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EXHIBIT 3.22
RIGHT OF FIRST REFUSAL AGREEMENT
THIS AGREEMENT made the 18 day of October, 1999,
BETWEEN:
MICHAEL ESKENAZI,
of the City of Baie D'Urfe, in the Province of Quebec
(hereinafter called "Michael"),
GINA ESKENZA,
of the City of Baie D'Urfe, in the Province of Quebec
(hereinafter called "Gina"),
FELIX & NORTON INTERNATIONAL INC.,
a corporation incorporated under the laws of Canada
(hereinafter called "FNII"),
(Michael, Gina and FNII are collectively referred to herein as the
"Vendors")
- and -
INTERNATIONAL MENU SOLUTIONS INC.,
a corporation incorporated under the laws of the Province of
Ontario,
(hereinafter called "IMSI")
- and -
INTERNATIONAL MENU SOLUTIONS CORPORATION,
a corporation incorporated under the laws of the State of Nevada,
(hereinafter called "IMSC")
RECITALS:
A. The Vendors, IMSI and IMSC have entered into a Share Purchase Agreement
dated September 3Oth, 1999 (the "Purchase Agreement") with respect to the
acquisition of all of the issued and outstanding shares in the capital of
The Ultimate Cookie Co. Inc. (the "Purchased Shares").
B. In payment of a portion of the purchase price for the Purchased Shares,
IMSI has issued to the Vendors collectively, 250,000 Class E Special
Shares Series 5 and 250,000 Class E Special Shares Series 6 in the capital
of IMSI (collectively, the "IMSI Special Shares") which IMSI Special
Shares are exchangeable for common shares in the capital stock of
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IMSC (the "IMSC Common Shares") on the terms and conditions set forth in
the articles of IMSI.
C. IMSI Special Shares, the IMSC Common Shares and any IMSC Class N Shares
received by the Vendors in connection with such IMSI Special Shares and
any shares or securities into which such shares may be converted 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 IMSI or IMSC, any shares received on
the exercise of any option, warrant or other similar right received on
such shares 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 IMSI or IMSC, and
where the context permits, includes any instrument of IMSI or IMSC that is
convertible into shares or evidences the right to acquire shares 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 IMSC and IMSI on the terms and
conditions set forth herein.
NOW THEREFORE in consideration of the sum of $10.00 and for 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" means 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, whether or not voluntary and whether or not for value, and any
agreement to effect any of the foregoing, but shall not include:
(i) any transfer 5 which constitutes the exchange of IMSI Special Shares
for IMSC Common Shares pursuant to the exercise of the rights
attaching to such IMSI Special Shares; or
(ii) any transfers for estate or tax planning purposes in respect of
which IMSI and IMSC has given their prior written approval, not to
be unreasonably withheld.
2. Definition of Business Day
For the purposes hereof, the term "Business Day" means any day, other than
Saturday, Sunday or any statutory holiday in the Province of Ontario or the
State of Nevada.
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3. Restriction on Transfer
Each of the Vendors covenants that he, she or it, as the case may be, will not
Transfer any of the Subject Shares beneficially owned or controlled by him, her
or it, except in accordance with the terms of this Right of First Refusal
Agreement, or except with the prior written consent of IMSC, which consent shall
not be unreasonably withheld. A purported Transfer of any Subject Shares in
violation of this Right of First Refusal Agreement shall be null and void and
IMSI or IMSC, as the case may be, will not register, nor permit any transfer
agent to register, any such Subject Shares on the securities register of IMSI or
IMSC, as applicable. The provisions of the immediately preceding sentence are in
addition to, and not in lieu of, any other remedies that may be available to
IMSC and IMSI to enforce the provisions of this Right of First Refusal
Agreement.
4. Notice of Intent to Sell
If at any time a Vendor wishes to effect a Transfer of any of the Subject Shares
owned by such Vendor, such Vendor (the "Offeror") shall first offer to Transfer
such shares (the "Offered Shares") to IMSI and IMSC (the "Offerees"), such offer
(the "Offer") to be made by notice in writing given by the Offeror specifying
the price and other terms, if any, upon which the Offeror will sell the Offered
Shares (the "Selling Notice"). Such price and terms must be reasonable having
regard to the market price of IMSC common stock. The Offerees shall then have a
period of 5 Business Days following receipt (or deemed receipt) of the Selling
Notice to accept the Offer by notice in writing to the Offeror given within such
5 Business Day period. If no notice is given by the Offerees within such 5
Business Day period, as applicable, the Offerees shall be deemed to have agreed
that the Offeror may Transfer the Offered Shares to a third party. The Offerees
shall be entitled, within and subject to such 5 Business Day period, to assign
their right to purchase the Offered Shares to any person designated by them (the
"Designated Purchaser") in writing provided that any such designation shall not
release IMSI and IMSC from their obligation to purchase the Offered Shares if
the Designated Purchaser fails to complete the purchase.
5. Terms of Purchase.
If the Offer is accepted by either of IMSI or IMSC (the "Offeree") 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 the case may be, has agreed to purchase the Offered
Shares upon the terms and conditions contained in the Selling Notice. The
closing will take place at the offices of IMSI in Concord, Ontario at 2:00 p.m.,
Toronto time, on the date which is 2 Business 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.
6. Offer to a Third Party
If one of the Offerees does not accept or if the Offerees are deemed not to
accept the Offer, then for a period of 90 days, the Offeror shall have the right
to sell the Offered Shares to a bona fide arms'
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length third party on the terms and conditions contained in the Offer. If the
Offered Shares are not sold to a bona fide arms' length third party during such
90 day period, the Offeror may not sell the Offered Shares without first
offering them again to the Offerees pursuant to section 4 and so on from time to
time.
7. Further Assurances
IMSC agrees to do and to cause to be done all acts and things as a shareholder
of IMSI to effect compliance with or waiver of the restrictions on the transfer
of shares contained in the articles of IMSI to give effect to any Transfer or
any intended Transfer of Offered Shares permitted to be made and recorded as a
result of the application of the provisions of this Agreement in order that,
notwithstanding such restrictions, the terms and conditions of this Agreement
may be carried out. 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.
8. 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:
c/o Michael Eskenazi
1A Sunny Acres
Baie D'Urfe Quebec H9X 3B5
with a copy to:
Lapointe Rosenstein
1250 Rene Levesque Blvd. W.
Montreal, Quebec H3B 5E9
Attention: Norman A. Rishikof
Telecopier No.: (514) 925-9001
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(ii) if to IMSI:
International Menu Solutions Inc.
350 Creditstone Road
Concord, Ontario L4K 3Z2
Attention: Michael A. Steele
Telecopier No.: (416) 660-4585
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
(iii) if to IMSC:
International Menu Solutions Corporation
350 Creditstone Road
Concord, Ontario L4K 3Z2
Attention: Michael A. Steele
Telecopier No.: (416) 660-4585
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 by
telecopier (or, if such day is not a Business Day, on the next following
Business Day) or, if mailed, on the third Business Day following the date of
mailing; provided, however, that if at the time of mailing or within three
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 8.
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9. Time of Essence
Time shall be of the essence hereof.
10. Governing Law
This Agreement shall be construed by and governed in accordance with the laws of
the Province of Ontario.
11. Assignment
This Agreement is not assignable by a party hereto without the prior written
consent of each of the other parties.
12. 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.
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13. 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/ Michael Eskenazi
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Witness Michael Eskenazi
/s/ /s/ Gina Eskenazi
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Witness Gina Eskenazi
FELIX & NORTON INTERNATIONAL INC.
Per: /s/
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Per:
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INTERNATIONAL MENU SOLUTIONS INC.
Per: /s/
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Per: /s/
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INTERNATIONAL MENU SOLUTIONS
CORPORATION
Per: /s/
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Per: /s/
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