Exhibit 10.3
THIRD AMENDMENT TO SHARE PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO SHARE PURCHASE AGREEMENT (this "Agreement") is made and
effective as of the 26th day of July, 2006
AMONG:
STEVE KEREKES
MELANIE KEREKES
JIM OATTES
GRACE DEBRABANDERE
JIM REDDON
MONICA REDDON
TOM DAVIS
JANE DAVIS
(collectively, the "Vendors")
- and -
TELEPLUS ENTERPRISES INC.
(the "Purchaser")
- and -
TELEPLUS CONNECT CORP.
(the "Corporation")
WHEREAS pursuant to a share purchase agreement made as of March 28, 2004 among
the Purchaser, the Vendors and the Corporation (the "Share Purchase Agreement"),
the Purchaser purchased all of the issued and outstanding common shares in the
capital of the Corporation (the "Purchased Shares") on the terms and conditions
contained therein;
AND WHEREAS the Purchaser, the Vendors and the Corporation entered into an
amending agreement dated December, 2005 to amend certain of the terms and
conditions of the Share Purchase Agreement (the "First Amendment") as amended by
that certain Second Amendment to Share Purchase Agreement (the "Second
Amendment")(collectively the First Amendment and the Second Amendment are
referenced herein as the "Amendment");
AND WHEREAS pursuant to the Amendment the Purchaser proposed, and the Vendors
agreed, that in lieu of the consideration which remained payable to them under
the terms of the Share Purchase Agreement, the Vendors accepted as full and
final satisfaction of the Obligations the amount of $3,655,000 (without the
payment by Purchaser of any interest thereon) payable by the Purchaser to the
Vendors in 43 equal monthly instalments on the first day of each month
commencing August 1, 2006 of the amount of $50,000 in cash and $35,000 in shares
of the Purchaser's common stock (with said shares to be paid as provided herein)
(the "Settlement Consideration");
AND WHEREAS the parties desire to modify the Second Amendment in certain
respects, including changing the amount, timing and type of consideration to be
paid, all as set forth herein.
NOW THEREFORE in consideration of the mutual covenants and agreements herein
contained, it is agreed between the Parties as follows:
ARTICLE 10 -
INTERPRETATION
10.1 Defined Terms
Capitalized terms used in this Agreement without definition have the meanings
specified in the Share Purchase Agreement and in the Amendment.
10.2 Governing Law
This Agreement shall be governed by and interpreted and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein.
10.3 Arbitration
All disputes in connection with or arising out of the existence, validity,
construction, interpretation, performance payments, and termination of this
Agreement (or any terms hereof), which the Parties hereto are unable to resolve
between themselves, whether in law or in equity, shall be settled in accordance
with the provisions of Article 11 of the Share Purchase Agreement.
10.4 Interpretation Not Affected by Headings
The division of this Agreement into articles, sections, subsections and other
subdivisions and the insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation of this Agreement.
10.5 Severability
If any provision hereof is held to be illegal, invalid or unenforceable in any
jurisdiction, such provision shall be deemed to be severed from the remainder of
this Agreement with respect only to such jurisdiction and the remaining
provisions of this Agreement shall not be affected thereby and shall continue in
full force and effect.
10.6 Currency
All references in the Share Purchase Agreement or this Agreement to dollars,
unless otherwise specifically indicated, are expressed in Canadian currency.
10.7 Inclusion
Where the word "including" or "includes" is used in this Agreement, it shall
mean "including (or includes) without limitation".
10.8 Accounting Terms
All accounting terms not specifically defined in this Agreement shall be
construed in accordance with GAAP.
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10.9 Effect of Amendment.
Except as expressly amended hereby or in the Amendment, the Share Purchase
Agreement and all rights and powers created thereby or thereunder are in all
respects ratified, confirmed and shall remain in full force and effect. Where
any section, subsection or clause of the Share Purchase Agreement or the
Amendment is modified or deleted by this Agreement, any unaltered provision of
such section, subsection or clause of the Share Purchase Agreement, as modified
by the Amendment shall remain in full force and effect. However, where any terms
and provisions of this Agreement conflict or are inconsistent with the Share
Purchase Agreement, as modified by the Amendment, then the terms and provisions
of this Agreement shall govern, control and prevail.
ARTICLE 11 -
CHANGE IN PAYMENT TERMS
2.1 Change in the Payment Terms
From and after the date set forth above, the Vendors hereby agree,
notwithstanding any other provision of the Share Purchase Agreement or the
Amendment, to accept the following consideration instead of the Settlement
Consideration and in lieu of the Obligations which are payable under the Share
Purchase Agreement and the Amendment as full and final consideration for the
Purchased Shares. The Vendors shall be paid $3,600,000 in 60 equal monthly
instalments of $60,000 (in cash) on the first business day of each calendar
month (a "Payment Date") commencing August 1, 2006 and continuing for 59 months
thereafter. Vendors expressly agree and acknowledge that, except as set forth in
this Agreement, Purchaser shall have no further payment obligations to Vendors,
including, but not limited to those obligations set forth in Article 2 of the
Share Purchase Agreement and those obligations set forth in Article 2 of the
Amendment.
2.2. Modifications to the Amendment. Sections 2.2, 2.3, and 3.4 of the Second
Amendment are hereby deleted in their entirety.
2.3 Other Provisions Unchanged
Except for agreements expressly made by this Agreement with respect to the
satisfaction of the Obligations and the consideration as herein provided, all
other provisions of the Share Purchase Agreement and the Amendment shall remain
and continue to have full force and effect as set forth therein.
ARTICLE 12 -
ADDITIONAL AGREEMENTS
3.1 Events of Default
There shall be a default ("Default") hereunder if Vendors provide Purchaser and
Corporation with written notice of any of the following and within five (5) days
after such notice Purchaser and/or the Corporation, as the case may be, have
failed to cure such Default:
(e) the Purchaser fails to make any payment of the consideration to the
Vendors set forth in Section 2.1 hereof in accordance with the
provisions hereof;
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(f) the Purchaser applies for, consents to, or acquiesces in, the
appointment of a trustee, receiver or other custodian for it or any
of its property, or, in the absence of such application, consent or
acquiescence, a trustee, receiver or other custodian is appointed
for it or for any of its property, or if it makes a general
assignment for the benefit of creditors, or if a bankruptcy,
insolvency, reorganization, readjustment, arrangement, composition,
moratorium or other case or proceeding seeking similar relief, or
any dissolution, liquidation or winding-up proceeding under any
bankruptcy, insolvency, moratorium, corporate or other analogous law
or provision is commenced in respect of either it or any of its
property or, if such case or proceeding is not commenced by it, is
consented to or acquiesced in by it, or if it takes any corporate or
other action to authorize, or in furtherance of, any of the
foregoing;
3.2 Rights of Vendors Upon Default
Notwithstanding any provision in this Agreement or any of the Documents to the
contrary, following the occurrence of any Default the Vendors shall have
immediate access to any or all of the rights and remedies available to them,
under the Documents or otherwise, including without limiting the generality of
the foregoing the immediate issuance of a receiving order pursuant to the
provisions of the Bankruptcy and Insolvency Act (Canada) with respect to all
assets and business affairs of the Corporation.
3.3 No Waiver
Nothing in this Agreement shall be deemed to be a waiver of the rights and
remedies of the Vendors under this Agreement or of any of the Documents or those
granted by applicable law, all of which rights and remedies are preserved and
remain in full force and effect subject to the terms of this Agreement.
ARTICLE 13 -
SECURITY CONTINUING AND NOT AFFECTED
13.1 Guarantee
The Corporation hereby confirms that the guarantees of the Corporation under the
terms of the Guarantee shall remain in full force and effect. For greater
certainty, the Corporation hereby guarantees to the Vendors and their successors
and assigns, forthwith upon demand, prompt and complete payment of the
consideration set forth in Section 2.1 hereof.
13.2 General Security Agreement
The Corporation hereby confirms that the security interests created on its
assets pursuant to the GSA shall remain in full force and effect. For greater
certainty, the security interests thereby created shall secure the performance
by the Corporation of its obligations under the Guarantee and this Agreement.
13.3 Share Pledge Agreement
The Purchaser hereby confirms that, except as modified herein, the security
interests created on the Purchased Shares pursuant to the Pledge shall remain in
full force and effect. For greater certainty, the security interests thereby
created shall secure the payment by the Purchaser of all amounts arising in
connection with or pursuant to the Share Purchase Agreement, as modified by the
Amendment and this Agreement.
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ARTICLE 14 -
GENERAL
14.1 Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, expressed, implied or
statutory, between such parties other than as expressly set forth herein. No
modification or amendment of any provision of this Agreement shall in any event
be effective, unless the same shall be in writing and duly executed by the
parties hereto or thereto and then such modification or amendment shall be
effective only in the specific instance and for the purpose for which it was
given.
14.2 Amendments
This Agreement may only be amended, modified or supplemented by a written
agreement signed by all of the parties to this Agreement.
14.3 Rights Cumulative
All rights and remedies of the Vendors set out in this Agreement and in the
Documents will be cumulative and no such right or remedy contained herein or
therein is intended to be exclusive but each will be in addition to every other
right or remedy contained herein or therein. The taking of a judgment or
judgments with respect to the consideration set forth in Section 2.1 hereof or
the Obligations or any of the obligations of the Purchaser or the Corporation
will not operate as a merger of any of the covenants or representations
contained in this Agreement or the Documents.
14.4 Counterparts.
This amending agreement may be executed in counterparts, each of which, either
in original or facsimile form, shall constitute an original and all of which
taken together shall constitute one and the same instrument.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF this amending agreement has been executed by the Parties as
of the date first above written.
TELEPLUS ENTERPRISES INC.
By: /s/ Marius Silvasan
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Marius Silvasan, Chief Executive Officer
/s/ Steve Kerekes
- ----------------------------------- ------------------------------------
Witness: Steve Kerekes
/s/ Jim Oattes
- ----------------------------------- ------------------------------------
Witness: Jim Oattes
/s/ Jim Reddon
- ----------------------------------- ------------------------------------
Witness: Jim Reddon
/s/ Melanie Kerekes
- ----------------------------------- ------------------------------------
Witness: Melanie Kerekes
/s/ Grace Debrabandere
- ----------------------------------- ------------------------------------
Witness: Grace Debrabandere
/s/ Monica Reddon
- ----------------------------------- ------------------------------------
Witness: Monica Reddon
/s/ Tom Davis
- ----------------------------------- ------------------------------------
Witness: Tom Davis
/s/ Jane Davis
- ----------------------------------- ------------------------------------
Witness: Jane Davis
TELEPLUS CONNECT CORP.
By: /s/ Tom Davis
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Its: CEO
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