EXHIBIT 99.1
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT made as of the 22nd day of May, 1997
B E T W E E N:
ARNOLD UNGER, of the City of Toronto, in the Province of Ontario,
(hereinafter referred to as "ARNOLD")
- and -
1239414 ONTARIO INC., a corporation existing under the laws of
the Province of Ontario,
(hereinafter referred to as "ARNCO")
- and -
RENEE UNGER, of the City of North York, in the Province of
Ontario,
(hereinafter referred to as "RENEE")
- and -
1239415 ONTARIO INC., a corporation existing under the laws of
the Province of Ontario,
(hereinafter referred to as "RENCO")
- and -
THE UNGER FAMILY TRUST, a trust established under the laws of the
Province of Ontario,
(hereinafter referred to as the "TRUST")
- and -
1239416 ONTARIO INC., a corporation existing under the laws of
the Province of Ontario,
(hereinafter referred to as "TRUSTCO")
(Arnold, Arnco, Renee, Renco, the Trust and Trustco hereinafter
may be collectively referred to as the "VENDORS")
- and -
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INTERCORP EXCELLE INC., a corporation existing under the laws of
the Province of Ontario,
(hereinafter referred to as the "PURCHASER")
WHEREAS:
A. Arnold is the registered and legal owner of 51 common shares in the capital
stock of Kalmath Investments Limited ("KALMATH") and wishes to sell and transfer
10 common shares in the capital stock of Kalmath (the "ARNOLD KALMATH SHARES")
to the Purchaser and the Purchaser wishes to purchase and acquire the Arnold
Kalmath Shares from Arnold;
B. Arnco is the beneficial owner of 41 common shares in the capital stock of
Kalmath (which common shares are registered in the name of Arnold) and wishes to
sell and transfer such 41 common shares in the capital stock of Kalmath (the
"ARNCO KALMATH SHARES") to the Purchaser and the Purchaser wishes to purchase
and acquire the Arnco Kalmath Shares from Arnco;
C. Renee is the registered and legal owner of 51 common shares in the capital
stock of Kalmath and wishes to sell and transfer 4 common shares in the capital
stock of Kalmath (the "RENEE KALMATH SHARES") to the Purchaser and the Purchaser
wishes to purchase and acquire the Renee Kalmath Shares from Renee;
D. Renco is the beneficial owner of 47 common shares in the capital stock of
Kalmath (which common shares are registered in the name of Renee) and wishes to
sell and transfer such 47 common shares in the capital stock of Kalmath (the
"RENCO KALMATH SHARES") to the Purchaser and the Purchaser wishes to purchase
and acquire the Renco Kalmath Shares from Renco;
E. the Trust is the registered owner of 100 common shares in the capital stock
of Intercorp Foods Ltd. ("FOODS") and wishes to sell and transfer 73 common
shares in the capital stock of Foods (the "TRUST FOODS SHARES") to the Purchaser
and the Purchaser wishes to purchase and acquire the Trust Foods Shares from the
Trust;
F. Trustco is the beneficial owner of 27 common shares in the capital stock of
Foods (which common shares are registered in the name of the Trust) and wishes
to sell and transfer such 27
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common shares in the capital stock of Foods (the "TRUSTCO FOODS SHARES") to the
Purchaser and the Purchaser wishes to purchase and acquire the Trustco Foods
Shares from Trustco;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
respective covenants and agreements of the parties herein contained and other
lawful and valuable consideration, the receipt of which is hereby acknowledged,
it is agreed by and between the parties hereto as follows:
ARTICLE ONE - TRANSFER OF ARNCO KALMATH SHARES
1.1 PROPERTY TO BE PURCHASED AND SOLD. Subject to the terms and conditions
hereof, Arnco hereby sells, assigns and transfers to the Purchaser and the
Purchaser hereby purchases from Arnco the Arnco Kalmath Shares.
1.2 PURCHASE PRICE. The purchase price payable for the Arnco Kalmath Shares
shall be the fair market value of the Arnco Kalmath Shares as at the date
hereof, and Arnco and the Purchaser have agreed and determined that the fair
market value of the Arnco Kalmath Shares as at the date hereof is $2,501,000.00
in the aggregate.
1.3 PAYMENT OF PURCHASE PRICE. The purchase price for the Arnco Kalmath Shares
shall be paid and satisfied by the allotment and issuance to Arnco of 874,165
fully paid and non-assessable common shares in the capital stock of the
Purchaser.
1.4 SECTION 85 ELECTION. The Purchaser agrees with Arnco that it shall jointly
elect with Arnco pursuant to subsection 85(1) of the INCOME TAX ACT (Canada)
(the "ITA") and within the time limits imposed by subsection 85(6) of the ITA,
at an amount to be determined by Arnco, which amount shall not be less than
Arnco's adjusted cost base of the Arnco Kalmath Shares.
ARTICLE TWO - TRANSFER OF ARNOLD KALMATH SHARES
2.1 PROPERTY TO BE PURCHASED AND SOLD. Subject to the terms and conditions
hereof, Arnold hereby sells, assigns and transfers to the Purchaser and the
Purchaser hereby purchases from Arnold the Arnold Kalmath Shares.
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2.2 PURCHASE PRICE. The purchase price payable for the Arnold Kalmath Shares
shall be the fair market value of the Arnold Kalmath Shares as at the date
hereof, and Arnold and the Purchaser have agreed and determined that the fair
market value of the Arnold Kalmath Shares as at the date hereof is $610,000.00
in the aggregate.
2.3 PAYMENT OF PURCHASE PRICE. The purchase price for the Arnold Kalmath Shares
shall be paid and satisfied by the allotment and issuance to Arnold of 213,235
fully paid and non-assessable common shares in the capital stock of the
Purchaser.
2.4 SECTION 85 ELECTION. The Purchaser agrees with Arnold that it shall jointly
elect with Arnold pursuant to subsection 85(1) of the ITA and within the time
limits imposed by subsection 85(6) of the ITA, at an amount to be determined by
Arnold, which amount shall not be less than Arnold's adjusted cost base of the
Arnold Kalmath Shares.
ARTICLE THREE - TRANSFER OF RENCO KALMATH SHARES
3.1 PROPERTY TO BE PURCHASED AND SOLD. Subject to the terms and conditions
hereof, Renco hereby sells, assigns and transfers to the Purchaser and the
Purchaser hereby purchases from Renco the Renco Kalmath Shares.
3.2 PURCHASE PRICE. The purchase price payable for the Renco Kalmath Shares
shall be the fair market value of the Renco Kalmath Shares as at the date
hereof, and Renco and the Purchaser have agreed and determined that the fair
market value of the Renco Kalmath Shares as at the date hereof is $2,867,000.00
in the aggregate.
3.3 PAYMENT OF PURCHASE PRICE. The purchase price for the Renco Kalmath Shares
shall be paid and satisfied by the allotment and issuance to Renco of 1,002,106
fully paid and non-assessable common shares in the capital stock of the
Purchaser.
3.4 SECTION 85 ELECTION. The Purchaser agrees with Renco that it shall jointly
elect with Renco, pursuant to subsection 85(1) of the ITA and within the time
limits imposed by subsection 85(6) of the ITA, at an amount to be determined by
Renco, which amount shall not be less than Renco's adjusted cost base of the
Renco Kalmath Shares.
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ARTICLE FOUR - TRANSFER OF RENEE KALMATH SHARES
4.1 PROPERTY TO BE PURCHASED AND SOLD. Subject to the terms and conditions
hereof, Renee hereby sells, assigns and transfers to the Purchaser and the
Purchaser hereby purchases from Renee the Renee Kalmath Shares.
4.2 PURCHASE PRICE. The purchase price payable for the Renee Kalmath Shares
shall be the fair market value of the Renee Kalmath Shares as at the date
hereof, and Renee and the Purchaser have agreed and determined that the fair
market value of the Renee Kalmath Shares as at the date hereof is $244,000.00 in
the aggregate.
4.3 PAYMENT OF PURCHASE PRICE. The purchase price for the Renee Kalmath Shares
shall be paid and satisfied by the allotment and issuance to Renee of 85,294
fully paid and non-assessable common shares in the capital stock of the
Purchaser.
4.4 SECTION 85 ELECTION. The Purchaser agrees with Renee that it shall jointly
elect with Renee, pursuant to subsection 85(1) of the INCOME TAX ACT (Canada)
(the "ITA") and within the time limits imposed by subsection 85(6) of the ITA,
at an amount to be determined by Renee, which amount shall not be less than
Renee's adjusted cost base of the Renee Kalmath Shares.
ARTICLE FIVE - TRANSFER OF TRUSTCO FOODS SHARES
5.1 PROPERTY TO BE PURCHASED AND SOLD. Subject to the terms and conditions
hereof, Trustco hereby sells, assigns and transfers to the Purchaser and the
Purchaser hereby purchases from Trustco the Trustco Foods Shares.
5.2 PURCHASE PRICE. The purchase price payable for the Trustco Foods Shares
shall be the fair market value of the Trustco Foods Shares as at the date
hereof, and Trustco and the Purchaser have agreed and determined that the fair
market value of the Trustco Foods Shares as at the date hereof is $559,980.00 in
the aggregate.
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5.3 PAYMENT OF PURCHASE PRICE. The purchase price for the Trustco Foods Shares
shall be paid and satisfied by the allotment and issuance to Trustco of 195,650
fully paid and non-assessable common shares in the capital stock of the
Purchaser.
5.4 SECTION 85 ELECTION. The Purchaser agrees with Trustco that it shall
jointly elect with Trustco pursuant to subsection 85(1) of the ITA and within
the time limits imposed by subsection 85(6) of the ITA, at an amount to be
determined by Trustco, which amount shall not be less than Trustco's adjusted
cost base of the Trustco Foods Shares.
ARTICLE SIX - TRANSFER OF TRUST FOODS SHARES
6.1 PROPERTY TO BE PURCHASED AND SOLD. Subject to the terms and conditions
hereof, the Trust hereby sells, assigns and transfers to the Purchaser and the
Purchaser hereby purchases from the Trust the Trust Foods Shares.
6.2 PURCHASE PRICE. The purchase price payable for the Trust Foods Shares shall
be the fair market value of the Trust Foods Shares as at the date hereof, and
the Trust and the Purchaser have agreed and determined that the fair market
value of the Trust Foods Shares as at the date hereof is $1,514,020.00 in the
aggregate.
6.3 PAYMENT OF PURCHASE PRICE. The purchase price for the Trust Foods Shares
shall be paid and satisfied by the allotment and issuance to the Trust of
529,250 fully paid and non-assessable common shares in the capital stock of the
Purchaser.
6.4 SECTION 85 ELECTION. The Purchaser agrees with the Trust that it shall
jointly elect with the Trust pursuant to subsection 85(1) of the ITA and within
the time limits imposed by subsection 85(6) of the ITA, at an amount to be
determined by the Trust, which amount shall not be less than the Trust's
adjusted cost base of the Trust Foods Shares.
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ARTICLE SEVEN - REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF ARNOLD. Arnold represents, warrants and
covenants with the Purchaser that:
(a) he is the sole beneficial owner of the Arnold Kalmath Shares and has
the exclusive right to dispose of the said Arnold Kalmath Shares; and
(b) he is not a non-resident of Canada within the meaning of the ITA.
7.2 REPRESENTATIONS AND WARRANTIES OF ARNCO. Arnco represents, warrants and
covenants with the Purchaser that:
(a) it is a corporation validly existing and in good standing under the
laws of the Province of Ontario;
(b) it is the sole beneficial owner of the Arnco Kalmath Shares and has
the exclusive right to dispose of the Arnco Kalmath Shares;
(c) it has all necessary corporate power, authority and capacity to
dispose of the Arnco Kalmath Shares and to perform its obligations
under this Agreement; and
(d) it is not a non-resident of Canada within the meaning of the ITA.
7.3 REPRESENTATIONS AND WARRANTIES OF RENEE. Renee represents, warrants and
covenants with the Purchaser that:
(a) she is the sole beneficial owner of the Renee Kalmath Shares and has
the exclusive right to dispose of the said Renee Kalmath Shares; and
(b) she is not a non-resident of Canada within the meaning of the ITA.
7.4 REPRESENTATIONS AND WARRANTIES OF RENCO. Renco represents, warrants and
covenants with the Purchaser that:
(a) it is a corporation validly existing and in good standing under the
laws of the Province of Ontario;
(b) it is the sole beneficial owner of the Renco Kalmath Shares and has
the exclusive right to dispose of the Renco Kalmath Shares;
(c) it has all necessary corporate power, authority and capacity to
dispose of the Renco Kalmath Shares and to perform its obligations
under this Agreement; and
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(d) it not a non-resident of Canada within the meaning of the ITA.
7.5 REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents, warrants
and covenants with the Purchaser that:
(a) it is the sole beneficial owner of the Trust Foods Shares and has the
exclusive right to dispose of the Trust Foods; and
(b) it is not a non-resident of Canada, within the meaning of the ITA.
7.6 REPRESENTATIONS AND WARRANTIES OF TRUSTCO. Trustco represents, warrants and
covenants with the Purchaser that:
(a) it is a corporation validly existing and in good standing under the
laws of the Province of Ontario;
(b) it is the sole beneficial owner of the Trustco Foods Shares and has
the exclusive right to dispose of the Trustco Foods Shares;
(c) it has all necessary corporate power, authority and capacity to
dispose of the Trustco Foods Shares and to perform its obligations
under this Agreement; and
(d) it is not a non-resident of Canada, within the meaning of the ITA.
7.7 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents, warrants and covenants with the Vendors that:
(a) it is a corporation validly existing and in good standing under the
laws of the Province of Ontario;
(b) it has all necessary corporate power, authority and capacity to
acquire the Arnold Kalmath Shares, the Arnco Kalmath Shares, the Renee
Kalmath Shares, the Renco Kalmath Shares, the Trust Foods Shares and
Trustco Foods Shares and to perform its obligations under this
Agreement; and
(c) the issuance, allotment and delivery of
(i) 874,165 common shares of the Purchaser to Arnco in payment of
the purchase price for the Arnco Kalmath Shares,
(ii) 213,235 common shares of the Purchaser to Arnold in payment of
the purchase price for the Arnold Kalmath Shares,
(iii) 1,002,106 common shares of the Purchaser to Renco in payment
of the purchase price for the Renco Kalmath Shares,
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(iv) 85,294 common shares of the Purchaser to Renee in payment of
the purchase price for the Renee Kalmath Shares,
(v) 195,650 common shares of the Purchaser to Trustco in payment
of the purchase price for the Trustco Foods Shares, and
(vi) 529,250 common shares of the Purchaser to the Trust in payment
of the purchase price for the Trust Foods Shares,
complies with all requirements of any laws applicable and does not
conflict with any provision of the articles and by-laws of the
Purchaser, or conflict with, or create an event of default under any
indentures, agreement or other instrument to which the Purchaser is a
party.
7.8 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Purchaser and the Vendors shall survive the completion of the
purchase and sale of the Arnold Kalmath Shares, the Arnco Kalmath Shares, the
Renee Kalmath Shares, the Renco Kalmath Shares, the Trust Foods Shares, and the
Trustco Foods Shares, respectively.
ARTICLE EIGHT - MISCELLANEOUS
8.1 FURTHER ASSURANCES. The parties to this Agreement agree to execute such
further and other assurances and documents and to do all such things and actions
which shall be necessary or proper for the carrying out of the purposes and
intent of this Agreement.
8.2 GENERAL.
(1) The division of this Agreement into Articles, sections and other
subdivisions and the insertion of headings are for convenience of reference only
and shall not affect the construction and interpretation hereof.
(2) This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the court of such Province shall have
jurisdiction to entertain any action arising in connection with this Agreement.
(3) This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
(4) All dollar amounts referred to herein refer to lawful money of Canada.
(5) The invalidity or unenforceability of any provision or part of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision or part thereof, and any invalid or unenforceable provision
or part thereof shall be deemed to be separate,
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severable and distinct, and no provision or part thereof shall be deemed
dependent upon any other provision or part thereof unless expressly provided for
herein.
(6) This Agreement may be executed in one or more counterparts, each of which
when executed shall constitute an original and all of which so executed shall
constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first above written.
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
)
)
Witness: /s/ "Fred Burke" ) /s/ "Arnold Unger"
1239414 ONTARIO INC.
/s/ "Arnold Unger", President
SIGNED, SEALED AND DELIVERED )
in the presence of: )
)
)
)
Witness: /s/ "Fred Burke" ) /s/ "Renee Unger"
(Signatures to Share Exchange Agreement made as of May 22, 1997 continued
on next page)
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(Signatures to Share Exchange Agreement made as of May 22, 1997 continued from
previous page)
1239415 ONTARIO INC.
/s/ "Renee Unger"
THE UNGER FAMLY TRUST, BY ITS TRUSTEES
/s/ "Renee Unger", Trustee
/s/ "Arnold Unger", Trustee
1239416 ONTARIO INC.
/s/ "Renee Unger", Trustee
/s/ "Arnold Unger", Trustee
INTERCORP EXCELLE INC.
Per: /s/ "Renee Unger", President
/s/ "Arnold Unger", C.E.O.