Share Exchange Agreement
THIS AGREEMENT made as July 31, 2000
B E T W E E N:
SYMPHONY TELECOM INC., a corporation incorporated
under the laws of the Province of Ontario, having its
principal place of business at 347 Bay Street, Suite
500, Toronto, Ontario M5H 2R7
("Symphony")
- and -
SYMPHONY TELECOM INTERNATIONAL INC., a corporation
incorporated under the laws of Utah, having its
principal place of business at 347 Bay Street, Suite
500, Toronto, Ontario M5H 2R7
("SYMY")
- and -
ALI VAKILI, of 55 Skymark Drive, PH 07, North York,
Ontario M2H 3N4
("Vakili")
- and -
MANUCHER MISSAGHIE, of 33 Hazelmere Drive, Richmond
Hill, Ontario L4B 1W8
("Manucher")
- and -
FARSHID MISSAGHI, of 17 Royalton Drive, Bolton,
Ontario L7E 1X2
("Farshid")
- and -
TELEMAX COMMUNICATIONS INC., a corporation
incorporated under the laws of the Province of
Ontario with its principal place of business at 231
Millway Avenue, Suite 17, Concord, Ontario L4K 3W7
(the "Corporation")
WHEREAS the parties hereto have entered into various transactions pursuant to
which the Shareholders have acquired Symphony Shares, and expect to acquire
additional Symphony Shares;
AND WHEREAS it was the intention of the parties hereto that all Symphony Shares
would be exchangeable for SYMY Shares;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the respective
covenants and agreements of the parties herein contained, it is agreed by and
between the parties as follows:
Article 1
Definitions
1.1 In this Agreement, the following words and phrases shall have the
following respective meanings unless the context otherwise provides:
(a) "Agreement" means this Agreement and any Schedules hereto;
(b) "Purchased Shares" means the Symphony Shares acquired by the
Shareholders pursuant to the Share Purchase Agreement dated
evenly herewith between Symphony, SYMY and the Shareholders;
(c) "Put Shares" means the Symphony Shares acquired, if any, by
the Shareholders pursuant to the Put Option contained in
Article 9 of the Shareholders Agreement dated evenly herewith
between Symphony, the Shareholders and the Corporation;
(d) "Section" and "Subsection" refer to a section or subsection of
this Agreement;
(e) "Shareholders" means collectively, Vakili, Manucher, Farshid,
and their respective heirs, executors, administrators,
successors and assigns;
(f) "Symphony Share" means a common share in the capital of
Symphony;
(g) "SYMY Shares" means the common shares of SYMY which are
publicly traded, and includes the common shares of SYMY
authorized on the date hereof and shall also include any
shares of any class of SYMY thereafter authorized which shall
not be limited to a fixed sum or percentage in respect of the
rights of the Shareholders to participate in dividends and in
the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of SYMY.;
(h) "Warrant Shares" means the Symphony Shares acquired, if any,
by the Shareholders pursuant to the Share Purchase Warrants
dated evenly herewith issued to each of the Shareholders by
Symphony;
Article 2
Shareholder's Right to Exchange Shares
2.1 Each of the Shareholders shall have the right, exercisable at any time
prior to October 1, 2005, by written notice to SYMY in the form
attached hereto as Schedule "A", to exchange all of the Purchased
Shares held by such Shareholder for SYMY Shares having a market value,
on the date of exercise of this exchange right, equal to the following
amounts:
Shareholder Name Market Value of SYMY Shares
Vakili $1,470,000 (CDN)
Manucher $1,080,000 (CDN)
Farshid $450,000 (CDN)
2.2 Each of the Shareholders shall have the right, exercisable at any time,
and from time to time, prior to October 1, 2005, by written notice to
SYMY in the form attached hereto as Schedule "A", to exchange all or
part of the Warrant Shares and Put Shares held by such Shareholder on a
one-to-one basis, for SYMY Shares.
Article 3
Rules Governing Exchange of Shares
3.1 The rights represented by this Agreement may be exercised by each
Shareholder, by written notice to SYMY and Symphony, with the attached
Exchange Form duly executed, at the principal office of SYMY and
Symphony at 347 Bay Street, Suite 500, Toronto, Ontario M5H 2R7 (or
such other office or agency of SYMY and Symphony as they may designate
by notice in writing to the Shareholder at the address of such
Shareholder appearing on the books of the Corporation at any time
during the period within which the rights represented by this Agreement
may be exercised). The Corporation agrees that the SYMY Shares so
exchanged shall be and be deemed to be issued to the Shareholder as the
record owner of such shares as of the close of business on the date on
which such notice shall have been given. Certificates for the SYMY
Shares so purchased shall be delivered to the Shareholder within a
reasonable time, not exceeding ten (10) days, after the rights
represented by this Agreement shall have been so exercised.
3.2 The Corporation hereby agrees as follows:
(a) all SYMY Shares which may be issued upon the exercise of the
rights represented by this Agreement will, upon issuance, be
validly issued, fully paid and non-assessable and free from
any and all taxes, liens and charges with respect to the issue
thereof.
(b) during the period within which the rights represented by this
Agreement may be exercised, SYMY will at all times have
authorized and reserved a sufficient number of its Common
Shares to provide for the exercise of the rights represented
by this Agreement.
(c) SYMY shall include in any prospectus or relevant public filing
a full disclosure and qualification with respect to all of the
SYMY Shares which may be issued upon the exercise of the
rights represented by this Agreement, such that all of the
SYMY Shares which may be issued upon the exercise of the
rights represented by this Agreement will be qualified by the
prospectus or public filing.
3.3 The above provisions are, however, subject to the following:
(a) if shares of Symphony or SYMY are reclassified or their
capital is otherwise reorganized and if the Shareholder has
not fully exercised its rights under this Agreement prior to
the effective date of such capital reorganization, upon the
exercise of such right the Shareholder shall be entitled to
receive and shall accept in lieu of the number of shares then
subscribed for by it but for the same aggregate consideration
payable therefor, the number of SYMY Shares or other
securities of the Corporation resulting from such capital
reorganization that such Shareholder would have been entitled
to receive on such capital reorganization if, on the effective
date thereof, it had been the registered holder of the number
of SYMY Shares so subscribed for.
(b) if there is a consolidation, amalgamation or merger of
Symphony or SYMY or a sale of the property and assets of
Symphony or SYMY as or substantially as an entirety to any
other company, and if each Shareholder has not fully exercised
its rights under this Agreement prior to the effective date of
such consolidation, amalgamation, merger or sale, upon the
exercise of such right the Shareholder shall be entitled to
receive and shall accept in lieu of the number of SYMY Shares
then subscribed for by it but for the same aggregate
consideration payable therefor, the number of SYMY Shares or
other securities or property of SYMY or of the company
resulting from such merger, amalgamation or consolidation or
to which such sale may be made, as the case may be, that such
Shareholder would have been entitled to receive on such
consolidation, amalgamation, merger or sale if, on the record
date or the effective date thereof, as the case may be, it had
been the registered holder of the number of SYMY Shares so
subscribed for. In any case, the necessary adjustments shall
be made in the application of the provisions set forth in this
Agreement with respect to the rights and interests hereafter
of the Shareholder to the end that the provisions set forth in
this Agreement shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any
shares or other securities or property to which the
Shareholder is entitled on the exercise of its rights
thereafter. Any such adjustment shall be made by and set forth
in a supplemental document entered into and approved by the
board of directors of SYMY and shall for all purposes hereof
be conclusively deemed to be an appropriate adjustment.
(c) the adjustments provided for in this Article 3 are cumulative.
After any adjustment pursuant to this Section, the term "SYMY
Shares" where used in the preceding Sections of this Article 3
shall be interpreted to mean the SYMY Shares which, as a
result of all previous adjustments pursuant to this Section,
the Shareholder would have been entitled to receive upon the
exercise of its rights under this Agreement, and the number of
SYMY Shares indicated in any subscription made pursuant to
this Agreement shall be interpreted to mean the number of SYMY
Shares which, as a result of all previous adjustments pursuant
to this Section, the Shareholder would have been entitled to
receive upon the full exercise of this Agreement entitling the
Shareholder to purchase the number of SYMY Shares so
indicated.
3.4 As a condition precedent to the taking of any action which would
require an adjustment pursuant to Article 3 of this Agreement, SYMY
shall take any corporate action which may be necessary in order that
SYMY has issued and reserved in its authorized capital and may validly
and legally issue as fully paid and non-assessable, all of the SYMY
Shares which each Shareholder is entitled to receive on the full
exercise hereof.
Article 4
General Provisions
4.1 The headings of the sections of this Agreement are inserted for
convenience only and do not constitute part of this Agreement.
4.2 This Agreement shall be binding upon and enure to the benefit of the
parties and their respective heirs, executors, administrators,
successors and assigns.
4.3 All words and pronouns relating thereto shall be read and construed as
the number and gender of the party of parties referred to in each case
require and the verb shall be construed as agreeing with the required
word and pronoun.
4.4 If any covenant or other provision of this Agreement is invalid,
illegal or incapable of being enforced by reason of any rule of law or
public policy, all other conditions and provisions of this Agreement
shall, nonetheless remain in full force and effect and no covenant or
provision shall be deemed dependent upon any other covenant or
provision unless so expressed herein.
4.5 This Agreement shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the laws of the
Province of Ontario. Each of the parties hereby irrevocably attorns to
the jurisdiction of the courts of the Province of Ontario.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals and
corporate seal respectively upon the date and year first above written.
SYMPHONY TELECOM INC.
Per: /s/ Daniel G. Cullen
--------------------------------
Name: Dan Cullen
Title: President
SYMPHONY TELECOM INTERNATIONAL INC.
Per: /s/ Daniel G. Cullen
--------------------------------
Name: Dan Cullen
Title: President
/s/ Steve Alizadeh /s/ Ali Vakili
- - -------------------------------------- -------------------------------------
Witness STEVE ALIZADEH ALI VAKILI
/s/ Steve Alizadeh
/s/ Manuncher Missaghie
- - -------------------------------------- -------------------------------------
Witness STEVE ALIZADEH MANUCHER MISSAGHIE
/s/ Steve Alizadeh
/s/ Farshid Missaghi
- - -------------------------------------- -------------------------------------
Witness STEVE ALIZADEH FARSHID MISSAGHI
Exchange Form
[to be signed only upon Exercise of the Shareholder's Rights under this
Agreement]
TO: Symphony Telecom International Inc.
The undersigned hereby exercises its rights pursuant to the Share Exchange
Agreement (the "Share Exchange Agreement") dated as of July 31, 2000 among
Symphony Telecom Inc., Symphony Telecom International Inc., Ali Vakili, Manucher
Missaghie and Farshid Missaghie to exchange [No. of Common Shares] [Insert one
of the following 3 options: (i) Purchased Shares, (ii) Put Shares, or (iii)
Warrant Shares] of Symphony Telecom Inc. for Shares of Symphony Telecom
International Inc.
Symphony Telecom International Inc. is instructed to issue certificates for such
shares to which the undersigned may be entitled on exercise hereof in the name
of the undersigned and to deliver the same at the address indicated.
x
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Date Shareholder's Signature
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Shareholder's Name Shareholder's Address