SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 3, 2004
WHISTLER INVESTMENTS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Nevada 000-33391 98-0339467
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(State or Other Jurisdiction (Commission ( I.R.S. Employer
of Incorporation) File Number) Identification No.)
5001 East Bonanza Road, Suite 144-145, Las Vegas, Nevada 89110
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (818) 780-2403
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Former name or former address, if changed since last report
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Check th e appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
{ } Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
{ } Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
{ } Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
{ } Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Item 2.01. Completion of Acquisition or Disposition of Assets.
On December 3, 2004, Whistler Investments, Inc. ("we" or the "Company"), through
our wholly-owned subsidiary Whistlertel, Inc., completed the acquisition of the
assets of Trade Winds Telecom LLC, Fort Lauderdale, Florida ("Trade Winds"), for
a purchase price of $100,000. $20,000 of the purchase price was paid at closing
on December 3, 2004, and the balance of the purchase price is represented by a
one-year note in the principal amount of $80,000, bearing interest at the rate
of 10% per annum. The assets purchased consisted of IP (internet protocol)
Positioning and CPE (customer premise equipment) Monitoring software, ordering
and administration software, the Trade Winds' website, equipment, current
subscribers and demo units in the field. Trade Winds is a voice-over internet
service provider headquartered in Fort Lauderdale, Florida.
Item 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits:
10.15 Purchase and Sale Agreement, made effective as of the 3rd day of
December, 2004, between Whistlertel, Inc. and Trade Winds Telecom, LLC.
10.16 Bill of Sale and Assignment, dated as of December 3, 2004,
between Trade Winds Telecom LLC and Whistlertel, Inc.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
WHISTLER INVESTMENTS, INC.
By /s/ Holly Roseberry
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Chief Executive Officer
Date: December 8, 2004
EXHIBIT 10.15
PURCHASE AND SALE AGREEMENT
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THIS AGREEMENT made effective as of the 3rd day of December,
2004.
BETWEEN:
WHISTLER INVESTMENTS, INC. a public trading company
incorporated under the laws of the State of Nevada, having
its registered office in Las Vegas, in the State of Nevada
(the "Purchaser")
- and -
TRADE WINDS TELECOM, LLC, a private corporation incorporated
under the laws of Florida and having its registered office in
Ft. Lauderdale, Florida (the "Vendor")
WHEREAS:
A. The Vendor owns market convergence products for marketing VOIP
services to international users utilizing high-speed Internet
connections and the attendant power of Session Initiated Protocol (SIP)
call transport and authentication features (more particularly described
in Schedule "A" hereto, and collectively referred to herein as the
"Assets").
B. The Purchaser proposes to acquire the right, title and interest in
and to the Assets by way of the purchase of 100% (one hundred per cent)
of the Assets of the Vendor on the terms and conditions set forth
herein.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and of the mutual covenants herein set forth, the parties
hereto have covenanted and agreed as follows:
In consideration of the premises and their respective covenants
contained herein the parties hereto agree as follows:
ARTICLE 1
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INTERPRETATION
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1.1 Definitions
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In this Agreement and in any amendments hereto and in all schedules
hereto, the following terms shall have the following meaning:
"Agreement" means this Agreement and any instrument or Schedule which
is supplemental or ancillary hereto as the same may be amended in
writing from time to time, and the expressions "hereof", "herein",
"hereto", "hereunder" and "hereby", and similar expressions refer to
this Agreement and not to any particular Article, section, paragraph,
sub-paragraph or Schedule;
"Assets" collectively means the assets owned by the Vendor as described
in Schedule A;
"Closing" means the completion of the sale and purchase of the Assets
on the Closing Date as contemplated hereunder;
"Closing Date" is proposed to be on or before December 10, 2004 (or
such other time as the Vendor and the Purchaser may mutually agree);
"Costs" means all costs relating to the due diligence review and of
an independent evaluation of the Assets shall be incurred by the
Purchaser ;
"Damages" has the meaning ascribed thereto in Section 7.4 hereof;
"Encumbrances" means any mortgage, charge, pledge, hypothecation,
security interest, assignment, lien (statutory or otherwise), charge,
title retention agreement or arrangement, restrictive covenant or other
encumbrance of any nature;
"Material Contracts" means the all documents relating to the Assets.
"Purchase Price" means the amount of USD100,000 as ascribed thereto in
Section 2.2 hereof;
"Purchaser Opinion" has the meaning ascribed thereto in Section 6.4
hereof;
"Time of Closing" means 10:00 a.m. local time in Las Vegas, Nevada on
the Closing Date;
=
"Vendor Opinion" has the meaning ascribed thereto in Section 5.3
hereof.
1.2 Interpretation
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The division of this Agreement into articles, sections, paragraphs and
subparagraphs and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation
hereof or have any legal meaning or effect. The term "Article",
"Section", "paragraph", "subparagraph" and "Schedule" followed by
a number or letter or both means or refers to the specified Article,
Section, paragraph, subparagraph or Schedule to this Agreement.
1.3 Gender and Number
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Unless the context otherwise requires, words importing the singular
herein include the plural and vice versa and words importing gender
herein include all genders.
1.4 Schedules
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All Schedules, attached hereto or referred to herein form part of this
Agreement and are hereby expressly incorporated herein by reference.
1.5 Proper Law of Agreement
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada and the laws of the United States
applicable therein.
1.6 Severability
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If any court of competent jurisdiction determines in a final judgment
that any provision of this Agreement is invalid or unenforceable it
shall not affect the validity or enforceability of any other provision
hereof and any such invalid or unenforceable provision shall be deemed
to be severable, provided that the invalidity or unenforceability of
any one or more provisions which would materially or adversely affect
the value of the transaction to either party shall entitle such
adversely affected party to terminate this Agreement at any time prior
to the Closing.
1.7 Entire Agreement
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This Agreement constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof. There are no oral
warranties, representations or other agreements between the parties in
connection with the subject matter hereof except as specifically set
forth or referred to herein. No amendment, waiver or termination of
this Agreement shall be binding unless executed in writing by the party
to be bound thereby. No waiver of any provision of this Agreement shall
be deemed or shall constitute a waiver of any other provision nor shall
any such waiver constitute a continuing waiver unless otherwise
expressly provided.
1.8 Successors and Assigns
----------------------
This Agreement shall be binding upon and shall enure to the benefit of
the parties hereto and their successors and permitted assigns.
ARTICLE 2
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PURCHASE AND SALE
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2.1 Agreement to Purchase and Sell and Purchase Price
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Subject to the terms and conditions of this Agreement, the Vendor
agrees to transfer, sell and assign to Purchaser, and Purchaser
agrees to purchase from the Vendor on the Closing Date, the Assets for
the consideration set forth in Section 2.2 below.
2.2 Payment of Purchase Price
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The consideration the Purchase Price payable by the Purchaser to the
Vendor for the Assets shall be comprised of the following:
Cash Payment: USD 100,000 on the Closing Date.
On the completion of the above payment to the Vendor the Purchaser will
have earned a 100% interest in the Assets.
ARTICLE 3
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REPRESENTATIONS AND WARRANTIES
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3.1 Vendor's Representations and Warranties
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The Vendor represents and warrants to Purchaser as follows and
acknowledges that Purchaser is relying upon such representations and warranties
in connection with its acquisition of the Assets:
(a) Authority Relative to the Agreement. This Agreement has been
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(i) duly authorized by all necessary corporate action of the
Vendor, and (ii) duly executed and delivered by the Vendor.
This Agreement is a valid, binding and enforceable obligation
of the Vendor.
(b) No Violation. The execution and delivery of this Agreement
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and the consummation of the transactions contemplated hereby
by the Vendor do not and will not:
(i) violate any provision of any agreement or security
document to which the Vendor is a party or is bound;
or
(ii) violate any statute or law or any judgment, decree,
order, rule or regulation of any court or
governmental authority to which the Vendor or any of
its assets are subject.
(c) Right to Sell. The Vendor is the registered and beneficial
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owner of the Assets, with good and marketable title thereto,
free and clear of Encumbrances. The Vendor has full legal
right, power and authority to sell, assign and transfer the
Assets to the Purchaser free and clear of any Encumbrances
and, upon completion of the transactions contemplated hereby,
the Purchaser shall have good and valid title to the Assets,
free and clear of all Encumbrances.
(d) No Default. There exists no default or event of default or
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event, occurrence, condition or act which, with the giving of
notice, the lapse of time or the happening of any other event
or condition, would become a default or event of default under
any Material Contract.
(e) Litigation. There is no action, suit, litigation, arbitration,
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investigation, inquiry or other proceeding in progress,
pending or threatened against or relating to the Assets and
there is no circumstance, matter or thing known to the Vendor
which might give rise to any such proceeding or to any
governmental investigation relative to the Assets, and there
is not outstanding against the Assets any judgment, decree,
injunction, rule or order of any court, government department,
commission, agency or arbitrator.
(f) Assets. As at the Closing, the Assets are controlled by the
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Vendor, are in good standing and there exists no event of
default or event, occurrence, conditions or act which, with
the giving of notice, the lapse of time or the happening of
any other event or condition, would become a default under any
other agreement, and all of the covenants to be performed by
any party in regards to the Assets have been fully performed.
(g) Full Disclosure. Neither this Agreement nor any ancillary
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agreement to which the Vendor is a party (i) contains any
untrue statement of a material fact in respect of the Assets,
the affairs, prospects, operations or condition of the Assets,
or (ii) omits any statement of a material fact necessary in
order to make the statements in respect of the Vendor or the
business contained herein or therein not misleading. There is
no fact known by the Vendor which materially and adversely
affects the affairs, prospects, operations or condition of the
Assets which has not been set forth in this Agreement.
3.2 Purchaser's Representations and Warranties
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Purchaser represents and warrants to the Vendor as follows and
acknowledges that the Vendor is relying upon such representations and warranties
in connection with its sale of the Assets.
(a) Authority Relative to the Agreement. This Agreement has been
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(i) duly authorized by all necessary corporate action of the
Purchaser, and (ii) duly executed and delivered by the
Purchaser. This Agreement is a valid, binding and enforceable
obligation of the Purchaser.
(b) No Violation. The execution and delivery of this Agreement
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and the consummation of the transactions contemplated hereby
by the Purchaser do not and will not:
(i) violate any provision of any agreement or security
document to which the Purchaser is a party or by
which the Purchaser is bound; or
(ii) violate any statute or law or any judgment, decree,
order, rule or regulation of any court or
governmental authority to which the Purchaser or any
of its assets are subject.
(c) Incorporation, Subsistence and Power. The Purchaser is duly
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incorporated and is validly subsisting under the laws of
Nevada and has the corporate power and authority to own its
assets and to carry on its business. The Purchaser is
registered under applicable corporate legislation in each
jurisdiction in which its business or the assets owned by it
makes such qualification necessary and has all powers,
licenses, franchises and permits which it requires to own its
assets and to carry on its business.
(d) Consents and Approval of Governmental Authorities. Except as
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contemplated by Article 7 hereof and subject to any documents
required to be filed subsequent to Closing by applicable
securities legislation, all consents, approvals or
authorizations of, or declarations, filings or registrations
with, any governmental or regulatory authority which are
required to be made or obtained by Purchaser in connection
with the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby or
thereby have been made or obtained.
3.3 Survival of Representations and Warranties
------------------------------------------
The representations and warranties contained in Article 3 on the part
of the Vendor and the Purchaser, as the case may be, shall survive for a period
of two (2) years after Closing, unless prior to the termination of such period,
written notice of a claim for breach of any representation or warranty shall
have been given by the Purchaser or the Vendor (which notice must specify the
claim made) and in such event the Purchaser or the Vendor, as the case may be,
shall have no liability except in connection with such claims.
3.4 Scope of Representations
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No investigations made by or on behalf of the Purchaser or the Vendor,
whether under this Article 3 or any other provision of this Agreement or any
ancillary agreement, shall have the effect of waiving, diminishing the scope of,
or otherwise affecting any representation or warranty made by the Vendor or the
Purchaser in this Agreement or any ancillary agreement.
ARTICLE 4
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COVENANTS OF THE PARTIES
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4.1 Covenants of the Vendor
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After the date hereof and until the Closing Date, the Vendor shall
comply with the covenants contained in this Section 4.1.
(a) Transfer of Assets. The Vendor shall take or cause to be taken
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all such actions as are necessary to transfer the Assets, free
of all Encumbrances. Any taxes, costs and fees (including,
without limitation, all legal and accounting fees) payable by
the Vendor in connection with the transfers contemplated
hereby shall for the sole account of the Vendor.
(b) Performance of Conditions. The Vendor shall take all such
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actions as are within its power and control and shall use its
reasonable best efforts to cause other actions to be taken
which are not within its power and control, so as to ensure
compliance with all of the conditions set forth in Article 5,
including without limitation ensuring that during the period
which extends to Closing, there is no breach of its
representations and warranties.
(c) Notice of Untrue Representation or Warranty. The Vendor shall
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promptly notify the Purchaser upon any representation or
warranty made by it contained in this Agreement or any
ancillary agreement becoming untrue or incorrect.
(d) Consents. The Vendor shall use its best efforts to obtain at
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the earliest practicable date and, in any event, prior to
the Closing Date, all consents, authorizations and approvals,
and to make all declarations, filings and registrations
required to be obtained or made by it pursuant to any
transactions contemplated hereby, whether any such consent,
authorization or approval, or such declaration, filing or
registration, is to be obtained from or made with private
parties or governmental or regulatory authorities. To the
extent reasonably possible, the Vendor shall avoid taking any
action that may materially adversely affect the obtaining of
any such consent, authorization or approval.
4.2 Covenants of Purchaser
----------------------
(a) Consents. The Purchaser shall use its best efforts to obtain
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at the earliest practicable date and, in any event, prior
to the Closing Date, all consents, authorizations and
approvals, and to make all declarations, filings and
registrations required to be obtained or made by it pursuant
to any law, regulation, order, agreement or instrument prior
to consummating the transactions contemplated hereby, whether
any such consent, authorization or approval, or such
declaration, filing or registration, is to be obtained from
or made with private parties or g overnmental or regulatory
authorities, including without limitation any filings
registrations or consents required in respect of the Assets.
Purchaser shall not take any action that may materially
adversely affect the obtaining of any such consent,
authorization or approval.
(b) Performance of Conditions. The Purchaser shall take all such
actions as are within its power and control and shall use its
reasonable best efforts to cause other actions to be taken
which are not within its power and control, so as to ensure
compliance with all of the conditions set forth in Article 6.,
(c) Notice of Untrue Representation or Warranty. The Purchaser
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shall promptly notify the Vendor upon any representation or
warranty made by it contained in this Agreement or any
ancillary agreement becoming untrue or incorrect.
ARTICLE 5
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CONDITIONS TO OBLIGATIONS OF PURCHASER
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The purchase and sale of the Assets is subject to the following
conditions to be fulfilled or performed at or prior to the Closing, which
conditions are for the exclusive benefit of the Purchaser and may be waived, in
whole or in part, by the Purchaser:
5.1 Representations and Warranties True
-----------------------------------
The representations and warranties of the Vendor contained in Section
3.1 shall be true and accurate as of the date made and at and as of Closing as
though such representations and warranties were made again at and as of Closing,
except for changes expressly permitted or contemplated by this Agreement, and
the Vendor shall deliver to Purchaser a certificate to such effect.
5.2 Performance
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The Vendor shall have performed and complied with all agreements,
covenants, obligations and conditions required by this Agreement to be performed
or complied with by it on or prior to the Closing Date.
5.3 Legal Opinion
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The Purchaser shall before the Closing Date have received opinions of
Vendor's and the Company's solicitors (the "Vendor's Opinion"), in form and
substance satisfactory to the Purchaser, which shall confirm that the Vendor is
the legal and beneficial owner of a 100% interest in and to the Assets, free of
all Encumbrances exclusively entitled to the benefits thereof.
5.4 Transfer of Ownership
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The Purchaser shall on or before the Closing Date have become satisfied
that the Purchaser shall have received, by transfer from the Vendor, all
applicable licenses, permits and authorizations relating to the Assets and
necessary to the use of such assets for the purpose of operating those Assets in
the telecommunications industry.
5.5 No Material Adverse Change
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There shall have occurred no material adverse change in the Assets up
to the Closing Date.
5.6 Consents
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The Purchaser shall have obtained the consent of any regulatory
authorities in respect of the transfer of the Assets, on terms
acceptable to the Purchaser, acting reasonably. The Purchaser shall use
best efforts to obtain such consents prior to Closing.
ARTICLE 6
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CONDITIONS TO OBLIGATIONS OF VENDOR
-----------------------------------
The purchase and sale of the Assets is subject to the following
conditions to be fulfilled or performed at or prior to the Closing, which
conditions are for the exclusive benefit of the Vendor and may be waived, in
whole or in part, by the Vendor:
6.1 Representations and Warranties True
-----------------------------------
The representations and warranties of the Purchaser contained in
Section 3.2 shall be true and accurate as of the date made and at and as of the
Closing Date as though such representations and warranties were made again at
and as of the Closing Date, except for changes expressly permitted or
contemplated by this Agreement, and the Purchaser shall deliver to Vendor a
certificate to such effect.
6.2 Performance
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The Purchaser shall have performed and complied with all agreements,
covenants, obligations and conditions required by this Agreement to be performed
or complied with by it on or prior to Closing .
6.3 Opinion of Purchaser's Counsel
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The Vendor shall have received an opinion of counsel to the Purchaser
(the "Purchaser Opinion") substantially in the form of Schedule B hereto, with
such amendments thereto as the parties may agree.
ARTICLE 7
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TERMINATION AND INDEMNITY
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7.1 Termination by Purchaser
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If any of the conditions set forth in Article 5 have not been fulfilled
or waived at or prior to Closing or any obligation or covenant of the Vendor to
be performed at or prior to Closing has not been observed or performed by such
time, the Purchaser may terminate this Agreement by notice in writing to the
Vendor, and in such event the Purchaser shall be released from all obligations
save and except for its rights and obligations under Sections 7.4 and 7.5, which
shall survive. The Vendor shall only be released from its obligations if the
condition or conditions for the non-performance of which the Purchaser has
terminated this Agreement are not reasonably capable of being performed or
caused to be performed by the Vendor. If the Purchaser waives compliance with
any of the conditions, obligations or covenants contained in this Agreement, the
waiver will be without prejudice to any of its rights of termination in the
event of non-fulfillment, non-observance or non-performance of any other
condition, obligation or covenant in whole or in part.
7.2 Termination by Vendor
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If any of the conditions set forth in Article 6 have not been fulfilled
or waived at or prior to Closing or any obligation or covenant of the Purchaser
to be performed at or prior to Closing have not been observed or performed by
such time, the Vendor may terminate this Agreement by notice in writing to the
Purchaser, and in such event the Vendor shall be released from all obligations
save and except for its obligations under Sections 7.4 and 7.5, which shall
survive. The Purchaser shall only be released from its obligations if the
condition or conditions for the non-performance of which the Vendor has
terminated this Agreement are not reasonably capable of being performed or
caused to be performed by the Purchaser. If the Vendor waives compliance with
any of the conditions, obligations or covenants contained in this Agreement, the
waiver will be without prejudice to any of its rights of termination in the
event of non-fulfillment, non-observance or non-performance of any other
condition, obligation or covenant in whole or in part.
7.3 Effect of Termination
---------------------
Each party's right of termination under this Article 7 is in addition
to any other rights it may have under this Agreement or otherwise, and the
exercise of a right of termination will not be an election of remedies. Nothing
in Article 7 shall limit or affect any other rights or causes of action either
the Purchaser or the Vendor may have with respect to the representations,
warranties, covenants and indemnities in its favor contained in this Agreement.
7.4 Indemnification in Favor of Purchaser
-------------------------------------
The Vendor shall indemnify and save the Purchaser and its respective
employees, officers and directors harmless of and from any loss,
liability, claim, damage (including incidental and consequential damage
but excluding loss of profits) or expense (whether or not involving a
third- party claim) including legal expenses (collectively, "Damages")
suffered by, imposed upon or asserted against any of the Purchaser's
Indemnified Persons as a result of, in respect of, connected with, or
arising out of, under, or pursuant to:
(a) any failure of the Vendor to perform or fulfill any covenant
of the Vendor under this Agreement or any ancillary agreement;
(b) any breach or inaccuracy of any representation or warranty
given by the Vendor contained in this Agreement or in any
ancillary agreement;
(c) any facts, circumstances, events, conditions or occurrences in
existence on or prior to the Closing Date, relating directly
or indirectly to the Assets, even though such Damages may be
suffered after the Closing Date except to the extent that the
liability in respect thereof (i) has been incurred by the
Vendor in the ordinary course, or (ii) is specifically
disclosed in this Agreement; and
(d) the non-compliance of the Assets on or prior to the Closing
Date with applicable laws existing at any time on or prior
to Closing.
7.5 Indemnification in Favor of the Vendor
--------------------------------------
The Purchaser shall indemnify and save the Vendor harmless of and from
any Damages suffered by, imposed upon or asserted against the Vendor as a result
of, in respect of, connected with, or arising out of, under or pursuant to:
(a) any failure of the Purchaser to perform or fulfill any
covenant of the Purchaser under this Agreement; and
(b) any breach or inaccuracy of any representation or warranty
given by the Purchaser contained in this Agreement.
Without limiting the generality of the foregoing, the
Purchaser recognizes that the Vendor assumes no liability in respect of
loss or damage to persons or property occurring before, on or after the
date hereof related to acts or omissions by the Purchaser in respect of
the Assets before, on or after the date hereof.
ARTICLE 8
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CLOSING
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8.1 Closing
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The Closing shall take place on the Closing Date at the offices of the
Vendor.
8.2 Deliveries at Closing by the Vendor
The Vendor shall deliver to the Purchaser at the Closing:
(a) a certified statement representing the Assets duly endorsed
for transfer to the Purchaser;
(b) statement of the Vendor in respect of its representations
and warranties under this Agreement;
(c) the Vendor Opinion;
(d) records pertaining to the Assets and such other certificates
and instruments as may be provided for herein; and
(e) such other documents and instruments as the Purchaser or
its solicitors may reasonably require.
8.3 Deliveries at Closing by Purchaser
----------------------------------
The Purchaser shall deliver to the Vendor at the Closing:
(a) certified resolutions of the directors of the Purchaser
authorizing the purchase of the transactions contemplated by
this Agreement;
(b) statement of an officer of the Purchaser in respect of its
representations and warranties under this Agreement;
(c) a certified cheque or bank draft in the amount of the cash
payment required under paragraph 2.2 hereof;
(d) the Purchaser Opinion;
(e) such other certificates and instruments as may be provided for
herein; and
(f) such other documents and instruments as the Vendor or its
solicitors may reasonably require.
ARTICLE 9
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MISCELLANEOUS PROVISIONS
------------------------
9.1 Waiver and Compliance
---------------------
Any failure of the Vendor or Purchaser, as the case may be, to comply
with any obligation, covenant or condition contained herein may be expressly
waived by the other party but such waiver or failure to insist upon strict
compliance shall not operate as a waiver of, or with respect to, any subsequent
or other failure.
9.2 Expenses
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The Purchaser shall pay its own expenses and the Vendor shall pay its
own expenses incident to preparing for, entering into and carrying out the
transactions contemplated by this Agreement.
9.3 Notices
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All notices, requests, demands, waivers and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or by sending same by facsimile
communication or other similar form of communication to the following addresses:
(a) Whistler Investments Inc.
Suite 144, 5001 East Bonanza Road
Las Vegas, Nevada 89110
Attn: Holly Roseberry, President
(b) Trade Winds Telecom, LLC
3038 North Federal Highway, Suite D-200
Ft. Lauderdale, Florida 33306
Attn: Alison Banister
Any such notice, waiver other document shall (i) if delivered, be
deemed to have been given or made at the time of delivery; and (ii) if
sent by fax or other similar form of communication, be deemed to have
been given or made at the time in which it was successfully
transmitted. Any party hereto may change the address for service by
giving notice thereof to the other parties hereto in accordance with
this Section 9.4.
9.4 Time of the Essence
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Time shall be of the essence of this Agreement.
9.5 Counterparts
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This Agreement may be executed in as many counterparts as may be
necessary, or by facsimile, each of which so signed shall be deemed to
be an original, and such counterparts or facsimiles together shall
constitute one and the same instrument and notwithstanding the date of
execution shall be deemed to bear the date as set forth above.
9.6 Facsimile Transmission
----------------------
This Agreement may be executed and delivered by facsimile transmission
and the parties may rely on all such facsimile signatures as though
such facsimile signatures were original signatures.
9.7 Assignment
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Neither party shall have the authority to assign its rights or
obligations under this Agreement to any other person except with the
consent of all parties hereto.
9.8 Arbitration
-----------
Notwithstanding anything to the contrary in this Agreement, all claims
for monetary damages and disputes relating in any way to the
performance, interpretation, validity, or breach of this Agreement
shall be referred to final and binding arbitration, before a single
arbitrator, under the commercial arbitration rules of the American
Arbitration Association in Las Vegas, Nevada. The arbitrator shall be
selected by the parties and if the parties are unable to reach
agreement on selection of the arbitrator within 10 days after the
notice of arbitration is served, then the arbitrator will be selected
by the American Arbitration Association. All documents, materials, and
information in the possession of a party to this Agreement and in any
way relevant to the claims or disputes shall be made available to the
other parties for review and copying not later than 60 days after the
notice of arbitration is served. To the extent that a party would be
required to make confidential information available to any other, an
agreement or an order shall be entered in the proceeding protecting the
confidentiality of and limiting access to such information before a
party is required to produce such information. Information produced by
a party shall be used exclusively in the arbitration or litigation that
may arise, and shall not otherwise be disclosed. In no event shall a
party be entitled to punitive damages in any arbitration or judicial
proceeding and all parties hereby waive their rights to any punitive
damages. In the event an arbitration panel or a court concludes that
the punitive damages waiver contained in the previous sentence is
unenforceable, then the parties agree that the court with subject
matter jurisdiction over the confirmation of the award shall have sole
and exclusive jurisdiction to determine issues of entitlement and
amount of punitive damages. The arbitrator shall NOT have subject
matter jurisdiction to decide any issues relating to the statute of
limitations or to any request for injunctive relief, and the parties
hereby stipulate to stay the arbitration proceeding (without the need
of a bond) until any such issues in dispute are resolved. Judgment upon
the award rendered by the arbitrator shall be final, binding and
conclusive upon the parties and their respective administrators,
executors, legal representatives, heirs, successors and permitted
assigns, and may be entered in any court of competent jurisdiction.
9.9 Enforcement Costs
-----------------
If any civil action, arbitration or other legal proceeding is brought
for the enforcement of this Agreement, or because of an alleged
dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees, sales
and use taxes, court costs and all expenses even if not taxable as
court costs (including, without limitation, all such fees, taxes, costs
and expenses incident to arbitration, appellate, bankruptcy and
post-judgment proceedings), incurred in that civil action, arbitration
or legal proceeding, in addition to any other relief to which such
party or parties may be entitled. Attorneys' fees shall include,
without limitation, paralegal fees, investigative fees, administrative
costs, sales and use taxes and all other charges billed by the attorney
to the prevailing party.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed on December 3, 2004.
WHISTLER INVESTMENTS, INC.
/s/ Holly Roseberry
Per: __________________________
Holly Roseberry, President
TRADE WINDS TELECOM LLC.
/s/ Alison Banister
Per: __________________________
Alison Banister
SCHEDULE A
(ii) DESCRIPTION OF ASSETS
1.) IP Provisioning & CPE monitoring Software - 100% Customized platform
2.) IP Analyzer Program - 100% Customized platform
3.) Online Partner/Agent Ordering Software -Modified Shopping cart software
4.) Online Order Administration Software - Modified Shopping cart software
5.) Online Partners Commission Software - 100% Customized (In-work)
6.) Trade Winds Telecom Website - 100% Customized
7.) Equipment Inventory on hand 7 (seven) "SPA-2000" units (Value:
USD$82.25 ea.) as of Closing Date
8.) Total of 99 subscribers as of Nov. 30, 2004
9.) Subscriber Prepaid Balance total of $2,065.44
10.) Total of 14 demo units out in the field, mostly in Peru and Chile
EXHIBIT 10.16
BILL OF SALE AND ASSIGNMENT
BILL OF SALE AND ASSIGNMENT, dated as of December 3, 2004,
between Trade Winds Telecom LLC ("Assignor") and Whistlertel, Inc. ("Assignee").
WHEREAS:
A. Assignee wishes to purchase certain assets (the "Assets")
of Assignor and Assignor is willing to sell and assign
such assets to Assignee;
B. Assignee will assume no liabilities of Assignor in
connection with the purchase of the Assets; and
C. The parties have entered into a Purchase and Sale
Agreement,dated as of December 3, 2004 (the "Agreement"),
providing for the terms of the purchase of the Assets by
Assignee.
NOW, THEREFORE, for the sum of $100,000 and other good and
valuable consideration in hand, receipt of which is hereby acknowledged, the
undersigned Assignor does hereby sell, assign, transfer and set over unto
Assignee, its legal representatives, successors, and assigns, all of Assignor's
right, title and interest in and to the following assets:
(iii) TRADE WINDS TELECOM LLC ASSETS
7.) IP Provisioning & CPE monitoring Software - 100% Customized platform
8.) IP Analyzer Program - 100% Customized platform
9.) Online Partner/Agent Ordering Software- Modified Shopping cart software
10.) Online Order Administration Software - Modified Shopping cart software
11.) Online Partners Commission Software - 100% Customized (In-work)
12.) Trade Winds Telecom Website - 100% Customized
7.) Equipment Inventory on hand 7 (seven) "SPA-2000" units (Value:
USD$82.25 ea.) as of Closing Date
8.) Total of 99 subscribers as of Nov. 30, 2004
9.) Subscriber Prepaid Balance total of $2,065.44
10.) Total of 14 demo units out in the field, mostly in Peru and Chile
IN WITNESS WHEREOF, the parties have executed this Bill of Sale and Assignment
as of the date first above written.
TRADE WINDS TELECOM LLC WHISTLERTEL, INC.
(Assignor) (Assignee)
/s/ Alison Banister /s/ Holly Roseberry
By:________________________ By:______________________________________
Holly Roseberry, Chief Executive Officer
Dec. 3, 2004 12-3-04
Date signed: _____________ Date signed:_______________________