TRANSFER AGREEMENT
THIS AGREEMENT made as of the 1st day of June, 2001
BETWEEN:
GERALD LALONDE AND BRANE VUKELIC
both of the City of Ottawa, in the Province of Ontario
(hereinafter referred to as the "Transferors")
and
ZIM TECHNOLOGIES INTERNATIONAL INC.,
a corporation incorporated under the laws of Canada,
(hereinafter referred to as the "Transferee")
In consideration of the premises and the mutual covenants herein contained (the
sufficiency of which consideration as to each of the parties hereto is hereby
mutually acknowledged), the parties hereto covenant and agree as follows:
ARTICLE 1 - INTERPRETATION
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1.1 DEFINITIONS
In this Agreement and in the recitals and Schedule hereto annexed,
unless otherwise specified or patently required by the context, the words and
phrases defined in the recitals and elsewhere in this Agreement shall have the
meanings ascribed to them therein, and the following words and terms shall have
the respective meanings ascribed to them as follows:
(a) "ACT" shall mean the INCOME TAX ACT of Canada;
(b) "ASSETS" shall mean the Technology, including, without limitation, all
Intellectual Property Rights related thereto, transferred pursuant to
this Agreement
(c) "COST" shall have the same meaning as "cost" or "cost amount" in
section 85 of the Act;
(d) "EFFECTIVE DATE" shall mean the date hereof or such other date as the
parties may agree upon in writing;
(e) "ELECTED AMOUNT" shall mean $1.00;
(f) "INTELLECTUAL PROPERTY RIGHTS" means all intellectual and industrial
property rights including
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(i) trade secrets, confidential information and confidential
know-how, inventions, formulae, processes, databases,
technology, inventors' notes, research designs, prototypes,
drawings and design and construction specifications;
(ii) copyrights;
(iii) industrial designs, design patents and other designs;
(iv) integrated circuit topographies;
(v) patents; and
(vi) trade-marks, including registered and unregistered
trade-marks, designs, logos, indicia, distinguishing guises,
trade dress, trade names, business names, domain names, any
other source or business identifiers, and all goodwill
associated with the foregoing;
and all registrations, applications for registration, reissues,
extensions, renewals, divisions, re-examinations,
continuations-in-part, proprietary or grant information and
documentation relating to the foregoing.
(g) "ISSUED SHARES" shall mean Two Million (2,000,000) fully paid and
non-assessable Common Shares in the capital of the Transferee;
(h) "TECHNOLOGY" means the computer software programs listed in Schedule
"A" hereto, including source code, object code, compiled and run-time
versions, and associated libraries, databases, objects, entities,
software development tools and documentation.
1.2 HEADINGS
--------
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article or Section or other portion hereof
and include any agreement supplemental hereto. Unless something in the subject
matter or context is inconsistent therewith, references herein to Articles or
Sections are to Articles or Sections of this Agreement.
1.3 EXTENDED MEANINGS
-----------------
In this Agreement words importing the singular number only shall
include the plural and VICE VERSA, and words importing persons shall include
individuals, partnerships, associations, trusts, unincorporated organizations
and corporations. The terms "provision" and "provisions" refer to terms,
conditions, provisions, covenants, obligations, undertakings, warranties and
representations in this Agreement.
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1.4 AMBIGUITIES
-----------
The parties hereto agree that each of them has participated in the
drafting of this Agreement and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Agreement.
1.5 SCHEDULES
---------
The following is the Schedule annexed hereto and incorporated by
reference and deemed to be part hereof:
Schedule "A" - Technology
ARTICLE 2 -TRANSFER AND ASSIGNMENT
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2.1 TRANSFER
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Subject to the provisions of this Agreement, the Transferors hereby
sell, assign and transfer to the Transferee, and the Transferee hereby accepts
from the Transferors, all of the Transferors' right, title and interest in and
to the Assets, as of and from the Effective Date.
2.2 WAIVER OF MORAL RIGHTS
----------------------
The Transferors expressly waive, in whole, and in favour of the
Transferee, any moral rights in and to the Assets.
ARTICLE 3 - COMPENSATION TO TRANSFEROR
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3.1 PRICE AND ELECTION
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(a) The Transferee shall pay to the Transferors as consideration for the
Assets the sum of Two Million Dollars ($2,000,000) in Canadian
currency, which is intended by the parties to be the fair market value
of the Assets on the Effective Date.
(b) The consideration described in article 3.1(a) shall be satisfied by the
issue to each of the Transferors of One Million (1,000,000) of the
Issued Shares, being in aggregate the fair equivalent of consideration
payable in money of Two Million Dollars ($2,000,000) in Canadian
currency.
(c) The parties shall jointly elect in the form prescribed pursuant to
subsection 85(1) of the Act that the Transferors' proceeds of
disposition of the Assets and the Transferee's Cost thereof shall be
the Elected Amount, or such other amount as the parties may agree upon
within the time specified in subsection 85(6) of the Act.
(d) The Transferee shall be liable for and shall pay in cash and not in
share consideration all transfer taxes, federal and provincial sales
taxes and all other taxes, duties or other like charges properly
payable upon and in connection with the conveyance and transfer of the
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Assets by the Transferor to the Transferee. Any such taxes shall be
paid by the Transferee and collected by the Transferors (or paid
directly to the applicable government authority) on the day the second
of the parties executes this Agreement.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
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4.1 TRANSFERORS
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The Transferors represent and warrant to the Transferee that:
(a) the Transferors are collectively the owners of all right, title and
interest in the Assets, other than any interest that the Transferee may
have in the Assets;
(b) the Transferors have good and sufficient power, authority and right to
enter into, execute and deliver to the Transferee this Agreement and to
transfer all of the Transferors' interest in the Assets to the
Transferee free and clear of all liens, charges and encumbrances, other
than any such liens, charges and encumbrances that the Transferee may
have on the Assets;
(c) each of the Transferors is registered under Subdivision d of Division V
of Part IX of the EXCISE TAX ACT for the collection and remittance of
the Goods and Services Tax. The registration number for Gerald Lalonde
is 87857 5810 RT0001 and the registration number for Brane Vukelic is
89079 9117 RT0001; and
(d) this Agreement constitutes a valid, binding and legally enforceable
obligation of the Transferors in accordance with its terms.
4.2 TRANSFEREE
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The Transferee represents and warrants to the Transferors that:
(a) the Transferee is a corporation duly incorporated, organized and
subsisting under the laws of Canada with corporate power to own its
assets and to carry on its business;
(b) the Transferee has good and sufficient power, authority and right to
enter into, execute and deliver to the Transferors this Agreement and
to issue and deliver the Issued Shares described above in Section 3.1
hereto free and clear of all liens, charges and encumbrances, and the
execution and delivery of the Agreement by the Transferee and the
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action of the Transferor;
(c) Neither the entering into nor the delivery of this Agreement, nor the
carrying out of the obligations of the Transferee hereunder will result
in a violation of:
(i) any of the provisions of the constating documents or by-laws
of the Transferee;
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(ii) any agreement or other instrument to which the Transferee is a
party or by which it is bound; or
(iii) any applicable law or regulation;
(d) the Transferee is registered under Subdivision d of Division V of Part
IX of the EXCISE TAX ACT for the collection and remittance of the Goods
and Services Tax, and its registration number is 87336 1372 RT0001;
(e) this Agreement constitutes a valid, binding and legally enforceable
obligation of the Transferee in accordance with its terms; and
(f) upon the completion of the transfer of the Assets to the Transferee,
the Issued Shares will be validly issued and outstanding.
ARTICLE 5 - OTHER AGREEMENTS
----------------------------
5.1 SHAREHOLDERS AGREEMENT
----------------------
The Transferor Gerald Lalonde acknowledges and agrees that those of the
Issued Shares issued to him are subject to the terms and conditions of the
shareholders agreement dated February 6, 2001, an acknowledgement in respect of
which is delivered herewith.
5.2 MINORITY HOLDERS AGREEMENT
--------------------------
The Transferor Brane Vukelic acknowledges and agrees that those of the
Issued Shares issued to him are subject to the terms and conditions of the
minority holders agreement delivered herewith.
5.3 INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION AGREEMENT
------------------------------------------------------------
This Agreement does not amend or rescind the Intellectual Property and
Confidential Information Agreement between the Transferor Gerald Lalonde and the
Transferee dated February 6, 2001, the provisions of which remain in force.
ARTICLE 6 - GENERAL
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6.1 AMENDMENTS AND WAIVER
---------------------
No modification of or amendment to this Agreement shall be valid or
binding unless set forth in writing and duly executed by the parties hereto and
no waiver of any breach of any term or provision of this Agreement shall be
effective or binding unless made in writing and signed by the party purporting
to give the same and, unless otherwise provided, shall be limited to the
specific breach waived.
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6.2 FURTHER ASSURANCES
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Each of the parties hereto shall from time to time execute and deliver
all such further documents and instruments (including instruments of conveyance)
and do all acts and things as the other party may reasonably require, at the
Transferee's expense, to effectively carry out or better evidence or perfect the
full intent and meaning of this Agreement.
6.3 SEVERABILITY
------------
If a court or other lawful authority of competent jurisdiction declares
any provision, Article or Section of this Agreement invalid, illegal or
unenforceable, this Agreement will continue in full force and effect with
respect to all other provisions, Articles and Sections and all rights and
remedies accrued under such other provisions, Articles and Sections will survive
any such declaration.
6.4 ASSIGNMENT
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This Agreement shall be legally binding upon the undersigned, their
successors and assigns but shall not be assigned by any party hereto except (i)
with the consent of the other parties or (ii) in its entirety and with the
entire business of such party.
6.5 GOVERNING LAW
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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.
6.6 SURVIVAL
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All representations and warranties of the Transferor and the Transferee
contained in this Agreement shall survive the closing and the consummation of
the transactions contemplated by this Agreement and shall not be discharged,
dissolved or terminated by the closing.
6.7 ENTIRE AGREEMENT
----------------
This Agreement and the agreements referred to in article 5 hereof
together constitute the entire agreement between the parties hereto with respect
to the subject matter hereof and cancel and supersede any prior understandings
and agreements between the parties hereto with respect thereto. There are no
representations, warranties, terms, conditions, undertakings or collateral
agreements, express, implied or statutory, between the parties other than as
expressly set forth in this Agreement.
6.8 COUNTERPARTS AND FASCIMILE
--------------------------
This Transfer Agreement may be executed in two or more counterparts,
all of which taken together shall, once delivered (including by facsimile
transmission), constitute one instrument.
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6.9 INDEPENDENT LEGAL AND TAX ADVICE
--------------------------------
Each of the Transferors and the Transferee acknowledges that he or it
has received, or has had the opportunity to receive, independent legal and tax
advice relating to this Agreement and the matters set forth herein.
IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first written above.
___________________________ __________________________
GERALD LALONDE Witness
___________________________ __________________________
BRANE VUKELIC Witness
ZIM TECHNOLOGIES INTERNATIONAL INC.
By: ________________________
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SCHEDULE A
TECHNOLOGY
The Transferors own, jointly, all right, title and interested in technology
described as follows :
Name: Notification Engine (the "Software")
Version: 1.0
Description :
The Software is a collection of software programs, entities and objects that are
designed to capture a series of GUI "user defined" criteria that are then acted
upon collectively. It defines a "triggering" process to initiate some further
action. The result of this "triggering" process is to determine whether a
message should be sent, a process started, or multiple instances of either
according to the criteria of the user.
The Software also serves as a point of collection for disparate data, which can
be re-examined such that a final determination can be made if there is value in
the whole (versus one single aspect of the data). If this is so, then a message
may be sent (either a process message or a text message).
The Software also supports the modification of the data when it arrives to the
Software such that values can be changed to add "new" meaning to the raw data
and therefore not violate legacy systems, or circumvent the need to change
and/or store the modified data in the legacy system.
The Software is currently being modified for ZIM Technologies International Inc.