Exhibit 10.1
SUBSCRIPTION
AGREEMENT
BETWEEN
TAX DEPOT INC.
AND
JTH TAX, INC.
AND
DATATAX BUSINESS SERVICES LIMITED
MADE AS OF
MAY 31ST, 1997
SHARE SUBSCRIPTION AGREEMENT
THIS AGREEMENT made as of May 3 1 st, 1997;
BETWEEN:
TAX DEPOT INC., a corporation incorporated under the laws of the Province of
Manitoba (hereinafter referred to as the "Tax Depot").
OF THE FIRST PART
- and -
JTH TAX, INC., a corporation incorporated under the laws of the State of
Delaware (hereinafter referred to as the "Purchaser")
OF THE SECOND PART
- and -
DATATAX BUSINESS SERVICES LIMITED, a corporation incorporated under the laws of
the Province of Ontario (hereinafter referred to as the "Datatax")
OF THE THIRD PART
WHEREAS Tax Depot was incorporated by Articles of Incorporation issued pursuant
to the Corporations Act of Manitoba dated May 5th, 1994;
AND WHEREAS the authorized capital of Tax Depot consists of an unlimited number
of common shares (the "Common Shares");
AND WHEREAS Datatax is the sole shareholder of Tax Depot having been issued 100
Common Shares;
AND WHEREAS the Purchaser wishes to subscribe for and purchase 150 Common Shares
from the treasury of Tax Depot;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises
hereto and the covenants and agreements herein contained the parties hereto
covenant and agree as follows:
ARTICLE 1
INTERPRETATION
Definitions
1.1 In this Agreement, including the recitals and any schedules hereto, unless
otherwise stated or unless the context otherwise requires:
(a) "Agreement", "herein", "hereto", "hereof' and similar expressions means this
agreement and includes any agreement amending this agreement or any agreementor
instrument which is supplemental or ancillary hereto;
(b) "Closing" means the completion of the issue and allotment by Tax Depot to
the Purchaser of the Subscribed Shares and the payment by the Purchaser to Tax
Depot of the Subscription Price and the completion of all matters incidental
hereto;
(c) "Closing Date" means September 2, 1997 or such other date as the parties
hereto mutually agree upon in writing as the date upon which the Closing is to
take place;
(d) "Effective Date" means May 31, 1997; (e) "Financial Statements" means
the audited consolidated financial statements of Tax Depot and the consolidated
balance sheet, statements of consolidated revenue, retained earnings,
changes in financial position, for the year ending August 31, 1996 and all
notes thereto and the Auditors' Comments on Supplementary Financial
Information dated January 31, 1997;
(f) "Indebtedness" includes:
(i) all liabilities of Tax Depot for borrowed money which would be
included in determining total liabilities as shown in the liability section of a
balance sheet at the date on which indebtedness is to be determined; and
(ii) all liabilities of others which Tax Depot has directly or
indirectly guaranteed, or in respect of which Tax Depot has otherwise become
directly or indirectly liable or in respect of which the Tax Depot has provided
any financial support pursuant to any agreement, commitment, undertaking or
other document of whatsoever nature and kind or any combination thereof
(g) "Shareholders Agreement" means that certain shareholders agreement dated
even date hereof among Tax Depot, the Purchaser and Datatax;
(h) "Subscribed Shares" means the 150 Common Shares to be issued and sold to the
Purchaser pursuant to the terms hereof, and
(i) "Subscription Price" means a total subscription price for the Subscribed
Shares of $1,000,000.00, being $6,666.66 per share.
Time
1.2 Time shall be of the essence hereof.
Governing Law
1.3 This Agreement shall in all respects be subject to and be interpreted and
construed in accordance with the laws of the Province of Manitoba and Canada.
Clause References
1.4 The division of this Agreement into table of contents, headings, sections,
subsections, subclauses, and paragraphs and the provisions of headings for all
or any thereof is for convenience and reference only and shall not affect the
interpretation of this Agreement.
Expanded Meanings
1.5 In this Agreement, unless there is something in the subject matter or
context inconsistent therewith: (a) words importing the singular shall include
the plural and vice versa; (b) words importing gender shall include the
masculine, feminine and neuter genders; and (c) references to any statute shall
extend to and include any orders-in-council or regulations passed under the laws
of Canada or any Province thereof, or any amendment or re-enactment of such
statute, orders-in-council or regulations, or any statute, orders-in-council or
regulations substantially in replacement thereof.
Currency and Payment
1.6 All references to currency, unless otherwise specified, are in lawful money
of Canada. All payments contemplated by this Agreement shall be by certified
cheque or bank draft issued by a Canadian chartered bank or other such wire
transfer of immediately available funds as may be acceptable to Tax Depot.
Amendment
1.7 No amendments or modification of this Agreement shall be binding unless in
writing and signed by all parties hereto.
Entire Agreement
1.8 This Agreement constitutes the entire agreement between the parties relating
to the purchase and sale of the Subscribed Shares and supercedes and replaces
all prior agreements, understandings, negotiations and discussions, whether oral
or written.
Invalidity of Provisions
1.9 In the event that any of the provisions of this Agreement should be invalid,
illegal or unenforceable in any respect, the validity or legality or
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
ARTICLE 2
SUBSCRIPTION AND PURCHASE OF SUBSCRIBED SECURITIES
Subscriptions for Subscribed Securities
2.1 Subject to the terms and conditions of this Agreement, the Purchaser hereby
subscribes for and agrees to purchase and Tax Depot agrees to allot and issue to
the Purchaser the Subscribed Shares in consideration of the Subscription Price.
Completion of Purchase
2.2 The purchase and sale of the Subscribed Shares shall be completed by way of
one payment by cash or certified cheque in the amount of $ 1,000,000.00 on the
Closing Date.
ARTICLE 3
TAX DEPOT'S REPRESENTATIONS AND WARRANTIES
Tax Depot's Representations and Warranties
3.1 Tax Depot covenants with, represents and warrants to the Purchaser that the
following are true as of the Effective Date hereof and will be true on the
Closing Date, and acknowledges that the Purchaser is strictly relying upon such
representations and warranties in connection with the purchase of the Subscribed
Shares:
(a) Tax Depot has been duly incorporated and is validly subsisting under the
laws of its jurisdiction of incorporation; has all necessary corporate power,
authority and capacity to own or otherwise hold its property and assets and to
carry on its business as presently conducted; is duly qualified as a corporation
to do business and is in good standing in each jurisdiction in which the nature
of the business conducted by it or the property and assets owned by it makes
such qualification necessary;
(b) the authorized share capital of Tax Depot consists of an unlimited number of
Common Shares, of which prior to the issuance of the Subscribed Shares as herein
contemplated, 100 Common Shares have been validly issued and are currently
outstanding as fully paid and non-assessable shares of Tax Depot;
(c) all necessary corporate action has been taken or will be taken by Tax Depot
prior to the Closing Date to duly authorize the allotment, issue and sale of the
Subscribed Shares such that, upon receipt of the Subscription Price for the
Subscribed Shares by Tax Depot, the 150 Subscribed Shares will be validly issued
and outstanding as fully paid and non-assessable;
(d) Tax Depot has full corporate power and authority to enter into and perform
its obligations under this Agreement and the transactions contemplated hereby
will not result in the violation of any terms and provisions of the constating
documents or by-laws of Tax Depot, and will not constitute a breach or default
under any indenture or other agreements, written or oral, to which Tax Depot may
be a party, or by which it or any of its assets are bound;
(e) except as provided in this Agreement, no person, firm or corporation has any
agreement or option or any right or privilege, whether by law, pre-emptive or
contractual, capable of becoming an agreement or option for the purchase,
subscription, allotment or issuance from Tax Depot of any shares in the capital
of Tax Depot;
(f) the issuance and the sale of the Subscribed Shares is exempt from the
registration and prospectus requirements of the applicable securities laws and
no filing proceeding, approval, consent or authorization is required to be taken
or obtained to qualify the Subscribed Shares for sale to the Purchaser;
(g) the execution and delivery of this Agreement has been duly authorized by Tax
Depot and this Agreement constitutes a valid and binding obligation of Tax Depot
enforceable in accordance with its terms, subject to the qualification that
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditor's rights generally and to the extent that remedies of
specific performance and injunction, being equitable remedies, may only be
granted in the discretion of a court having jurisdiction;
(h) the Financial Statements have been prepared in accordance with applicable
laws and Canadian generally accepted accounting principles consistently applied
in each of the financial years or other reporting periods covered in the
Financial Statements; the Financial Statements fairly present the financial
condition of Tax Depot as at the dates, and the results of the operations of Tax
Depot for each of the financial years which are identified in the Financial
Statements, all in accordance with generally accepted accounting principles
consistently applied, and since August 31, 1996 there has been no material
adverse change in the condition, financial or otherwise, of Tax Depot; since
August 31, 1996, Tax Depot has not incurred any Indebtedness including debt
due to Datatax or its related parties in an amount in an excess of $500,000 and
other than Indebtedness incurred in the ordinary course of business; except for
obligations contained in Schedule "A", Tax Depot is not party to or bound by
any agreement of guarantee, indemnification, assumption or endorsement or any
other like commitment of the obligations, liabilities, contingent or
otherwise, or indebtedness of any other person, or corporation;
(k) since August 31, 1996, there has been no material adverse change in the
condition or operations of the business, assets or prospects of Tax Depot or any
circumstance which might reasonably be expected to result in any such material
adverse change;
(l) to the knowledge of Tax Depot, the corporate, accounting and tax records and
minute books of Tax Depot have been fully and properly prepared and maintained
and contain complete and accurate records of all its activities in all material
respects;
(m) except as disclosed on Schedule "B", there are no actions, suits or
proceedings pending or affecting it at law or in equity or before or by any
federal, provincial, municipal or other governmental department, commission,
board, bureau or agency which if enforced or adjudicated against Tax Depot, or
any of its directors or officers could have a material adverse effect on the
business, properties, future prospects or financial condition of Tax Depot; the
Tax Depot is not now aware of any existing ground on which any such action, suit
or proceeding might be commenced and there is not presently outstanding against
Tax Depot or any of its directors or officers any judgment, decree, injunction,
rule or order of any court, governmental department, commission, agency, or
arbitrator which is material and none of Tax Depot, its directors, or its
officers has given any undertaking or other commitment to any such body outside
the ordinary course of business which is material;
(n) except to the extent reflected in or reserved against in the Financial
Statements or disclosed to the Purchaser, to the knowledge of Tax Depot: (1)Tax
Depot is not liable for any material amount of any Canadian federal,foreign,
provincial or municipal or local taxes, assessments or other amounts due and
unpaid at the date hereof in respect of its income, business or property or
for the payment of any installment due in respect of its current taxation
year;
(i) Tax Depot is not liable for any material amount of any Canadian
federal, foreign, provincial or municipal or local taxes, assessments or other
amounts due and unpaid at the date hereof in respect of its income, business or
property or for the payment of any instalment due in respect of its current
taxation year;
(ii) there are currently no outstanding disputes, reassessments or
questions which have been issued or raised by any governmental authority
relating to any tax returns or other filings or elections by Tax Depot.
ARTICLE 4
PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser's Representations and Warranties
4.1 The Purchaser hereby covenants with, represents and warrants to Tax Depot
that the following are true as of the Effective Date hereof and will be true on
the Closing Date and acknowledges that Tax Depot is relying thereon:
(a) the Purchaser had been duly incorporated and is validly subsisting under the
laws of its jurisdiction of incorporation;
(b) the Purchaser has good right, full power and authority to purchase the
Subscribed Shares on the terms described herein and in the manner contemplated
by this Agreement;
(c) neither the execution and delivery of this Agreement by the Purchaser, nor
the performance of the Purchaser's obligations hereunder will be in conflict
with, or result in the breach of or constitute a default by the Purchaser under
this constating documents or any document of any kind of which the Purchaser is
a party, or to the best of the Purchaser's knowledge, under any judgments,
decree, order, law, statute, rule or regulation applicable to the Purchaser; and
(d) this Agreement has been duly executed and delivered by the Purchaser and all
documents required hereunder to be executed and delivered by it shall have been
duly executed and delivered by the Purchaser and this Agreement does and such
documents and instruments shall, constitute valid and binding obligations of the
Purchaser enforceable in accordance with their respective terms, subject to the
qualification that enforceability may be limited by bankruptcy, insolvency or
similar laws affecting creditor's rights generally and to the extent that
remedies of specific performance and injunction, being equitable remedies, may
only be granted in the discretion of a court having jurisdiction.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Survival of Representations and Warranties
5.1 The representations and warranties of Tax Depot and the Purchaser contained
in this Agreement or any document or certificate given pursuant hereto shall
survive the final Closing and notwithstanding such Closing, shall continue in
full force and effect for a period of one year from the final Closing Date,
except with respect to tax matters (which continue for a period of three years
or earlier, if the limitation period under the applicable taxing statute has
expired).
ARTICLE 6
CLOSING
Closing
6.1 The Closing of the within transaction shall take place on the relevant
Closing Date, at the offices of Tax Depot or such other place as the parties
hereto may otherwise agree.
6.2 At Closing, Tax Depot shall deliver to the Purchaser:
(a) a certificate registered in the name of the Purchaser
representing the number of Subscribed Shares being issued at
such Closing;
(b) certified copies of Tax Depot's constating documents and the
resolutions passed by the board of directors approving this
Agreement;
(c) the closing documents necessary to satisfy the condition
precedents set forth in Article 7. 1; and all other documents
necessary or desirable to carry out the intent of this
Agreement.
6.3 At Closing, the Purchaser shall deliver to Tax Depot:
(a) the Subscription Price for the Subscribed Shares which is to
be paid and satisfied by bank draft, certified cheque or wire
transfer in immediately available funds at Closing;
(b) the closing documentation necessary to satisfy the conditions
precedent as set out in Article 7.3; and
(c) all other documents necessary or desirable to carry out the
intent of this Agreement.
6.4 Immediately following the Closing, Tax Depot shall, from the monies
received for the Subscription Price, pay to Datatax at Closing a maximum amount
of $500,000.00, in payment of all outstanding shareholder loans, or
intercorporate amounts due or receivable between Datatax and Tax Depot and
adjusted at the fiscal year end including any amounts due to Datatax by Tax
Depot pursuant to the terms of the Management Services Agreement between Datatax
and Tax Depot dated May 13, 1994 (the "Debt due to Datatax") currently estimated
by Tax Depot to be approximately $432,481.00 as outlined in the Projected
Balance Sheet as of August 31, 1997, attached hereto as Schedule "C".
6.5 Immediately following the Closing, Tax Depot shall use its best efforts to
release or obtain the release of all guarantees given by Datatax or persons
related to Datatax on behalf of Tax Depot and failing such release, the
Purchaser and Datatax shall guarantee the obligations of Tax Depot proportionate
to their shareholdings in Tax Depot. Unless and until all releases are obtained,
the Purchaser and Datatax shall indemnify Tax Depot with respect to all such
guarantees pursuant to the terms of this paragraph.
ARTICLE 7
CONDITIONS PRECEDENT
Conditions to Obligations of the Purchaser
7.1 The obligations of the Purchaser to consummate the transactions contemplated
under this Agreement are subject to the satisfaction, on or before the Closing,
of the following conditions:
(a) the representations and warranties of Tax Depot contained in Article 3 are
true in all material respects immediately prior to the Closing with the same
effect as those such representations and warranties had been made at and as of
such time and the Purchaser has received a certificate to that effect dated the
Closing Date from Gary Ibbotson or another director of Tax Depot, which
certificate shall be based upon his best information and belief after having
made reasonable enquiries;
(b) the Purchaser has received a favourable opinion of counsel to Tax Depot with
respect to the matters described in Article 3. 1 (a) (b)(c)(d)(f) and (g), which
opinion may rely on certificates of an officer or officers of Tax Depot or
public officials as to matters of fact and, as to matters involving the laws of
jurisdiction in which such counsel is not qualified to practice, on opinions of
recognized local counsel in such jurisdictions;
(c) a bank facility will have been arranged for Tax Depot in relation to the
discounting of tax returns, in an amount at least 50% greater than the existing
facility of Seven Million Dollars available to Tax Depot through Datatax and
such facility shall:
(i) not be subject to the guarantee of the Purchaser or Datatax, or their
respective shareholders; or
(ii) be subject to the guarantee of the Purchaser and Datatax, or their
respective shareholders, in proportion to their shareholdings in Tax Depot
following the Closing, on terms acceptable to the Purchaser; or
(iii) be subject to the guarantee of Datatax or its shareholders(s), who shall
receive from Tax Depot an annual fee for the provision of the guarantee, to be
negotiated and agreed to by the parties as a percentage of the amount of the
guarantee.
The conditions described in this Article 7.1 are for the exclusive benefit of
the Purchaser and may be asserted by the Purchaser regardless of circumstances
or may be waived by the Purchaser in their sole discretion, in whole or in part,
at any time and from time to time without prejudice to any other rights which
the Purchaser may have.
7.2 Upon the Closing of the transactions contemplated herein and except as
provided in Article 7.3, Tax Depot shall and does hereby agree to indemnify and
save harmless the Purchaser from and against any and all claims, actions, causes
of action, liabilities, losses, damages, costs, charges, expenses, legal fees,
and disbursements, fines and penalties to which it may be put, incur, suffer or
be liable for, directly or indirectly, by or as a result of any undertaking,
representation or warranty set forth in Article 3 being incorrect or breached.
7.3 Tax Depot shall not be obligated to indemnify the Purchaser from or against
any losses or in connection with any claim of the Purchaser by or as a result of
any undertaking, representation or warranty set forth in Article 3 being
incorrect or breached except to the extent that such losses exceed an aggregate
amount of Ten Thousand ($10,000.00) Dollars.
Conditions to Obligations of the Vendor
7.4 The obligations of Tax Depot to consummate the transactions contemplated
under this Agreement are subject to the satisfaction, on closing that Gary
Ibbotson or his assignee shall have completed a simultaneous subscription for
50,000 Class A Shares of the Purchaser for the sum of FIVE HUNDRED THOUSAND
($500,000.00 U.S.) U.S. DOLLARS.
ARTICLE 8
GENERAL
Notice
8.1 Any notice required or permitted hereunder to be given shall be given
by personal delivery, prepaid registered mail or facsimile communication to
the respective parties at the addresses set forth below or at such other
addresses as the parties may designate in writing from time to time:
To Tax Depot:
6815 - 8th Street N.E.
Suite 280
Calgary, Alberta
T2E 71-17
Attention: Mr. Gary Ibbotson
Facsimile No: (403) 274-1542
with a copy to:
Siskind Cromarty, Ivey & Dowler
Barristers and Solicitors
680 Waterloo Street
London, Ontario
N6A 3V8
Attention: J. Richard Lockwood
Facsimile No: (519) 672-9296
To Purchaser:
JTH Tax Inc.
2214 Commerce Parkway
Virginia Beach, Virginia, U.S.A.
23454
Attention: John Hewitt
Facsimile No: (757) 340-7612
with a copy to:
Howard, Mackie
1000 Canterra Tower 400 - 3rd Avenue S.W.
Calgary, Alberta T2P 4H2
Attention: Ruth M. Spetz Facsimile No: (403) 266-1395
To Datatax
680 Industrial Road London, Ontario N5V 1V1
Attention: Mr. Gary Ibbotson Facsimile No: (403) 274-1542
with a copy to:
Siskind Cromarty, Ivey & Dowler
Barristers and Solicitors
680 Waterloo Street
London, Ontario
N6A 3V8
Attention: J. Richard Lockwood
Facsimile No: (519) 672-9296
Any notice, direction or other instrument aforesaid if delivered shall be deemed
to have been given or made on the date on which it was delivered, if mailed,
shall be deemed to have been given or made on the 5th business day following the
date on which it was mailed and if sent by facsimile, shall be deemed to have
been given or made on the next business day following the date on which it was
sent. Saturdays, Sundays and statutory holidays excepted. Either party hereto
may change its address for service from time to time by written notice given in
accordance with the foregoing. Notice by mail shall not be effective during any
postal strike or slowdown.
Assignment
8.2 (a) This Agreement shall not be assigned by the parties hereto
without the prior written consent of all other parties hereto,
which consent may not be unreasonably withheld or arbitrarily
withheld; and
(b) Any assignment of this Agreement or any obligations under this
Agreement shall not release any party hereto from its full
obligations hereunder, without the prior written consent of
the other parties hereto.
Enurement
8.3 This Agreement shall enure to the benefit of and be binding upon the parties
and their respective permitted successors and assigns.
Expenses and Legal Fees
8.4 Each of the parties shall be responsible for and shall pay all of their
respective costs and expenses incidental to the preparation and carrying out of
this Agreement, whether or not the transactions contemplated hereby are
consummated.
Public Announcements
8.5 (a) No news releases or public announcement respecting the
subject matter of this Agreement shall be made by either party
without the prior approval of the other party which approval
shall not be unreasonably withheld;
(b) Notwithstanding the foregoing, the parties may disclose any
information required to be disclosed to any federal,
provincial, state or local government or governmental branch,
board, agency or instrumentality necessary to comply with
relevant timely disclosure laws or the requirements of
regulatory authorities, including stock exchanges, having
jurisdiction in respect of the securities of the parties.
Further Assurances
8.6 The parties hereto agree that they will execute or cause to be executed and
delivered all such further and other documents and assurances and do mid cause
to be done all such further acts and things as may be necessary or desirable to
carry out this Agreement according to its hue intent.
8.7 This Agreement may be executed in any number of counterparts each of which
when so executed and delivered shall be deemed an original, and such
counterparts together shall constitute one and the some instrument.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
TAX DEPOT INC.
Per: /s/ Gary Ibbotson
--------------------------------------------------
JTH TAX, INC.
Per: /s/ John Hewitt
--------------------------------------------------
DATATAX BUSINESS SERVICES LIMITED
Per: /s/ Gary Ibbotson
--------------------------------------------------
SCHEDULE"A"
I Guarantee given by Tax Depot to the Bank of Montreal in support of a
$10,000,000.00 Operating Line of Credit granted to Datatax by the Bank of
Montreal.
2. General Assignment of Book Debts given by Tax Depot to the Bank of Montreal
as additional security for the said Guarantee.
SCHEDULE"B"
I Passing off action commenced by Heidi Gordash against Tax Depot Inc. in the
Ontario Court (General Division) as Action No. T- 1476-96.
2. Threatened action against Tax Depot Inc. by a number of residents of Fogo
Island, Newfoundland re Clarence Ford and Lori Ann Ford.
TAX DEPOT INC.
Projected Consolidated Balance Sheet
As of August 31, 1997
1997 1996
ASSETS
Current Assets
Cash $0.00 $0.00
Accounts Receivable 380,168.00 422,622.00
Prepaid Expenses 20,313.00 20,313.00
Total Current Assets $400,481.00 $442,935.00
Fixed Assets $104,925.00 $ 0.00
Total Fixed Assets $104,925.00 $ 0.00
Total Assets $505,406.00 $442,935.00
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LIABILITIES
Current Liabilities
Bank Overdraft $ 25,998.00 $ 25,998.00
Accounts Payable 44,562.00 44,562.00
Income Taxes Payable 2,048.00 2,048.00
Payable to Datatax $432,481.00 $370,110.00
Total Current Liabilities $505,089.00 $442,718.00
Shareholders' Equity
Share Capital $ 100.00 $ 100.00
Retained Earnings 217.00 117.00
Total Shareholders' Equity 317.00 217.00
TOTAL LIABILITIES AND EQUITY $ 505406.00 $442,935.00
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