Exhibit 4.4
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Share Purchase Agreement (Shares of Sulconam Inc.)
ESTATE OF DR. DONALD G. ZINK
as Vendor
and
3068071 NOVA SCOTIA COMPANY
as Purchaser
_____________________________________________________________________________
SHARE PURCHASE AGREEMENT
December 30, 2002
_____________________________________________________________________________
STIKEMAN ELLIOTT
SHARE PURCHASE AGREEMENT
Share Purchase Agreement dated December 30, 2002 between the Estate of
Dr. Donald G. Zink, by its executors, Donald L. Zink, Donna Zink Eden and
Samuel P.M. Gray (the "Vendor") and 3068071 Nova Scotia Company, (the
"Purchaser").
RECITALS:
(a) The Vendor has agreed to sell, transfer and assign to the
Purchaser and the Purchaser has agreed to purchase from the
Vendor all of the shares held by the Vendor in the capital of
Sulconam Inc. (the "Corporation"), being 67,445 common shares
(the "Purchased Shares"), for the consideration and upon the
terms and conditions set forth herein; and
(b) Prior to or contemporaneously with the execution hereof (i) the
Purchaser has paid to the Vendor the purchase price for the
Purchased Shares in the aggregate amount of Cdn.$16,500,000 (the
"Purchase Price") payable as to $12,375,000 by wire transfer to
RBC Dain Rauscher Incorporated, Account No. 1602 3009 7208 at
the U.S. Bank, 601 2nd Avenue South, Minneapolis, MN55402 ABA
091000022, Swift Code: USBKUS 44IMT, further credit: Estate of
Donald G. Zink 1101-8751-0425 and as to $4,125,000 (the
"Withheld Amount") by wire transfer into an interest bearing
escrow account with Robinson Sheppard Shapiro at Beneficiary:
Robinson Sheppard Shapiro "in trust", National Bank of Canada,
600 de la Gauchetiere St. W., Montreal, Quebec Canada HEB 4L2 ,
Tel. (514) 394-5000, Transit: 0001-1, Bank account 02381-23,
Institution 06 to be held in accordance with the provisions of
Section 5 hereof; (ii) the Vendor has delivered to the Purchaser
share certificates representing the Purchased Shares duly
endorsed in blank for transfer or accompanied by executed
transfers of shares; (iii) the Vendor has delivered to the
Purchaser an opinion of counsel to the Vendor in form and
substance satisfactory to the Purchaser; (iv) counsel to each of
the Vendor and the Purchaser shall have settled the form of
Motion for Leave to Discontinuance with respect to the
Application for an Interim and Final Remedy Under the Provisions
of Article 239 and Following of the Canada Business Corporations
Act filed before the Superior Court, District of Montreal, Court
Docket: 500-05-067672-012 now 500-11-018990-024; and (v) each of
the Vendor, the Purchaser, the Corporation, Marsulex Inc. and
3289265 Canada Inc., the latter three being the Respondents, has
delivered to each of the other parties thereto a mutual release
and discharge ("Release") renouncing any claims of any nature
whatsoever against the other, including, with respect to the
Application for an Interim and Final Remedy Under the Provisions
of Article 239 and Following of the Canada Business Corporations
Act filed before the Superior Court, District of Montreal, Court
Docket: 500-05-067672-012 now 500-11-018990-024.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are hereby acknowledged), the
parties agree as follows:
Section 1 Conveyance of Purchased Shares.
The Vendor hereby agrees to sell, assign and transfer to the Purchaser
and the Purchaser agrees to purchase from the Vendor all of the Purchased
Shares for the Purchase Price.
Section 2 Representations and Warranties of the Vendor.
The Vendor represents and warrants as follows to the Purchaser and
acknowledges and confirms that the Purchaser is relying upon the
representations and warranties in connection with the purchase by the
Purchaser of the Purchased Shares:
(a) Power and Authority. The Vendor has the power and authority to
enter into and perform its obligations under each of this
Agreement and the Release. The execution, delivery and
performance by the Vendor of each of this Agreement and the
Release (i) has been duly authorized by all necessary action and
proceedings on the part of the Vendor; (ii) will not result in a
breach or a violation of, or conflict with any of the terms or
provisions of any contracts or instruments to which it is a
party or by which it is bound or pursuant to which any of its
properties may be affected; and (iii) will not result in a
violation of any law;
(b) Execution and Binding Obligations. Each of this Agreement and
the Release has been duly executed and delivered by the Vendor
and constitutes a legal, valid and binding obligation of the
Vendor enforceable against it in the accordance with its terms
subject only to any limitation under applicable laws relating to
(i) bankruptcy, winding-up, insolvency, arrangement and other
similar laws of general application affecting the enforcement of
creditors' rights, and (ii) the discretion that a court may
exercise in granting equitable remedies such as specific
performance;
(c) Required Authorization. There is no requirement to make any
filing with, give any notice to or obtain any authorization of
any governmental entity or court as a condition to the lawful
completion of the transactions contemplated by this Agreement or
the Release except for filings, notifications and authorizations
which have been made, given or obtained;
(d) Title to Purchased Shares. The Purchased Shares are owned by the
Vendor as the beneficial owner with a good title, free and clear
of all liens, charges and encumbrances, other than those
restrictions on transfer contained in the articles of
continuance of the Corporation, and upon completion of the
transactions contemplated by this Agreement, the Purchaser will
have a good and valid title to the Purchased Shares, free and
clear of liens, charges and encumbrances other than (i) those
restrictions on transfer contained in the articles of
continuance of the Corporation, and (ii) any liens, charges and
encumbrances granted by the Purchaser. Other than the Purchaser,
no Person has any written or oral agreement, or any right
capable of becoming such, for the acquisition from the Vendor of
any of the Purchased Shares.
Section 3 Representations and Warranties of the Purchaser.
The Purchaser represents and warrants as follows to the Vendor and
acknowledges and confirms that the Vendor is relying upon the representations
and warranties in connection with the sale by the Vendor of the Purchased
Shares:
(a) Power and Authority. The Purchaser has the power and authority
to enter into and perform its obligations under each of this
Agreement and the Release. The execution, delivery and
performance by the Purchaser of each of this Agreement and the
Release (i) has been duly authorized by all necessary action and
proceedings on the part of the Purchaser; (ii) will not result
in a breach or a violation of, or conflict with any of the terms
or provisions of any contracts or instruments to which it is a
party or by which it is bound or pursuant to which any of its
properties may be affected; and (iii) will not result in a
violation of any law;
(b) Execution and Binding Obligations. Each of this Agreement and
the Release has been duly executed and delivered by the
Purchaser and constitutes a legal, valid and binding obligation
of the Purchaser enforceable against it in the accordance with
its terms subject only to any limitation under applicable laws
relating to (i) bankruptcy, winding-up, insolvency, arrangement
and other similar laws of general application affecting the
enforcement of creditors' rights, and (ii) the discretion that a
court may exercise in granting equitable remedies such as
specific performance.
Section 4 Representation and Warranty of the Corporation
The Corporation represents and warrants to the Vendor that the only
registered shareholders of the Corporation as of the date of this Agreement
are Dr. Donald G. Zink and 3068071 Nova Scotia Company and acknowledges and
confirms that the Vendor is relying upon this representation and warranty in
connection with the transactions contemplated by this Agreement.
Section 5 Withholding Tax.
(1) The parties agree that the Withheld Amount, representing the amount
that the Purchaser may be required to remit pursuant to subsection
116(5) of the Income Tax Act (Canada), shall be dealt with solely in
accordance with the provisions of this Section 5.
(2) If, prior to the Remission Date (as hereinafter defined), the Vendor
delivers to the Purchaser:
(a) a certificate issued by the Minister of National Revenue under
Section 116(2) of the Tax Act in respect of the disposition of
the Purchased Shares by Vendor to the Purchaser, Robinson
Sheppard Shapiro, acting as agent for the Purchaser (the
"Agent"), shall promptly pay to Vendor the lesser of (i) the
Withheld Amount and (ii) the Withheld Amount less the amount, if
any, by which the Purchase Price exceeds the amount specified in
such certificate as the certificate limit, multiplied by the
percentage specified in subsection 116(5) of the Tax Act,
together with any interest earned on the Withheld Amount to the
date of such payment (less any applicable withholding tax), or
(b) a certificate issued by the Minister of National Revenue under
Section 116(4) of the Tax Act in respect of the disposition of
the Purchased Shares by the Vendor to the Purchaser, the Agent
shall promptly pay the Withheld Amount to the Vendor, together
with any interest earned thereon (less any applicable
withholding tax).
(3) If the Purchaser has withheld the Withheld Amount and the Vendor does
not deliver to the Purchaser, prior to the Remission Date:
(a) a certificate issued by the Minister of National Revenue under
Section 116(2) of the Tax Act in respect of the disposition of
the Purchased Shares by the Vendor to the Purchaser specifying a
certificate limit equal or greater than the Purchase Price, or
(b) a certificate issued by the Minister of National Revenue under
Section 116(4) of the Tax Act in respect of the disposition of
the Purchased Shares by the Vendor to the Purchaser,
the Agent on the instructions of the Purchaser shall remit
to the Receiver General of Canada the amount required to
be remitted pursuant to subsection 116(5) of the Tax Act
(and the amount so remitted shall be credited to the
Purchaser as a payment to the Vendor on account of the
Purchase Price) and the Agent shall pay to the Vendor any
remaining portion of the Withheld Amount, together with
interest earned on the Withheld Amount prior to such
remittance (less any applicable withholding tax).
(4) For the purposes of this Section 5, "Remission Date" shall mean the
25th day after the end of the month in which the date of the closing
of the transaction under this agreement occurs; provided, however,
that if the Canada Customs and Revenue Agency confirms in writing on
or before the 25th day after the end of the month in which such date
of closing occurs that the Purchaser may continue to withhold the
Withheld Amount until a later date, then the Remission Date shall be
deemed to be extended until such later date.
Section 6 Undertaking.
Counsel for the Vendor shall as soon as possible after the closing of
the transaction apply to the Quebec Superior Court for leave to discontinue
the Application for an Interim and Final Remedy Under the Provisions of
Article 239 and Following of the Canada Business Corporations Act filed before
the Superior Court, District of Montreal, Court Docket: 500-05-067672-012, now
500-11-018990-024 (the "Application"), in a form agreeable to counsel for the
Purchaser. In the event that leave to discontinue the Application is not
obtained, Vendors shall nonetheless not proceed with the Application.
Section 7 Waiver of Rights of First Refusal.
Each of the Vendor and the Purchaser, being the sole shareholders of
the Corporation, hereby waives the right of first refusal accorded to each
shareholder of the Corporation pursuant to the articles of continuance of the
Corporation and compliance with the procedures set forth therein.
Section 8 Expenses.
All costs and expenses (including the fees and disbursements of legal
counsel) incurred in connection with this Agreement and the transactions
contemplated herein and therein shall be paid by the party incurring such
expenses.
Section 9 Further Assurances.
The Vendor shall from time to time do all such acts and things and
execute and deliver all transfers, assignments and instruments as the
Purchaser may reasonably require for more effectually and completely vesting
in the Purchaser the Purchased Shares and otherwise carrying out the intent of
this Agreement. The Purchaser shall from time to time do all such acts and
things and execute and deliver all transfers, assignments and instruments as
the Vendor may reasonably require for more effectually and completely carrying
out the intent of this Agreement.
Section 10 Successors and Assigns.
This agreement shall enure to the benefit of and be binding upon the
Purchaser and the Vendor and their respective successors and assigns.
Section 11 Governing Law.
This agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
Section 12 Counterparts.
This agreement may be executed in any number of counterparts, and all
such counterparts, taken together, shall be deemed to constitute one and the
same instrument.
IN WITNESS WHEREOF the parties have executed this Agreement.
ESTATE OF DR. DONALD G. ZINK,
by its duly authorized executors
/s/ Witness By: /s/ Donald L. Zink
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Witness Donald L. Zink
/s/ Witness By: /s/ Donna Zink Eden
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Witness Donna Zink Eden
/s/ Witness By: /s/ Samuel P.M. Gray
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Witness Samuel P.M. Gray
3068071 NOVA SCOTIA COMPANY
By:/s/ 3068071 NOVA SCOTIA COMPANY
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Authorized Signing Officer
Intervention
To these presents, has intervened Sulconam Inc. which confirms the
representation and warranty set forth in Section 4.
SULCONAM INC.
Per: /s/ SULCONAM INC.
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Intervention
To these presents has intervened Marsulex Inc. which hereby confirms
that it consents to the present sale of the Purchased Shares and waives any
right or claim it may have to acquire the Purchased Shares from the Vendor.
MARSULEX INC.
Per: /s/ MARSULEX INC.
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Intervention
The undersigned law firm has intervened to the present agreement and
agrees with and in favour of the Purchaser to act as agent for and on behalf
of the Purchaser and to be bound by the terms and provisions of the present
agreement and to perform the obligations set forth in Section 5 relating to
the Agent in the present agreement.
ROBINSON SHEPPARD
SHAPIRO
Per:/s/ ROBINSON SHEPPARD SHAPIRO
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