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EXHIBIT 3.21
RIGHT OF FIRST REFUSAL AGREEMENT
THIS AGREEMENT made the l5th day of April, 1999,
BETWEEN:
KATHERINE KAN,
of the City of Vaughan, in the Regional Municipality of York
(hereinafter called "Katherine"),
ALRAE INVESTMENTS INC.,
a corporation incorporated under the laws of the Province of Ontario
(hereinafter called "Alrae")
(Katherine and Alrae being hereinafter collectively called the
"Vendors")
OF THE FIRST PART,
- and -
INTERNATIONAL MENU SOLUTIONS INC.,
a corporation incorporated under the laws of the Province of Ontario
(hereinafter called the "Purchaser")
OF THE SECOND PART,
- and -
INTERNATIONAL MENU SOLUTIONS CORPORATION,
a corporation incorporated under the laws of the State of Nevada
(hereinafter called "IMSC")
OF THE THIRD PART,
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RECITALS:
A. The Vendors, Roynat Inc., the Purchaser and IMSC have entered into a Share
Purchase Agreement dated April 15th, 1999 (the "Purchase Agreement") with
respect to the acquisition of all of the issued and outstanding shares in
the capital of 1188980 Ontario Ltd.
B. As part of the purchase price for such acquisition, the Purchaser has
issued to the Vendors Class X Shares (the "Class X Shares") in the capital
of the Purchaser and Class N Shares (the "Class N Shares) in the capital
of IMSC which Class X Shares and Class N Shares are exchangeable for
common shares in the capital of IMSC (the "IMSC Common Shares") on the
basis of 1 IMSC Common Share being issued in exchange for 1 Class X Share
and 1 Class N Share.
C. The Class X Shares, the Class N Shares and the IMSC Common Shares and any
shares or securities into which such shares may be convened or changed or
which result from a consolidation, subdivision, reclassification or
redesignation of such shares, any shares or securities which are received
on such shares as a stock dividend or distribution payable in shares or
securities of the Purchaser or IMSC and any shares or securities which may
be received by the parties hereto on such shares as a result of an
amalgamation, merger, arrangement or other reorganization of or including
the Purchaser or IMSC are collectively referred to herein as the "Subject
Shares".
D. It is a condition of the Purchase Agreement that the Vendors enter into
this Right of First Refusal Agreement with the Purchaser and IMSC on the
terms and conditions set forth herein.
NOW THEREFORE in consideration of the sum of $10.00 and other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged by
the parties hereto), the parties agree as follows:
1. Definition of Transfer
For the purposes of this Right of First Refusal Agreement, "Transfer" includes
any sale, exchange, assignment, gift, bequest, disposition, mortgage, charge,
pledge, encumbrance, grant of security interest or other arrangement by which
possession, legal title or beneficial ownership passes from one person to
another, or to the same person in a different capacity, whether or not voluntary
and whether or not for value, and any agreement to effect any of the foregoing
but shall not include any Transfer:
(a) to any member of the transferring Vendor's Family and such transferee
enters into such agreement as the Purchaser may reasonably require to
evidence that the transferee shall be bound by the provisions of this
Agreement provided that the transferor shall not be released from its
obligations hereunder;
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Purchaser in Toronto, Ontario at 2:00 p.m., Toronto time, on the date which is
ten (10) days after the date on which the Offer is accepted by the Offeree
unless such date in not a business day in both Toronto, Ontario and Nevada (a
"Business Day") in which case the closing will occur on the next Business Day.
5. Right of First Refusal
If the Offerees reject or fail to accept the Offer within the required time,
then the Offeror will be entitled to try to solicit an offer to purchase the
Offered Shares on the terms and conditions contained in the Offer. If the
Offeror solicits an offer to purchase the Offered Shares on the terms contained
in the Offer, the Offeror will give the Offerees written notice of the offer and
the Offerees shall then have a period of forty-eight (48) hours (excluding
Saturdays, Sundays and Statutory Holidays in Toronto, Ontario) following receipt
(or deemed receipt) of such notice to accept the Offer, to be accepted by notice
in writing to the Offeror given within such forty-eight (48) hour (excluding
Saturdays, Sundays and Statutory Holidays in Toronto, Ontario) period. If the
Offerees accept such Offer within the required time period, then such acceptance
shall constitute a binding agreement pursuant to which the Offeror has agreed to
sell and the Offeree or the Designated Purchaser, as applicable, has agreed to
purchase the Offered Shares upon the terms and conditions contained in the
Offer. The closing will take place at the offices of IMSI in Toronto, Ontario at
2:00 p.m., Toronto time, on the date which is ten (10) days after the date on
which the Offer is accepted by the Offeree unless such date in not a Business
Day in which case the closing will occur on the next Business Day. If the
Offeree fails to accept the Offer within the required time, then, subject to
section 6 hereof, the Offeror will be entitled to sell the Offered Shares on the
terms and conditions contained in the Offer to the third party from which it has
solicited the offer to purchase the Offered Shares. Before consenting (only if
such consent is required) to the transfer of the Offered Shares, the board of
directors of the Purchaser and/or IMSC, as applicable, will be entitled to
require proof that the sale took place on the terms contained in the Offer and
the directors of the Purchaser and/or IMSC, as applicable, will refuse to
permit the recording of the transfer of any of the Offered Shares which may have
been sold otherwise than in accordance with the provisions of the this Right of
First Refusal Agreement.
6. Completion Within 90 Days
If a sale of the Offered Shares pursuant to the Offer is not completed in
accordance with this Agreement within ninety (90) days from the giving of the
Selling Notice to the Offerees, no sale of the Purchased Shares may be made
without the Offeror again complying with the terms of this Section 3 through 5
hereof.
7. Take-Over Bids
Notwithstanding anything else herein contained, in the event of a take-over bid
(such term has here and hereinafter the meaning ascribed in the Securities Act
(Ontario)), all time periods contained in this Agreement shall be abridged and
reduced such that, if the Offerors have not offered to acquire and have not
taken-up and paid for the Subject Shares within five (5) days of
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the date of expiry of the take-over bid, the Vendors shall be free to tender
their Subject Shares or any of them to the bid without restriction hereunder.
8. Further Assurances
Each party to this Right of First Refusal Agreement covenants and agrees that,
from time to time subsequent to the date hereof, it will at the request and
expense of the requesting party, execute and deliver all such documents,
including, without limitation, all such additional conveyance, transfers,
consents and other assurances and do all such other acts and things as any other
party hereto, acting reasonably, may from time to request be executed or done in
order to better evidence or perfect or effectuate any provision of this Right of
First Refusal Agreement or of any agreement or other document executed pursuant
to this Right of First Refusal Agreement or any of the respective obligations
intended to be created hereby or thereby.
9. Notices
(a) Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered in person, transmitted by
telecopy or similar means of recorded electronic communication or sent by
registered mail, charges prepaid, addressed as follows:
(i) if to the Vendors:
Alrae: 50 Renaissance Court
Thornhill, Ontario
L4J 7W4
Katherine: 94 Allenvale Drive
Aurora, Ontario
L46 6P8
with a copy to:
Fogler, Rubinoff
Suite #4400, Royal Trust Tower
Toronto-Dominion Centre
Toronto, Ontario
M4K 1G8
Attention: Avi S. Greenspoon:
Telecopier No.: (416) 941-8852
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(ii) if to the Purchaser:
International Menu Solutions Inc.
350 Creditstone Road
Concord, Ontario
L4K 3Z2
Attention: Michael A. Steele
Telecopier No.: (416) 366-6368
with a copy to:
McCarter Grespan Robson Beynon
675 Riverbend Drive
Kitchener, Ontario
N2K 3S3
Attention: Thomas D. Beynon, Q.C.
Telecopier No.: (519) 742-1841
(b) Any such notice or other communication shall be deemed to have been given
and received on the day on which it was delivered or transmitted (or, if such
day is not a Business Day, on the next following Business Day) or, if mailed, on
the fifth Business Day following the date of mailing; provided, however, that if
at the time of mailing or within five Business Days thereafter there is or
occurs a labour dispute or other event that might reasonably be expected to
disrupt the delivery of documents by mail, any notice or other communication
hereunder shall be delivered or transmitted by means of recorded electronic
communication as aforesaid.
(c) Any party may at any time change its address for service from time to time
by giving notice to the other parties in accordance with this section 9.
10. Time of Essence
Time shall be of the essence hereof.
11. Governing Law
This agreement and any agreement to purchase and sell resulting therefrom shall
be construed by and governed in accordance with the laws of the Province of
Ontario.
12. Assignment
The parties shall not assign their rights in this Agreement without the prior
written consent of the Purchaser or IMSI.
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13. Enurement
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
14. Counterparts
This Agreement may be executed in counterparts, each of which shall constitute
an original and all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF this Agreement has been executed by the parties.
/s/ /s/ Katherine Kan
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Witness Katherine Kan
ALRAE INVESTMENTS INC.
Per: /s/
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Title:
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INTERNATIONAL MENU SOLUTIONS
INC.
Per: /s/
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Title: President
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INTERNATIONAL MENU SOLUTIONS
CORPORATION
Per: /s/
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Title: President
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