EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
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THIS AGREEMENT is made the 10th day of April, 2002.
BETWEEN:
WESTWOOD CORPORATION, a corporation with an address at Room 506,
5/f Easttown Bldg., 41 Lockhart Road, Wanchai, Hong Kong
(the "Purchaser")
AND:
CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a corporation
organized under the laws of the State of Delaware in the United
States, with an address at 1620 - 400 Burrard Street, Vancouver,
British Columbia, V6C 3A6
(the "Vendor")
WHEREAS:
A. The Vendor owns, directly or indirectly, 2,609,937 shares of Cybernet
Italia S.p.A. ("Italia") representing all of the issued and outstanding shares
of Italia (the "Purchased Shares");
B. Italia is a provider of Internet communications services and solutions
including Internet connectivity, value-added services and advanced
communications products in Italy (the "Business"); and
C. The Purchaser wishes to purchase and the Vendor wishes to sell the
Purchased Shares upon the terms and conditions of this Agreement.
NOW THEREFORE in consideration of the mutual premises, covenants and agreements
in this Agreement, and for other good and valuable consideration (the receipt
and sufficiency of which is hereby acknowledged by the Parties), the Parties
agree as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
(a) "Agreement" means this agreement and any recitals to this
agreement, as amended, supplemented or restated from time to time;
(b) "Business" has the meaning given to it in recital B to this
Agreement;
(c) "Closing Date" means the 16th day of April, 2002 or such other
date as the Parties may mutually agree;
(d) "GAAP" means generally accepted accounting principles in effect
in Canada, including the accounting recommendations published in
the Handbook of the Canadian Institute of Chartered Accountants;
(e) "Italia" has the meaning given to it in recital A to this
Agreement;
(f) "Parties" means the parties to this Agreement and "Party" means
any one of them;
(g) "Purchaser" means Westwood Corporation;
(h) "Purchased Shares" has the meaning given to it in recital A to
this Agreement; and
(i) "Vendor" means Cybernet Internet Services International, Inc.,
a corporation organized under the laws of the State of Delaware.
1.2 Headings
The division of this Agreement into sections and the insertion of headings are
for convenience only and do not form a part of this Agreement and will not be
used to interpret, define or limit the scope, extent or intent of this
Agreement.
1.3 Section References
Unless otherwise specified, references in this Agreement to "Sections" are to
sections of this Agreement.
1.4 Number and Gender
Unless otherwise specified, words importing the singular include the plural and
vice versa and words importing gender include all genders.
1.5 Currency
All references to amounts of money mean lawful currency of the United States.
1.6 Accounting Terms
An accounting term which is not otherwise defined has the meaning assigned to
it, and all accounting matters will be determined, in accordance with GAAP
consistently applied.
1.7 Governing Law
This Agreement is governed exclusively by, and is to be enforced, construed and
interpreted exclusively in accordance with, the laws of the Province of British
Columbia and the laws of Canada applicable therein, which will be deemed to be
the proper law of the Agreement.
2. PURCHASE AND SALE
2.1 Purchase and sale
Subject to and in accordance with the terms and conditions set forth in this
Agreement, the Vendor hereby agrees to sell, assign and transfer the Purchased
Shares to the Purchaser and the Purchaser hereby agrees to purchase the
Purchased Shares in consideration for the payment of the purchase price of
$10,000 (the "Purchase Price") by the Purchaser to the Vendor.
2.2 Payment of Purchase Price
The Purchaser will pay the Purchase Price by delivering to the Vendor a
certified cheque or bank draft payable in immediately available funds in the
amount of the Purchase Price.
2.3 Subsequent Sale
If within 180 days of the Closing Date, the Purchaser, whether in one
transaction or a series of transactions:
(a) sells, assigns or transfers or agrees to sell, assign or transfer
any of the Purchased Shares for a price per share greater than
the Purchase Price or for property where the fair market value of
the property received divided by the number of shares sold is
greater than the Purchase Price; or
(b) exchanges any of the Purchased Shares for securities having a
value per share greater than the Purchase Price,
the Purchaser will pay the Vendor in cash an amount equal to 50% of the
difference between the selling price or exchange price per share and the
Purchase Price for each share within 10 business days of the closing of the
sale, assignment, transfer or exchange.
3. REPRESENTATIONS AND WARRANTIES
3.1 Vendor's Representations and Warranties
The Vendor represents and warrants to the Purchaser as follows and acknowledges
that the Purchaser is relying on such representations and warranties in
connection with its purchase of the Purchased Shares:
(a) Organization and Power - the Vendor is a corporation duly
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organized and validly existing under the laws of the State of
Delaware and has the power, authority and capacity to enter into
this Agreement on the terms and conditions herein set forth and to
carry out the transactions contemplated by this Agreement;
(b) Due Authorization - the execution and delivery of this Agreement
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and the consummation of the transactions contemplated hereunder
have been authorized by all necessary action on the part of the
Vendor;
(c) Enforceable Agreement - this Agreement has been duly executed and
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delivered by the Vendor and constitutes a legal, valid and binding
obligation of the Vendor, enforceable by the Purchaser against the
Vendor in accordance with its terms, subject to the availability
of equitable remedies and the enforcement of creditors' rights
generally;
(d) Title to Shares - the Vendor is the registered and beneficial
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owner of the Purchased Shares, and such Purchased Shares will be
transferred to the Purchaser free and clear of any mortgages,
liens, charges, restrictions, security interests, adverse claims,
pledges, encumbrances or demands whatsoever; and
(e) No Other Purchase Agreements - no person, firm or corporation has,
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or will have, any agreement or option or any right or privilege
(whether by law, pre-emptive or contractual) capable of becoming
an agreement or option for the purchase, acquisition or transfer
from the Vendor of any of the Purchased Shares or any interest
therein or right thereto owned by the Vendor, other than the
Purchaser pursuant to this Agreement.
3.2 Purchaser's Representations and Warranties
The Purchaser represents and warrants to the Vendor as follows and acknowledges
that the Vendor is relying on such representations and warranties in connection
with the sale of the Purchased Shares:
(a) Organization and Power - the Purchaser is a corporation duly
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organized and validly existing under the laws of the jurisdiction
of its incorporation and has the power, authority and capacity
to enter into this Agreement on the terms and conditions herein
set forth and to carry out the transactions contemplated by this
Agreement;
(b) Due Authorization - the execution and delivery of this Agreement
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and the consummation of the transactions contemplated hereunder
have been authorized by all necessary action on the part of the
Purchaser; and
(c) Enforceable Agreement - this Agreement has been duly executed and
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delivered by the Purchaser and constitutes a legal, valid and
binding obligation of the Purchaser, enforceable by the Vendor
against the Purchaser in accordance with its terms, subject to the
availability of equitable remedies and the enforcement of
creditors' rights generally.
4. COVENANTS
4.1 Change and Use of Name
The Purchaser agrees that, within 10 business days from the Closing Date, it
will change the name of Italia and the name of any of its affiliates that bear
the name "Cybernet" to a name that does not include the word "Cybernet" or any
part thereof or any similar words. The Purchaser agrees that from and after the
Closing Date neither Italia nor any of its affiliates will use the name
"Cybernet" or any part thereof or any similar words.
4.2 Confidential Information
From and after the Closing Date, the Vendor will not disclose to anyone (other
than to its advisors, as it considers necessary, or as directed by the Purchaser
or as required by applicable securities law or the rules of any quotation system
on which the shares of the Vendor are quoted) or use for its own or for any
other purpose, any confidential information concerning the Business and will
hold all such information in the strictest confidence.
5. CLOSING
5.1 Vendor's Closing Documents
Unless waived by the Purchaser, on the Closing Date the Vendor will deliver, or
cause to be delivered, the following to the Purchaser:
(a) a certified copy of the resolutions of the directors of the Vendor
authorizing the entering into, execution and delivery of this
Agreement and the sale of the Purchased Shares as contemplated
by this Agreement;
(b) share certificates representing the Purchased Shares, duly
endorsed for transfer to the Purchaser or its order, along with
assignments to the Purchaser of any amounts due from Italia
to the Vendor; and
(c) such other documents as the Purchaser may reasonably require.
5.2 Purchaser's Closing Documents
Unless waived by the Vendor, on the Closing Date, the Purchaser will deliver the
following to the Vendor:
(a) a certified cheque or bank draft pursuant to section 2.2 herein;
(b) a certified copy of the resolutions of the directors of the
Purchaser authorizing the entering into, execution and delivery
of this Agreement and the purchase of the Purchased Shares as
contemplated by this Agreement; and
(c) such other documents as the Vendor may reasonably require.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Survival of Representations, Warranties and Covenants
The representations, warranties and covenants of each party contained in this
Agreement will survive the Closing Date for a period of 180 days.
7. GENERAL PROVISIONS
7.1 Confidentiality of Information
In the event that the transactions contemplated herein are not consummated for
any reason, the Purchaser covenants and agrees that, except as otherwise
authorized by the Vendor, neither the Purchaser nor its representatives, agents
or employees will disclose to third parties, directly or indirectly, any
confidential information or confidential data relating to Italia or the Business
discovered by the Purchaser or its representatives as a result of the Vendor
making available to the Purchaser and its representatives the information
requested by them in connection with the transactions contemplated herein and
will, upon request, either return to the Vendor copies of all information given
to the Purchaser by the Vendor and its representatives or confirm the
destruction of the same.
7.2 Entire Agreement
This Agreement constitutes the entire agreement between the Parties with respect
to the subject matter of this Agreement and supersedes every previous agreement,
communication, expectation, negotiation, representation or understanding,
whether oral or written, express or implied, statutory or otherwise, among the
Parties with respect to the subject matter of this Agreement except as
specifically set out herein.
7.3 Waiver and Consent
No consent or waiver, express or implied, by any Party to or of any breach or
default by another Party of any or all of its obligations under this Agreement
will be valid unless it is in writing, nor will it eliminate or modify the need
for a specific consent or waiver in any other or subsequent instance.
7.4 Amendments
This Agreement may not be amended except by written agreement among all the
Parties.
7.5 Assignment
No Party may assign any right, benefit or interest in this Agreement without the
written consent of the other Party, which consent may not be unreasonably
withheld.
7.6 Binding Effect
This Agreement will enure to the benefit of and be binding upon the Parties and
their respective successors and permitted assigns.
7.7 Time of Essence
Time is of the essence of this Agreement.
7.8 Costs and Expenses
All costs and expenses of or incidental to the transactions contemplated in this
Agreement are to be assumed and paid by the Party incurring such costs and
expenses.
7.9 Further Assurances
Each Party will, at its own expense, execute and deliver all such further
agreements and documents and do such further acts and things as may be
reasonably required to give effect to this Agreement.
7.10 Counterparts
This Agreement may be executed in any number of counterparts with the same
effect as if all Parties had signed the same document. All counterparts will
constitute one and the same agreement. This Agreement may be executed and
transmitted by facsimile transmission and if so executed and transmitted this
Agreement will be for all purposes as effective as if the Parties had delivered
an executed original Agreement.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the day
and year first above written.
WESTWOOD CORPORATION
By: /s/ J.S. Choi
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Name: CHOI JIN SOO
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Title: DIRECTOR
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CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By: /s/ Roy Zanatta
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Name: ROY ZANATTA
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Title: SECRETARY
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