SHARE PURCHASE AGREEMENT
THIS AGREEMENT made as of the 26th day of March, 2001.
BETWEEN:
ALEKSANDER SZLAM
(the "Vendor")
OF THE FIRST PART
- and -
VOICEIQ INC., a corporation existing under the laws
of the Province of Ontario
(the "Purchaser")
OF THE SECOND PART
WHEREAS the issued and outstanding shares of International Neural
Machines Inc. ("INM") consist of 20,000 common shares;
AND WHEREAS as at the date hereof, the Vendor is the registered and
beneficial owner of 3,400 common shares (the "Purchased Shares") in the capital
of INM as shown in Section 2.1 hereof and the Purchaser is the registered and
beneficial owner of 7,300 common shares in the capital of INM;
AND WHEREAS the Purchaser has agreed with Oleg Feldgajer to
purchase from him the remaining issued shares of INM so that, upon completion of
shares of INM from the Vendor and Oleg Feldgajer, the Company will be a
wholly-owned subsidiary of the Purchaser;
AND WHEREAS, the Purchaser has agreed to purchase from the Vendor,
and the Vendor has agreed to sell to the Purchaser, the Purchased Shares on the
terms and conditions set forth herein;
NOW THEREFORE in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree with each other as
follows:
ARTICLE 1
INTERPRETATIONS
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1.1 DEFINITIONS. Where used herein or in any amendment or supplement
hereof, unless the context otherwise requires, the words and phrases with
initial capitals set forth below will have the meanings so set forth therein.
"AGREEMENT" means this Agreement and all Schedules and all
instruments supplemental hereto or in amendment or confirmation
hereof.
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"BUSINESS DAY" means any day except Saturday, Sunday, or any day on
which banks are generally not open for business in the City of
Toronto.
"CDNX" means the Canadian Venture Exchange.
"CLOSING" means the time of closing on the Closing Date provided
for in Section 5.1.
"CLOSING DATE" means May 1, 2001 or such earlier or later date as
may be agreed in writing by the parties to this Agreement.
"COMPANY'S COUNSEL" means Shuh Cline and Grossman.
"CONSIDERATION SHARES" has the meaning ascribed thereto in Section
2.2.
"ELECTED AMOUNT" has the meaning ascribed thereto in Section 2.4(1).
"ENCUMBRANCE" means any mortgage, charge, pledge, claim,
hypothecation, lien, encumbrance, restriction, option, right of
others or security interest of any kind, whether fixed or floating,
absolute, contingent or conditional.
"ESCROW AGREEMENT" has the meaning ascribed thereto in Section
2.4(2) hereof.
"ESCROW SHARES" has the meaning ascribed thereto in Section 2.4(2)
hereof.
"INM" means International Neural Machines Inc., a corporation
incorporated under the laws of Ontario.
"INM SHAREHOLDERS AGREEMENT" means the Unanimous Shareholders
Agreement dated March 20, 1997 among INM, Working Ventures Canadian
Fund Limited, Oleg Feldgajer and Aleksander Szlam, as amended to the
date hereof.
"INTERIM PERIOD" means the period commencing on the date hereof and
ending at Closing.
"LIENS" means any and all liens, mortgages, charges, hypothecs,
pledges, security interests, prior assignments, options, warrants or
other encumbrances, and claims, rights, restrictions and other
interests of any nature and kind whatsoever which affect, by way of
a conflicting ownership interest or otherwise, in any manner
whatsoever title to any particular property.
"PERSON" means any individual, legal or personal representative,
partnership, company, corporation, incorporated syndicate,
unincorporated association, trust or Governmental Body or any other
entity however designated or constituted and words importing
"persons" have a similar meaning.
"PURCHASE PRICE" has the meaning ascribed thereto in Section 2.2.
"PURCHASED SHARES" has the meaning ascribed thereto in the recitals.
"PURCHASER" or "VIQ" means VoiceIQ Inc., a corporation incorporated
under the laws of the Province of Ontario.
"PURCHASER'S COUNSEL" means Blake, Cassels & Graydon LLP, Toronto,
Ontario.
"SECTION 116 CERTIFICATE" has the meaning ascribed thereto in
Section 2.4(1) hereof.
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"TAX ACT" means the Income Tax Act (Canada), R.C.C., 1985, C.1 (5th
suppl.), as amended.
"VENDOR'S CONSIDERATION" has the meaning ascribed thereto in Section
2.4(1) hereof.
"VIQ SHARES" means the common shares in the capital of the Purchaser.
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.
1.3 GENDER AND NUMBER. Unless the context otherwise requires, words
importing the singular include the plural and vice versa, and words importing
gender include all genders.
1.4 CURRENCY. All amounts expressed herein in terms of money refer to the
Canadian dollar, and all payments to be made hereunder shall be made in cash or
certified cheque or any other method that provides immediately available funds.
1.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof. There are no
warranties, conditions or representations (including any that may be implied by
statute) and there are no agreements in connection with such subject matter
except as specifically set forth or referred to in this Agreement.
1.6 BUSINESS DAYS. If any payment is required to be made or any action is
required to be taken pursuant to this Agreement on a day which is not a Business
Day, then such payment or action shall be made or taken on the next Business
Day.
1.7 SCHEDULES. The following schedules form part of this Agreement:
Schedule 2.8 - Definition of Accredited Investor
Schedule 6.1(6) - Form of Release
Schedule 6.3(7) - Form of Purchaser's Counsel Opinion
ARTICLE 2
PURCHASE OF PURCHASED SHARES
----------------------------
2.1 PURCHASE OF THE PURCHASED SHARES. Subject to the terms and conditions
set forth in this Agreement, the Purchaser agrees to purchase from the Vendor,
and the Vendor agrees to sell, assign and transfer to the Purchaser, the
Purchased Shares at Closing.
2.2 PURCHASE PRICE. The aggregate purchase price (the "Purchase Price")
payable by the Purchaser for the Purchased Shares shall be $1,496,000. The
Purchase Price shall be paid and satisfied by the issue of 1,360,000 VIQ Shares
(the "Consideration Shares") to the Vendor at Closing.
2.3 RESTRICTIONS ON RESALE OF COMMON SHARES
(1) The Common Shares issued to the Vendor pursuant to Section 2.2 shall
not be sold, transferred or otherwise disposed of except as provided below:
(a) none of such shares may be transferred without the
prior written consent of the Purchase during the period of 12
months following the Closing Date; and
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(b) from and after such 12 month period, such Common Shares shall
be freely transferable subject to the additional resale
restrictions described in subsection 2.3(2) below.
(2) If the Vendor intends to sell or transfer any of the Common Shares
after the 12 month restricted period as provided in subsection 2.3(1), the
Vendor shall be free to sell such shares free of any resale restrictions,
provided that either (i) in any calendar month the Vendor shall not sell more
than 100,000 Common Shares into the public market on the facilities of the stock
market on which the Common Shares are traded, or (ii) the Common Shares are sold
to an arm's-length purchaser in a private transaction not conducted through the
facilities of any stock market or other public market.
2.4 SECTION 116 OF THE INCOME TAX ACT (CANADA)
(1) The Vendor shall, on or before Closing, deliver to the Purchaser a
certificate(a "Section 116 Certificate"), satisfactory in form and substance to
the Purchaser, issued by the Canada Customs and Revenue Agency pursuant to
subsection 116(2) of the Tax Act in respect of the proposed disposition by the
Vendor of the Purchased Shares. The Section 116 Certificate shall specify a
"certificate limit" in an amount no less than the fair market value as at the
Closing Date of the Consideration Shares to be issued to the Vendor in
satisfaction of the portion of the Purchase Price relating to the Purchased
Shares sold by the Vendor (the "Vendor's Consideration"). The Purchaser shall
assist the Vendor in preparing documents required by the Canada Customs and
Revenue Agency to obtain Section 116 Certificate.
(2) In the event that a Section 116 Certificate has not been delivered by
the Vendor to the Purchaser on or before Closing, or in the event that a Section
116 Certificate that is delivered by the Vendor to the Purchaser on or before
Closing specifies a "certificate limit" that is less than the Vendor's
Consideration, the Purchaser may, at its option, either (i) delay Closing for up
to 90 days, or (ii) enter into an escrow agreement (the "Escrow Agreement")
which shall be in a form reasonably acceptable to the Purchaser pursuant to
which the Vendor will deposit the Consideration Shares issued to the Vendor
pursuant to Section 2.2 hereof (the "Escrowed Shares") with the Purchaser
pending receipt of a Section 116 Certificate with a certificate limit which is
no less than the amount set out in subsection 2.4(1) hereof. The Escrow
Agreement will authorize the Purchaser to execute any documents and take any
action as will enable it to satisfy its liabilities and obligations under
section 116 of the Tax Act, including arranging for the sale of all or a portion
of the Escrowed Shares and from the proceeds thereof to remit the required
amount to the Receiver General of Canada under subsection 116(5) of the Tax Act.
(3) Notwithstanding the foregoing paragraphs (1) and (2), if the Vendor
delivers a Section 116 Certificate or a replacement Section 116 Certificate to
the Purchaser at any time after Closing and at least two Business Days prior to
the day that 25% of the Vendor's Consideration is required to be remitted by the
Purchaser to the Receiver General of Canada pursuant to subsection 116(5) of the
Tax Act, and such certificate specifies a certificate limit in an amount no less
than the Vendor's Consideration, the Purchaser shall deliver the Escrowed Shares
to the Vendor within three Business Days after the Section 116 Certificate is
delivered to the Purchaser.
(4) In any case where the Purchaser withholds and remits to the Receiver
General of Canada any amount pursuant to this Section 2.4, such withheld amount
shall be treated for all purposes as having been paid to the Vendor on account
of the Vendor's Consideration.
2.5 INM SHAREHOLDERS AGREEMENT. The Vendor agrees to provide the
Purchaser with any consents or approvals required under the INM Shareholders
Agreement in respect of the transfer of the Purchased Shares or the transfer of
shares of INM owned by Oleg Feldgajer to the Purchaser. Upon the purchase of
shares of INM by the Purchaser from the Vendor and Oleg Feldgajer, the INM
Shareholder Agreement shall terminate and be void, including, without
limitation, the Management Option set out in Section 7.12 thereof.
2.6 REGULATORY APPROVAL. Completion of the transactions provided for
herein are subject to receipt by the Purchaser of the consent of the CDNX to the
issue of the Consideration Shares.
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2.7 SECURITIES LAWS. The Vendor acknowledges that the Consideration
Shares issued to the Vendor are being acquired pursuant to the prospectus and
exemptions contained in the Securities Act (Ontario) and the United States
Securities Act of 1933, as amended (the "1933 Act"). The Vendor acknowledges
that the Consideration Shares may be subject to hold periods or other resale
restrictions imposed by applicable securities laws and agrees not to sell the
Consideration Shares except in compliance with such securities laws.
2.8 1933 ACT
(1) The Vendor understands that the Consideration Shares have not been
registered under the United States Securities Act of 1933, as amended (the "1933
Act") and that the sale contemplated hereby is being made in reliance on the
Vendor being an "Accredited Investor" as defined in Rule 501 under the 1933 Act
and that he is acquiring Consideration Shares for his own account or for the
account of an Accredited Investor as to which he exercises sole investment
discretion, and not with a view to any resale, distribution or other disposition
of the Consideration Shares in violation of the United States securities laws.
(2) The Vendor agrees that if he decides to offer, sell or otherwise
transfer any of the Consideration Shares, he will not offer, sell or otherwise
transfer any of such Consideration Shares, directly or indirectly, unless:
(a) the sale is made outside of the United States in compliance
with the requirements of Rule 904 of Regulation S under the
1933 Act and in compliance with applicable local laws and
regulations; or
(b) the sale is made pursuant to an exemption from registration
under the 1933 Act provided by Rule 144 thereunder, if
available; or
(c) the Consideration Shares are sold in a transaction that does
not require registration under the 1933 Act or any applicable
United States state laws and regulations governing the offer
and sale of securities.
(3) Upon the original issuance of the Consideration Shares to the Vendor,
and until such time as is no longer required under applicable requirements of
the 1933 Act or applicable state laws, all certificates representing the
Consideration Shares, and all certificates issued in exchange therefor or in
substitution thereof, shall bear, on the face of such certificates, the
following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S.
SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED FOR SALE, SOLD, OR
OTHERWISE TRANSFERRED OR ASSIGNED UNLESS THEY ARE OFFERED FOR
SALE, SOLD, OR OTHERWISE TRANSFERRED OR ASSIGNED: (A) TO THE
COMPANY; (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE
904 OF REGULATION S UNDER THE U.S. SECURITIES ACT; (C)
PURSUANT TO THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER,
IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS; OR (D) PURSUANT TO ANOTHER EXEMPTION FROM
REGISTRATION AFTER PROVIDING A SATISFACTORY LEGAL OPINION TO
THE COMPANY".
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2.9 SECURITIES REPRESENTATIONS
(1) The Vendor acknowledges that Purchaser is a reporting company in
Canada and the United States and therefore files information with the Ontario
Securities Commission and with the Securities and Exchange Commission in the
United States ("Public Information"). The Vendor represents that it has reviewed
the Public Information and is fully familiar with Purchaser's current business
and future prospects. All statements, facts, representations, projections,
descriptions, estimates, opinions, views, expectations, plans, observations,
analyses, judgments, forecasts, assessments, warranties, and assumptions set
forth in the Public Information are subject to, and qualified in their entirety
by, this Agreement.
(2) The Vendor acknowledges that the Purchaser has made available to it
all requested documents and records in its possession, and has offered to the
Vendor an opportunity to discuss this transaction with the Purchaser and/or
representatives of the Purchaser and obtain any additional information necessary
to verify the accuracy of any information furnished. The Vendor acknowledges
that no information furnished by the Purchaser constitutes investment,
accounting, legal or tax advice. The Vendor is relying solely upon itself and
its professional advisors, if any, for such advice.
(3) The Vendor has relied solely upon its own independent investigation
in making a decision to sell the Purchased Shares for the Consideration Shares.
The Consideration Shares are speculative investments which involve a substantial
degree of risk with no assurance of any income from such investments and the
possibility that such Consideration Shares may become worthless. The Purchasers
acknowledges that the Consideration Shares are not traded on any stock exchange
in the United States and that there is only a limited market for the
Consideration Shares in the United States. The Vendor must therefore be prepared
to bear the economic risks of owning the Consideration Shares for an indefinite
period.
(4) The Vendor acknowledges that (a) the Consideration Shares are not
being registered under the laws of any jurisdiction and are being sold pursuant
to an exemption from registration set forth in the Securities Act of 1933, as
amended, (the "Securities Act") and (b) Purchaser has not furnished the Vendor
with all information that would be included in the applicable registration
statement if the Consideration Shares were offered and registered under the
Securities Act.
(5) The Vendor represents that the Consideration Shares will be acquired
solely for the account of the Vendor, solely for investment purposes and not
with a view to resale or distribution, and that no other person has, or will
acquire, any direct or indirect interest in the Consideration Shares. The Vendor
has no contract, undertaking, agreement or arrangement with any person to sell,
transfer or pledge to such person, or anyone else, the Consideration Shares, or
any interest therein, and the Vendor has no plans to enter into any such
contract, undertaking, agreement or arrangement. The Vendor understands that he
may not dispose of the Consideration Shares, or any part thereof, or any
interest therein, unless and until legal counsel for Purchaser shall have
provided its written opinion that the intended disposition does not violate the
law of any jurisdiction. The Vendor acknowledges that the Consideration Shares
are non-transferable, that it will not be possible for the Vendor to liquidate
the Consideration Shares readily in case of an emergency and, therefore, must
bear the financial risk of owning the Consideration Shares investment for an
indefinite period.
(6) The Vendor is knowledgeable and experienced in making and evaluating
investments. The investments of the Vendor in, and their commitments to, all
non-liquid investments (including an investment in Purchaser) are reasonable in
relation to their respective net worths, and the Vendor has the ability to bear
the financial risk of an investment in Purchaser.
(7) The Vendor will indemnify and hold Purchaser, its affiliates, and
representatives, harmless from and against any and all loss, liability, cost,
damage, expense (including attorney's fees and expenses) and claims arising out
of, in connection with or resulting (i) from the sale or distribution of any
Consideration Shares by the Vendor in violation of any applicable law, rule or
regulation, and (ii) any
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misrepresentation by the Vendor or any breach of any warranties herein or any
covenants or agreements set forth herein.
(8) The Vendor understands and acknowledges that no federal or state
agency, governmental authority, regulatory body, stock exchange or other entity
in the United States, or any other jurisdiction, has made any finding or
determination as to the merits of the Consideration Shares, nor have any such
agencies, governmental authorities, regulatory bodies, stock exchanges or other
entities made any recommendation or endorsement with respect to the
Consideration Shares.
(9) The Vendor represents, warrants, and acknowledges that (a) the
Consideration Shares were not offered or distributed to the Vendor through an
advertisement in printed media of general and regular paid circulation, radio or
television, and (b) they did not attend any seminars or meetings regarding this
transaction, in which the attendees were invited by any general solicitation or
general advertising.
(10) The Vendor is an "Accredited Investor" as such term is defined in
Rule 501(a) under the Securities Act as set forth at Schedule 2.8 hereto.
(11) The Vendor understands and acknowledges that the Consideration Shares
are "restricted securities," as defined by the Securities Act, and agree to
resell the Securities only (a) pursuant to a registration statement under the
Securities Act, or (b) pursuant to a written opinion of legal counsel for
Purchaser stating that such resale is exempt from registration.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
------------------------------
3.1 REPRESENTATIONS AND WARRANTIES OF THE VENDOR. The Vendor represents
and warrants to the Purchaser that as of the date hereof:
(1) No Options, etc. No Person has any agreement or option or any right
or privilege (whether by law, preemptive or contractual) capable of becoming an
agreement or option for the purchase from the Vendor of any of the Purchased
Shares (except the Purchaser pursuant to this Agreement) or entitling any person
other than the Vendor to share in the proceeds of this transaction to the
Vendor.
(2) Transactions with Affiliates. There are no outstanding advances,
loans, guarantees or agreements to provide any advances, loans, or guarantees
between INM and the Vendor or an Affiliate of the Vendor.
(3) Enforceability of Obligations. This Agreement constitutes a valid and
binding obligation of the Vendor enforceable against the Vendor in accordance
with its terms, subject to limitations with respect to enforcement imposed by
law in connection with bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights generally and to the extent that equitable remedies
such as specific performance and injunctions are only available in the
discretion of the court from which they are sought.
(4) Ownership of Obligations. The Vendor is the sole and beneficial
owners, and the holder of record, of the Purchased Shares, have good and
marketable title thereto, free and clear of any and all Encumbrances and have
the exclusive right to sell, transfer and assign the Purchased Shares.
(5) No Violation. The execution and delivery of this Agreement by the
Vendor and all other agreements required to be delivered by him hereunder and
the performance of the transactions contemplated hereby and thereby will not
result in: (i) the violation of any of the terms or provisions of any
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Contract to which the Vendor may be a party or by which it is bound; or (ii) the
creation of any Encumbrance on the Purchased Shares.
3.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE VENDOR. The
representations and warranties of the Vendor contained in Section 3.1 shall
survive the Closing and notwithstanding the Closing, shall continue in full
force and effect for the benefit of the Purchaser for a period of two years,
after which time the Vendor shall be released from all obligations and
liabilities hereunder in respect of such representations and warranties except
with respect to any claims made by the Purchaser in writing prior to the
expiration of such period.
3.3 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Vendor that as at the date hereof:
(1) Due Incorporation, etc. The Purchaser is a corporation duly
incorporated and organized and validly subsisting under the laws of Ontario.
(2) Trading of Shares. The VIQ Shares are posted for trading on CDNX.
(3) Due Authorization. The Purchaser has all necessary corporate power
and authority to enter into this Agreement and to carry out its obligations
hereunder and the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of the Purchaser.
(4) Enforceability of Obligations. This Agreement constitutes a valid and
binding obligation of the Purchaser enforceable against it in accordance with
its terms, subject to limitations with respect to enforcement imposed by law in
connection with bankruptcy, insolvency, reorganization or other laws affecting
creditors' rights generally and to the extent that equitable remedies such as
specific performance and injunctions are only available in the discretion of the
court from which they are sought.
3.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
representations and warranties of the Purchaser contained in Section 3.3 or
shall survive the Closing and, notwithstanding the Closing, shall continue in
full force and effect for the benefit of the Vendor for a period of three years,
after which time, the Purchaser shall be released from all obligations and
liabilities hereunder in respect of such representations and warranties, except
with respect to any claims made by the Vendor in writing prior to the expiration
of such period.
ARTICLE 4
EXCLUSIVE DEALINGS
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4.1 EXCLUSIVE DEALINGS. During the Interim Period, the Vendor shall not
take any action, directly or indirectly, to encourage, initiate or engage in
discussions or negotiations with, or provide any information to any Person,
other than the Purchaser and its designated and authorized representatives,
concerning any sale, purchase, merger or similar transaction involving INM, the
Purchased Shares, or the Assets, save for transactions entered into in the
ordinary course of business or approved in writing by the Purchaser.
ARTICLE 5
CLOSING ARRANGEMENTS
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5.1 CLOSING. The closing of the transactions provided for in this Agreement
shall take place at the offices of the Purchaser's Counsel, Suite 2300, Commerce
Court West, Toronto, Ontario, at 10:00
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a.m. (Toronto time) on the Closing Date or at such other time or place as the
parties hereto may mutually agree in writing.
5.2 SATISFACTION OF CLOSING CONDITIONS. The parties shall use their best
efforts to ensure that the conditions of Closing set out in this Agreement are
satisfied in a complete and timely manner to the extent that the satisfaction of
such conditions are within their reasonable control.
ARTICLE 6
CONDITIONS OF CLOSING
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6.1 CONDITIONS FOR THE BENEFIT OF THE PURCHASER. The obligation of the
Purchaser to complete the transactions provided for in this Agreement is subject
to the fulfilment of the following conditions precedent to the satisfaction of
the Purchaser on or prior to Closing, it being understood that such conditions
are included for the exclusive benefit of the Purchaser and may be waived in
writing in whole or in part by the Purchaser at any time:
(1) Share Certificates. The Vendor shall deliver or have delivered to the
Purchaser share certificates representing all of the Purchased Shares duly
endorsed in blank for transfer or with executed irrevocable stock transfer
powers attached.
(2) Representations and Warranties. The representations and warranties of
the Vendor contained in this Agreement shall be true and correct on and as of
the Closing Date with the same effect as though made on and as of such date and
the Vendor shall have delivered to the Purchaser certificates to such effect,
dated the Closing Date.
(3) Performance of Terms. All the terms and conditions of this Agreement
to be complied with or performed by the Vendor at or prior to Closing shall have
been complied with or performed at or prior to Closing.
(4) Corporate Proceedings. All corporate and legal proceedings and
approvals which are considered necessary by the Purchaser's Counsel to permit
the Vendor to complete the transactions contemplated by this Agreement shall
have been taken or obtained and the documents to be executed pursuant to it
shall be satisfactory in form and content to the Purchaser and the Purchaser
shall have received certified copies of all documents which it may reasonably
request in connection with such transactions and of the records of all corporate
proceedings in connection therewith.
(5) Consents and Authorizations. There shall have been obtained:
(a) all Government Authorizations, exemptions and certificates from
all appropriate Government Bodies as are required by the
Vendor to permit the transactions contemplated herein;
(b) all consents and approvals from all applicable governmental or
regulatory authorities (including, without limitation, the
consent of CDNX) required by the Purchaser to complete the
transactions contemplated herein; and
(c) all consents required under any Contract to which INM is a
party or by which it is bound by virtue of the transactions
contemplated by this Agreement.
(6) Releases. The Vendor shall have executed and delivered to the
Purchaser a release, substantially in the form set out in Schedule 6.1(6), in
respect of all claims and liabilities of INM to the Vendor.
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(7) No Material Adverse Change. During the Interim Period, there shall
have been no Material Adverse Change.
(8) No Litigation. No action or proceeding shall be pending or threatened
by any Person or Governmental Body:
(a) to enjoin, restrict or prohibit the transactions contemplated
by this Agreement; or
(b) which may impose any condition on the consummation of the
transactions contemplated hereby.
(9) Due Diligence. The Purchaser shall have conducted and completed a due
diligence investigation with respect to INM, the business and the assets and the
Purchaser, in its sole discretion, shall have been satisfied in all respects
with respect to such due diligence and investigation and, in its sole
discretion, shall have determined to proceed with the transactions contemplated
by this Agreement.
(10) Receipt of Closing Documents. All documents required to be delivered
by the Vendor pursuant to this Agreement prior to or at Closing shall have been
delivered to the Purchaser prior to or at Closing. The Purchaser shall be
furnished with such certificates or other instruments of the Vendor as the
Purchaser's Counsel considers necessary to effect the transfer of the Purchased
Shares and to establish that the terms, covenants and conditions contained in
this Agreement have been performed or complied with at or prior to Closing.
(11) INM Shareholders Agreement. The Vendor shall have executed and
delivered an acknowledgement, in form acceptable to the Purchaser, all consents
and approvals required under the INM Shareholders Agreement to the transfer of
the Purchased Shares to the Purchaser.
(12) Certificates. The Vendor shall have delivered to the Purchaser a
Section 116 Certificate or an Escrow Agreement as required by Section 2.4.
(13) Approval of Directors of Purchaser. The board of directors of the
Purchaser shall have approved this Agreement and the issue of the Consideration
Shares pursuant thereto.
6.2 TERMINATION BY PURCHASERS. In the event that any condition in Section
6.1 shall not have been performed or fulfilled on or prior to Closing, the
Purchaser in its sole discretion may, without limiting any rights or remedies
otherwise available at law or equity either (a) terminate this Agreement by
notice in writing to the Vendor, in which event the Purchaser shall be released
from all obligations or all then outstanding obligations as the case may be,
under this Agreement; or (b) waive compliance with any of such conditions
without prejudice to its right of termination in the event of non-fulfilment of
any other condition in whole or in part.
6.3 CONDITIONS FOR THE BENEFIT OF THE VENDOR. The obligation of the
Vendor to complete the transactions provided for in this Agreement is subject to
the fulfilment of the following conditions precedent to the satisfaction of the
Vendor on or prior to the Closing Date, it being understood that such conditions
are included for the exclusive benefit of the Vendor and may be waived in
writing in whole or in part by the Vendor at any time:
(1) Share Certificates. The Purchaser shall deliver or have delivered to
the Vendor properly authorized and completed share certificates, duly registered
in the name of the Vendor, representing the VIQ Shares to be issued to the
Vendor in accordance with Section 2.2.
(2) Representations and Warranties. The representations and warranties of
the Purchaser contained in this Agreement shall be true and correct on and as of
the Closing Date with the same effect as though made on and as of such date and
the Purchaser shall have delivered to the Vendor a certificate to such effect,
dated the Closing Date.
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(3) Corporate Proceedings. All corporate and legal proceedings to be
taken in connection with the transactions contemplated by this Agreement and the
documents to be executed pursuant to it shall be satisfactory in form and
content to the Vendor and the Vendor shall have received certified copies of all
documents which he may reasonably request in connection with such transactions
and of the records of all corporate proceedings in connection therewith.
(4) Performance of Terms. All of the terms, covenants, obligations and
conditions of this Agreement to be complied with or performed by the Purchaser
at or before Closing, shall have been complied with or performed at or prior to
Closing.
(5) Consents and Authorizations. There shall have been obtained all
Governmental Authorizations, exemptions and certificates from all appropriate
Governmental Bodies as are required by the Purchaser to permit the transactions
contemplated herein.
(6) No Litigation. No action or proceeding shall be pending or threatened
by any Person or Governmental Body:
(a) to enjoin, restrict or prohibit the consummation of the
transactions contemplated hereby; or
(b) which may impose any condition on the consummation of the
transactions contemplated hereby.
(7) Opinion of Purchaser's Counsel. The Vendor shall have received, at
Closing, a favourable opinion of Purchaser's Counsel, substantially in the form
attached as Schedule 6.3(7).
6.4 TERMINATION BY VENDOR. In the event that any condition in Section 6.3
shall not have been performed or fulfilled on or prior to Closing, the Vendor in
his sole discretion may, without limiting any rights or remedies otherwise
available at law or equity either (a) terminate this Agreement by notice in
writing to the Purchase in which event the Vendor shall be released from all
obligations or all then outstanding obligations as the case may be, under this
Agreement; or (b) waive compliance with any of such conditions without prejudice
to its right of termination in the event of non-fulfilment of any other
condition in whole or in part.
ARTICLE 7
INDEMNIFICATION
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7.1 INDEMNIFICATION BY THE VENDOR. The Vendor agrees to indemnify and
hold the Purchaser harmless from and against all claims, actions, suits, losses,
costs, damages, expenses and liabilities, including reasonable legal fees,
directly or indirectly suffered by the Purchaser, as a result of or relating in
any manner whatsoever to:
(a) any breach of or any non-fulfilment of any agreement or
covenant of the Vendor contained in this Agreement or
instrument executed and delivered pursuant to this Agreement;
or
(b) any breach of, or any inaccuracy in, any of the
representations or warranties made by the Vendor under this
Agreement or any other agreement or instrument executed and
delivered pursuant to this Agreement.
and any such indemnification payment shall represent an adjustment of the
Purchase Price.
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7.2 INDEMNIFICATION BY THE PURCHASER. The Purchaser agrees to indemnify
and hold harmless the Vendor from and against all claims, actions, suits,
losses, costs, damages, expenses and liabilities, including reasonable legal
fees, directly or indirectly suffered by the Vendor, as a result of or relating
in any manner whatsoever to:
(a) any breach of or any non-fulfilment of any agreement or
covenant of the Purchaser contained in this Agreement or
instrument executed and delivered pursuant to this Agreement;
or
(b) any breach of, or any inaccuracy in, any of the
representations or warranties made by the Purchaser under this
Agreement or any other agreement or instrument executed and
delivered pursuant to this Agreement.
and any such indemnification payment shall represent an adjustment of the
Purchase Price.
ARTICLE 8
GENERAL
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8.1 EXPENSES. Each party shall be responsible for its own legal and other
charges incurred in connection with the preparation of this Agreement and all
negotiations between the parties.
8.2 FURTHER ASSURANCES. Each of the parties hereto from time to time at
the request and expense of any other party hereto and without further
consideration, shall execute and deliver such other instruments of transfer,
conveyance and assignment and take such further action as the other party may
require to more effectively complete any matter provided for herein.
8.3 AMENDMENTS AND WAIVER. No modifications of or amendments to this
Agreement shall be valid or binding unless set forth in writing and duly
executed by all the parties hereto and no waiver of any breach of any term or
provision to 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.
8.4 TIME OF ESSENCE. Time shall be of the essence of this Agreement in
all respects.
8.5 SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in whole or in part shall not be deemed to affect or impair the
validity of any other provision hereof and the provisions hereof are declared to
be separate and distinct.
8.6 NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and shall be effectively given if (i) delivered personally, (ii)
sent by prepaid courier service addressed, or (iii) sent prepaid by fax or
similar means of electronic communication in each case to the applicable address
set out below:
if to the Vendor, to:
Aleksander Szlam
5051 Peachtree
Corner Circle
Norcross, Georgia
30092
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if to the Purchaser, to:
VoiceIQ Inc.
240 Riviera Drive
Markham, Ontario
L3R 5M1
Attention: The President
Facsimile: (905) 948-8276
with a copy to:
Blake, Cassels & Graydon LLP
Box 25, Commerce Court West
Toronto, Ontario
M5L 1A9
Attention: Mr. Robert A. Bondy
Facsimile: (416) 863-2653
Any notice so given shall be deemed conclusively to have been given and received
on the delivery if delivered, or on the day of faxing or sending by other means
of electronic communication, or on the second Business Day following the sending
thereof by private courier. Any party hereto may change any particulars of its
address for notice by notice to the others in the manner aforesaid.
8.7 SUCCESSORS AND ASSIGNS. This Agreement shall enure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
8.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts each of which when so executed shall be deemed to be an original
and such counterparts together shall constitute but one and the same instrument.
8.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein. The parties hereto irrevocably agree to attorn to the laws
of Ontario and the non-exclusive jurisdiction of the courts of Ontario.
IN WITNESS WHEREOF this Agreement has been executed by the parties
hereto.
(Signed) "Aleksander Szlam"
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ALEKSANDER SZLAM
VOICEIQ INC.
By: (Signed) "Terry Graham"
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