretofore been made in accordance with the provisions set forth above.
ARTICLE 10
COVENANTS OF THE VENDOR
10.1 COVENANTS OF THE VENDOR
The Vendor hereby covenants and agrees with the Purchaser as follows:
10.1.1 INVESTIGATIONS AND AVAILABILITY OF RECORDS
Subject as hereinafter provided, between the date hereof and the
Closing Date the Vendor shall permit the Purchaser to make such investigations
of the Business and the Purchased Assets as the Purchaser reasonably deems
necessary or desirable to confirm the representations and warranties of the
Vendor contained herein; provided that such investigations shall be carried out
without undue interference with the operations of the Business and the Vendor
shall co-operate in facilitating such investigations and shall furnish copies,
at the Purchaser's cost, of all such documents and materials relating to such
matters as may be reasonably requested by or on behalf of the Purchaser.
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10.1.2 CONSENTS, ETC.
Commencing forthwith after the date hereof the Vendor shall use
commercially reasonable efforts to obtain at or prior to the Time of Closing all
necessary consents, approvals, permits and acknowledgements which may be
required in connection with the completion of the transactions herein
contemplated.
10.1.3 CONDUCT OF THE BUSINESS
(a) Between the date hereof and the Time of Closing the Vendor
shall:
(i) cause the Business to be carried on in the ordinary
course; and
(ii) use commercially reasonable efforts to preserve the
Business and the goodwill of suppliers, customers and
others having relations with the Business; and
(iii) use commercially reasonable efforts to retain the
services of the present employees of Business.
(b) Between the date hereof and the Time of Closing the Vendor
shall not (except as may be otherwise required or contemplated
by the provisions of this Agreement), without the prior
written consent of the Purchaser, not to be unreasonably
withheld or delayed:
(i) become a party to or bound by or subject to any new
agreement, contract or commitment relating to
non-inventory suppliers of the Business, or amend or
concur in the amendment of any such existing
agreement, contract or commitment to the Business
that will result in non-inventory expenditures by the
Business in excess of $200,000 in any one year
period. Notwithstanding the foregoing, the Vendor
shall not be limited with respect to any purchases of
inventory in the Ordinary course.
(ii) make or authorize any capital expenditure relating to
the Business except in the ordinary course of
business and the aggregate cost of all such capital
expenditures shall not exceed $200,000;
(iii) become a party to or bound by or subject to any new
agreement or arrangement with respect to Employee
Benefits relating to the Business (other than an
employment or personal services agreement or
arrangement which is terminable without liability on
no more than 30 days' notice) or amend or concur in
the amendment of or increase any payment under any
existing agreement or arrangement with respect to
Employee Benefits relating to the Business other than
such as is required or contemplated by an existing
agreement, policy or practice as to periodic review
of Employee Benefits;
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(iv) purchase, sell or lease any of the Purchased Assets
other than in the ordinary course of business;
(v) create or permit the creation of any new Encumbrance
on any of the Purchased Assets (except for any lien
for unpaid Taxes not yet due) or amend or concur in
the amendment of any such existing Encumbrance; or
(vi) change or alter the overall physical content or
character of any Inventories so as to materially
affect the nature of the Business or materially and
adversely change the value of such Inventories from
that reflected in the Financial Statements;
or agree or become bound to do any of the foregoing.
10.1.4 DELIVERY OF AGREEMENTS
The Vendor shall execute and deliver to the Purchaser at the Time of
Closing
(i) a non-competition agreement in the form of the
unexecuted non-competition agreement annexed hereto
as Schedule 12;
(ii) a logistics agreement in the form of the unexecuted
logistics information technology agreement annexed
hereto as Schedule 13; and
(iii) a paper supply agreement in the form of the
unexecuted paper supply agreement annexed hereto as
Schedule 14.
10.1.5 SECTION 6 (RETAIL SALES TAX ACT (ONTARIO)) CERTIFICATE
Forthwith upon the execution of this Agreement the Vendor shall
apply for and deliver to the Purchaser on or before Closing a certificate
issued by the Minister of Revenue pursuant to Section 6 of the Retail Sales
Tax Act (Ontario) and the equivalent certification in other jurisdictions
where a material part of the Purchased Assets are located, which
certificate(s) shall indicate that the Vendor has paid all taxes collectable
or payable under the said Act in respect of the Division or has entered into
an arrangement satisfactory to the said Minister, or the equivalent authority
in each other relevant jurisdiction, for the payment of such taxes.
10.1.6 ARRANGEMENT RE: CHEQUES
The Vendor shall make arrangements at the Time of Closing,
satisfactory to the Purchaser, to ensure that all cheques or other payments
received by the Vendor from and after the Time of Closing which relate to the
Accounts Receivable shall be endorsed over without recourse and delivered to
the Purchaser, except to the extent uncollected Accounts Receivable have been
reassigned to the Vendor under Section 4.5.
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10.1.7 ARRANGEMENT RE: TELEPHONE AND FAX NUMBERS
The parties will use commercially reasonable efforts to transfer to
the Purchaser the rights in the telephone and fax numbers identified in
Section 3.1(l).
10.1.8 FIXED ASSETS
The Vendor will provide to the Purchaser a list of the fixed assets of
the Business to be transferred to the Purchaser on Closing based on the list of
fixed assets attached as Schedule 3.
10.1.9 INTERACT SOFTWARE AGREEMENT
The Vendor will make reasonable commercial efforts to enter into (i) a
software service agreement (the "MICOMPRO AGREEMENT") with MicomPro Limited
("MICOMPRO") relating to the "Interact" software (the "SOFTWARE") substantially
in the form of the Draft No. 2, June 12, 2000 version of such agreement prepared
by Fraser Milner Casgrain, in such final form agreed to by the Vendor and the
Purchaser, each acting reasonably, and (ii) a licence agreement (the "Interact
Licence Agreement") with the Purchaser, in order to satisfy the conditions
contained in Sections 14.1.9 and 15.1.6.
ARTICLE 11
COVENANTS OF THE PURCHASER
11.1 COVENANTS OF THE PURCHASER
The Purchaser hereby covenants and agrees with the Vendor as follows:
11.1.1 CONFIDENTIALITY
The parties hereto acknowledge and agree that the Confidentiality
Agreement continues to apply in accordance with its terms between the date
hereof and Closing.
11.1.2 VENDOR SUPPLY AGREEMENTS
The Purchaser acknowledges that the Vendor Supply Agreements have been
entered into by the Vendor in respect of the Business and in respect of its
Compu-Redi/Tenex business. It is the intention of the Purchaser and the Vendor
that they will each take commercially reasonable steps to renegotiate the Vendor
Supply Agreements with the relevant vendors thereto in order to extend the
benefits thereof to the Purchaser and to fully co-operate with each other with
respect thereto.
11.1.3 CONSENTS
Commencing forthwith after the date hereof, the Purchaser will fully
co-operate with the Vendor and take all commercially reasonable steps, including
executing any documents reasonably required, to allow the Vendor to obtain at or
prior to the Time of Closing all
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necessary consents, approvals, permits and acknowledgements required to be
obtained under Section 10.1.2.
11.1.4 DELIVERY OF AGREEMENTS
The Purchaser shall execute and deliver to the Vendor at the Time of
Closing the non-competition agreement, logistics information technology
agreement and paper supply agreement referred to in Section 10.1.4.
11.1.5 TAXES
After Closing the Purchaser shall furnish or cause to be furnished to
the Vendor, upon request, as promptly as practicable, such information
(including access to books and records) and assistance relating to the Business
or the Purchased Assets as is reasonably necessary for the filing by the Vendor
of any Tax Return, for the preparation for any audit or for the prosecution or
defense of any Legal Proceeding or proposed adjustment relating to Taxes of the
Vendor or the Purchaser relating to the Business or the Purchased Assets.
11.1.6 MAINTENANCE AND ACCESS TO RECORDS
The Purchaser agrees that it will retain all books and records and any
other documents, information and files relating to the Business or the Purchased
Assets delivered to it by the Vendor and relating to any period ending on or
prior to the Closing Date for a period of six years following the Closing Date.
So long as such books and records and such other documents, information and
files are retained by the Purchaser, the Vendor or its authorized
representatives shall have reasonable access thereto in connection with the
affairs of the Vendor relating to its Tax matters.
11.1.7 FIXED ASSETS
The Purchaser will timely and in good faith review the list of fixed
assets to be prepared by the Vendor under Section 10.1.8 with a view to
satisfying the Purchaser's condition to closing contained in Section 14.1.8.
11.1.8 INTERACT SOFTWARE AGREEMENT
The Purchaser will, acting reasonably and in good faith, co-operate
with the Vendor and MicomPro to finalize the MicomPro Agreement, the Interact
Licence Agreement and a licence agreement between the Purchaser and MicomPro
(the "MicomPro Licence Agreement") in order to satisfy the conditions in
Sections 14.1.9 and 15.1.6.
ARTICLE 12
EMPLOYEE MATTERS
12.1 EMPLOYEES AND TRANSFERRED EMPLOYEES
(a) Subject to the Closing taking place as herein contemplated,
the Purchaser shall offer employment to be effective and
commence at the Effective
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Time to each of the employees of the Business whose names
are set forth in Section 8(a) of Schedule 8, on no less
favourable terms and conditions as to Employee Benefits as
were in effect immediately prior to the Effective Time. The
Purchaser shall assume and shall indemnify the Vendor from
and against any and all obligations including reasonable
legal costs with respect to the Transferred Employees arising
after the Effective Time and shall recognize the service of
the Transferred Employees for all purposes including, without
limitation, Employee Benefits, as if they had been employed
by the Purchaser since their individual dates of hire by the
Vendor or its predecessors to the Business. Notwithstanding
the foregoing, the Vendor shall be responsible for any
liability including, without limitation, liability for
severance and termination costs and for Employee Benefits in
respect of any employee who has not accepted the Purchaser's
offer of employment as aforesaid.
(b) All liabilities and costs in respect of employees of the
Business including premiums for employment insurance, Canada
Pension Plan, Quebec Pension Plan, employer health tax,
applicable statutory hospitalization insurance, workers'
compensation assessments, Labour Standards Assessments,
accrued wages, salaries and commissions, vacation pay,
employee benefit plan payments and employee bonus and
incentive payments will be adjusted to the Effective Time and
shall be for the account of the Vendor to the extent they
relate to the period up to and including the Effective Time
(except to the extent accrued on the Closing Date Net Asset
Listing) and of the Purchaser, in respect of the Transferred
Employees only, to the extent they relate to the period
following the Effective Time. The Purchaser undertakes and
agrees that if it has received payment from the Vendor (or an
adjustment credit from the Vendor) in respect of any
entitlements of Transferred Employees for the period up to the
Effective Time, the Purchaser will make payment of such
amounts to the respective Transferred Employees who are
entitled thereto.
ARTICLE 13
BULK SALES LEGISLATION
13.1 BULK SALES COMPLIANCE
The parties hereto believe that, assuming compliance with this
Agreement by both the Vendor and the Purchaser, it is both unnecessary for the
protection of the Vendor's creditors and impracticable to comply with the Bulk
Sales Legislation in the various jurisdictions in which the Purchased Assets are
located. Accordingly, in the event that any creditor of the Vendor should make
any claim against either the Purchaser or the Purchased Assets which is wholly
or partially based on the premise that the sale of the Purchased Assets did not
conform in any particular to the requirements of the Bulk Sales Legislation of
any such jurisdiction, the Vendor agrees to indemnify and save the Purchaser
harmless from and against any claim for principal, interest and costs, including
reasonable legal and accounting fees, whether or not the claim is ultimately
proved to be well founded, except to the extent that the claim relates to a
liability of
32
the Business after the Effective Time or which is to be assumed by the
Purchaser hereunder and which the Purchaser has failed to discharge.
ARTICLE 14
PURCHASER'S CONDITIONS OF CLOSING
14.1 CONDITIONS FOR THE BENEFIT OF THE PURCHASER
The transactions herein contemplated, including the sale and purchase
of the Purchased Assets in accordance with the terms of this Agreement, are
subject to the following conditions, each of which is hereby declared to be for
the exclusive benefit of the Purchaser. Each of such conditions is to be
fulfilled and/or performed at or prior to the Time of Closing. The Vendor agrees
to use commercially reasonable efforts to cause each of such conditions to be
fulfilled and/or performed at or prior to the Time of Closing.
14.1.1 TRUTH OF REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The representations and warranties of the Vendor contained in this
Agreement and in any agreement, certificate or other document delivered or given
pursuant to this Agreement (including, without limitation, the representations
and warranties set forth in Article 7) shall, except to the extent required to
be modified to reflect the satisfaction of the terms of this agreement, be true
and correct on the date hereof and at the Time of Closing in all material
respects with the same force and effect as if such representations and
warranties had been made on and as of each of such times. The Vendor shall
deliver to the Purchaser at the Time of Closing a certificate to such effect and
to the effect that as of the Closing Date each of the conditions set forth in
this Article 14 have been complied with in all material respects.
14.1.2 PERFORMANCE OF COVENANTS, ETC, BY THE VENDOR
The Vendor shall have performed in all material respects all
obligations, covenants and agreements contained in this Agreement to be
performed by the Vendor at or prior to the Time of Closing including, without
limitation, the covenants set forth in Article 10.
14.1.3 LEGAL OPINION
Legal opinions of Messrs. Fraser Milner Casgrain and Elias, Matz,
Tiernan & Herrick, L.L.P. dated the Closing Date substantially in the form
attached as Schedule 15 shall have been received by the Purchaser at the Time of
Closing.
14.1.4 CONSENTS, ETC.
There shall have been obtained from all appropriate Persons such
consents, approvals, permits and acknowledgements as may be reasonably required
in connection with the completion of the transactions herein contemplated,
except to the extent that failure to obtain such consents would not have a
material adverse effect on the Business or would not affect the ability of the
Vendor to consummate the transactions contemplated hereby. Such consents shall
include, in any event, a consent and estoppel certificate under the Lease and a
consent under the Vendor's agreement with The Business Depot Ltd. As
contemplated in Section 11.1.2, the
33
Purchaser shall have completed to its reasonable satisfaction its negotiation
of vendor supply agreements with Hewlett-Packard (Canada) Ltd., Lexmark
Canada Inc. and Canon Canada Inc.
14.1.5 NO ACTION TAKEN RESTRICTING SALE
No Legal Proceeding shall have been commenced or shall be pending or
threatened against the Vendor at law or in equity or before or by an Tribunal
which would affect the title of the Vendor to the Purchased Assets or would
enjoin, restrict or prohibit or would have the effect of preventing the
completion of the transactions herein contemplated, including the sale and
purchase of the Purchased Assets in accordance with the terms of this Agreement
or which might adversely affect the ability of the Vendor to enter into this
Agreement or to perform its obligations hereunder.
14.1.6 MATERIAL ADVERSE CHANGE
Between the date hereof and the Time of Closing:
(a) no substantial damage by fire or other hazard to the Purchased
Assets shall have occurred;
(b) no legal proceeding shall have been commenced or shall be
pending or threatened against the Vendor at law or in equity
or before or by any Tribunal; and
(c) no change in the operations, affairs or condition (financial
or otherwise) or relationships with customers or suppliers of
the Business shall have occurred;
which, in the case of any such occurrence, would have a material adverse effect
on the Business or the Purchased Assets or the Vendor's ability to transfer the
Purchased Assets at the Closing.
14.1.7 BANK FINANCING
The Purchaser shall have arranged financing with such financial
institution or institutions as the Purchaser may choose in order to effect the
acquisition contemplated hereby on terms satisfactory to it, acting reasonably,
and the funds drawn down by the Purchaser thereunder shall have been made
available to the Purchaser conditional on completion of such acquisition.
14.1.8 FIXED ASSETS
The Purchaser shall, acting reasonably and in good faith, have
satisfied itself as to the identity of the specific fixed assets to be
included as part of the Purchased Assets referred to in Section 3.1(a) and to
be provided by the Vendor pursuant to Section 10.1.8.
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14.1.9 INTERACT SOFTWARE
(a) The Purchaser shall be satisfied, acting reasonably, that on
entering into Step 2 (as described in the form of the
logistics information technology agreement annexed hereto as
Schedule 13) the Purchaser will be entitled to receive a copy
of the object code and source code of the Software and will be
entitled to use and modify the Software in perpetuity without
the payment of any royalty fees, user fees or similar payments
at any time, as contemplated in the logistics information
technology agreement.
(b) The Purchaser shall have received from each of the Vendor and
MicomPro a perpetual, royalty free, irrevocable, non-exclusive
licence to use the Software in and for the purpose of the
Purchaser's business on terms and conditions satisfactory to
the Purchaser, acting reasonably.
14.2 NON-FULFILMENT OF CONDITIONS, ETC. FOR THE BENEFIT OF THE PURCHASER
In the event that any condition, obligation, covenant or agreement
of the Vendor to be fulfilled and/or performed hereunder at or prior to the
Time of Closing, including, without limitation, the conditions set forth in
this Article 14, shall not be fulfilled and/or performed at or prior to the
Time of Closing, the Purchaser may rescind this Agreement by notice to the
Vendor and in such event the Purchaser shall be released from all obligations
hereunder except those set forth in Section 11.1.1 and, unless the Purchaser
can show that the one or more conditions, obligations, covenants or
agreements for the non-fulfilment or non-performance of which the Purchaser
has rescinded this Agreement is or are reasonably capable of being fulfilled
and/or performed or caused to be fulfilled and/or performed by the Vendor
then the Vendor shall also be released from all obligations hereunder;
provided, however, that any of the said conditions, obligations, covenants or
agreements may be waived in whole or in part by the Purchaser without
prejudice to the Purchaser's right of rescission in the event of the
non-fulfilment and/or non-performance of any other condition, obligation,
covenant or agreement, any such waiver to be binding on the Purchaser only if
the same is in writing.
ARTICLE 15
VENDOR'S CONDITIONS OF CLOSING
15.1 CONDITIONS FOR THE BENEFIT OF THE VENDOR
The transactions herein contemplated, including the sale and
purchase of the Purchased Assets in accordance with the terms of this
Agreement, are subject to the following conditions, each of which is hereby
declared to be for the exclusive benefit of the Vendor. Each of such
conditions is to be fulfilled and/or performed at or prior to the Time of
Closing. The Purchaser covenants and agrees to use commercially reasonable
efforts to cause each of such conditions to be fulfilled and/or performed at
or prior to the Time of Closing.
15.1.1 TRUTH OF REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The representations and warranties of the Purchaser contained in this
Agreement in any agreement, certificate or other document delivered or given
pursuant to this Agreement
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(including, without limitation, the representations and warranties set forth
in Article 8) shall, except to the extent required to be modified to reflect
the satisfaction of the terms of this Agreement, be true and correct on the
date hereof and at the Time of Closing in all material respects with the same
force and effect as if such representations and warranties had been made on
and as of each of such times. The Purchaser shall deliver to the Vendor at
the Time of Closing a certificate to that effect and to the effect that as of
the Closing Date each of the conditions set forth in this Article 15 has been
complied with in all material respects.
15.1.2 PERFORMANCE OF COVENANTS, ETC. BY THE PURCHASER
The Purchaser shall have performed in all material respects
all obligations, covenants and agreements contained in this Agreement to be
performed by it at or prior to the Time of Closing, including, without
limitation, the covenants set forth in Article 11.
15.1.3 CONSENTS, ETC.
There shall have been obtained from all appropriate Persons such
consents, approvals, permits and acknowledgements as may be required in
connection with the completion of the transactions herein contemplated, except
to the extent that failure to obtain such consents would not have a material
adverse effect on the Business or would not affect the ability of the Purchaser
to consummate the transactions contemplated hereby. The re-negotiation of the
Vendor Supply Agreements contemplated in Section 11.1.2 for the supply of
products for the Compu-Redi/Tenex business shall have been completed to the
Vendor's reasonable satisfaction.
15.1.4 NO ACTION TAKEN RESTRICTING SALE
No Legal Proceeding shall have been commenced or shall be pending or
threatened against the Purchaser at law or in equity or before or by any
Tribunal which would adversely affect, enjoin, restrict or prohibit or would
have the effect of preventing the completion of the transactions herein
contemplated, including the sale and purchase of the Purchased Assets in
accordance with the terms of this Agreement or which might adversely affect the
ability of the Purchaser to enter into this Agreement and to perform its
respective obligations hereunder.
15.1.5 LEGAL OPINION
A legal opinion of Messrs. Davies, Ward & Beck and Susan Maloney
Meyer, General Counsel for the Purchaser, dated the Closing Date
substantially in the form attached as Schedule 16 shall have been received by
the Vendor at the Time of Closing.
15.1.6 INTERACT SOFTWARE
The Vendor, acting reasonably, will be satisfied with the
arrangements between the Vendor, MicomPro and the Purchaser relating to
ownership and use of the Software to be set out in the Interact Licence
Agreement, the MicomPro Licence Agreement and the MicomPro Agreement so that
the conditions contained in Section 14.1.9 can be fulfilled.
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15.2 NON-FULFILMENT OF CONDITIONS ETC. FOR THE BENEFIT OF THE VENDOR
In the event that any condition, obligation, covenant or agreement
of the Purchaser to be fulfilled and/or performed hereunder at or prior to
the Time of Closing, including, without limitation, the conditions set forth
in this Article 15, shall not be fulfilled and/or performed at or prior to
the Time of Closing, the Vendor may rescind this Agreement by notice to the
Purchaser and in such event the Vendor shall be released from all obligations
hereunder and, unless the Vendor can show that the one or more conditions,
obligations, covenants or agreements for the non-fulfilment or
non-performance of which the Vendor has rescinded this Agreement is or are
reasonably capable of being fulfilled and/or performed or caused to be
fulfilled and/or performed by the Purchaser, then the Purchaser shall also be
released from all obligations hereunder except those set forth in Section
11.1.1; provided, however, that any of the said conditions, obligations,
covenants or agreement may be waived in whole or in part by the Vendor
without prejudice to its right of rescission in the event of the
non-fulfilment and/or non-performance of any other condition, obligation,
covenant or agreement, any such waiver to be binding upon the Vendor only if
the same is in writing.
ARTICLE 16
CLOSING ARRANGEMENTS
16.1 DATE, TIME AND PLACE OF CLOSING
The Closing shall take place at the Time of Closing on the Closing
Date at the offices of Fraser Milner, 42nd Floor, 1 First Canadian Place,
Toronto, Ontario at or at such other time, on such other date and/or at such
other place as may be agreed upon by the parties hereto.
16.2 CLOSING ARRANGEMENTS
At the Time of Closing and subject to the fulfilment of all the terms
and conditions set forth in this Agreement which have not been waived in writing
by the parties hereto, respectively:
16.2.1 PURCHASE AND SALE OF PURCHASED ASSETS
The Vendor shall sell to the Purchaser the Purchased Assets and the
Purchaser shall purchase the Purchased Assets from the Vendor and pay and
satisfy the Purchase Price, all as hereinafter provided.
16.2.2 DELIVERY OF CLOSING DOCUMENTS
The parties hereto shall execute and deliver all deeds, conveyances,
bills of sale, assurances, transfers, assumption agreements, assignments and
consents (including all necessary consents and approvals to the assignment of
the Lease, Personal Property Leases and the contracts, agreements and
commitments referred to in clause (e) of Section 3.1) and any other documents as
shall be necessary or reasonably required to effectively transfer the Purchased
Assets to the Purchaser and assign the Assumed Liabilities to the Purchaser (and
to have the Purchaser assume the Assumed Liabilities) or to otherwise carry out
the transactions provided for in this Agreement.
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16.2.3 ACTUAL POSSESSION
The Vendor shall deliver actual possession of the Purchased Assets
to the Purchaser as of the Effective Time.
16.2.4 TRADEMARK ASSIGNMENT AND ADMINISTRATION AGREEMENT
The Trademark Assignment and Administration Agreement will be assigned
to the Purchaser.
16.2.5 PAYMENT OF PURCHASE PRICE
Upon the fulfilment of the foregoing provisions of this Article 16
and subject to all the other terms and conditions contained in this Agreement
being complied with, the Purchaser shall pay and satisfy the Purchase Price
in the manner specified in Article 6.
16.2.6 TENDER
Any tender of documents or money may be made on the party or parties
designated to receive such documents or money or their respective legal counsel.
ARTICLE 17
INDEMNIFICATION
17.1 INDEMNIFICATION BY VENDOR
(a) Subject to Section 17.6, in the event that the transactions
herein contemplated are completed at the Closing, the Vendor
hereby agrees to indemnify and hold the Purchaser harmless
from and against any loss, damage, claim, Legal Proceeding,
deficiency or expense, including all out-of-pocket costs, and
including, without limitation, all reasonable legal and
accounting fees (but in all respects on a net after tax
basis), relating to, arising from or in connection with the
following matters:
(i) any misrepresentation or breach of any warranty,
obligation, covenant or agreement of the Vendor
contained in this Agreement or in any agreement,
certificate, affidavit, statutory declaration or
other document delivered or given pursuant to this
Agreement;
(ii) non-compliance with any applicable Bulk Sales
Legislation, except for any loss, damage, claim,
Legal Proceeding, deficiency or expense resulting
from the failure of the Purchaser to pay or discharge
in due course those liabilities of the Business to be
assumed by the Purchaser as provided in Section 5.1
or relating to the Business after the Effective Time;
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(iii) unless constituting an Assumed Liability, the
assertion against the Purchaser of any liability of
the Vendor relating to the operation of the Business
prior to Effective Time;
(iv) any claims (including claims for severance, notice of
termination, breach of contract, constructive
dismissal or damages in connection therewith)
relating to the employment of any of the employees of
the Business or the termination of any of such
employees by the Vendor, arising from facts up to the
Effective Time, including in respect of employees who
do not accept the Purchaser's offer of employment
under Section 12, provided that the Vendor shall not
be liable for any claims which relate to the
termination of employment or constructive dismissal
of a Transferred Employee after the Closing; and
(v) any liability associated with the Excluded Assets
and, for greater certainty, any liability in
connection with the toluene contamination at 45
Commander Boulevard, Scarborough, Ontario.
(b) The obligation of the Vendor to indemnify the Purchaser as set
forth in paragraph (a)(i), (ii), (iii) and (iv) of this
Section 17 shall be subject to the limitation period referred
to in Section 9.1.
17.2 INDEMNIFICATION BY PURCHASER
(a) Subject to Section 17.6, in the event that the transactions
herein contemplated are completed at the Closing, the
Purchaser agrees to indemnify and hold the Vendor harmless
from and against any loss, damage, claim, Legal Proceeding,
deficiency or expense, including all out-of-pocket costs and
including, without limitation, all reasonable legal and
accounting fees (but in all respects on a net after tax
basis), relating to, arising from or in connection with the
following matters:
(i) any misrepresentation or breach of any warranty,
obligation, covenant or agreement of the Purchaser
contained in this Agreement or in any agreement,
certificate, affidavit, statutory declaration or
other document delivered or given pursuant to this
Agreement;
(ii) the assertion against the Vendor of any claim or
liability relating to the Business which arises from
an Assumed Liability or the operation of the Business
after the Effective Time; and
(iii) any claims (including claims for severance, notice of
termination, breach of contract, constructive
dismissal or damages in connection therewith)
relating to the employment of any Transferred
Employees or the termination of the employment of
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any of such employees, which claims arise from facts
after the Effective Time.
(b) The obligation of the Purchaser to indemnify the Vendor as set
forth in paragraph (a)(i), (ii), and (iii) of this Section
17.2 shall be subject to the limitation period referred to in
Section 9.2.
17.3 PROCEDURE FOR INDEMNIFICATION
(a) A party claiming indemnification under Sections 17.1 or 17.2
(in this Article an "Indemnitee") shall give notice to the
party against which indemnification is claimed (in this
Article an "Indemnitor") with reasonable promptness upon
becoming aware of the claim or other facts upon which a claim
for indemnification will be based. The notice shall set forth
such information and be accompanied by such documentation with
respect thereto as is then reasonably available to the
Indemnitee.
(b) The Indemnitor shall have the right, exercisable by notice to
the Indemnitee, given within 21 days following receipt of the
aforesaid notice from the Indemnitee, to undertake and assume
control of the defence of any such claim asserted by a third
party (in this Article a "Third Party Claim"), including the
right of compromise or settlement thereof, and the Indemnitee
shall co-operate in such defence and make available all
information and documentation requested by the Indemnitor with
respect thereto;
(c) Upon the assumption of control by the Indemnitor as aforesaid,
the Indemnitor shall diligently proceed with the defence,
compromise or settlement of such Third Party Claim at the
Indemnitor's sole expense, including employment of counsel
reasonably satisfactory to the Indemnitee; and in connection
therewith, the Indemnitee shall co-operate fully with, but at
the expense of, the Indemnitor, to make available to the
Indemnitor all pertinent information, documentation and
witnesses under the Indemnitee's control and take such other
steps as in the opinion of counsel for the Indemnitor are
necessary or desirable to enable the Indemnitor to conduct
such defence.
(d) In the event that the Indemnitor fails to give notice to the
Indemnitee as provided in paragraph (b) of this Section 17.3
or in the event that the Indemnitor declines to undertake the
defence of any such Third Party Claim when first notified
thereof, the Indemnitee shall keep the Indemnitor advised as
to the current status and progress thereof, and the Indemnitor
shall retain the right to undertake the defence thereof as
aforesaid until such Third Party Claim is fully resolved.
Unless and until the Indemnitor so undertakes the defence
thereof, the Indemnitee agrees not to make any offer of
compromise or settlement thereof without first having given 10
days' notice to the Indemnitor. In the event that the
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Indemnitor so undertakes the defence of any such Third Party
Claim the Indemnitee shall nevertheless be entitled to
participate in (but not control or direct) the defence,
compromise or settlement thereof with counsel of its own
choice, and the parties agree to co-operate fully with one
another in connection with the defence, compromise or
settlement thereof.
17.4 SUBSEQUENT RECOVERY
In the event that the Indemnitee subsequently recovers all or part of a
Third Party Claim (or any other claim for indemnification hereunder) from any
other Person legally obligated to pay the same (including, without limitation
from proceeds of insurance), the Indemnitee shall forthwith repay to the
Indemnitor the amounts so recovered up to an amount not exceeding the amount
theretofore paid by the Indemnitor by way of indemnity.
17.5 DETAILS OF CLAIMS
No claim for indemnity hereunder shall be valid unless and until
written notice providing reasonable details of the reasons supporting the claim,
including such information and documentation with respect thereto as is then
reasonably available to the Indemnitee, is given by the Indemnitee to the
Indemnitor at or prior to the expiration of the applicable limitation periods
herein provided for. Before claiming against the Indemnitee, the Indemnitor
shall, to the extent available, take all reasonable steps to properly claim any
insurance that may cover the claim against the Indemnitee.
17.6 DE MINIMIS/LIMITATION
Notwithstanding any other provision of this Agreement, but subject to
Section 4.5, no party hereto shall assert against any other party hereto any
claim or claims for indemnity hereunder (other than a claim under Section
17.1(a)(v) hereof), unless the aggregate amount of the claim or claims asserted
to that date, including the claim or claims then being asserted, is at least
$142,500 and then only to the extent that the amount of the claim or claims
exceeds $142,500. The aggregate maximum amount of any and all payments to be
made by the Vendor under this Article 17, or otherwise under the Agreement, for
claims (other than a claim under Section 17.1(a)(v) hereof) made by the
Purchaser shall be $40,000,000.
17.7 ESCALATION PROCEDURE
In the event of a dispute or conflict in connection with this
Agreement, the Vendor and Purchaser agree that, before any claim is made to
any third party, including any court or tribunal, a senior officer from each
of the Vendor and/or Miami and the Purchaser shall meet in person and shall
attempt in good faith to resolve the matter. If such resolution is not
possible, the parties shall then submit such dispute or conflict to a third
party if such is contemplated in the Agreement, and if not so contemplated,
to any court or tribunal of competent jurisdiction.
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ARTICLE 18
MIAMI GUARANTEE
18.1 MIAMI GUARANTEE
In consideration of the transaction referred to herein and of other
good and valuable consideration, Miami hereby guarantees to the Purchaser
irrevocably, absolutely and unconditionally, the complete performance of all of
the Vendor's obligations under this Agreement and the Logistics Agreement. The
obligations of Miami hereunder shall arise if and only to the extent any payment
to the Purchaser by the Vendor under this Agreement or the Logistics Agreement
is not made when due or the Vendor fails to perform any of its other obligations
under this Agreement or the Logistics Agreement, in which case, Miami must
either perform or cause the performance thereof. 18.2 MIAMI REPRESENTATIONS
Miami hereby represents and warrants that:
(a) as of the date hereof Miami is a corporation incorporated
under the laws of the State of Ohio and has not been dissolved
and subject to the approval of Miami's shareholders as of the
Closing Date, Miami will be a corporation incorporated under
the laws of the State of Maryland and will not have been
dissolved.
(b) As of the Closing Date, this Agreement will have been duly
authorized, executed and delivered by Miami and will
constitute a valid and binding obligation of Miami enforceable
against it in accordance with its terms.
(c) As of the Closing Date, neither the execution and delivery of
this Agreement by Miami, the consummation of the transactions
contemplated hereby nor the fulfilment by Miami of the terms,
conditions and provisions hereof will contravene or violate or
result in the breach (with or without the giving of notice or
lapse of time, or both) or require the consent of any Person
under:
(i) any law, regulation, rule or policy other than the
bulk sales legislation in each province in which the
Purchased Assets are located;
(ii) any judgement, order, writ, injunction or decree of
any court or of any Authority;
(iii) the articles, by-laws or any resolutions of Miami or
any amendments thereto or restatements thereof;
(iv) the provisions of any contract, agreement or
arrangement to which Miami is a party or by which it
is bound.
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(d) Miami's liability hereunder shall not be affected by any
amendments to or waivers of any provisions of this Agreement
(except waiver of Miami's requirement to performance
hereunder) or any of the other agreements entered into in
connection with the completion of the transactions
contemplated herein (the "ACQUISITION AGREEMENTS"), any
bankruptcy or insolvency of the Purchaser, any defaults by any
parties (except the Vendor) to the Acquisition Agreements, any
failure to enforce remedies against the Purchaser, any change
in the relationship between the Purchaser and Miami, any
dissent, set-off, counterclaim, recoupement or termination
whatsoever available to the Purchaser (other than the defence
of performance) or any other defence or discharge available to
a guarantor or a surety. Miami waives diligence, presentment
and demand of payment or performance, protest in all notices
whatsoever.
ARTICLE 19
MISCELLANEOUS
19.1 RISK OF LOSS
From the date hereof up to the Time of Closing, the Business and the
Purchased Assets shall be and remain at the risk of the Vendor.
19.2 BROKERAGE, COMMISSIONS, ETC
It is understood and agreed that no broker, agent or other
intermediary has acted for the Vendor or the Purchaser in connection with the
transactions herein contemplated. The Vendor hereby agrees to indemnify and
save harmless the Purchaser from and against any claim for commission or
other remuneration payable or alleged to be payable to any broker, agent or
other intermediary who purports to act or to have acted for the Vendor in
connection with the transactions herein contemplated. The Purchaser agrees to
indemnify and save harmless the Vendor from and against any claim for any
commission or other remuneration payable or alleged to be payable to any
broker, agent or other intermediary who purports to act or to have acted for
the Purchaser in connection with the transactions herein contemplated.
19.3 FURTHER ASSURANCES
Each of the parties hereto upon the request of the other party or
parties hereto, whether before or after the Time of Closing, shall do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged
or delivered all such further acts, deeds, documents, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably necessary
or desirable to effect complete consummation of the transactions herein
contemplated.
19.4 ASSIGNMENT OF CONTRACTS
To the extent the assignment of any agreement, contract or
commitment, including, without limitation, any lease or other asset to be
assigned to the Purchaser pursuant to the provisions hereof, shall require
the consent, approval, permit or acknowledgement of any Person, this
Agreement shall not constitute a contract to assign the same if an attempted
43
assignment would constitute a breach thereof. If any of such required
consents, approvals, permits and acknowledgements is not obtained, the Vendor
shall co-operate with the Purchaser in any reasonable arrangement designed to
provide the Purchaser with the benefit of any such agreement, contract or
commitment, including, without limitation, any Lease or other asset,
including enforcement of any and all rights of the Vendor against the other
party thereto arising out of breach or cancellation thereof by such party or
otherwise. Nothing contained herein shall be construed to negate or diminish,
as between the Vendor and the Purchaser, the Vendor's covenants and
obligations to transfer and deliver to the Purchaser the Purchased Assets as
provided in this Agreement.
19.5 ANNOUNCEMENTS
Except to the extent required by law, the parties hereto agree
that no disclosure or public announcement with respect to this Agreement or the
transactions herein contemplated shall be made by any party hereto without the
prior written consent of each of the other parties hereto, which consent shall
not be unreasonably withheld.
19.6 NOTICES
(a) Any notice, direction or other instrument required or
permitted to be given to any party hereto shall be in writing
and shall be sufficiently given if delivered personally,
mailed or transmitted by fax to such party, as follows:
(i) in the case of the Vendor, at:
c/o Miami Computer Supply Corporation
4750 Hempstead Station Drive
Dayton, Ohio USA 45429
Attention: Ira Stanley, Vice-President,
Chief Financial Officer
Fax No.: (937) 291-8250
with a copy to: Axidata (1998) Inc.
45 Commander Blvd.
Scarborough, Ontario
M1S 3Y3
Attention: Gary Heffernan
Fax No.: (416) 291-2436
44
with a copy to: Fraser Milner Casgrain
1 First Canadian Place
100 King Street West
Toronto, Ontario
M5X 1B2
Attention: Christopher Turney
Fax Number: (416) 863-4592
with a copy to: Elias Matz, Tiernan & Herrick L.L.P.
12th Floor, 735 - 15th Street N.W.
Washington, D.C.
USA 20005
Attention: Jeffrey A. Koeppel
Fax Number: (202) 347-2172
(ii) in the case of the Purchaser, at:
United Stationers Supply Co.
2200 East Golf Road
Des Plaines, Illinois
U.S.A. 60016-1267
Attention: General Counsel
Fax No. (847) 699-0891
with a copy to:
Davies, Ward & Beck
44th Floor
1 First Canadian Place
Toronto, Ontario
M5X 1B1
Attention: Cameron Rusaw
Fax No. (416) 863-0871
(b) Any such notice, direction or other instrument, if delivered
personally, shall be deemed to have been given and received on
the date on which it was delivered, provided that if such day
is not a Business Day then the notice, direction or other
instrument shall be deemed to have been given and received on
the first Business Day next following such day; if mailed,
shall be deemed to have been given and received on the fifth
day after it was mailed, provided that if such day is not a
Business Day then the notice, direction or other instrument
shall be deemed to have been given and received on the first
Business Day next following such day; and if
45
transmitted by fax, shall be deemed to have been given and
received on the day of its transmission, provided that if such
day is not a Business Day or if it is transmitted or received
after the end of normal business hours then the notice,
direction or other instrument shall be deemed to have been
given and received on the first Business Day next following
the day of such transmission.
Any party hereto may change its address for service from time to time
by notice given to the other parties hereto in accordance with the foregoing
provisions.
19.7 TIME OF THE ESSENCE
Time shall be of the essence of this Agreement.
19.8 COSTS AND EXPENSES
All costs and expenses (including, without limitation, the fees and
disbursements of legal counsel) incurred in connection with this Agreement and
the transactions herein contemplated shall be paid by the party incurring such
costs and expenses.
19.9 APPLICABLE LAW
This Agreement shall be construed and enforced in accordance with, and
the rights of the parties hereto shall be governed by, the laws of the Province
of Ontario and the laws of Canada applicable therein. Any and all disputes
arising under this Agreement, whether as to interpretation, performance or
otherwise, shall be subject to the exclusive jurisdiction of the Courts of the
Province of Ontario and each of the parties hereto hereby irrevocably attorns to
the jurisdiction of the Courts of such Province.
19.10 ENTIRE AGREEMENT
This Agreement, including the Schedules hereto, constitutes the entire
agreement between the parties hereto with respect to the transactions herein
contemplated and cancels and supersedes any prior understandings, agreements,
negotiations and discussions between the parties hereto with respect thereto,
except as specifically provided or contemplated in this Agreement or in any
agreement, certificate or other document delivered or given pursuant to this
Agreement. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements or understandings, express or implied,
between the parties hereto other than those expressly set forth in this
Agreement or in any such agreement, certificate or other document as aforesaid.
This Agreement may not be amended or modified in any respect except by written
instrument executed by each of the parties hereto.
19.11 SEVERABILITY
If any provision of this Agreement is invalid or unenforceable, such
provision shall be severed and the remainder of this Agreement shall be
unaffected thereby but shall continue to be valid and enforceable to the fullest
extent permitted by law. If any term or provision of this Agreement is held or
deemed to be unenforceable, in whole or in part, by a
46
court of competent jurisdiction, such term or provision shall be ineffective
to the extent of such invalidity or unenforceability without rendering
invalid or unenforceable the remaining terms and provisions of this Agreement
which shall be construed to preserve to the maximum permissible extent the
intent and purposes of this Agreement. Any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such terms or provisions in any other jurisdiction.
19.12 EFFECT OF CLOSING
Any provision of this Agreement which is capable of being performed
after but which has not been performed at or prior to the Time of Closing and
all obligations, covenants and agreements contained in this Agreement or in
any agreement, certificate or other document delivered or given pursuant to
this Agreement, including, without limitation, the indemnities herein
provided for, shall remain in full force and effect notwithstanding Closing,
subject to the limitation periods referred to in Sections 9.1 and 9.2. For
greater certainty, the indemnity of the Vendor in Section 17.1(a)(v) shall
not be subject to the limitation period referred to in Section 9.1.
19.13 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
19.14 ASSIGNMENT
None of the parties may assign this Agreement (other than to an
Affiliate in the case of the Purchaser) without the prior written consent of
the other party, not to be unreasonably withheld. Provided that a party
hereto may arbitrarily refuse such consent if the proposed assignee is a
competitor of the party whose consent is requested for such assignment. Any
assignment by either party shall be conditional upon the assignee entering
into a written agreement with the other party to be bound by the provisions
of this Agreement in all respects and to the same extent as the assignor is
bound and, in the case of any assignment to an Affiliate, the assignor shall
remain jointly and severally liable with such Affiliate to be bound by its
obligations hereunder. The Purchaser acknowledges and agrees that Miami may
change its governing jurisdiction from the State of Ohio to the State of
Maryland and, in connection therewith, merge with an Affiliate and change its
name to MCSi Inc. or a similar name.
19.15 PARTIES IN INTEREST
This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
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19.16 THIRD PARTIES
Except as specifically set forth or referred to herein, nothing herein
is intended or shall be construed to confer upon or give to any Person, other
than the parties hereto and their respective successors or permitted assigns,
any rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the parties
hereto.
AXIDATA (1998) INC.
By
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Name:
Title:
MIAMI COMPUTER SUPPLY CORPORATION
By
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Name:
Title:
UNITED STATIONERS SUPPLY CO.
By
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Name:
Title: