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EXHIBIT 2.9
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made the 30th day of June, 2000
AMONG:
SEAFOOD SELECTIONS INC., a corporation incorporated under the
laws of the Province of Ontario
(the "Purchaser")
- - and -
PRIME FOODS PROCESSING INC., a corporation incorporated under
the laws of the Province of Ontario
(the "Vendor")
- - and -
INTERNATIONAL MENU SOLUTIONS INC., a corporation incorporated
under the laws of the Province of Ontario
("IMSI")
- - and -
THE RHYN COMPANY INC. and GOURMET SENSATIONS INC.
WHEREAS the Vendor and IMSI wish to sell certain assets and the Purchaser wishes
to purchase those assets on and subject to the terms and conditions of this
Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the mutual
covenants and agreements herein contained and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.01 Definitions. In this Agreement, the following terms and expressions have
the following meanings:
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(a) "Agreement" means this agreement and all schedules attached to this
agreement, in each case as they may be amended or supplemented from
time to time, and the expressions "hereof', "herein", "hereto",
"hereunder", "hereby" and similar expressions refer to this
agreement and, unless otherwise indicated, references to Articles
and sections are to Articles and sections in this agreement,
references to Schedules are to schedules attached to this agreement;
(b) "Assumed Liabilities" - [Intentionally deleted]
(c) "Business" means the business of processing and distribution of
seafood products carried on by the Vendor under the name "Seafood
Selections";
(d) "Charge" means any security interest, lien, charge, pledge,
encumbrance, mortgage, adverse claim or title retention agreement of
any nature or kind;
(e) "Closing" means the completion of the sale and purchase of the
Purchased Assets pursuant to this Agreement at the Time of Closing;
(f) "Closing Date" means June 30, 2000 or such earlier or later date as
may be agreed upon in writing by the parties;
(g) "Contracts" has the meaning given to that term in paragraph 2.01(a);
(h) "generally accepted accounting principles" means the accepted
accounting principles approved from time to time by the Canadian
Institute of Chartered Accountants or any successor institute
applicable as at the date on which any calculation or determination
is required to be made;
(i) "GST Legislation" means Part IX of the Excise Tax Act (Canada), as
amended, supplemented or replaced from time to time;
(j) "Intellectual Property" means all right and interest of IMSI in and
to all trade marks, trade mark registrations, applications for
trademark registrations, trade names, brand names and other
intellectual property relating solely to the Business;
(k) "Person" means any individual, partnership, limited partnership,
joint venture, syndicate, sole proprietorship, corporation with or
without share capital, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative,
regulatory body or agency, government or governmental agency,
authority or entity however designated or constituted;
(l) "Purchase Price" has the meaning given to that term in section 2.03;
(m) "Purchased Assets" has the meaning given to that term in section
2.01;
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(n) "Recipes" means recipes and product formulations used by the Vendor
in the Business and listed in Schedule A hereto;
(o) "Time of Closing" means 10:00 a.m., Toronto time, on the Closing
Date or such other time on the Closing Date as may be agreed upon in
writing by the parties.
(p) "Schedules". The following schedules attached to this Agreement
shall, for purposes hereof, form part of this Agreement:
Schedule A - Recipes
Schedule B - Existing "Seafood Selections" Products
Schedule C - Inventory
Schedule D - Litigation
Schedule E - [intentionally deleted]
1.02 Headings, Table of Contents, Gender and Number. The inclusion of headings
in this Agreement is for convenience of reference only and shall not
affect the construction or interpretation hereof. In this Agreement,
unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing gender include all
genders.
1.03 Currency. Except where otherwise expressly provided, all amounts in this
Agreement are stated and shall be paid in Canadian currency.
1.04 Acknowledgement. Each party hereto acknowledges that it and its legal
counsel have reviewed and participated in the negotiation and settlement
of the terms of this Agreement.
ARTICLE 2
PURCHASE AND SALE
2.01 Purchase and Sale of Assets. Subject to the terms of this Agreement, at
the Closing the Vendor shall sell and the Purchaser shall purchase the
following property, assets and rights used by the Vendor in carrying on
the Business (the "Purchased Assets"):
(a) all right, title and interest of the Vendor in all contracts and
agreements to fill orders or sell product which have been entered
into by the Vendor in the ordinary course of the Business,
consistent with past practice (collectively, the "Contracts") (to
the extent that the Contracts are assignable or transferable and
subject to the obtaining of any necessary consents to such
assignment or transfer); and
(b) the goodwill of the Business together with the exclusive right of
the Purchaser to represent itself as carrying on the Business as a
successor to the Vendor.
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2.02 Excluded Assets. The Purchased Assets do not include any other assets or
rights of the Vendor or IMSI other than as set out in this Agreement.
2.03 Purchase Price. Subject to the terms and conditions of this Agreement, the
aggregate price (the "Purchase Price") to be paid by the Purchaser to the
Vendor for the Purchased Assets shall be Nine Hundred Thirty-Five
Thousand, Five Hundred Ninety-Five Dollars ($935,595.00) (the "Purchase
Price"). The Purchase Price will be satisfied by the payments referred to
in section 2.04.
2.04 Payment of Purchase Price. The parties agree that the Purchase Price shall
be paid over time as hereinafter provided. The Purchase Price shall be
paid in monthly payments which are the aggregate of:
(a) three percent (3%) of the net paid invoice amount of product sales
of existing "Seafood Selections" labeled products (as listed in
Schedule B to this Agreement);
(b) two percent (2%) of the net paid invoice amount of product sales of
existing "Seafood Selections" products (as listed in Schedule B to
this Agreement) which are private-labeled by the Purchaser; and
(c) one percent (1%) of the net paid invoice amount of "Seafood
Selections" labeled product sales of new products developed by the
Purchaser;
sold by the Purchaser to third parties during the relevant month; provided
that:
(d) if, on the first anniversary date of the Closing Date, the monthly
payments referred to above for the previous (ie. the first) one year
period are less than $50,000.00 in the aggregate, then the Purchaser
shall pay to the Vendor, within ten days of such anniversary date,
the balance of the $50,000.00 (the intention being that the
Purchaser shall pay at least $50,000.00 in the first year after the
Closing Date towards the Purchase Price);
(e) if, on the second anniversary date of the Closing Date, the monthly
payments referred to above for the previous (ie. the second) one
year period are less than $100,000.00 in the aggregate, then the
Purchaser shall pay to the Vendor, within ten days of such
anniversary date, the balance of the $100,000.00 (the intention
being that the Purchaser shall pay at least $100,000.00 in the
second year after the Closing Date towards the Purchase Price);
(f) if, on the third anniversary date of the Closing Date, the monthly
payments referred to above for the previous (ie. the third) one year
period are less than $150,000.00 in the aggregate, then the
Purchaser shall pay to the Vendor, within ten days of such
anniversary date, the balance of the $150,000.00 (the intention
being that the Purchaser shall pay at least $150,000.00 in the third
year after the Closing Date towards the Purchase Price).
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2.05 Payment of Balance of Purchase Price. Any part of the Purchase Price which
remains unpaid on June 30, 2004 shall be paid at such time. Provided that
the Purchaser shall have the right at any time, on at least 15 days notice
to the Vendor but without penalty or bonus, to pay the balance of the
Purchase Price.
2.06 Transfer of Recipes and Intellectual Property. Upon payment in full of the
Purchase Price (whether paid prior to June 30, 2004 or not), the Recipes
shall be transferred by the Vendor to the Purchaser outright and all
Intellectual Property shall be transferred by IMSI to the Purchaser,
without further consideration.
2.07 Payment of License Fee. During the two year period after payment in full
of the Purchase Price (whether paid prior to June 30, 2004 or not), the
Purchaser shall pay to the Vendor the following amounts in monthly
instalments:
(a) Two percent (2%) of the net paid invoice amount of product sales
of existing "Seafood Selections" labeled products (as listed in
Schedule B to this Agreement);
(b) One percent (1%) of the net paid invoice amount of product sales of
existing "Seafood Selections" products (as listed in Schedule B to
this Agreement) which are private-labeled by the Purchaser.
2.08 Purchase of Inventory. The Purchaser shall purchase from the Vendor on an
"as required" basis the seafood inventory owned by the Vendor at the close
of business on the day before the Closing Date, such inventory being more
particularly described in the attached Schedule C (herein called the
"Inventory"). The Inventory shall be valued by the Purchaser and the
Vendor acting reasonably and in good faith at the close of business on the
day before the Closing Date with the amount to be paid by the Purchaser to
be the price therefore paid by the Vendor. The parties further agree that:
(a) The parties will note the condition of the Inventory as at the time
of their inspection on the day before the Closing Date and will
"red-flag" any spoiled or unusable Inventory. The Inventory shall
remain at the Vendor's risk until it is removed or set aside for use
by the Purchaser. The Purchaser shall inspect the Inventory before
it is removed or set aside for its use and the Purchaser will inform
the Vendor immediately if any Inventory is found to be unusable,
damaged or spoiled.
(b) If the Purchaser shall not have purchased all of the Inventory
(after making adjustments for spoiled or unusable inventory) from
the Vendor by February 28,
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2001, then on February 28, 2001 the Purchaser shall purchase the
balance of the Inventory;
(c) Title and ownership of the Inventory shall remain in the Vendor and
shall only pass to the Purchaser as and when the Purchaser requires
such Inventory for its production of products;
(d) The Purchaser shall not purchase or otherwise acquire directly or
indirectly any product or inventory of the type or similar to the
Inventory so long as there is a quantity of similar product in the
Inventory;
(e) The value of the Inventory from time to time which has not been
purchased, and the value of the Inventory which has been purchased
but has not been paid for by the Purchaser, shall bear interest at
the rate of Prime plus one percent per annum, calculated monthly
(the term "Prime" means the base commercial lending rate used from
time to time by the Bank of Nova Scotia set on a quarterly basis on
the first day of each calendar quarter during the period until the
Purchase Price is fully paid).
(f) The Purchaser shall have the shorter of: 1/ 60 days, or 2/ until
February 28, 2001, to pay for such part of the Inventory as is put
into production, or purchased for resale by the Purchaser, from the
date that the Inventory is so put into production or purchased for
resale. The Purchaser will issue purchase orders for Inventory, as
required by it, and the Vendor shall release same and invoice the
Purchaser therefore but subject to a credit limit of two hundred
fifty thousand dollars ($250,000.00), as the same may be increased
from time to time on mutual agreement.
(g) The Vendor will pay all its outstanding trade payables within 30
days of the Closing Date.
2.09 Transfer Taxes. The Purchaser shall be liable for and shall pay all
federal and provincial sales taxes (including any retail sales taxes) and
all other taxes, duties, fees or other like charges of any jurisdiction
properly payable in connection with the transfer of the Purchased Assets
by the Vendor and IMSI to the Purchaser.
2.10 GST Legislation. The parties agree to elect that no tax be payable
pursuant to the GST Legislation with respect to the sale pursuant to this
Agreement. The Purchaser will file an election pursuant to the GST
Legislation, made jointly by the parties, in compliance with the
requirements of the GST Legislation.
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ARTICLE 3
LIABILITIES AND OBLIGATIONS
3.01 Assumption by the Purchaser. The Purchaser agrees to assume, discharge and
perform, from and after the Closing Date, all obligations and liabilities
of the Vendor under:
(a) any outstanding customer purchase orders;
(b) any agreements entered into by the Vendor prior to Closing in the
ordinary course of the Business for the sale of inventories by the
Vendor.
3.02 Product Liability and Warranty Obligations. The Purchaser shall not be
responsible for any product liability, product warranty or other claim or
obligation respecting product shipped prior to the Time of Closing unless
shipped from a non-IMSI inspected facility. The Purchaser shall reimburse
the Vendor forthwith following demand for all expenses incurred by the
Vendor in connection with any claim or obligation which is the Purchaser's
responsibility hereunder.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.01 By the Vendor. The Vendor represents and warrants to the Purchaser as
follows and acknowledges that the Purchaser is relying upon the following
representations and warranties in connection with its purchase of the
Purchased Assets:
(a) Organization. Each of the Vendor and IMSI is incorporated and
validly existing under the laws of the Province of Ontario and has
the corporate power and capacity to own its property, to carry on
the Business as now being conducted by it, to enter into this
Agreement and to perform its obligations hereunder.
(b) Authorization and Execution. This Agreement and each of the
agreements, contracts and instruments required by this Agreement to
be delivered by the Vendor and IMSI at the Closing has been duly
authorized, executed and delivered by the Vendor and IMSI and is a
legal, valid and binding obligation of the Vendor and IMSI,
enforceable against them by the Purchaser in accordance with its
terms, except as enforcement may be limited by bankruptcy,
insolvency and other laws affecting the rights of creditors
generally and except that equitable remedies may be granted only in
the discretion of a court of competent jurisdiction.
(c) Litigation. Except as set out in Schedule D, there are no actions,
suits or proceedings (whether or not purportedly on behalf of the
Vendor or IMSI) in progress, pending or, to the best of the
knowledge of the Vendor or IMSI, threatened against or affecting,
the Vendor or IMSI in respect of the Business or
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the Purchased Assets at law or in equity, or before or by any
federal, provincial, municipal or other governmental department,
court, commission, board, bureau, agency or instrumentality,
domestic or foreign, or by or before an arbitrator or arbitration
board.
(d) Employee Matters. [Intentionally Deleted]
(e) Residency. Neither the Vendor nor IMSI is a non-resident of Canada
for purposes of the Income Tax Act (Canada).
4.02 By the Purchaser. The Purchaser represents and warrants to the Vendor as
follows and acknowledges that the Vendor is relying upon the following
representations and warranties in connection with its sale of the
Purchased Assets:
(a) Organization. The Purchaser is incorporated and validly existing
under the laws of Ontario and has the corporate power and capacity
to enter into this Agreement and to perform its obligations
hereunder.
(b) Authorization and Execution. This Agreement and each of the
agreements, contracts and instruments required by this Agreement to
be delivered by the Purchaser at the Closing has been duly
authorized, executed and delivered by the Purchaser and is a legal,
valid and binding obligation of the Purchaser, enforceable against
the Purchaser by the Vendor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency and other laws
affecting the rights of creditors generally and except that
equitable remedies may be granted only in the discretion of a court
of competent jurisdiction.
(c) Investment Canada Act. The Purchaser is a Canadian for the purposes
of the Investment Canada Act.
4.03 Survival of Representations and Warranties. To the extent that they have
not been fully performed at or prior to the Time of Closing, the
covenants, representations and warranties contained in this Agreement and
in all certificates and documents delivered pursuant to or contemplated by
this Agreement shall survive the Closing.
ARTICLE 5
EMPLOYEES OF THE BUSINESS
5.01 Purchaser to Offer Employment. [Intentionally Deleted]
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ARTICLE 6
COVENANTS
6.01 Intellectual Property. IMSI hereby grants to the Purchaser the exclusive
(other than as contemplated in this Agreement), non-assignable right and
license to use the Intellectual Property in accordance with the terms of
this Agreement until the earlier of such time as the Intellectual Property
is transferred to the Purchaser pursuant to the provisions of section 2.06
hereof or until there has been a termination of such right and license for
breach by the Purchaser which breach is not cured or resolved within 30
days of notice thereof is given to the Purchaser. The Purchaser shall use
the Intellectual Property only in association with the products
contemplated by this Agreement and with no other goods or services. The
Purchaser shall do nothing, whether before or after any termination of its
right and license, which is inconsistent with the validity of the
Intellectual Property or inconsistent with IMSI's ownership or rights
thereto. Where IMSI has a right to terminate such right or license and
does not exercise the same, such forbearance shall not be deemed to be a
waiver of its right to terminate upon any subsequent or future event by
which it has the right to terminate same. Upon any such termination for
any reason whatsoever, the Purchaser shall immediately cease any and all
use of the Intellectual Property.
6.02 Reporting. On or before the fifteenth (15th) day following the end of each
calendar month, commencing with the month following the Closing Date, and
thereafter until the Purchase Price has been paid in full pursuant to the
terms of this Agreement, the Purchaser shall provide to the Vendor a
report, in a mutually agreeable form, of the sales by the Purchaser during
the applicable calendar month. Each such monthly report shall be certified
by a responsible officer of the Purchaser and shall be delivered to the
Vendor by fax, electronic data transmission or such other means as the
Vendor shall determine from time to time, acting reasonably. The Purchaser
shall keep adequate and complete records until the Purchase Price has been
paid in full of all transactions which relate to this Agreement.
6.04 Audit Rights. Upon ten (10) days notice in writing to the Purchaser and
during normal business hours at the Purchaser's principal place of
business, the Vendor, from time to time, alone or together with any Person
designated by it as an accredited person, including accountants,
management consultants or others, at its own expense, may: (a) inspect the
books and records of the Purchaser containing in whole or in part records
or information concerning transactions described in or contemplated by
this agreement; (b) discuss with the officers, employees, public
accountants or other knowledgeable representatives of the Purchaser the
said books and records and any transaction recorded therein or any
transaction that, in the Vendor's view, should have been recorded therein;
and (c) cause an audit or other external review of the books and records
of the Purchaser to independently access the correctness of any report
referred to in section 6.02 above and the payments set forth in section
2.04 hereof. The Vendor shall have no duty to make any inspection, enter
into any discussion, or cause any audit or external review, and shall not
incur any liability nor any obligation nor lose any rights for not making
same. The
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carrying out by the Vendor of any inspection, discussion, audit or
external review shall not constitute a waiver of or in other way diminish
any of the Vendor's rights hereunder. The Vendor shall also have the
right, until the Recipes and Intellectual Property are transferred as
contemplated in section 2.06 hereof, to inspect the Purchaser's food
processing facilities to ensure that the quality of the product being
produced by the Purchaser is at least equivalent to that produced by the
Vendor as at the date hereof, such inspection to be carried out by a
properly qualified quality-analysis individual.
6.05 Errors. In the event that an audit undertaken by the Vendor indicates that
any payment or payments made by the Purchaser to the Vendor is in error,
then the appropriate adjustment shall be made. Any amount that is found to
be due and owing by the Purchaser to the Vendor, which is not disputed by
the Purchaser shall be paid immediately and any amount that is found to be
an overpayment by the Purchaser to the Vendor shall be a credit with
respect to subsequent payments to be made by the Purchaser to the Vendor.
6.06 Co-operation. The parties shall cooperate fully in good faith with each
other and their respective legal advisers, accountants and other
representatives in connection with any steps required to be taken as part
of their respective obligations under this Agreement.
6.07 Use of Word "Selections". After the date hereof and unless and until there
is a default by the Purchaser, IMSI grants to the Purchaser the right to
use the name "Selections" in its name. In the event that the Purchaser is
in default in the performance of any of its covenants and agreements
herein contained, IMSI shall have the right to terminate the Purchaser's
right to use the name "Selections" in the event that such default is not
cured within seven days of receipt of written notice given by IMSI to the
Purchaser. In the event of any such termination, the Purchaser covenants
and agrees to change its name to a name that does not include the word
"Selections". The Purchaser shall not under any circumstances use the name
"Selections" other than in connection with the word "seafood". The
Purchaser acknowledges that IMSI uses the name "Selections" for a number
of product lines and accordingly the use of the name "Selections" other
than with "seafood" could cause material damages to IMSI and accordingly
the Purchaser consents to IMSI obtaining an injunction or restraining
order in such circumstances. The Purchaser shall not without the prior
written consent of IMSI make any use, in advertising or elsewhere, of
IMSI's name, the name of any of its affiliates or any of its trade marks.
The Purchaser shall not develop a name for the sale of seafood products
similar to "Seafood Selections".
6.08 Other Names. The Purchaser will have the right to develop and market its
own seafood products and brands under names which are not confusingly
similar to the names and brands included in the Intellectual Property.
6.09 Space at IMSI. The Purchaser shall occupy the same space at the premises
of IMSI at 350 Creditstone, Concord, Ontario as is currently occupied by
the Vendor for such period as IMSI may permit, provided that in the event
that IMSI wishes the Purchaser to vacate, IMSI shall give to the Purchaser
not less than sixty (60) days written notice and provided
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that the Vendor may vacate at any time after 18 months from the Closing
Date upon at least 60 days notice to the Vendor.
6.10 Termination of Consulting Agreements. Contemporaneous with the Closing,
the two consulting agreements namely, the agreement made as of the 3O~ day
of June, 1998 between IMSI and The Rhyn Company Inc., and the agreement
made as of the 1st day of January, 1999 between IMSI and Gourmet Sensation
Inc. are terminated without further obligation by either party thereto to
the other in each of such agreements, provided that IMSI shall be
obligated to make any and all payments thereunder, including but not
limited to salaries and commissions, up to and including the Date of
Closing.
6.11 Assistance in Collecting Accounts Receivable. The Purchaser shall assist
the Vendor in the collection of any accounts receivable owing by customers
of the Vendor relating to the Business and accruing before Closing. Such
assistance shall extend to providing administrative support. Monies
collected by the Purchaser from customers shall be applied to their oldest
accounts first and, where necessary, the Purchaser shall endorse such
payments over to the Vendor.
6.12 Purchaser to Update Schedules. Until such time as the Recipes and
Intellectual Property are transferred to the Purchaser as contemplated in
section 2.06 hereof, the Purchaser shall provide to the Vendor on the
first day of each quarter updates of all information contained in
Schedules A and B hereof.
ARTICLE 7
CONDITIONS
7.01 Conditions for the Benefit of the Purchaser. The obligation of the
Purchaser to complete the purchase of the Purchased Assets pursuant to
this Agreement is subject to the satisfaction of, or compliance with, at
or prior to the Time of Closing, each of the following conditions (each of
which is acknowledged to be for the exclusive benefit of the Purchaser):
(a) Representations, Warranties and Covenants. The representations and
warranties of the Vendor made in or pursuant to this Agreement shall
be true and correct at the Time of Closing; the covenants contained
in this Agreement to be performed by the Vendor and IMSI at or prior
to the Time of Closing shall have been performed; the Vendor and
IMSI shall not be in breach of any agreement on their part contained
in this Agreement.
(b) Closing Documents. All documents relating to the authorization and
completion of the transaction contemplated by this Agreement and all
actions and proceedings taken at or prior to the Time of Closing in
connection with the performance by each of the Vendor and IMSI of
its obligations under this Agreement shall be
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satisfactory to the Purchaser and the Purchaser shall have received
copies of all such documents and evidence that all such actions and
proceedings have been taken as it may reasonably request, all in
form and substance satisfactory to the Purchaser.
7.02 Conditions for the Benefit of the Vendor. The obligation of the Vendor and
IMSI to complete the sale of the Purchased Assets hereunder is subject to
the satisfaction of, or compliance with, at or prior to the Time of
Closing, each of the following conditions (each of which is acknowledged
to be for the exclusive benefit of the Vendor):
(a) Representations, Warranties and Covenants. The representations and
warranties of the Purchaser made in or pursuant to this Agreement
shall be true and correct at the Time of Closing with the same force
and effect as if made at and as of the Time of Closing; the
covenants contained in this Agreement to be performed by the
Purchaser at or prior to the Time of Closing shall have been
performed; the Purchaser shall not be in breach of any agreement on
its part contained in this Agreement.
(b) Closing Documents. All documents relating to the authorization and
completion of the transaction contemplated by this Agreement and all
actions and proceedings taken at or prior to the Time of Closing in
connection with the performance by the Purchaser of its obligations
under this Agreement shall be satisfactory to the Vendor and IMSI
and the Vendor and IMSI shall have received copies of all such
documents and evidence that all such actions and proceedings have
been taken as it may reasonably request, in form and substance
satisfactory to the Vendor and IMSI.
ARTICLE 8
CLOSING
8.01 Place and Time of Closing. The Closing shall take place at the Time of
Closing at the offices of the Vendor's counsel, 675 Riverbend Drive,
Kitchener, Ontario.
8.02 Deliveries at Closing. At the Closing, upon fulfillment of all the
conditions which have not been waived in writing by the Purchaser or the
Vendor or IMSI, as the case may be, the Vendor and IMSI shall deliver to
the Purchaser all deeds, documents of title, conveyances, bills of sale,
transfers, assignments, indentures, instruments and consents an any other
documents necessary or desirable to effect the assignment, transfer and
sale of the Purchased Assets to the Purchaser and such other documents as
are required or contemplated to be delivered by the Vendor and IMSI
pursuant to this Agreement, provided that the Vendor and IMSI shall not be
obligated to comply with the Bulk Sales Act (Ontario) in connection with
the sale and purchase of the Purchased Assets. The Vendor and IMSI shall
deliver actual possession of the Purchased Assets (to the extent
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applicable) to the Purchaser at the Time of Closing. At the Time of
Closing, the Purchaser shall deliver such documents as are required or
contemplated to be delivered by the Purchaser pursuant to this Agreement.
ARTICLE 9
GENERAL
9.01 Confidentiality. If the transaction contemplated by this Agreement is not
completed, the Purchaser shall not, except as contemplated below, directly
or indirectly use for its own purposes or communicate to any other Person
any confidential information or data relating to the Vendor or IMSI or to
the Business which becomes known to the Purchaser, its accountants, legal
advisers or representatives as a result of the Vendor or IMSI making the
same available in connection with the transaction contemplated hereby. The
foregoing shall not prevent the Purchaser from disclosing or making
available to its accountants, professional advisers and bankers and other
lenders, whether current or prospective, any such information or data in
connection with the transactions contemplated in this Agreement.
9.02 Public Notices. No press release or other announcement concerning the
transaction contemplated by this Agreement shall be made by the Vendor or
by the Purchaser without the prior written consent of the other (such
consent not to be unreasonably withheld) provided, however, that any party
may, without consent of the others, make such disclosure if it is required
by any stock exchange on which any of the securities of such party or any
of its Affiliates are listed or by any securities commission or other
similar regulatory authority having jurisdiction over such party or any of
its Affiliates, and if disclosure is required, the party making the
disclosure shall use reasonable efforts to give prior oral or written
notice to the other, and if prior notice is not possible, to give notice
immediately following the making of such disclosure.
9.03 Expenses. Each of the parties shall be responsible for the expenses
(including fees and expenses of legal advisers, accountants and other
professional advisers) incurred by them, respectively, in connection with
the negotiation and settlement of this Agreement and the completion of the
transaction contemplated hereby.
9.04 Enurement and Assignment. This Agreement shall be binding upon and shall
enure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
9.05 Invalidity of Provisions. Each of the provisions contained in this
Agreement is distinct and severable and a declaration of invalidity or
unenforceability of any such provision or part thereof by a court of
competent jurisdiction shall not affect the validity or enforceability of
any other provision hereof
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9.06 Entire Agreement. This Agreement constitutes the entire agreement between
the parties pertaining to the subject matter hereof There are no
warranties, conditions, or representations (including any that may be
implied by statute) and there are no agreements in connection with such
subject matter except as specifically set forth or referred to in this
Agreement. No reliance is placed on any warranty, representation, opinion,
advice or assertion of fact made by any party hereto or its directors,
officers, employees or agents, to any other party hereto or its directors,
officers, employees or agents, except to the extent that the same has been
reduced to writing and included as a term of this Agreement. Accordingly,
there shall be no liability, either in tort or in contract, assessed in
relation to any such warranty, representation, opinion, advice or
assertion of fact, except to the extent aforesaid.
9.07 Waiver, Amendment. Except as expressly provided in this Agreement, no
amendment or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any provision of
this Agreement shall constitute a waiver of any other provision nor shall
any waiver of any provision of this Agreement constitute a continuing
waiver unless otherwise expressly provided.
9.08 Time of Essence. Time shall be of the essence of this Agreement.
9.09 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:
if to the Purchaser:
c/o 468 Elizabeth Street
Burlington, Ontario
L7R 2M2
if to the Vendor:
350 Creditstone Road
Concord, Ontario L4K 3X2
if to IMSI:
350 Creditstone Road
Concord, Ontario L4K 3X2
Attention: Michael Steele
Telecopier No.: (905) 760-9443
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(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 day on which the post office
is open (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.
(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 9.09.
9.10 Further Assurances. Each of the parties shall promptly do, make, execute,
deliver, or cause to be done, made, executed or delivered, all such
further acts, documents and things as the other party hereto may
reasonably require from time to time for the purpose of giving effect to
this Agreement and shall use reasonable efforts and take all such steps as
may be reasonably within its power to implement to their full extent the
provisions of this Agreement.
9.11 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein. Each party hereby irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the Province of
Ontario and all courts competent to hear appeals therefrom.
9.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, and all of which taken together shall constitute one and the
same agreement.
[Balance of page intentionally left blank]
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9.13 Facsimile. This Agreement may be transmitted by facsimile or other
electronic transmission and the reproduction of signatures will be deemed
to be original and legally binding.
IN WITNESS WHEREOF the parties hereto have executed this agreement.
SEAFOOD SELECTONS INC.
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
PRIME FOODS PROCESSING INC.
By:________________________________
Michael A. Steele, President
INTERNATIONAL MENU
SOLUTIONS INC.
By:________________________________
Michael A. Steele, President
THE RHYN COMPANY INC.
By:________________________________
Ian Hamilton, President
GOURMET SENSATION INC.
By:________________________________
Joe Fuda, President
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