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EXHIBIT 10.2
PARTNERSHIP AGREEMENT
E-PROPERTY SERVICES CORPORATION
- AND -
MR. GRAHAM TURNER
- AND -
LIMITED PARTNERS
- AND -
PLANET TODAY INC.
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TABLE OF CONTENTS
PAGE NO.
ARTICLE 1.00 - GENERAL
INTERPRETATION ..............................................2
1.01 Definitions ......................................2
1.02 Interpretation ...................................5
ARTICLE 2.00 - THE PARTNERSHIP ..............................6
2.01 Formation and Status of Partnership ..............6
2.02 Name of the Partnership ..........................6
2.03 Maintaining Status of Partnership ................6
2.04 Fiscal Period ....................................6
2.05 Business of the Partnership ......................6
2.06 Head Office and Mailing Address ..................7
2.07 Term .............................................7
2.08 Status of the General Partner ....................7
2.09 Status of each Partner ...........................7
2.10 Compliance with Laws .............................8
2.11 Limitations on the Authority of Partners .........8
ARTICLE 3.00 - MANAGEMENT OF PARTNERSHIP ....................8
3.01 Authority of General Partner .....................8
3.02 Covenants of General Partner .....................9
3.03 Expenses of the General Partner ..................9
3.04 Amendment of Agreement .......................... 9
3.05 Power of Attorney ................................9
3.06 Safekeeping of Assets ...........................11
3.07 Indemnification .................................11
3.08 Liability of Partners ...........................11
3.09 Restrictions Upon the General Partner. ..........11
ARTICLE 4.00 - RESIGNATION OR REMOVAL OF GENERAL PARTNER ...11
4.01 Resignation of General Partner ..................11
4.02 Deemed Resignation of General Partner ...........12
4.03 Removal of General Partner ......................12
4.04 Effect of (Deemed) Resignation or
Removal of General Partner ......................12
4.05 Transfer of Management to New General Partner ...12
ARTICLE 5.00 - THE UNITS ...................................12
5.01 Number of Units .................................12
5.02 Nature of Unit ..................................12
5.03 Unit Certificates ...............................13
5.04 Receipt by Limited Partner ......................13
5.05 Registrar and Transfer Agent ....................13
5.06 Inspection of Records ...........................13
5.07 Transfer of Units ...............................13
5.08 Pledge of Units .................................14
5.09 Parties Not Bound To See to Trust or Equity .....14
5.10 Incapacity, Death, Insolvency or Bankruptcy .....15
5.11 Lost Unit Certificates ..........................15
ARTICLE 6.00 - CONTRIBUTIONS, ALLOCATIONS AND
DISTRIBUTIONS................................15
6.01 Capital Contribution ............................15
6.02 Sale of Units by Private Placement ..............15
6.03 Discretion of the General Partner in
Raising Capital .................................15
6.04 Allocation of Distributable Cash ................16
6.05 Allocation of Taxable Income and Loss ...........16
6.06 Additional Capital Contributions ................16
6.07 Adjustments .....................................16
6.08 Computing Taxable Income and Loss ...............16
6.09 Distribution of Distributable Cash ..............16
6.10 Separate Capital Accounts .......................16
6.11 Separate Current Account ........................17
6.12 No Interest Payable .............................17
ARTICLE 7.00 - ACCOUNTING AND REPORTING ....................17
7.01 Books and Records ...............................17
7.02 Annual Financial Information ....................17
ARTICLE 8.00 - MEETINGS
8.01 Meetings ........................................17
8.02 Place of Meeting ................................17
8.03 Notice of Meetings ..............................18
8.04 Accidental Omissions ............................18
8.05 Information Circulars ...........................18
8.06 Proxies .........................................18
8.07 Validity of Proxies .............................18
8.08 Form of Proxy ...................................18
8.09 Corporations ....................................19
8.10 Attendance of Others ............................19
8.11 Chairman ........................................19
8.12 Quorum ..........................................19
8.13 Voting ..........................................19
8.14 Poll ............................................20
8.15 Resolutions Binding .............................20
8.16 Powers Exercisable by Extraordinary Resolution ..20
8.17 Powers Exercisable by Ordinary Resolution .......20
8.18 Minutes .........................................21
8.19 Additional Rules and Procedures .................21
8.20 Authorized Attendance ...........................21
ARTICLE 9.00 - REPRESENTATIONS, WARRANTIES AND COVENANTS ...21
9.01 Representations, Warranties and
Covenants of the General Partner ................21
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ARTICLE 10.00 - DISSOLUTION AND LIQUIDATION ................21
10.01 Dissolution and Termination .....................21
10.02 Distributions upon Dissolution ..................21
10.03 Events Not Causing Dissolution ..................22
ARTICLE 11 - OPTION TO PURCHASE ............................22
11.01 Option to Purchase Partnership Units ............22
ARTICLE 12.00 - MISCELLANEOUS ..............................25
12.01 Notices .........................................25
12.02 Further Acts ....................................25
12.03 Binding Effect ..................................25
12.04 Severability ....................................25
12.05 Counterparts ....................................25
12.06 Time ............................................25
12.07 Governing Law ...................................25
12.08 Arbitration .....................................25
12.09 Entire Agreement ................................26
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PARTNERSHIP AGREEMENT
This agreement dated as of September 6, 1996, amended and restated as of
December 15, 1998.
B E T W E E N: E-PROPERTY SERVICES CORPORATION, a
corporation incorporated under the laws of the Province
of Ontario (formerly known as 1195944 Ontario Inc.)
(hereinafter known as the "GENERAL PARTNER")
OF THE FIRST PART
- and -
GRAHAM TURNER, of the City of St. Catherines in the
Regional Municipality of Niagara
(hereinafter known as the "INITIAL LIMITED PARTNER")
OF THE SECOND PART
- and -
Each party who from time to time is accepted as a limited
partner in YORK REGION E-PROPERTY LIMITED PARTNERSHIP, or
who is a successor of any such person and who becomes a
limited partner upon being registered as such under the
applicable laws of the Province of Ontario
(hereinafter individually called a "LIMITED PARTNER" and
collectively called the "LIMITED PARTNERS")
OF THE THIRD PART
- and -
PLANET TODAY INC., a company incorporated under the laws
of Canada
(hereinafter known as "PLANET TODAY")
OF THE FOURTH PART
WHEREAS the Initial Limited Partner formed a limited partnership under the laws
of the Province of Ontario on September 6, 1996 (the "PARTNERSHIP") under the
name GTTS VII Limited Partnership;
AND WHEREAS the name of the Partnership was changed on December 1, 1998 to YORK
REGION E-PROPERTY LIMITED PARTNERSHIP;
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AND WHEREAS the General Partner has agreed to sell Units of the Partnership by
way of private placement for the purposes of financing the business and affairs
of the Partnership and shall admit subscribers for Units as Partners in
accordance with the terms hereof;
NOW THEREFORE in consideration of the payment of the sum of $1.00 and other good
and valuable consideration, receipt of which is hereby acknowledged and of the
premises and the mutual covenants herein contained, and for other good and
valuable consideration, the parties agree as follows:
ARTICLE 1.00 - GENERAL INTERPRETATION
1.01 DEFINITIONS
For the purpose of this Agreement, the following terms shall be deemed to have
the following meanings:
"ACCOUNTANTS" means a firm of certified public accountants as may be appointed
by the General Partner on behalf of the Partnership from time to time.
"AFFILIATE" has the meaning ascribed thereto in the Securities Act (Ontario).
"AREA" means any of one of the following areas located within the Regional
Municipality of York, Ontario, Canada:
(a) the area comprising (i) The Town of Newmarket, which, for greater
certainty comprises, among other areas, The Town of East Gwillimbury and
The Town of Georgina and (ii) The Town of Aurora, which, for greater
certainty comprises, among other areas, The Township of King;
(b) the area comprising The Town of Richmond Hill;
(c) the area comprising The Town of Markham and The Town of
Whitchurch-Stouffville; or
(d) the area comprising The City of Vaughan.
"ASSIGNMENT OF PROMISSORY NOTES AGREEMENT" means the agreement between the
Partnership, Planet America and Planet Today wherein, among other things, the
Partnership assigns and transfers on a non-recourse basis to Planet America all
of the First Promissory Notes, the Second Promissory Notes and the Pledge
Agreements to satisfy, in part, the payment of the Licence Fee, in the form set
out in Schedule "G" to the Offering Memorandum.
"ASSOCIATE" has the meaning ascribed thereto in the Securities Act (Ontario) and
also includes any person who does not deal at "arm's length" (as that term has
meaning as set forth in the Tax Act) with such party.
"BUSINESS" means the development, marketing, use, operation and/or licencing of
Internet-based information utilities which have the ability to host a full range
of interactive services to enable individuals, community groups and local
businesses, governments and associations within the Regional Municipality of
York, Ontario, Canada to, among other things, share information and conduct
e-commerce and e-business transactions for the purpose of earning income, and
all activities incidental thereto.
"CLOSING DATE" means the day of closing of the Offering, which is expected to
occur on or before December 29, 1998 subject to the right of the Partnership, at
its discretion, to close the Offering prior to such date and/or extend the
Offering to such date as determined by the Partnership.
"DISTRIBUTABLE CASH" for any fiscal period of the Partnership means the amount
by which the aggregate of Gross Receipts and any Sales Proceeds exceeds
Operating Expenses, less applicable withholding taxes.
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"e-PROPERTY TECHNOLOGY" means the computer-based software system and facility
developed and owned by Planet America called "e-PROPERTY(TM)" which creates a
shared electronic platform capable of hosting a full range of interactive
services, including collaborative information and file-sharing, e-commerce and
e-business transactions, relationship-building and permission marketing and
messaging between individuals, groups, businesses, governments, associations and
other organizations, all as more particularly described in the Technology
Licence and Services Agreement.
"EXTRAORDINARY RESOLUTION" means:
(i) a resolution passed by Limited Partners holding, in the aggregate, not
less than 60% of the outstanding Units held by those Limited Partners
who, being entitled to do so, vote in person or by proxy at a duly
convened meeting of Limited Partners or any adjournment thereof; or
(ii) a written resolution in one or more counterparts consented to in writing
by Limited Partners holding, in the aggregate, not less than 60% of all
of the outstanding Units held by those Limited Partners who are entitled
to vote on the resolution.
"GROSS RECEIPTS" means the aggregate, without duplication, of all revenues
received from the operation of the Partnership's Business during the fiscal
period in question, and all investment income earned on the funds of the
Partnership but excluding any monies, deposits or other prepayments unless and
until earned, insurance proceeds (other than business interruption insurance
proceeds), expropriation proceeds, Refinancing Proceeds and Sales Proceeds.
"FIRST PROMISSORY NOTE" means the promissory note in the principal amount of
$500 per Unit bearing interest at the rate equal to 6.5% per annum payable on
March 31, 1999, in the form set out in Schedule "B" to the Offering Memorandum.
"LAW SITE" means a community-based or geographically-based local area Internet
website created and supported by the e-Property Technology.
"MANAGEMENT SERVICES AGREEMENT" means the agreement between the Partnership and
Planet Today described under the heading entitled "The Partnership - Management
Services Agreement" in the Offering Memorandum.
"NET INCOME" and "NET LOSS" mean, respectively, the net income or net loss of
the Partnership as determined under Section 6.08 hereof.
"OFFERING" means the offering(s) of Units pursuant to and under the terms of the
Offering Memorandum.
"OFFERING MEMORANDUM" means the offering memorandum of the Partnership that will
offer Units of the Partnership, as the same may be amended from time to time.
"OPERATING EXPENSES" means the aggregate, without duplication, of all outlays
made by the Partnership during the fiscal period in question in connection with
the operation of the Business and without limitation, includes: professional
fees reasonably attributable thereto; all business taxes, wages, salaries and
benefits; all debt servicing expenditures of the Partnership whether on account
of principal or interest; reporting costs; and such reserves as may reasonably
be designated by the General Partner, but excluding capital cost allowance or
depreciation and amortization with respect to any assets held by the
Partnership.
"OPTION TO PURCHASE" means the option of Planet Today to acquire all of the
issued and outstanding Units, as provided in Article 11 hereof.
"OPTION EXERCISE DATE" means any date after December 31, 2003 upon which Planet
Today provides written notice to the Partnership that it will exercise the
Option to Purchase.
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"OPTION EXERCISE PRICE" means the price at which Planet Today can acquire all of
the issued and outstanding Units, as provided in Article 11 hereof.
"OPTION EXPIRY DATE" means December 30, 2005, being the date of expiry of the
Option to Purchase.
"ORDINARY RESOLUTION" means:
(i) a resolution passed by Limited Partners holding, in the aggregate, not
less than 50% of the outstanding Units held by those Limited Partners
who, being entitled to do so, vote in person or by proxy at a duly
convened meeting of Limited Partners or any adjournment thereof; or
(ii) a written resolution in one or more counterparts consented to in writing
by Limited Partners holding, in the aggregate, not less than 50% of all
of the outstanding Units held by those Limited Partners who are entitled
to vote on the resolution.
"PARTNER" means the General Partner or any Limited Partner and "PARTNERS" means
all Partners together with the General Partner.
"PLANET AMERICA" means Planet America Inc., a corporation incorporated under the
laws of the State of Delaware, and an Affiliate of Planet Today.
"PLEDGE AGREEMENT" means the pledge agreement to be entered into between the
Partnership and each of the Limited Partners, in the form set out in Schedule
"D" to the Offering Memorandum.
"PROMISSORY NOTES" means, collectively, the First Promissory Note and the Second
Promissory Note.
"PROPORTIONATE SHARE" and words of like import with respect to a holder of Units
means the proportion that the number of Units owned by such Limited Partner is
of the aggregate number of Units outstanding at the particular time.
"REFINANCING PROCEEDS" means the net proceeds resulting from any borrowings by
the Partnership for any purpose other than operating purposes, which is secured
by a mortgage, charge or security interest of the Partnership's interest in all
or any part of its assets or other collateral security.
"REGISTRAR AND TRANSFER AGENT" means the General Partner or an agent appointed
thereby to keep a register of Partners and a register of the transfer of Units.
"SALE" means the disposition of all or any part of the assets of the
Partnership, whether by way of sale or expropriation or otherwise.
"SALES PROCEEDS" means:
(i) the proceeds resulting from a Sale, after deducting the amounts required
to discharge or partially discharge any security relating to, and/or
repay or partially repay loans incurred in respect of the acquisition of
any asset of the Partnership and all costs incurred as a result of such
Sale; and
(ii) the proceeds of any insurance to the extent not applied to repair or
rebuild some or all of the assets held by the Partnership.
"SECOND PROMISSORY NOTE" means the promissory note in the principal amount of
$2,000 per Unit bearing interest at the rate equal to 6.5% per annum payable on
December 31, 2003, in the form set out in Schedule "C" to the Offering
Memorandum.
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"SUBSCRIPTION AGREEMENT" means the completed subscription and power of attorney
agreement in the form set out in Schedule "F" to the Offering Memorandum, or in
such other form as the General Partner may accept.
"SUBSCRIPTION PRICE" means $3,000.00 per Unit payable as set forth in the
Offering Memorandum.
"TAX ACT" means the Income Tax Act (Canada) as amended from time to time.
"TECHNOLOGY LICENCE AND SERVICES AGREEMENT" Means the agreement between the
Partnership, Planet Today and Planet America described under the heading
entitled "The Partnership - Technology Licence and Services Agreement" in the
Offering Memorandum.
"UNIT" means an undivided interest in the Partnership and includes the Units
offered hereby and units authorized to be issued in accordance with the terms of
this Agreement.
"UNIT CERTIFICATE" means the form of certificate issued by the General Partner,
following the Date of Closing, evidencing the number of Units owned by a Limited
Partner or certificates issued in replacement thereof.
1.02 INTERPRETATION
For all purposes of this Agreement except as otherwise expressly provided or
unless the context otherwise requires:
(a) "this Agreement" means this partnership agreement as it may from time to
time be supplemented or amended;
(b) headings are for convenience of reference only and do not form a part of
this Agreement, nor are they intended to interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof;
(c) all accounting terms not otherwise defined herein shall have the meanings
assigned to them by, and all computations made pursuant to this Agreement
except as expressly provided otherwise shall be made in accordance with,
Canadian generally accepted accounting principles applied on a consistent
basis;
(d) all references to currency herein are references to Canadian currency;
(e) any reference to a statute shall include and shall be deemed to be a
reference to such statute and the regulations made pursuant thereto, with
any amendments made thereto and in force from time to time, and to any
statute or regulation that may be passed which has the effect of
supplementing or superseding the statute so referred to or the
regulations made pursuant thereto;
(f) any reference to any entity shall include and shall be deemed to be a
reference to any entity that is a successor to such entity;
(g) all capitalized terms not otherwise defined herein shall have the
meanings as defined in the Offering Memorandum; words importing the
masculine gender include the feminine or neuter gender and words
importing the singular include the plural and vice versa; and
(h) for the purpose of determining those limited partners who are entitled to
receive notice of, or to vote or act at, a meeting of Partners or any
adjournment of any meeting, or who are entitled to participate in any
distribution or for any other proper action, the General Partner may fix
in advance a date not more than fifty (50) days, and not less than
twenty-one (21) days, prior to the date on which the particular action
requiring such determination is to be taken (or in the case of
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any allocation, the date as of which such allocation is to be made and, in
case of any distribution, the date on which persons entitled to such
distribution are to be determined). Where no record date is fixed, the
date on which such notice is given or on which such meeting is held or on
which such allocation and distribution is made or on which such other
action is taken, as the case may be, is the record date for the
determination. Any determination of Partners entitled to vote at a meeting
of Partners applies to any adjournment of such meeting.
ARTICLE 2.00 - THE PARTNERSHIP
2.01 FORMATION AND STATUS OF PARTNERSHIP
The General Partner and the Initial Limited Partner acknowledge that the
Partnership was initially formed as a limited partnership on September 6, 1996
as GTTS VII Limited Partnership and changed its name on December 1, 1998 to YORK
REGION E-PROPERTY LIMITED PARTNERSHIP.
2.02 NAME OF THE PARTNERSHIP
The Partnership shall carry on business under the name "YORK REGION E-PROPERTY
LIMITED PARTNERSHIP" (or such other name or names as the General Partner may
from time to time adopt with prior notice to the Partners, if required, to
comply with laws of the jurisdiction in which the Partnership may conduct
business), as more particularly set out in the Offering Memorandum.
2.03 MAINTAINING STATUS OF PARTNERSHIP
The General Partner shall be the sole general partner and the managing partner
of the Partnership, shall do all things and shall cause to be executed and filed
such certificates, declarations, instruments and documents as may be required
under the laws of the Province of Ontario and any other laws having jurisdiction
to reflect the constitution of the Partnership. The General Partner and each
affected Partner shall execute and deliver as promptly as possible any documents
that may be necessary or desirable to accomplish the purposes of this Agreement
or to give effect to the formation of the Partnership under any and all
applicable laws. The General Partner shall take all necessary action on the
basis of information available to it in order to maintain the status of the
Partnership as a partnership under the laws of the Province of Ontario.
2.04 FISCAL PERIOD
The fiscal period of the Partnership ends on the 31st day of December in each
and every year or such other date as the Partners determine by Extraordinary
Resolution.
2.05 BUSINESS OF THE PARTNERSHIP
The business objectives of the Partnership are to commercially develop, market,
use, operate and/or licence Internet-based information utilities which have the
ability to host a full range of interactive services to enable individuals,
community groups and local businesses, governments and associations within the
Regional Municipality of York, Ontario, Canada to, among other things, share
information and conduct e-commerce and e-business transactions.
The Partnership has entered into the Technology Licence and Services Agreement
pursuant to which, among other things, the Partnership has acquired from Planet
America the non-exclusive and restricted licence to use and apply the e-Property
Technology to enable the Partnership to develop, market and operate LAW Sites
within one or more Areas.
The Partnership shall be entitled to contract with anyone in connection
with the Business, including without limitation, Planet Today or Planet
America.
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2.06 HEAD OFFICE AND MAILING ADDRESS
The registered office and mailing address of the Partnership and the registered
office and mailing address of the General Partner shall be 1091 Gorham Street,
Suite 302, Newmarket, Ontario, L3Y 7V1. The General Partner may change the
registered office or mailing address of the Partnership and the registered
office or mailing address of the General Partner from time to time by giving
notice to that effect to all Partners pursuant to the notice provision
contained in this Agreement and after having filed an amendment to the
Declaration of Partnership.
2.07 TERM
The Partnership shall pursue its permitted activities until December 31, 2042.
unless terminated or dissolved on an earlier date:
(a) as required by operation of law;
(b) by approval of such termination or dissolution by the General Partner and
authorization thereof by Extraordinary Resolution;
(c) which is 180 days after the bankruptcy, insolvency, dissolution,
liquidation or winding-up of the General Partner unless within such 180
day period a new General Partner is appointed; or
(d) if the General Partner resigned after giving 120 days' written notice to
the Partnership and the Limited Partners have not appointed a new General
Partner prior to the effective date of such resignation.
In the event of a vote to dissolve the Partnership by way of Extraordinary
Resolution, the liquidator, who may be the General Partner shall be authorized
and directed to commence an orderly disposition of the properties and assets of
the Partnership as it deems fit and shall not be permitted to acquire any new
assets or make any new investments, but may arrange or re-arrange any existing
investment with a view to enabling such orderly disposition.
2.08 STATUS OF THE GENERAL PARTNER
The General Partner represents and warrants to, and covenants with, each
Partner that it:
(a) is and shall continue to be a corporation incorporated and in good
standing under the laws of the Province of Ontario;
(b) has and shall continue to have the requisite capacity and corporate
authority to act as General Partner and to perform its obligations under
this Agreement, and such obligations do not and shall not conflict with
or breach its articles of incorporation by-laws or any agreement by which
it is bound; and
(c) is and shall continue to be a resident of Canada for purposes of the Tax
Act.
2.09 STATUS OF EACH PARTNER
Each Limited Partner represents and warrants to each other Limited Partner and
to the General Partner that he, she or it, as the case may be:
(a) is not a "non-resident" of Canada within the meaning of the Tax Act;
(b) is not a "non-Canadian" within the meaning of the Investment Canada Act
(Canada);
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(c) if an individual has the capacity and competence to enter into and be
bound by this Agreement and all other agreements contemplated hereby;
(d) if a corporation, partnership, unincorporated association or other
entity, is legally competent to execute this Agreement and all other
agreements contemplated hereby and to take all actions required pursuant
hereto, and further certifies that all necessary approvals of directors,
shareholders, partners, members or otherwise have been given; and
(e) shall promptly provide such evidence of its, his or her, as the case may
be, status as the General Partner may reasonably request.
Each Limited Partner covenants and agrees that it, he or she, as the case may
be, will not transfer or purport to transfer its, his or her Units to any
person, firm, corporation, partnership, unincorporated association or other
entity which would be unable to make the representations and warranties in
subparagraphs (a), (b), (c), and (d) above.
2.10 COMPLIANCE WITH LAWS
Each Limited Partner and the Initial Limited Partner shall, on request by the
General Partner, immediately execute all certificates, declarations,
instruments and documents necessary to comply with any applicable law or
regulation in regard to the formation, continuance, operation or dissolution of
the Partnership.
2.11 LIMITATIONS ON THE AUTHORITY OF PARTNERS
No Partner other than the General Partner shall or shall be entitled to:
(a) execute any document which binds or purports to bind the Partnership, or
any Partner as such;
(b) purport to have the power or authority to bind the Partnership or any
other Partner as such;
(c) have any authority to undertake any obligation or responsibility on
behalf of the Partnership;
(d) take part in the control or management of the Business; or
(e) bring any action for partition or sale in connection with any assets of
the Partnership, or register or permit any lien or charge in respect of
the Units of such Partner to be filed or registered or remain
undischarged against any assets of the Partnership in respect of such
Partner's interest in the Partnership.
ARTICLE 3.00 - MANAGEMENT OF PARTNERSHIP
3.01 AUTHORITY OF GENERAL PARTNER
The General Partner shall have the power and authority to do such acts and
things and to execute and deliver such documents as it considers necessary or
desirable in connection with the offering for sale of the Units and for the
formation and operation of the Partnership for the purposes stated herein.
Subject to the provisions of this Agreement, the General Partner shall carry on
the business of the Partnership with full power and authority for and on behalf
of and in the name of the Partnership to administer, manage, control and
operate such business and to do any act, take any proceeding, make any decision
and execute and deliver any instrument, deed, agreement or document necessary
for, or incidental to, the business of the Partnership for and on behalf of and
in the name of the Partnership.
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3.02 COVENANTS OF GENERAL PARTNER
The General Partner covenants with each Limited Partner that the General
Partner shall:
(a) exercise its powers and discharge its duties honestly, in good faith and
in the best interest of the Partnership and will exercise the care,
diligence and skill of a prudent and qualified manager of a business
similar to that of the Partnership, including, without limitation, the
enforcement of the contracts listed under the heading entitled "Material
Contracts" in the Offering Memorandum; and
(b) devote such time and attention to the conduct of the business of the
Partnership as is reasonably required for the prudent management of the
business and affairs of the Partnership.
3.03 EXPENSES OF THE GENERAL PARTNER
The General Partner is entitled to reimbursement by the Partnership for all
reasonable third party costs and expenses incurred by the General Partner on
behalf of the Partnership in the ordinary course of business, including costs
of accounting, legal, reporting or other costs and expenses incidental to
acting as General Partner to the Partnership, provided the General Partner is
not in default of its duties hereunder in connection with such costs and
expenses.
3.04 AMENDMENT OF AGREEMENT
Unless otherwise provided for herein, this Agreement may be amended in writing
with the consent of the Limited Partners given by Extraordinary Resolution
provided, however, that this Article 3.00 and Articles 6.00 and 8.00 may not be
amended except with the unanimous consent of all Limited Partners entitled to
vote and further provided that no amendment that adversely affects the rights
of the General Partner or reduces the fee or other compensation payable to the
General Partner may be made without the approval of the General Partner. No
amendment can be made to this Agreement, however, which would have the effect
of reducing the interest in the Partnership of the Limited Partners, allowing
any Limited Partner to exercise control over the business of the Partnership,
changing the right of a Limited Partner to vote at any meeting, or allowing the
Partnership to engage in any unauthorized activity. The General Partner may,
without prior notice to or consent from any Limited Partner, amend any
provision of this Agreement from time to time:
(a) for the purpose of adding to or deleting from this Agreement any
covenants, restrictions or provisions if such additions or deletions are
necessary for the protection of the Limited Partners;
(b) to cure an ambiguity or to correct or supplement any provisions contained
herein which may be defective or inconsistent with any other provision
contained herein; or
(c) to make such other provision in regard to matters or question arising
under this Agreement which in the opinion of counsel to the Partnership
does not and will not materially adversely affect the rights or interests
of any Limited Partner.
Limited Partners will be notified in writing by the General Partner of such
amendments to this Agreement within ten (10) days of the effective date of the
amendment.
3.05 POWER OF ATTORNEY
In consideration of the sum of $1.00 and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, each Limited
Partner hereby irrevocably nominates, constitutes and appoints the General
Partner with full power of substitution, as his true and lawful attorney and
agent with full power and authority in his name, place and stead and for his
use and benefit to do the following, namely:
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 9
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(a) make, execute, swear to, sign, acknowledge, amend, supplement, renew,
restate, modify, deliver and file, including without limitation filing
for recording at the appropriate public offices, as and where required
any and all of the following:
(i) this Agreement and all registers, declarations, and other
instruments necessary to form, qualify or continue and keep in
good standing the Partnership as a partnership under the laws of
the Province of Ontario;
(ii) all instruments, declarations and certificates necessary to
reflect any amendment to this Agreement or to the constitution of
the Partnership;
(iii) the First Promissory Note, the Second Promissory Note and the
Pledge Agreement and the other documents referenced under the
heading entitled "Material Contracts" in the Offering Memorandum;
and
(iv) all conveyances, agreements and other instruments necessary or
desirable to reflect the dissolution and termination of the
Partnership including cancellation of any certificates or
declarations and the execution of any elections under subsection
98(3) of the Tax Act, as may be amended or re-enacted from time to
time, and any analogous provincial legislation;
(b) execute and file with any governmental body or instrumentality thereof of
the Government of Canada or a province or any other governmental
authority having jurisdiction, any documents necessary to be filed in
connection with the business, property, assets and undertaking of the
Partnership;
(c) execute and deliver all such other documents or instruments on behalf of
and in the name of the Partnership and for the Limited Partners as may be
deemed necessary or desirable by the General Partner in connection with
the Business, including without limitation, any agreement or instrument
with, to or in favour of, Planet Today or Planet America, or to carry out
fully the provisions of this Agreement and the other documents referenced
under the heading entitled "Material Contracts" in the Offering
Memorandum in accordance with their respective terms and conditions; and
(d) prepare, execute and file all income tax, sales tax and other tax forms,
returns and elections which the Partnership is required to file or which
are deemed desirable by the General Partner.
To evidence the foregoing, each Limited Partner, in executing a Subscription
Agreement or in executing the form of transfer of a Unit, will have executed a
power of attorney containing substantially the same powers set forth above. The
power of attorney granted herein is irrevocable, is a power coupled with an
interest, will survive the death, disability, insolvency or other legal
incapacity of a Limited Partner and will survive the assignment (to the extent
of the Limited Partner's obligations hereunder) by the Limited Partner of the
whole or any part of the interest of the Limited Partner in the Partnership and
extends to the heirs, executors, administrators, successors and assigns of the
Limited Partner and may be exercised by the General Partner executing on behalf
of each Limited Partner any instrument by listing all of the Limited Partners to
be bound by such instrument with a single signature as attorney and agent for
all of them.
This power of attorney shall not be affected by the removal, resignation or
deemed resignation of the General Partner as general partner of the Partnership
and upon substitution therefor of a replacement General Partner, may be
exercised by such General Partner as if it were an original party to this
Agreement.
Each Limited Partner agrees to be bound by any representations and actions made
or taken in good faith by the General Partner pursuant to such power of attorney
in accordance with the terms hereof and hereby waives any and all defences which
may be available to contest, negate or disaffirm the action of the General
Partner taken in good faith under such power of attorney.
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 10
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The General Partner has determined that it is contrary to the interests of the
Partnership to file an election with the U.S. Department of Treasury ("IRS"), as
well as any state with taxing jurisdiction relating to the Partnership, so as to
permit the Partnership to be treated as a corporation for U.S. tax purposes.
Accordingly. each Partner, by signing this Agreement, hereby represents that he
shall not take any position on their U.S. tax returns inconsistent with said
election.
3.06 SAFEKEEPING OF ASSETS
The General Partner is responsible for the safekeeping and use of all funds and
assets of the Partnership, whether or not in its immediate possession or
control.
3.07 INDEMNIFICATION
The Partnership will indemnify and hold harmless the General Partner and its
Affiliates, Associates, officers, directors, shareholders, employees or agents,
from and against any losses, costs, expenses, liabilities and damages (including
reasonable legal fees) incurred or suffered by them on behalf of the Partnership
or in furtherance of the interests of the Partnership, but only if the acts,
omissions or the alleged acts or omissions in respect of which any actual or
threatened action, proceeding or claim are based, were performed honestly and in
good faith and were not performed or omitted to be performed fraudulently or in
bad faith or as a result of the gross negligence or wilful misconduct of the
General Partner, its Affiliates, Associates, officers, directors, shareholders,
employees or agents.
3.08 LIABILITY OF PARTNERS
The General Partner is not liable for losses or damages to the Partnership other
than those attributable to a failure to act honestly and in good faith or
attributable to an act of gross negligence or willful misconduct. In making the
foregoing determination, the applicable standard shall be the standard of care
expected of a prudent and qualified manager of a business similar to the
Business of the Partnership. In no event shall the General Partner be liable for
any loss or depreciation of the value of any investment or reinvestment made by
the General Partner in accordance with the provisions of this Agreement.
The liability of each Limited Partner for the liabilities and obligations of the
Partnership is limited to the amount standing to credit of the Limited Partner
in the capital account maintained pursuant to Section 6.10.
3.09 RESTRICTIONS UPON THE GENERAL PARTNER
The General Partner will not:
(a) cause the Partnership to guarantee the obligations or liabilities of, or
make loans to the General Partner, or any Affiliate or Associate of the
General Partner;
(b) commingle the funds of the Partnership with the funds of the General
Partner or any Affiliate or Associate of the General Partner; or
(c) permit the Partnership to contract with anyone other than for the
purposes of the carrying out of the Partnership's Business.
ARTICLE 4.00 - RESIGNATION OR REMOVAL OF GENERAL PARTNER
4.01 Resignation of General Partner
The General Partner shall only be entitled to withdraw from the Partnership or
to sell, transfer or assign its interest upon providing 120 days written notice
to the Partnership and the Limited Partners.
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 11
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4.02 DEEMED RESIGNATION OF GENERAL PARTNER
The General Partner shall be deemed to have resigned as the General Partner of
the Partnership in the event of the bankruptcy or the dissolution, liquidation
or winding-up of the General Partner (or the commencement of any act or
proceeding in connection therewith which is not contested in good faith by the
General Partner) or by the appointment of a trustee, receiver or receiver and
manager of the affairs of all or substantially all of the properties of the
General Partner. The General Partner shall forthwith advise the Limited Partners
by written notice of the occurrence of any event referred to in this Section
4.02. In such circumstances, the Limited Partners shall have the right by
Ordinary Resolution to designate a successor General Partner.
4.03 REMOVAL OF GENERAL PARTNER
In the event the General Partner is in default of any obligation or duty
hereunder and such default is not rectified within thirty (30) days after the
giving of notice thereof to the General Partner by the Limited Partners, the
General Partner may be removed and a successor named as the General Partner of
the Partnership by Extraordinary Resolution. The appointment of the new General
Partner and the removal of the General Partner shall be effective upon the date
specified in such Extraordinary Resolution.
4.04 EFFECT OF (DEEMED) RESIGNATION OR REMOVAL OF GENERAL PARTNER
In the event of the resignation, deemed resignation or the removal of the
General Partner, the General Partner shall cease to be entitled to any
allocation of Distributable Cash provided for herein upon the effective date of
such resignation, deemed resignation or removal but shall be entitled to a pro
rata share of any allocation of Distributable Cash up to such date. The
withdrawing General Partner shall be, and shall remain, liable for all
obligations and liabilities incurred by the Partnership for which the General
Partner was liable before such withdrawal became effective.
4.05 TRANSFER OF MANAGEMENT TO NEW GENERAL PARTNER
Upon any appointment of a new General Partner, the former General Partner agrees
to do all things and to take all steps to immediately and effectively transfer
the management, control, administration and operation of the Partnership to the
new General Partner. The new General Partner shall execute a counterpart hereof
and shall from that time forward, for all purposes and in all ways, assume the
powers, duties and obligations of the General Partner under this Agreement and
shall be bound by and subject to the terms of this Agreement. The new General
Partner shall file an amendment to the declaration constituting the Partnership
and any other instruments necessary to record the substitution of the new
General Partner as a general partner of the Partnership or to continue the
Partnership as a limited partnership in the jurisdiction in which the
Partnership carries on business.
ARTICLE 5.00 - THE UNITS
5.01 NUMBER OF UNITS
Subject to this Agreement, the Partnership shall be divided into a maximum of
540 Units. No additional Units shall be issued subsequent to the Offering unless
the General Partner is authorized to do so by an Extraordinary Resolution.
5.02 NATURE OF UNIT
Except as otherwise provided herein, each issued and outstanding Unit shall be
equal to each other Unit with respect to voting rights, the right to receive
distributions from the Partnership and otherwise. No Unit shall have any
preference or right in any circumstances over any other Unit. Each Unit carries
the right to one (1) vote in respect of all matters to be decided by the Limited
Partners. The General Partner shall not, as such, be entitled to vote at any
meetings of Partners. Units have no preference, exchange, pre-emptive or
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 12
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redemption rights. Only registered holders of Units will be entitled to vote or
receive distributions or otherwise to exercise or enjoy the rights of Limited
Partners.
5.03 UNIT CERTIFICATES
Unit Certificates shall be in such form as is from time to time approved by the
General Partner and shall be signed by the General Partner for and on behalf of
the Partnership.
5.04 RECEIPT BY LIMITED PARTNER
The receipt of any money, securities or other property from the Partnership by a
person in whose name any Units are recorded, or if such Units are recorded in
the names of more than one person, the receipt thereof by any one of such
persons, or by the fully authorized agent of any such person in that regard,
shall be a sufficient and proper discharge for that amount of money, securities
and other property payable, issuable or deliverable in respect of such Units.
5.05 REGISTRAR AND TRANSFER AGENT
(a) The General Partner, or such other person as may be appointed from time
to time by the General Partner, shall act as Registrar and Transfer Agent
of the Partnership and shall maintain such books as are necessary to
record the names and addresses of the Limited Partners, the number of
Units held by each Limited Partner and particulars of transfer of Units.
The General Partner shall cause the Registrar and Transfer Agent to
perform all other duties usually performed by a registrar and transfer
agent of certificates of shares in a corporation except as the same may
be modified by reason of the nature of the Units.
(b) For so long as the General Partner shall be Registrar and Transfer Agent,
the register of Limited Partners will be kept by the General Partner at
its principal office, currently located at the offices of e-Property
Services Corporation, Newmarket Corporate Centre, 1091 Gorham Street,
Suite 302, Newmarket, Ontario, L3Y 7V1.
5.06 INSPECTION OF RECORDS
The General Partner shall cause the Registrar and Transfer Agent to make the
records relating to the Limited Partners available for inspection by any Limited
Partner, or his agent duly authorized in writing, at the expense of such Limited
Partner. A copy of the register of the Partners shall be provided to any Limited
Partner on forty-eight (48) hours notice in writing to the Registrar and
Transfer Agent, at the expense of the Limited Partner requesting same.
5.07 TRANSFER OF UNITS
A Unit may be assigned and transferred by a Limited Partner or his agent duly
authorized in writing if the following conditions are satisfied:
(a) the transferee has delivered to the Registrar and Transfer Agent a
transfer form in the form set out in Schedule "E" to the Offering
Memorandum, which form has been duly completed and executed by the
registered holder of the Unit and by the transferee;
(b) the transferee has agreed in writing to be bound by the provisions of
this Agreement and the Subscription Agreement and assumes the obligations
of the Limited Partners under this Agreement and the Subscription
Agreement in respect of the Unit being transferred to him and enters into
a Pledge Agreement, if applicable;
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 13
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(c) the transferee delivers or causes to be delivered to the Registrar and
Transfer Agent the Unit Certificate issued pursuant to this Agreement
representing the Unit transferred, duly endorsed for transfer by the
transferee;
(d) the transferee pays such costs, expenses and disbursements that are
reasonably incurred by the Partnership by reason of such transfer;
(e) such other requirements as may reasonably be established by the Registrar
and Transfer Agent are satisfied, provided that a transferee will not
become a Limited Partner in respect of that Unit until all filings and
recordings required by law to validly effect a transfer have been duly
made. A transfer of Units will not be recognized where, in the reasonable
opinion of the General Partner, such transfer might result in the
termination of the Partnership or in the creation of a lien or charge on
the property of the Partnership.
The Registrar and Transfer Agent has the right to rescind a transfer of Units to
a "non-Canadian" within the meaning of the Investment Canada Act. When a
transferee is entitled to become a Limited Partner pursuant to the provisions
hereof, the General Partner shall be authorized to admit such person to the
Partnership as a Limited Partner and the Limited Partners hereby consent to the
admission of, and will admit, the transferee to the Partnership as a Limited
Partner, without any further act of the Limited Partners. The General Partner or
the Registrar and Transfer Agent will:
(a) record at the registered office of the Partnership any change in
ownership of the Unit;
(b) amend the declaration showing the name of the transferee as the new
Limited Partner;
(c) make such filings and cause to be made such recordings as may from time
to time be necessary;
(d) forward a notice of the transfer to the transferee; and
(e) forward a Unit Certificate to the transferee in respect of the
transferred Unit.
Any transfer shall comply with the appropriate provincial securities and other
relevant legislation at the time. No assignment of a fraction of a Unit may be
made or will be recognized or entered in the register of the Partnership.
5.08 PLEDGE OF UNITS
If a Limited Partner pledges a Unit held by such Limited Partner as security for
a loan to such Limited Partner other than as per the Pledge Agreement, the
General Partner will, upon written request by such Limited Partner, deliver an
acknowledgement to the person making such loan acknowledging such pledge and
confirming that all distributions by the Partnership in respect of such Unit
will be paid to such person upon receipt by the General Partner of a written
order from such person, until such person delivers a release of such
acknowledgement to the Partnership.
5.09 PARTIES NOT BOUND TO SEE TO TRUST OR EQUITY
Except where specific provision has been made therefor in this Agreement, the
Registrar and Transfer Agent shall not, nor shall the General Partner or the
Limited Partners, be bound to see to the execution of any trust, express,
implied or constructive, or any charge, pledge or equity to which any Unit or
any interest therein is subject, or to ascertain or inquire whether any sale or
transfer of any such Unit or interest therein by a Limited Partner or his
personal representative is authorized by such trust, charge, pledge or equity,
or to recognize any person having any interest therein except for the person or
persons recorded as such Limited Partner.
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 14
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5.10 INCAPACITY, DEATH, INSOLVENCY OR BANKRUPTCY
Where a person becomes entitled to a Unit on the incapacity, death, insolvency
or bankruptcy of a Limited Partner, or otherwise by operation of law, in
addition to the requirements of Section 5.07 hereof, that person will not be
recorded as or become a Limited Partner until:
(a) that person produces evidence satisfactory to the General Partner of such
entitlement; and
(b) that person has delivered such other evidence, approvals and consents in
respect of such entitlement as the General Partner may reasonably require
or as may be required by law or by this Agreement.
5.11 LOST UNIT CERTIFICATES
Where a Limited Partner claims that the Unit Certificate for his Units has been
defaced, lost, apparently destroyed or wrongly taken, the Registrar and
Transfer Agent shall cause a new Unit Certificate to be issued, provided that
the Limited Partner files with the Registrar and Transfer Agent an indemnity
bound in the form and in an amount satisfactory to the General Partner to
protect the Registrar and Transfer Agent and the Partnership from any loss,
cost or damage that they may incur or suffer by complying with the request to
issue a new Unit Certificate and provided further that the Limited Partner
satisfies all other reasonable requirements imposed by the Registrar and
Transfer Agent, including delivery of a form of proof of loss and payment of
reasonable expenses associated with the replacement of such Unit Certificates.
ARTICLE 6.00 - CONTRIBUTIONS, ALLOCATIONS AND DISTRIBUTIONS
6.01 CAPITAL CONTRIBUTION
The capital of the Partnership shall be the aggregate amount of the capital
contribution of all the Limited Partners from time to time, and the
contributions of the Initial Limited Partner in the amount of $1.00. The
Initial Limited Partner hereby agrees to sell to the Partnership and the
Partnership hereby agrees to purchase from such Initial Limited Partner, all of
the interest of the Initial Limited Partner in the Partnership for
consideration of $1.00, such purchase and sale transaction to be completed
contemporaneously with the closing of the Offering. The Initial Limited
Partner shall not sell, transfer or assign his interest in the Partnership
except in accordance with this Section.
6.02 SALE OF UNITS BY PRIVATE PLACEMENT
The General Partner is hereby authorized to raise capital required to enter
into the Technology Licence and Services Agreement and for the operation of the
Business by offering and selling to investors a minimum of 135 Units and a
maximum of 540 Units pursuant to the one or more offerings and will admit
subscribers of Units as Limited Partners in the Partnership. Each Unit shall
represent a contribution to the capital of the Partnership in the amount of the
Subscription Price.
It is hereby acknowledged and agreed that as of the date hereof the General
Partner has made a capital contribution of $1.00. This contribution entitles
the General Partner to an interest in the Distributable Cash of the Partnership
as described in Section 6.04 and no more.
6.03 DISCRETION OF THE GENERAL PARTNER IN RAISING CAPITAL
Subject to Section 6.02, the General Partner has complete discretion in
determining the terms and conditions of the offering and sale of Units and the
General Partner may do all things which it deems necessary, convenient,
appropriate or advisable in connection therewith. All things done or to be done
by the General Partner in this regard are hereby ratified and confirmed.
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 15
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6.04 ALLOCATION OF DISTRIBUTABLE CASH
Distributable Cash will be allocated among the Partners as follows:
(a) 2% to the General Partner; and
(b) the balance to the Limited Partners pro rata according to their
respective Unit proportions.
6.05 ALLOCATION OF TAXABLE INCOME AND LOSS
The Net Income of the Partnership for the purposes of the Tax Act for each
fiscal year (including net income from any sale of property interests) shall be
allocated among the Partners based on the same formula as the allocation of
Distributable Cash set forth in Section 6.04. The Net Loss of the Partnership
for the purposes of the Tax Act for each fiscal year (including loss from any
sale of property interests) shall be allocated entirely to the Limited
Partners.
6.06 ADDITIONAL CAPITAL CONTRIBUTIONS
No Partner shall be required to make any additional capital contributions in
excess of its, his or her initial capital contributions and the aggregate cash
distributions made to it, him or her.
6.07 ADJUSTMENTS
If the Accountants of the Partnership determine that the Proportionate Share of
a Limited Partner in the distribution or allocation of Distributable Cash
differs from its, his or her share as determined by the General Partner, then
the determination of the Accountants shall be deemed to be correct and binding
upon the Partnership, General Partner and the Limited Partners. The General
Partner will cause the necessary adjustments to be made by payment or
reallocation to or from the Limited Partner, as the case may be.
6.08 COMPUTING TAXABLE INCOME AND LOSS
With respect to any fiscal period, Net Income and Net Loss of the Partnership
will be determined by the General Partner in accordance with generally accepted
accounting principles subject to the provisions of the Tax Act. For the
purposes of determining Net Income or Net Loss, the General Partner will
maximize discretionary deductions and allowances permitted by the Tax Act.
6.09 DISTRIBUTION OF DISTRIBUTABLE CASH
Distributable Cash will be estimated and paid to the Limited Partners and the
General Partner forthwith and adjusted annually following delivery of the
annual financial statements of the Partnership for the fiscal period in
question within 90 days of the fiscal year end. Any adjustments will be made by
increasing or decreasing, as appropriate, the next ensuing distribution to be
made.
Each Limited Partner hereby acknowledges that its, his or her entitlement to
Distributable Cash will be reduced to reflect any monetary default under any
one of its, his or her Promissory Notes.
The amount of cash distributed to a Limited Partner during any fiscal period
may be different from the amount of Net Income, Net Loss or income or loss for
tax purposes allocated to a Limited Partner for the period. The Managing
Partner shall have the right to withhold that portion of Distributable Cash
otherwise payable, in order to give effect to the provisions of Section 6.09
hereof.
6.10 SEPARATE CAPITAL ACCOUNTS
A separate capital account shall be established and maintained on the books of
the Partnership for each Limited Partner.
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 16
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6.11 SEPARATE CURRENT ACCOUNT
A separate current account shall be established and maintained on the books of
the Partnership for the General Partner and each of the Limited Partners to
which any operating loss and all distributions (other than distributions of
capital) will be charged.
6.12 NO INTEREST PAYABLE
No Partner shall be entitled to receive interest on the amount of his capital
account or any balance in its, his or her current account from the Partnership
and no Partner shall be liable to pay interest to the Partnership on any
negative balance in its, his or her capital account or on any negative balance
in its, his or her current account. No Partner shall be entitled to withdraw
any funds from the capital or current accounts maintained for such Partner
except in compliance with this Agreement.
ARTICLE 7.00 - ACCOUNTING AND REPORTING
7.01 BOOKS AND RECORDS
The General Partner will keep or cause to be kept on behalf of the Partnership
adequate books and records reflecting the assets, liabilities, income and
expenditures of the Partnership and a register listing all Partners and the
Units held by them. Such books, records and register will be kept available for
inspection by any Partner or his duly authorized representative (at the expense
of such Partner) during business hours at the offices of the General Partner or
in the case of the register, at the office of the Registrar and Transfer Agent.
7.02 ANNUAL FINANCIAL INFORMATION
The General Partner, or its agent on its behalf, shall be responsible for the
preparation of annual audited financial statements of the Partnership as at the
end of each fiscal year of the Partnership. The General Partner, or its agent
in that behalf, shall distribute a copy of such annual audited financial
statements together with a report on the affairs of the Partnership to each
Partner on or before March 31 in each year and shall provide each Partner with
all income tax information regarding the Partnership and its operations during
the preceding fiscal year by March 31 of the following year. The cost of
preparing all such reports shall be a Partnership expense. Each Partner shall
be solely responsible for filing his income tax returns and reporting his share
of the Partnership income or loss.
ARTICLE 8.00 - MEETINGS
8.01 MEETINGS
Where Limited Partners holding not less than 25% of the outstanding Units in
number (the "REQUISITIONING PARTNERS") give to the General Partner notice
signed by each of them requesting a meeting of the Partnership, the General
Partner will, within 30 days of receipt of such notice, convene a meeting, and
if it fails to do so, the Requisitioning Partners may convene such meeting by
giving notice to the Limited Partners in accordance with this Agreement, signed
by such person as the Requisitioning Partners specify. Every meeting, however
convened, will be conducted in accordance with this Agreement.
8.02 PLACE OF MEETING
Every meeting will be held within the Regional Municipality of York or at a
place not more than thirty (30) kilometres from the boundaries of the Regional
Municipality of York, or at such other place in Canada as may be approved by
Ordinary Resolution.
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 17
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8.03 NOTICE OF MEETINGS
Notice of any meeting will be given to each Limited Partner by prepaid
ordinary mail or by personal delivery not less than twenty-one (21) days prior
to such meeting, and will state:
(a) the time, date and place of such meeting; and
(b) in general terms, the nature of the business to be transacted at the
meeting
8.04 ACCIDENTAL OMISSIONS
Accidental omissions to give notice of a meeting to, or the non-receipt of
notice of a meeting by, any Limited Partner will not invalidate proceedings at
that meeting.
8.05 INFORMATION CIRCULARS
If proxies are solicited from Limited Partners, the persons soliciting such
proxies will prepare an information circular, and if such information circular
is delivered to the General Partner at least twenty-one (21) days before any
such meeting, the General Partner will cause the information circular to be
sent to Limited Partners whose proxies are solicited at least fourteen (14)
days prior to the meeting. An information circular will contain to the extent
that it is relevant and applicable, the information prescribed for information
circulars by the Securities Act (Ontario) and the regulations made thereunder.
No information circular shall be required for proxies solicited by the General
Partner.
8.06 PROXIES
Any Limited Partner entitled to vote at a meeting may vote by proxy if a proxy
has been received by the General Partner or the chairman of the meeting for
verification prior to the meeting. A person appointed as a proxy holder need
not be a Limited Partner.
8.07 VALIDITY OF PROXIES
A proxy purporting to be executed by or on behalf of a Limited Partner will be
considered to be valid unless challenged at the time of or prior to its
exercise, and the person challenging will have the burden of providing to the
satisfaction of the chairman of the meeting that the proxy is invalid and any
decision of the chairman concerning the validity of the proxy will be final.
8.08 FORM OF PROXY
Every proxy will be substantially in the following form or such other form as
may be approved by the General Partner or as may be satisfactory to the
chairman of the meeting at which it is sought to be exercised:
I _____________,of ____________________ in the Province of
____________,being a limited partner of YORK REGION E-PROPERTY LIMITED
PARTNERSHIP hereby appoint ______________ of the Province of __________
as my proxy, with full power of substitution to vote for me and on my
behalf at the meeting of limited partners to be held on the _________ day
of __________, 19_____ and every adjournment thereof and every poll that
may take place in consequence thereof.
As witness my hand this __ day of____,19___.
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Signature Name of Limited Partner
8.09 CORPORATIONS
A Limited Partner which is a corporation may appoint under seal an officer,
director or other authorized person as its representative to attend, vote and
act on its behalf at a meeting of Limited Partners.
8.10 ATTENDANCE OF OTHERS
Any officer or director of the General Partner and representatives of the
Accountants will be entitled to attend and receive notice of any meeting of
Limited Partners.
8.11 CHAIRMAN
The General Partner may nominate an individual (including an officer, director
or shareholder of the General Partner and who need not be a Limited Partner) to
be chairman of a meeting of Limited Partners and the person nominated by the
General Partner will be chairman of such meeting unless the Limited Partners
elect a chairman by Ordinary Resolution.
8.12 QUORUM
Subject to this Agreement, a quorum at any meeting of Limited Partners will
consist of two or more Limited Partners present in person or represented by
proxy. If within half an hour after the time fixed for the holding of such
meeting, a quorum for the meeting is not present, the meeting:
(a) if called by or on the requisition of the Limited Partners will be
terminated; and
(b) if called by the General Partner will be held at the same time and, if
available, the same place, not less than 10 days or more than 21 days
later (or if that date is not a business day, the first business day
after that date), and the General Partner who called the meeting will
give at least 7 days notice to all Limited Partners of the date of the
reconvening of the adjourned meeting. Such notice need not set forth the
matters to be considered unless they are different from those for which
the original meeting was called. At such reconvened meeting the quorum
for the meeting and the quorum for any specific resolution to be passed
at such meeting will consist of the Limited Partners then present in
person or represented by proxy at such reconvened meeting.
8.13 VOTING
Each question submitted to a meeting:
(a) which requires an Extraordinary Resolution under this Agreement will be
decided by a poll; and
(b) which does not require an Extraordinary Resolution will, other than as
otherwise provided in this Agreement, be decided by Ordinary Resolution on
a show of hands unless a poll is demanded by a Limited Partner, in which
case a poll will be taken; and in the case of an equality of votes, the
chairman will not have a casting vote and the resolution will be deemed to
be defeated. The chairman will be entitled to vote in respect of any Units
held by him or pursuant to which he may be a proxyholder. On any vote at a
meeting of Limited Partners, a declaration of the chairman concerning the
result of the vote will be conclusive.
Subject as hereinafter provided, each person present at the meeting will have
one vote for each Unit of which he is registered as the Unit holder and for
each Unit in respect of which he is the proxyholder. Units owned by a Limited
Partner who is party to a contract or proposed contract or who has a material
interest in a contract, proposed contract or transaction (either directly or
indirectly, including through an Associate or
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 19
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Affiliate) which is the subject matter of a resolution shall not be entitled to
a vote on such resolution: provided however, that a Limited Partner shall be
deemed not to have a material interest in a contract, proposed contract or
transaction if the interest arises merely from the ownership of Units where the
Limited Partner will have or receive no extra or special benefit or advantage
not shared on a pro rata basis by all other Limited Partners.
8.14 POLL
A poll requested or required concerning the election of a chairman or an
adjournment will be taken immediately on request and any other matter will be
taken at the meeting or an adjournment of the meeting in such manner as the
chairman directs.
8.15 RESOLUTIONS BINDING
Any resolution passed in accordance with this Agreement will be binding on all
the Limited Partners and their respective heirs, executors, administrators,
successors and assigns, whether or not any such Limited Partner was present in
person or voted against any resolution so passed.
8.16 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION
The following powers shall only be exercisable by Extraordinary Resolution
passed by the Limited Partners:
(a) selling all or substantially all of the assets of the Partnership;
(b) consenting to the amendment of this Agreement, except as expressly
provided herein;
(c) continuing the Partnership in the event that the Partnership is
terminated by operation of the law;
(d) agreeing to any compromise or arrangement by the Partnership with any
creditor, or class or classes of creditors;
(e) changing the fiscal year end of the Partnership;
(f) amending, modifying, altering or repealing any Extraordinary Resolution
previously passed by the Limited Partners;
(g) borrowing money other than as contemplated hereunder;
(h) dissolving or terminating the Partnership;
(i) subject to and in accordance with Article 4.00, removing the General
Partner and appointing a new General Partner;
(j) changing the business of the Partnership;
(k) except as contemplated in Sections 6.02 and 6.03, conducting a public
offering of the Partnership's securities; and
(l) approving a settlement of an action against the General Partner as a
result of a breach of its duties.
8.17 POWERS EXERCISABLE BY ORDINARY RESOLUTION
Any other matters to be determined by the Partnership other than as otherwise
expressly provided for in this Agreement shall be determined by Ordinary
Resolution.
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8.18 MINUTES
The General Partner will cause minutes to be kept of all proceedings and
resolutions passed at every meeting, with copies of any resolutions of the
Partnership to be made and entered in books to be kept for that purpose, and
any minutes, if signed by the chairman of the meeting will be deemed to have
been duly convened and held and all resolutions and proceedings shown in them
will be deemed to have been duly passed and taken.
8.19 ADDITIONAL RULES AND PROCEDURES
To the extent that the rules and procedures for the conduct of a meeting of the
Limited Partners are not prescribed in this Agreement, the rules and procedures
will be determined by the chairman of the meeting.
8.20 AUTHORIZED ATTENDANCE
The General Partner has the right to authorize the presence of any person at a
meeting regardless of whether the person is a Limited Partner. With the approval
of the General Partner, that person is entitled to address the meeting.
ARTICLE 9.00 - REPRESENTATIONS, WARRANTIES AND COVENANTS
9.01 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GENERAL PARTNER
The General Partner hereby represents and warrants to the Partnership and each
Limited Partner that:
(a) the Partnership is a valid limited partnership, duly formed under the
laws of the Province of Ontario; and
(b) this Agreement has been duly and validly authorized, executed and
delivered by the General Partner and constitutes a valid, binding and
enforceable agreement of the General Partner, except as enforcement may be
limited by bankruptcy, insolvency and other similar laws affecting
enforcement of creditors' rights, by general principles of equity that may
apply in any proceeding and to the extent that equitable remedies are in
the discretion of the applicable court.
and the General Partner covenants to execute and deliver all such other
documents or instruments on behalf of and in the name of the Partnership and
for the Limited Partners as may be deemed necessary or desirable by the General
Partner to carry out fully the provisions of this Agreement in accordance with
its terms.
ARTICLE 10.00 - DISSOLUTION AND LIQUIDATION
10.01 DISSOLUTION AND TERMINATION
The Partnership shall be automatically dissolved on December 31, 2042 unless
sooner terminated or dissolved in accordance with Section 2.07.
10.02 DISTRIBUTIONS UPON DISSOLUTION
Upon dissolution of the Partnership, the assets of the Partnership shall be
liquidated and the proceeds distributed as follows:
(a) the liquidator, who shall be the General Partner unless determined
otherwise by the Limited Partners pursuant to an Extraordinary
Resolution, shall file all certificates and notices of dissolution of the
Partnership required by law. The liquidator shall proceed without any
unnecessary delay to sell and otherwise liquidate the Partnership's
property and assets; provided however, that if the liquidator shall
determine that an immediate sale of part or all of the
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 21
25
Partnership property would cause undue loss to the Limited Partners, in
order to avoid such loss, the liquidator may, except to the extent
prohibited by the laws of the Province of Ontario, defer the liquidation
of the Partnership property for a reasonable time, except for such
liquidation as may be necessary to satisfy the debts and liabilities of
the Partnership to persons other than the Limited Partners. Upon the
complete liquidation and distribution of the Partnership assets, the
Limited Partners shall cease to be Limited Partners of the Partnership and
the liquidator will execute, acknowledge and cause to be filed all
certificates and notices required by law to terminate the Partnership; and
(b) upon the dissolution of the Partnership pursuant to Section 10.01, the
Accountants of the Partnership shall promptly prepare, and the liquidator
shall furnish to each Limited Partner, a statement setting forth the
assets and liabilities of the Partnership upon its dissolution. Promptly
following the complete liquidation and distribution of the Partnership's
property and assets, the Accountants shall prepare, and the liquidator
shall furnish to each Limited Partner, a statement showing the manner in
which the Partnership assets were liquidated and distributed.
10.03 EVENTS NOT CAUSING DISSOLUTION
Notwithstanding any rule of law or equity to the contrary, the Partnership
shall not be dissolved or terminated by admission of any new General Partner or
Limited Partner or the removal, actual or deemed, resignation, death,
incompetence, bankruptcy, insolvency, other disability or incapacity,
dissolution, liquidation winding-up or receivership, or the admission,
resignation or withdrawal of the General Partner, the Initial Limited Partner
or any Limited Partner, except in accordance with this Agreement.
ARTICLE 11 - OPTION TO PURCHASE
11.01 OPTION TO PURCHASE PARTNERSHIP UNITS
(a) Notwithstanding any other provision of this Agreement, Planet Today shall
have the right to purchase ("Option to Purchase"), by notice at any time
after December 31, 2003 and prior to the expiry thereof, all, but not
less than all, of the issued and outstanding Units for a price equal to
$3,300 per Unit less the amount of any liabilities of the Partnership,
contingent or non-contingent, calculated on a per Unit basis (the "Option
Exercise Price").
(b) Subject to obtaining any necessary regulatory approvals and compliance
with all applicable legal and regulatory requirements, the Option
Exercise Price will be payable to each Limited Partner and satisfied as
follows:
(I) on behalf of each Limited Partner, the amount in cash, if
applicable, required to repay and satisfy in full all payments of
principal and interest due under the Second Promissory Note made
or assumed by the subject Limited Partner; and
(II) the balance:
(i) in cash; or
(ii) if Planet Today or any successor company thereto is a
public company whose common shares are listed or quoted on
a stock exchange or other recognized public market:
(A) by issuing and delivering that number of such common
shares of Planet Today obtained by dividing the
balance of the Option Exercise Price by 95% of the
weighted average trading price of such common shares
on such stock exchange(s) or other recognized public
market(s) for 20
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 22
26
consecutive trading days ending not more than 10
days prior to the exercise of the Option to
Purchase; or
(B) by issuing and delivering a combination of cash
and that number of such common shares of Planet
Today obtained by dividing the balance of the
Option Exercise Price not paid in cash by 95% of
the weighted average trading price of such common
shares on such stock exchange(s) or other
recognized public market(s) for 20 consecutive
trading days ending not more than 10 days prior to
the exercise of the Option to Purchase.
(c) The Partnership and each Limited Partner agree to deposit the
certificates representing the Units, duly endorsed in blank for
transfer, with the General Partner, which will deposit the
Units with Planet America in accordance with this provision (and
in accordance with the Assignment of Promissory Notes Agreement
and the Pledge Agreement) and agree not to withdraw the
certificates from deposit while the Option to Purchase is
outstanding. The deposited certificates shall be held by
Planet America, subject to the terms and conditions hereof
and in accordance with the terms of the Assignment of Promissory
Notes Agreement and the Pledge Agreement.
(d) The Partnership and the General Partner will represent, as of the
closing of the Option to Purchase that:
(a) there are no agreements, options or rights outstanding
to subscribe for Units and the Partnership has not agreed
to allot, set aside, reserve or issue any of its
Units and no person, firm or corporation has any right or
privilege (pre-emptive or contractual) to subscribe for or
purchase any issued or unissued Units; and
(b) the financial statements of the Partnership as at the
Option Exercise Date will present fairly the assets,
liabilities and the financial condition of the
Partnership as at that date and the results of operation
of the Partnership for the period covered thereby and,
if the Option to Purchase is exercised, then, at the time
when the purchase of the Units is completed, the
Partnership will be the owner of all assets shown in the
financial statements with good and marketable title
thereto, free and clear of all mortgages, liens, charges,
security interest and encumbrances (except those shown or
reflected in the financial statements) and will have no
liabilities, except liabilities shown or reflected in the
financial statements.
(e) The Limited Partners each represent and warrant that the
Units held by them at the date of closing of the Option to
Purchase will be beneficially owned by such Limited Partners,
free and clear of all mortgages, liens, charges, pledges,
security interest, adverse claims or encumbrances, and the
Limited Partners are severally entitled to sell and transfer the
same.
(f) The Partnership agrees that:
(a) during the currency of the Option to Purchase, it will
cause to be made available to Planet Today or its agents,
at all reasonable times, all books and records of the
Partnership, and will permit Planet Today, through its
officers or agents to inspect any property or assets
owned by the Partnership and all deeds, documents, records
and accounts in the possession of the Partnership and with
relation to the Partnership business and affairs; and
(b) if the Option to Purchase is exercised, no distributions
will be authorized, paid or made to the Limited Partners
from the date of the notice of exercise.
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 23
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(g) The Option to Purchase may be exercised by a notice in
writing addressed to the Partnership and delivered to the
office of the General Partner at or before 5:00 p.m.(EST)
on the Option Expiry Date. Upon the Option to Purchase
being exercised, the sale and purchase of the Units shall
be closed on or before the 20th, business day following the
exercise of the same, at which time, upon compliance with
the terms hereof, all necessary and proper corporate
proceedings as approved by counsel for the Partnership and
Planet Today shall be taken for the transfer of all the
outstanding Units to Planet Today, or its nominee(s), for
the resignation of the General Partner and the appointment
of Planet Today or a nominee of Planet Today as the General
Partner and for the delivery to Planet Today of the
releases and agreements hereinafter provided for. Upon
all such proceedings being taken and such releases and
agreements being delivered, Planet Today shall pay to the
new general partner the aggregate Option Exercise Price
for distribution to the Limited Partners. Having made
such payment, the General Partner shall thereupon
make arrangements for the delivery of the deposited
certificates representing all the outstanding Units of
the Partnership to Planet Today or its nominee(s), and the
new general partner shall deliver to the Limited
Partners the respective Option Exercise Price, after
deducting therefrom any taxes required to be withheld.
From and after the date of delivery to a Limited Partner
of the respective Option Exercise Price, after deducting
therefrom any taxes required to be withheld, to the
address of the Limited Partner appearing on the register
maintained by the Registrar and Transfer Agent, or to
such other address as the Limited Partner may in writing
direct, the purchase of the Units by Planet Today shall
be deemed to have been fully completed and all right,
title, benefit and interest, both at law and in equity,
of the Limited Partner, or of any transferee, assignee
or any other person having any interest, legal or
equitable, therein or thereto shall cease and determine.
(h) If the Option to Purchase is exercised, on payment of the
Option Exercise Price:
(a) the Limited Partners and the General Partner each
release the Partnership and Planet Today from all
claims and demands, including any demands by the
General Partner for fees for any services beyond
the closing of the Option to Purchase, and the
Limited Partners and the General Partner agree to
indemnify Planet Today against all liabilities or
claims whatsoever against Planet Today existing at
the time of closing and not disclosed on the
financial statements of the Partnership; and
(b) the Limited Partners and the General Partner agree
to deliver such releases, duly executed by each of
them as Planet Today may specify, for all their
respective claims and demands against the
Partnership and Planet Today, and an agreement to
jointly and severally indemnify the Partnership and
Planet Today against all liabilities or claims
whatsoever existing at the time the Option to
Purchase is exercised and not disclosed in the
financial statements of the Partnership.
(i) The above releases and agreements shall be binding upon the
heirs, executors, administrators and other legal
representatives of the persons executing the same and
shall enure to the benefit of the successors and
assigns of the Partnership and Planet Today.
(j) The Unit certificates shall be legended to notify Limited
Partners of the Option to Purchase.
(k) Notwithstanding anything herein to the contrary, if the
Option to Purchase is properly exercised in
accordance with all of the terms of this Article 11 and a
Unit holder does not tender all of his Units in
accordance herewith, then the Units not so tendered shall
be cancelled and cease to be outstanding for all purposes
of this Agreement and the holder thereof shall not be
entitled to any assets of the Partnership or interest
therein, except to the extent of the Option Exercise Price.
(l) In the event that the Option to Purchase is exercised,
there shall be no allocation of income to the Limited
Partners in the fiscal period that the acquisition of all
of the Units is completed.
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 24
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ARTICLE 12.00 - MISCELLANEOUS
12.01 NOTICES
Any notice or other written communication which must be given or sent under
this Agreement shall be deemed to have been validly given and received on
the seventh day following its sending by first class ordinary mail to the
address of the General Partner and the Limited Partners as follows: in the
case of the General Partner at 1091 Gorham Street, Suite 302, Newmarket,
Ontario, L3Y 7V 1, or any new address as the General Partner may give notice
of: and in the case of the Limited Partners, to the address appearing on the
register maintained by the Registrar and Transfer Agent. Notices may be
delivered by facsimile or other electronic communication and shall be deemed
to be received on the day transmitted as evidenced by the transmission report.
12.02 FURTHER ACTS
The parties hereto agree to execute and deliver such further and other
documents and perform and cause to be performed such further and other acts
and things as may be necessary or desirable to give full effect to this
Agreement and every part thereof.
12.03 BINDING EFFECT
Subject to the restrictions on assignment and transfer herein contained,
this Agreement shall enure to the benefit of and be binding upon the parties
thereto and their respective heirs, executors, administrators and other
legal representative, successors and assigns.
12.04 SEVERABILITY
Each provision of this Agreement is intended to be severable. If any provision
hereof is illegal or invalid, such illegality or invalidity shall not effect
the validity of the remainder hereof.
12.05 COUNTERPARTS
This Agreement may be executed in any number of counterparts with the
same effect as if all parties had signed the same document. This Agreement
may also be adopted in any subscription and assignment forms or similar
instruments signed by a Limited Partner, with the same effect as if such
Limited Partner had executed a counterpart of this Agreement. All
counterparts and adopting instruments shall be construed together and shall
constitute one and the same agreement.
12.06 TIME
Time shall be of the essence.
12.07 GOVERNING LAW
This Agreement shall be government by and construed in accordance with the laws
of the Province of Ontario and the laws of Canada applicable therein.
12.08 ARBITRATION
Any dispute arising out of or in connection with the interpretation of this
Agreement shall be finally settled by arbitration pursuant to the
Arbitration Act (Ontario) and the rules and regulations thereunder save
that the arbitrator(s) shall be entitled to be paid his, her or their
customary professional fees without limitation to those referred to in the
Arbitration Act (Ontario). The decision of the arbitrator(s) shall be final
and binding upon the parties and shall be reducible to judgement in the
appropriate court of competent
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 25
29
jurisdiction. The party or parties to bear the fees and costs of the
arbitrator(s) and the costs of arbitration shall be in the discretion of the
arbitrator(s).
12.09 ENTIRE AGREEMENT
This Agreement sets forth all (and is intended by all parties to be an
integration of all)of the representations, promises, agreements and
understandings among the parties hereto with respect to the Partnership, the
Partnership's Business, and the property of the Partnership, and there
are no representations, promises, agreements or understandings, oral or
written, express or implied, among them other than as set forth, referred to,
or incorporated herein.
IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written.
E-PROPERTY SERVICES CORPORATION
By:/s/NOREEN M. STEVENS
----------------------------------
Name: Noreen M. Stevens
Title: President and Director
SIGNED, SEALED AND DELIVERED )
in the presence of )
[SIG] ) /s/ GRAHAM TURNER
- ---------------------------------------- ) ------------------------------------
Witness ) GRAHAM TURNER
)
YORK REGION E-PROPERTY LIMITED
PARTNERSHIP PARTNERS, by its agent and
attorney E-PROPERTY SERVICES
CORPORATION
By: /s/ NOREEN M. STEVENS
------------------------------
Name: Noreen M. Stevens
Title: President and Director
PLANET TODAY INC.
By: /s/ NOREEN M. STEVENS
------------------------------
Name: Noreen M. Stevens
Title: Secretary
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YORK REGION E-PROPERTY LIMITED PARTNERSHIP 26