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Agreement of Purchase and Sale
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This agreement made in Toronto this twenty ninth day of June, 2000 by and
between Robert Douglas and Wendy Douglas (hereinafter jointly referred to as the
Sellers) and Symphony Telecom International Inc., a corporation duly organized
under the laws of the State of Utah, with principal offices at 347 Bay Street,
Suite 500, Toronto, Ontario, M5H 2R7 (hereinafter referred to as the Purchaser).
Whereas the sellers are the owners of all of the outstanding and issued capital
stock of a telecommunications data company, Linkdata Communications London
Ontario Inc., a corporation duly organized under the laws of the Province of
Ontario, with offices at 171 Queens Avenue, Suite 320, London, Ontario, N6A 5J7
(hereinafter referred to as the "Corporation")
And Whereas Purchaser wishes to purchase from Sellers all of the capital stock
of the Corporation, the parties hereto agree as follows:
1. Purchaser will purchase and Sellers will sell all of their shares (the
"Purchased Shares") in the capital stock of the Corporation for a purchase price
consisting of FOUR HUNDRED THOUSAND ($400,000.00) Dollars in cash (the "Cash
Portion"); and ONE HUNDRED AND THIRTY THOUSAND (130,000) fully paid up Shares in
the capital stock of Symphony Telecom International Inc. a publicly traded
corporation listed on the NASDAQ-OTC Market (the "Share Portion"), (hereinafter
collectively referred to as the "Purchase Price") according to the following
payment schedule:
(a) TEN THOUSAND DOLLARS ($10,000.00) paid by bank cheque as a
deposit upon execution of this agreement, to be held in trust
by Seller until the closing of this transaction.
(b) TWO HUNDRED THOUSAND DOLLARS ($200,000.00) to be paid in cash
or certified cheque on closing.
(c) FORTY THOUSAND DOLLARS ($40,000.00) to be paid in cash or by
bank draft within 30 days after closing.
(d) FIFTY THOUSAND DOLLARS ($50,000.00) to be paid in cash or by
bank draft within 90 days after closing.
(e) FIFTY THOUSAND DOLLARS (50,000.000) to be paid in cash or by
bank draft within 180 day after closing.
(f) FIFTY THOUSAND DOLLARS ($50,000.00) to be paid on the one year
anniversary of the closing of this transaction.
(g) One Hundred and Thirty Thousand (130,000) Shares of Symphony
Telecom International's publicly traded shares (the "Shares")
to be issued to Sellers on closing. The shares will be marked
"restricted securities in accordance with rule 144 of the U.S.
Securities and Exchange Commission"
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It shall be a condition of closing of this Agreement that Ten Thousand
(10,000) Shares of Symphony Telecom International's publicly traded
shares shall have been issued by the Corporation to each of two
employees of the Corporation, as designated by Sellers. The shares will
be marked "restricted securities in accordance with rule 144 of the
U.S. Securities and Exchange Commission"
2. Purchaser will deposit on the Closing Date, with an escrow agent and on
written terms and conditions acceptable to all parties to this
Agreement, sufficient collateral in the form of an irrevocable letter
of credit issued by a Canadian Chartered Bank, or guaranteed
certificates of deposit to secure any unpaid amounts which may be due
under the payment schedule established by section of this Agreement.
3. The property to be transferred hereunder shall be conveyed by the
transfer by the Sellers of all issued and outstanding shares of the
Corporation to the Purchaser, the execution and registration of such
instruments as are required by the Business Corporations Act of
Ontario, and the delivery of the minute book and seal of the
Corporation along with all records and accounts of the Corporation.
4. Purchaser agrees that this offer shall be irrevocable until 12:00 noon
on Thursday June 8, 2000, after which time, if not accepted, this offer
shall be null and void and all deposits shall be returned to the
Purchaser without interest or deductions.
5. Completion of the sale, with payment by the purchaser and conveyances
by the Sellers as agreed herein, shall take place on or before June 30,
2000 (the "Closing Date").
6. Robert Douglas and Purchaser will execute the Employment Agreement
included as Schedule "A". In addition to accepting the position of
Vice-President, Network Services, Robert Douglas undertakes to
continue, within the provisions of Schedule "A", in the position of
President of the Corporation and to oversee the integration of the
operation of the Corporation into the Purchaser's organization.
7. The Sellers promise and agree to convey good, clear and marketable
title to all of the purchased shares free and clear of all
encumbrances.
8. Upon execution of this agreement, the Sellers agree not to make any
material change to the Corporation in any way which may affect the
valuation of the Corporation, including, but not limited to the sale of
assets or issuance of debt instruments without the written consent of
Purchaser.
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9. In order to maintain the liquidity of the corporation the Sellers
agrees that the net working capital (in liquid form) should remain at a
minimum of $50,000.00.
10. Sellers agree to allow Purchaser's appointed accountant access to the
books of the Corporation immediately upon execution of this agreement
and to co-operate with the accountant to expedite the preparation of
audited financial statements for the Corporation. Purchaser shall be
responsible for the expenses associated with the preparation of audited
statements and Sellers represent that an audit can be readily
undertaken.
11. This agreement is subject to the Sellers providing the Purchaser with
access to financial statements and other relevant financial information
and allowing five business days to confirm verbal representations of
the Corporation. Purchaser and Sellers have the option, within that
time to revoke the agreement without penalty.
12. All of the terms, representations and warranties shall survive the
closing. This agreement shall bind and inure to the benefit of the
Sellers and Purchaser and their respective heirs, executors,
administrators, successors and assigns
13. If this agreement shall contain any term or provision which shall be
invalid according to any law having jurisdiction over any material
element of this agreement, or if the application of same is deemed to
be invalid, then the remainder of this agreement shall not be affected
thereby and shall remain in full force and effect.
14. This Agreement of Purchase and Sale is conditional for a period
expiring twenty-one (21) days after the date on which this Agreement is
signed by both the Purchaser and the Vendor (the "Conditional Period"),
upon the solicitors for the Vendors reviewing and approving the terms
and conditions of this Agreement and Schedules and, if as a result of
such review, issues raised by the Vendors following such review by the
solicitors, are not resolved to the mutual satisfaction of the parties
within the Conditional Period, this Agreement shall be null and void
and the Purchaser's deposit shall be returned to it without interest or
deduction. This condition is inserted for the benefit of the Vendors
and may be waived by them prior to the expiry of the Conditional
Period.
15. The closing of this Agreement of Purchase and Sale is conditional upon
the Vendors being satisfied in all respects in their absolute
discretion, with:
(a) the terms and conditions of all agreements, certificates,
declarations, undertakings, representations and warranties,
arising from this Agreement of Purchase and Sale, as amended,
including all schedules hereto;
(b) their due diligence of the Purchaser; and
(c) the terms, conditions, and restrictions applicable to the
shares of the Purchaser to be issued to them on closing as
part of the consideration for the purchase of their shares in
the capital stock of the Corporation.
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This condition is inserted for the benefit of the Vendors and may be
waived by them in whole or in part on or before closing.
16. The Purchaser acknowledges and agrees that it is solely responsible for
any media announcement relating to this conditional Agreement of
Purchase and Sale. It further undertakes with the Vendor that it will
not misrepresent the business operations or other information relating
to the Corporation. The Purchaser indemnifies and shall save the
Vendors harmless from any and all legal action, costs, damages or
claims (including all legal costs on a solicitor and client basis)
which arises out of any communication (whether written or oral) made by
the Purchaser or its agents concerning its proposed purchase of the
shares of the Vendors held in the capital stock of the Corporation.
17. The Purchaser shall, prior to closing, keep all information disclosed
to it by the Vendors strictly confidential and 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 the
Corporation or the Business discovered by the Purchaser or its
representatives as a result of the Vendor and the Corporation making
available to the Purchaser and its representatives the information
requested by them in connection with the transactions contemplated
herein, and all information, in any form, including all electronic
storage media, shall be returned forthwith to the Vendor, without
retention of any copies in any form whatsoever.
18. This agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario. The parties agree that the courts
of the Province of Ontario will have non-exclusive jurisdiction to
determine all disputes and claims arising between the parties. The
parties consent to the service of process by registered mail.
a) In the case of the Sellers
Robert Douglas
59 Westbrook Cres
RR#3
Komoka, Ontario
N0L 1R0
b) In the case of the Purchaser
Symphony Telecom International Inc.
347 Bay Street, Suite 500,
Toronto, Ontario
M5H 2R7
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Any demand, notice, designation, request, proceeding or other document
required or permitted hereunder shall be in writing and shall be
delivered personally, or sent by registered mail, postage prepaid or by
overnight courier. Any such notice shall be deemed given when so
delivered personally, or if mailed, five days after the date of deposit
in the United States or Canadian mails, or if delivered by overnight
courier, the day after such sending, as follows:
If to the Purchaser, to:
Symphony Telecom International Inc.
347 Bay Street, Suite 500
Toronto, Ontario
M5H 2R7
Attention: Chief Executive Officer
If to the Seller, to
Robert Douglas
59 Westbrook Cres
RR#3
Komoka, Ontario
N0L 1R0
Any party may by notice given in accordance with this section to the
other party, designate another address or person for receipt of notices
hereunder.
19. 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. With regard to the issuance, sale or transfer of the Shares
the provisions of this agreement are subject to the laws of the State
of Utah and the rules and regulations of the US Securities Exchange
Commission.
20. This Agreement, together with the Schedules hereto constitutes the
entire agreement between the parties hereto pertaining to the subject
matter hereof. No agreements or representations, oral or otherwise,
expressed or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this
Agreement. No reliance is placed on any representation, opinion, advice
or assertion of fact made by the Company or its directors, officers and
agents to the Executive, except to the extent that the same has been
reduced to writing an included as a term of this Agreement. Accordingly
there shall be no liability, either in tort or contract, assessed in
relation to any such representation, opinion, advice or assertion of
fact. All references to any law shall be deemed also to refer to any
successor provisions to such laws.
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IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed
as of the date first mentioned above.
SYMPHONY TELECOM INTERNATIONAL, INC.
By: /s/ Gilles A. Trahan
Chairman & C.E.O
By: /s/ WENDY DOUGLAS
By: /s/ ROBERT DOUGLAS