SHARE PURCHASE AGREEMENT
THIS
AGREEMENT
made the
30th day of May,
2007.
B E T W E E N :
XXXXX
XXXXXXXXX,
an individual resident in the Province of Ontario (hereinafter
called the
"Purchaser")
|
OF
THE FIRST PART
-
and
-
XXXXXX
DISTRIBUTORS LTD.,
a
corporation incorporated pursuant to the laws of Canada (hereinafter
called the "Vendor")
OF
THE SECOND PART
WHEREAS
the
Vendor beneficially owns and controls all the issued and outstanding shares
in
the capital of Xxxxxxxx
Pass Electronics Inc./Electroniques Xxxxxxxx Pass Inc.,
a
corporation incorporated pursuant to the laws of Canada (the "Company");
AND
WHEREAS
the
Vendor desires to sell and the Purchaser desires to purchase the said issued
and
outstanding shares in the capital of the Company owned by the Vendor, all
upon
and subject to the terms and conditions hereinafter set forth;
NOW
THEREFORE,
in
consideration of the premises and the mutual agreements and covenants herein
contained (the adequacy of which consider-ation as to each of the parties
hereto
is hereby mutually admitted), the parties hereby covenant and agree as
follows.
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 |
Definitions
- Whenever
used in this Agreement, unless there is something in the subject
matter or
context inconsistent therewith, the following words and terms shall
have
the respective meanings ascribed to them as
follows:
|
(a) |
"Agreement"
means this Share Purchase Agreement and all instru-ments supplemental
hereto or in amendment or confirmation
hereof;
|
(b) |
"Business"
means the business presently carried on by the Company being that
of a
telecommunications service provider operating in the Niagara, Ontario
region and providing wireless and fibre circuit, and related and
ancillary
activities thereto;
|
(c) |
"Business
Day"
means a day other than a Saturday, Sunday or any day on which the
principal commercial banks located at Toronto, Ontario are not open
for
business during normal banking hours;
|
(d) |
"Closing"
means the completion of the sale to and purchase by the Purchaser
of the
Purchased Shares hereunder by the transfer and delivery of documents
of
title thereto and the payment of the pur-chase price therefor as
contemplated herein, which Closing shall, notwithstanding the actual
Closing Date, be with effect as at and from the Effective
Date;
|
(e) |
"Closing
Date"
means the date hereof or such other date as the Parties may agree
as the
date upon which the Closing shall take
place;
|
(f) |
"Closing
Time"
means 1:00 p.m. on
the Closing Date or such other time on such date as the Parties may
agree
as the time at which the Closing shall take
place;
|
(g) |
"Effective
Date"
means March 1, 2007;
|
(h) |
“February
Statements” means
the internally-generated financial statements of the Company for
the 2
month period ended February 28, 2007 which have been prepared by
the
Vendor’ on a basis consistent with past internal practice and which are
attached as Schedule
A
hereto;
|
(i) |
“Interim
Management Period” means
the period from the Effective Date to the Closing Date when the Purchaser
was in control of the day to day operations of the
Business;
|
(j) |
“LOI”
means the letter of intent entered into between the Purchaser and
the
Vendor dated February 27, 2007;
|
(k) |
"Note"
has the meaning attributed thereto in Section 2.2(b)
hereof;
|
(l) |
"Parties"
means the Vendor and the Purchaser, collective-ly, and "Party" means
any
one of them;
|
(m) |
"Person"
means any individual, corporation, partnership, trustee or trust
or
unincorporated association, and pronouns have a similarly extended
meaning;
|
(n) |
"Purchaser's
Counsel"
means Messrs. Xxxxxxxx Xxxxxxxxx Xxxxx, Barristers and Solicitors
(Practicing in Association), of Xxxxxxx,
Xxxxxxx;
|
(o) |
"Purchase
Price"
means the purchase price to be paid by the Purchas-er to the Vendor
for
the Purchased Shares as provided in Article 2
hereof;
|
(p) |
"Purchased
Shares"
means 1,000 common shares issued and outstanding in the capital of
the
Company;
|
(q) |
"Vendor's
Counsel"
means Xxxxxx Xxxxxxx LLP, Barristers and Solicitors, of Toronto,
Ontario;
and
|
(r) |
“Wireless
Age”
means Wireless Age Communications, Inc. a company incorporated pursuant
to
the laws of the State of Nevada and publicly listed on the NASD Over
The
Counter Bulletin Board, the sole shareholder of the Vendor.
|
1.2 |
Gender
and Number
- Words
importing the singular include the plural and vice versa; words importing
gender include all genders.
|
2
1.3 |
Entire
Agreement
- This
Agreement, including the Schedules hereto, together with the agreements
and other documents to be delivered pursuant hereto, constitute the
entire
agreement between the Parties pertaining to the subject matter hereof
and
supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties and there are
no
warranties, representations or other agreements between the Parties
in
connection with the subject matter hereof except as specifically
set forth
herein and therein.
|
1.4 |
Waivers,
etc.
- No
supplement, modification, waiver or termination of this Agreement
shall be
binding unless executed in writing by the Party to be bound thereby.
No
waiver of any of the provisions of this Agreement, in whole or in
part,
shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar), nor shall such waiver constitute
a
continuing waiver unless otherwise expressly
provided.
|
1.5 |
Headings
-
The Article and Section headings contained herein are included solely
for
convenience of reference, are not intended to be full or accurate
descriptions of the content thereof and shall not be considered part
of
this Agreement.
|
1.6 |
Applicable
Law
- This
Agreement and the rights, obligations and relations of the Parties
shall
be governed by and construed in accordance with the laws of the Province
of Ontario and the federal laws of Canada applicable therein, and
the
courts of Ontario shall have exclusive jurisdiction to entertain
any
action in connection with this Agreement.
|
1.7 |
Currency
- Unless
otherwise specified, all references to currency herein are deemed
to mean
lawful money of Canada, and all amounts to be paid or calculated
pursuant
to this Agreement are to be paid or calculated in lawful money of
Canada.
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1.8 |
Accounting
Terms
- All
accounting terms shall have the meanings ascribed to them in accordance
with generally accepted accounting principles, and all references
to
"generally accepted accounting principles" or to “GAAP” shall be deemed to
be, unless otherwise specified, reference to accounting principles
which
are generally accepted in Canada.
|
1.9 |
Schedules
- The
following are the schedules attached to and incorp-orated in this
Agreement by reference and deemed to be an integral part
hereof:
|
Schedule
A
|
February
Statements
|
Schedule
B
|
Undisclosed
Liabilities
|
Schedule
C
|
Accounts
Payable
|
Schedule
D
|
Liens,
Charges and Encumbrances
|
Schedule
E
|
Equipment
and Other Personal Property Leases
|
Schedule
F
|
Accounts
Receivable
|
Schedule
G
|
Particulars
of Insurance Policies
|
3
ARTICLE 2
PURCHASE AND SALE
2.1 |
Purchase
Price
- The
Vendor hereby sells and the Purchaser hereby purchases the Purchased
Shares, with effect as at and from the Effective Date and subject
to the
usual and ordinary adjustments, for an aggregate purchase price of
$363,643.30. For greater certainty, the Purchaser is also acquiring
for
the same consideration all right, title and interest in and to the
name
“Wireless Works” and all derivatives thereof and the Vendor and Wireless
Age on their own behalves and on behalf of their respective “affiliates”
and “associates” (as such term is defined in the Business
Corporations Act (Ontario)
shall provide at Closing a release of any right, title or interest
in and
to such name.
|
2.2 |
Action
by Vendor and Purchaser at the Closing Time
-
|
(a) |
Delivery
of Certificates, etc. -
The Vendor shall transfer and deliver to the Purchaser at the Closing
share certificates representing the Purchased Shares duly endorsed
in
blank for transfer or accompanied by irrevocable security transfer
powers
of attorney duly executed in blank. The Vendor shall take such steps
as
shall be necessary to cause the Company to enter the Purchaser or
its
nominee upon the books of the Company as the holder of the Purchased
Shares and to issue one or more share certificates to the Purchaser
or its
nominee representing the Purchased
Shares.
|
(b) |
Payment
to the Vendor
-
The Purchase Price shall be paid and satisfied by the Purchaser delivering
a promissory note (the "Note")
in favour of the Vendor, which Note shall be (A) in the principal
amount
of the Purchase Price, (B) non-transferable and non-assignable howsoever
without the prior written consent of the Purchaser, (C) paid in 60
equal
consecutive monthly instalments of $7,373.37 each commencing on June
1,
2007 and thereafter due on the first Business Day of each and every
month
following, which amount blends principal payments with interest on
the
principal amount from time to time outstanding of 8% per annum, (D)
pre-payable, in whole or in part, at any time and from time to time
without notice, penalty or bonus, and (E) secured by a pledge by
the
Purchaser to the Vendor of the Purchased Shares, which share pledge
shall
be the sole recourse available to the Vendor in the event that the
Purchaser is in breach of his payment obligations under the Note.
|
2.3 |
Place
of Closing -
The
Closing shall take place at the Closing Time at the offices of the
Purchaser's Counsel or at such other place as may be agreed upon
by the
Vendor and the Purchaser.
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ARTICLE 3
REPRESENTATIONS
AND WARRANTIES
3.1 |
Representations
and Warranties of the Vendor
- The
Vendor hereby represents and warrants to the Purchaser as
follows.
|
(a) |
Organization
and Valid Existence; the Vendor
-
The Vendor is a corporation duly incorporated and organized and is
validly
existing under the laws of Canada, and the Vendor has all necessary
corporate power, authority and capacity to own and dispose of the
Purchased Shares. The execution and delivery of this Agreement and
the
consummation of the transactions contemplated hereunder have been
duly
authorized by all necessary corporate action on the part of the
Vendor.
|
4
(b) |
Enforceability
of Obligations
-
This Agreement consti-tutes a valid and binding obligation of the
Vendor
enforceable against it in accordance with its terms, subject, however,
to
limitations with respect to enforce-ment imposed by law in connection
with
bankruptcy or similar proceedings and to the extent that equitable
remedies such as specific performance and injunction are in the discretion
of the court from which they are sought.
|
(c) |
Right
to Sell
-
The Vendor:
|
(i) |
is
the sole beneficial owner of the Purchased Shares (which shares constitute
all the issued and out-standing shares in the capital of the
Company);
|
(ii) |
has
the exclusive right to dispose of the Purchased Shares as herein
provided
and such disposition will not violate, con-travene, breach or offend
against or result in any default under any indenture, mortgage, lease,
agreement, instrument, charter or by-law provision, statute, regulation,
order, judgment, decree or law to which the Vendor is a party or
subject
or by which the Vendor is bound or affected;
and
|
(iii) |
is
the holder of record of all the Purchased Shares, free and clear
of any
liens, charges, encumbrances or rights of others (other than the
rights of
the Purchaser hereunder) and no Person (other than the Purchaser
hereunder) has any agreement, option or any rights capable of becoming
an
agreement or option for the acquisition of the Purchased
Shares.
|
(d) |
Organization
and Valid Existence; the Company
-
The Company is a corporation duly incorporated and organiz-ed and
is
validly existing under the laws of Canada, and has all necessary
corpor-ate power, authority and capacity to own and lease its property
and
assets (including, without limitation, the property and assets shown
in
the February Statements) and to carry on the Business as presently
conducted by it.
|
(e) |
Subsidiaries
-
The Company has no subsidiaries.
|
(f) |
Capitalization
-
The authorized and issued share capital of the Company is an unlimited
number of common shares and an unlimited number of Class “A” special
shares. Only the Purchased Shares duly and validly issued and outstanding
as fully paid and non-assessable shares in the capital of the Company.
No
options, warrants or other rights to purchase shares or other securi-ties
of the Company have been authorized or agreed to be issued or are
outstanding.
|
(g) |
February
Statements
-
The
February Statements, consisting of a balance sheet and an income
statement
from January 1, 2007 to and including February 28, 2007 fairly and
accurately reflect the assets, liabilities, financial position and
results
of the operations of the Business for the 2 month period ended on
February
28, 2007, and have been prepared in accordance and consistent with
past
practice of the Company.
|
(h) |
Absence
of Undisclosed Liabilities; Payables
-
Except to the extent reflected or reserved against in the February
Statements (including the notes, if any, thereto) or incurred subsequent
to the date thereof to and including the Effective Date and
disclosed in Schedule
B
and except as incurred in the ordinary and usual course of the Business
of
the Company, the Company does not have any outstanding indebtedness
or any
liabilities or obligations (whether accrued, absolute, contingent
or
otherwise) of a nature customarily reflected or reserved against
in a
balance sheet (including the notes thereto) prepared in accord-ance
with
generally accepted accounting principles. The accounts payable of
the
Company as at the Effective Date are disclosed in Schedule
C,
including the dates of the relevant invoices (if any), the payees
and the
specific amounts due.
|
5
(i) |
Title
to Properties -
Except as disclosed in the Financial Statements or in Schedule
D
hereto, the Company has good and market-able title to its properties,
interests in properties and assets, real and personal, including
without
limitation those reflected in the February Statements or acquired
since
the date of the February Statements (except as since transferred,
sold or
otherwise disposed of in the ordinary and usual course of business),
free
and clear of all mortgages, pledges, liens, encumbrances or charges
of any
kind or character.
|
(j) |
Leased
Equipment
-
Schedule
E
sets forth a true and complete list of all equipment, other personal
property and fixtures in the posses-sion or custody of the Company
which,
as of the Effective Date, is leased or held under licence or similar
arrange-ment and of the leases, licences, agreements and other
documenta-tion relating thereto.
|
(k) |
Accounts
Receivable
-
Schedule
F
reflects the accounts receivable of the Company as at the Effective
Date,
in respect of which a reasonable reserve of $49,432.00 has been noted
in
the February Statements and which reserve has reduced, dollar for
dollar,
the amount of receivables to be netted against payables in having
determined the Purchase Price.
|
(l) |
Leases
of Real Property -
As of the Effective Date the only real property leases the Company
was a
party to or bound by were month to month leases and other than as
disclosed on Schedule
C
all rental and other payments required to be paid by the Company
as lessee
pursuant to such leases was duly paid. All interests held by the
Company
as lessees under such leases are free and clear of any and all liens,
charges and encumbrances of any nature and kind whatsoever. The Company
is
not party, as lessor, to any leases of real
property.
|
(m) |
Real
Property
-
The Company does not own any real property in fee
simple.
|
(n) |
Employees
-
The only employees of or independent contractors to the Company as
at the
Effective Date were Xxx Xxxx, Xxxxxx Suprani and Ibrahim Fread.
|
(o) |
Absence
of Guarantees -
To and including the Effective Date the Company had not given or
agreed to
give, nor was it a party to or bound by, any guarantee of indebtedness
or
other obligations of third parties or any other commitment by which
the
Company is, or is conting-ently, responsible for such indebtedness
or
other obligation.
|
(p) |
Absence
of Conflicting Agreements
-
The Company was not, to the Effective Date, a party to, bound or
affected
by or subject to any mortgage, lease, agreement, instrument, charter
or
by-law provision, statute, regulation, order, judgment, decree or
law
which would be violated, contravened, breached by or under which
default
would occur, as a result of the execution and delivery of this Agreement
or the consummation of any of the transactions provided for
herein.
|
(q) |
Residence
of the Vendor
-
The Vendor is not a non-resident of Canada for the purposes of the
Income
Tax Act (Canada).
|
(r) |
Insurance
-
The Company maintains such policies of insurance, issued by responsible
insurers, as are appropriate to its Business, property and assets,
in such
amounts and against such risks as are customar-ily carried and insured
against by owners of comparable businesses, properties and assets;
all
such policies of insurance are in full force and effect and the Company
is
not in default, whether as to the payment of premium or otherwise, under
the terms of any such policy. Schedule
I sets
forth the particulars of the Company’s existing policies of
insurance.
|
6
(s) |
Vehicular
Equipment
-
The only vehicular equipment owned or leased by the Company are a
leased
2006 Honda Accord and a leased 2006 Ford F150 Van. There is a 1999
Ford
truck (the ”Ford
Truck”)
that is owned by an affiliate of the Vendor and that should also
be an
owned asset of the Company at Closing; if not so owned at Closing
then the
Ford Truck shall be dealt with pursuant to Section 5.6. Such vehicular
equipment (inlcuding the Ford Truck) is in road-worthy condition
and is
capable of satisfying the inspection requirements and performance
standards prescribed by the Highway Traffic Act (Ontario) and the
Regulations thereto for their particular type or class.
|
(t) |
Corporate
Records
-
The corporate records and minute books of the Company contain complete
and
accurate copies of all by-laws of the Company and minutes of all
meetings
and resolutions of the directors and shareholders of the Company.
All such
meetings were duly called and held, all such by-laws and resolutions
were
duly passed and the share certifi-cate books, registers of shareholders,
registers of transfers and registers of directors of the Company
are
complete and accurate in all material respects.
|
(u) |
Books
of Account -
The books and records of account of the Company fairly and correctly
set
out and disclose in all material respects and in accordance with
generally
accepting accounting principals, consistently applied, the financial
position of the Company as of the Effective Date and all material
financial transactions of the Company have been accurately recorded
in
such books and records.
|
(v) |
Full
Disclosure
-
None of the foregoing representations, warranties and state-ments
of fact
contains any untrue statement of material fact or omits to state
any
material fact necessary to make any such state-ment or represent-ation
not
misleading to a prospective purchaser of the Purchased Shares seeking
full
information as to the Company and its properties, Business and
affairs.
|
3.2 |
Representations
and Warranties of the Purchaser
-
The Purchaser hereby represents and warrants to the Vendor as
follows:
|
(a) |
Organization
and Valid Existence -
The Purchaser has all necessary power, authority and capacity to
enter
into this Agreement and to carry out his obligations hereunder.
|
(b) |
Enforceability
of Obligations
-
This Agreement consti-tutes a valid and binding obligation of the
Purchaser enforceable against him in accordance with its terms, subject,
however, to limitations with respect to enforce-ment imposed by law
in
connection with bankruptcy or similar proceedings and to the extent
that
equitable remedies such as specific performance and injunction are
in the
discretion of the court from which they are
sought.
|
(c) |
Absence
of Conflicting Agreements -
The Purchaser is not a party to, bound or affected by or subject
to any
indenture, mortgage, lease, agreement, instrument, statute, regula-tion,
order, judgment, decree or law which would be violated, contra-vened
or
breached by, or under which any default would occur, as a result
of the
execution and delivery of this Agreement or the con-summation of
any of
the transac-tions provided for herein.
|
7
(d) |
Residence
of the Purchaser
-
The Purchaser is not a non-Canadian within the meaning of the Investment
Canada Act.
|
(e) |
Litigation
-
There is no suit, action, litigation, arbitration proceeding or
governmental proceeding, including appeals and applications for review,
in
progress, pending or, to the best of the knowledge, information and
belief
(after due enquiry) of the Purchaser, threatened against or involving
the
Purchaser or any judgment, decree, injunction, rule or order of any
court,
governmental department, commission, agency, instrumentality or arbitrator
which, in any such case, might adversely affect the ability of the
Purchaser to enter into this Agreement or to consummate the transactions
contemplated hereby. The Purchaser is not aware of any existing ground
on
which any such action, suit or proceeding may be commenced with any
reasonable likelihood of success.
|
3.3 |
No
Broker
- Each
of the Parties represents and warrants to the others that all negotiations
relating to this Agreement and the transactions contemplated hereby
have
been carried on between them directly and without the intervention
of any
other party in such manner as to give rise to any valid claims against
any
of the Parties for a brokerage commission, finder's fee or other
like
payment.
|
3.4 |
Non-Waiver
- No
investigations made by or on behalf of the Purchas-er at any time
shall
have the effect of waiving, diminishing the scope of or otherwise
affecting any representation or warranty made by the Vendor herein
or
pursuant hereto.
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3.5 |
Nature
and Survival of Representations, Warranties and
Covenants
-
All statements contained in any certificate or other instrument delivered
by or on behalf of a Party pursuant to or in connection with the
transactions contemplated by this Agreement shall be deemed to be
made by
such Party hereunder. All representations, warranties, coven-ants
and
agreements herein contained on the part of each of the Parties shall
survive the Closing, the execution and delivery hereunder of share
or
security transfer instruments and other documents of title to the
Purchased Shares and the payment of the considera-tion therefor,
provided
that the representations and warranties contained in Sections 3.1,
3.2 and
3.3 (except with respect to tax matters or the title of the Vendor
to the
Purchased Shares which shall survive forever), shall only survive
for a
period of 2 years from the Closing Date after which time, if no claim
shall, prior to the expiry of the said 2 - year period, have been
made
hereunder against a Party hereto with respect to any incorrect-ness
in or
breach of any such representation or warranty, such Party shall have
no
further liability hereunder with respect to such represent-ation
or
warranty.
|
ARTICLE 4
CONDITIONS PRECEDENT TO THE PERFORMANCE
BY THE PURCHASER AND THE VENDOR OF
THEIR OBLIGATIONS UNDER THIS AGREEMENT
4.1 |
Purchaser's
Conditions
- The
obligation of the Purchaser to complete the purchase of the Purchased
Shares hereunder shall be subject to the satisfaction of, or compliance
with, in all material respects, at or before the Closing Time, each
of the
following conditions precedent (each of which is hereby acknowledged
to be
inserted for the exclusive benefit of the Purchas-er and may be waived
by
it in whole or in part):
|
(a) |
Performance
of Obligations
-
The Vendor shall have performed or complied with, in all respects,
all of
its obligations, covenants and agreements
hereunder.
|
8
(b) |
Receipt
of Closing Documentation
-
All documentation relating to the due authorization and completion
of the
sale and purchase here-under of the Purchased Shares and all actions
and
proceedings taken on or prior to the Closing in connection with the
performance by the Vendor of its obligations under this Agreement
shall be
satisfactory to the Purchaser and Purchaser's Counsel and the Purchaser
shall have received copies of all such documentation or other evidence
as
it may reasonably request in order to establish the consummation
of the
transactions contemplated hereby and the taking of all corporate
proceedings in connection therewith in compliance with these condi-tions,
in form (as to certifi-cation and otherwise) and substance satis-factory
to the Purchaser and Purchaser's Counsel.
|
(c) |
Consents,
Authorizations and Registrations
-
All con-sents, approvals, orders and authorizations of any Persons
or
governmental authorities in Canada or elsewhere (or registrations,
declarations, filings or recordings with any such authorities) required
in
connection with the completion of any of the transac-tions contemplated
by
this Agree-ment, the execution of this Agreement, the Closing or
the
perform-ance of any of the terms and conditions hereof, shall have
been
obtained on or before the Closing Time.
|
(d) |
Directors
and Officers of Company
-
The Board of Directors of the Company immediately following the Closing
Time shall consist of persons nominated by the Purchaser and there
shall
have been delivered to the Purchaser on or before the Closing Time
the
resignations of such persons as the Purchaser shall direct who are
presently directors and/or officers of the Company from such positions
and
duly executed comprehensive releases from each such person and from
the
Vendor of all their claims respect-ively, against the Company.
|
4.2 |
Vendor's
Conditions
- The
obligations of the Vendor to complete the sale of the Purchased Shares
hereunder shall be subject to the satisfaction of or compliance with,
at
or before the Closing Time, each of the following conditions precedent
(each of which is hereby acknowledged to be inserted for the exclusive
benefit of the Vendor and may be waived by it in whole or in
part):
|
(a) |
Performance
of Obligations
-
The Purchaser shall have performed or complied with, in all respects,
all
of its obligations, covenants and agreements
hereunder.
|
(b) |
Receipt
of Closing Documentation
-
All documentation relating to the due authorization and completion
of the
sale and purchase here-under of the Purchased Shares and all actions
and
proceedings taken on or prior to the Closing in connection with the
performance by the Purchaser of its obligations under this Agreement
shall
be satisfactory to the Vendor and Vendor's Counsel and the Vendor
shall
have received copies of all such documentation or other evidence
as it may
reasonably request in order to establish the consummation of the
transactions contemplated hereby in compliance with these condi-tions,
in
form (as to certifi-cation and otherwise) and substance satis-factory
to
the Vendor and Vendor's Counsel.
|
9
ARTICLE 5
OTHER
COVENANTS OF THE PARTIES
5.1 |
Delivery
of Books of Account, etc. - At
Closing or within 5 Business Days thereof, the Vendor shall or shall
cause, at its cost and expense, all books and records pertaining
to the
Company or the Business that are in its possession or the possession
of
Wireless Age or any of its other affiliates or associates, including
financial records, tax filings and records, corporate minute books
and
contracts and other documents of title, to be delivered to the Purchaser
at its address as set forth in Section
7.4.
|
5.2 |
Inter-Company
Debt Forgiveness- At
Closing, (a) the Company shall release Wireless Age and its wholly
owned
subsidiaries from amounts due to the Company from any such parties
and (b)
Wireless Age and its wholly owned subsidiaries
(including,
for greater certainty, mmWave Technologies Inc. as to $679,299.53
and
Wireless Source Distribution Ltd. as to $4,469.23) shall release
the
Company from amounts due to them or any of them from the Company.
The
release documentation shall be in form and substance satisfactory
to the
Parties and their respective counsel, acting reasonably, and the
Vendor
shall procure the signatures of duly authorized persons from Wireless
Age
and all other relevant parties to the release documentation in favour
of
the Company.
|
5.3 |
Releases- At
Closing (a) the
Purchaser shall release the Vendor, mmWave Technologies Inc. and
their
respective directors, officers and shareholders from any and all
claims
the Purchaser may have against the Company, mmWave Technologies Inc.
and
their respective directors, officers and shareholders, including
without
limitation, any claims in respect of severance or termination pay,
and (b)
the Vendor shall release the Purchaser and the Company from any and
all
claims (other than those arising from or pursuant to this Agreement)
the
Vendor may have against the Purchaser and the
Company.
|
5.4 |
Purchaser
Special Indemnity -
At
Closing and in the event that the guarantee noted below has not been
cancelled and released then the Purchaser shall enter into an indemnity
agreement to and in favour of Wireless Age Communications Ltd.
(“Communications”)
indemnifying and saving Communications harmless from any claims made
against Communications by Xxxxxx Micro (“Xxxxxx”)
with respect to the lease of capital equipment from Xxxxxx to the
Company
of which there remains approximately $78,000 due and that has been
guaranteed by Communications. The indemnity shall be specific to
this
guarantee.
|
5.5 |
Discharges
of Registrations
-
|
(a) |
New
Solutions Financial Corporation (“NSFC”)
has registered security under the Personal
Property Security Act (Ontario)(the
“PPSA”)
against, among others, the Company and the business style Wireless
Works
that is owned by the Company, Communications, Wireless Source Distribution
Ltd. and Wireless Age, which PPSA registration is believed to be
without
merit. If not discharged in respect of the listed parties, above,
prior to
Closing, then post-Closing the Purchaser and the Company shall use
their
reasonable commercial efforts to have NSFC discharge the PPSA registration
as aforesaid, and shall advise the Vendor if and when this is done,
all
without any liability to the Purchaser or the Company if they are
unsuccessful in such endeavour.
|
(b) |
At
Closing or within 5 Business Days thereof the Vendor shall cause
the
discharge of PPSA registration no. 20061204 1054 2040 0121, file
no.
631121715, registered in favour of mmWave Technologies Inc., against
the
Company and Wireless Works, and shall deliver to the Purchaser evidence
of
same. At Closing the Vendor shall produce a power of attorney from
mmWave
Technologies Inc. to and in favour of the Company enabling the Company
to
discharge such PPSA registration if not so discharged within the
5
Business Days noted above, the power of attorney to be in form and
substance satisfactory to the Purchaser and Purchaser’s Counsel, acting
reasonably.
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10
5.6 |
Ford
Truck
- If
ownership of the Ford Truck is not transferred to the Company by
the
Closing Time, including by way of transfer registered at the motor
vehicle
office responsible for maintaining vehicular ownership registers,
then the
Vendor shall cause the ownership of the Ford Truck to be so transferred,
at the cost and expense of the Vendor (including any taxes payable
thereon), and evidence thereof to be delivered to the Purchaser,
by June
15, 2007.
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ARTICLE 6
INDEMNIFICATION
6.1 |
Mutual
Indemnifications for Breaches of Warranty, etc.
-
The Vendor hereby covenants and agrees with the Purchaser, and the
Purchaser hereby covenants and agrees with the Vendor (the Party
or
Parties so covenanting and agreeing to indemnify another Party being
hereinafter in this Section 5.1 referred to as the "Indemnifying
Party"
and the Party so to be indemnified being hereinafter called the
"Indemnified Party") to indemnify and save harmless the Indemnified
Party,
effective as and from the Closing Time, from and against any claims,
demands, actions, causes of action, damage, loss, costs, liability
or
expense (hereinafter in this Article 5 called "Claims") which may
be
brought against the Indemnified Party and/or which it may suffer
or incur
as a result of, in respect of, or arising out of any non-fulfilment
of any
covenant or agreement on the part of the Indemnify-ing Party under
this
Agreement or any incorrectness in or breach of any representation
or
warranty of the Indemnifying Party contained herein or in any certificate
or other document furnished by the Indemnifying Party pursuant hereto.
The
foregoing obligation of indemnification in respect of such Claims
shall
be
|
(a) |
subject
to the limitation mentioned in Section 3.5 hereof respecting the
survival
of the representations and warranties of the Parties;
and
|
(b) |
subject
to the requirement that the Indemnifying Party shall, in respect
of any
Claim made by any third party, be notified in a timely manner by
the
Indemnified Party of all material particulars thereof and be afforded
an
opportunity at its sole cost and expense, to resist, defend and compromise
the same.
|
6.2 |
Carriage
of Action
-
|
(a) |
In
the event that within 15 days after receipt of the notice referred
to in
clause (ii) of Section 5.1 hereof, the Indemnifying Party gives notice
to
the Indemnified Party that the Indemnifying Party wishes to dispute
the
matter in question, the Indemnifying Party shall have the right to
litigate such matter in the name of the Indemnified Party using counsel
chosen by the Indemnifying Party and the Indemnifying Party shall
also
have the right to settle or compromise such matter in the name of
the
Indemnified Party; provided, however, that contemporaneously with
such
com-promise or settlement the Indemnifying Party shall pay or cause
to be
paid to the Indemnified Party as either may direct, the amount owing
under
this indemnity with respect to such matter and provided further
that:
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11
(i) |
the
Indemnifying Party shall furnish security to
the Indemnified Party in respect of any costs or damages arising
in
connection with any litigation;
|
(ii) |
the
Indemnifying Party shall agree to reimburse the Indemnified Party
promptly
in respect of all out-of-pocket expenses of the Indemnified Party
in
connection with such litigation or pending litigation;
and
|
(iii) |
the
Indemnifying Party shall not be entitled to take any steps which
would
have the effect of forfeiting or otherwise terminating any contract,
lease
or other agreement, the benefit of which the Indemni-fied Party would
otherwise be entitled to enjoy.
|
(a)
|
In
the event that the Indemnifying Party does not provide the notice
referred
to in Subsection 5.2(a) assuming the defence of the Claim, the
Indemnified
Party may defend against such Claim in such manner as it deems
appropriate
and may take such action as may be reasonably prudent in the circumstances
to settle any such Claim.
|
ARTICLE 7
GENERAL
7.1 |
Public
Notices
-
Except for disclosures required by law, all public notices to third
parties and all other publicity concerning the transactions contemplated
by this Agreement shall be jointly planned and co-ordinated by the
Vendor
and the Purchaser and no Party shall act unilaterally in this regard
without the prior approval of the Vendor and the Purchaser or the
other of
them, such approval not to be unreasonably
withheld.
|
7.2 |
Expenses
- All
costs and expenses (including, without limitation, the fees and
disbursements of legal counsel) incurred in connection with this
Agreement
and the transactions contemplated hereby shall be paid by the Party
incurring such expenses.
|
7.3 |
Time
- Time
shall be of the essence hereof.
|
7.4 |
Notices
-
Any notice, direction or other document required or permitted to
be given
hereunder or for the purposes hereof (hereinafter in this Section
6.4
called a "notice") to any Party shall be in writing and shall be
sufficiently given if delivered, if sent by prepaid registered mail
or if
transmitted by facsimile tested prior to transmission to such
Party:
|
(a) |
in
the case of a notice to the Vendor at:
|
0000
Xxxxxxxxx Xxxxx, Xxxx 0
|
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
with
a
facsimile number of 000-000-0000
Attention:
Xxxx Xxxxxxxx
with
a copy to the Purchaser's Counsel
at:
|
00
Xxxx Xxxxxx Xxxx, Xxxxx 0000
|
Xxxxxx
Plaza, P.O. Box 1011
Toronto,
Ontario M5H 3S1
|
with
a
facsimile number of 416-595.8692
Attention:
Xxxxxxx Xxxxxxx
12
(b) |
in
the case of a notice to the Purchaser if delivered or sent by facsimile
as
above at:
|
0000
Xxxxxxxx Xxx. Xxxxx 000
Xxxxxxxx,
Xxxxxxx, X0X 0X0
with
a
facsimile number of 000-000-0000
Attention:
Xxxxx XxxXxxxxx
and
if
sent by prepaid registered mail at:
X.X.
Xxx
000
Xxxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxx XxxXxxxxx
in
all
cases with a copy to the Purchaser's Counsel at:
000
Xxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
with
a facsimile number of 000-000-0000
Attention:
Xxxxxx X. Xxxxx
or
at
such other address as the Party to whom such writing is to be given shall
have
last notified the Party giving the same in the manner provided in this section.
Any notice delivered to the Party to whom it is addressed as hereinbefore
provided shall be deemed to have been given and received on the day it is
so
delivered at such address, provided that if such day is not a Business Day
then
the notice shall be deemed to have been given and received on the first Business
Day next following such day. Any notice mailed as aforesaid shall be deemed
to
have been given and received on the third Business Day following the date
of its
mailing. Any notice transmitted by facsimile communication shall be deemed
given
and received on the first Business Day after its transmission. Failure to
transmit timely or adequate notice to Vendor's Counsel or to Purchaser's
Counsel, as the case may be, shall not invalidate, nullify or otherwise
detrimentally affect the provision of same to a Party.
13
7.5 |
Assignment
- Neither
this Agreement nor any rights or obligations here-under shall be
assignable by any Party without the prior written consent of the
other
Party hereto. This Agreement shall enure to the benefit of and be
binding
upon the Parties and their respective heirs, executors, administrators
and
success-ors and permitted assigns.
|
7.6 |
Further
Assurances
- The
Parties hereto shall with reasonable diligence do all such things
and
provide all such reasonable assurances as may be required to consum-mate
the transactions contemplated hereby, and each Party shall provide
such
further documents or instruments required by any other Party as may
be
reasonably necessary or desirable to effect the purpose of this Agreement
and carry out its provisions, whether before or after the Closing.
For
greater certainty and as provided for in the LOI, the Vendor will,
and
will cause Wireless Age to, at no charge provide to the Company
post-Closing such reasonable assistance as the Company may from time
to
time require in the assumption of debt or assets (radio licenses)
and
service and sale contracts.
|
7.7 |
Severability
- If
any covenant or provision of this Agreement is prohibited in whole
or in
part in any jurisdiction, such covenant or provision shall, as to
such
jurisdiction, be ineffective to the extent of such prohibition without
invalidating the remaining covenants and provisions hereof and shall,
as
to such jurisdiction, be deemed to be severed from this Agreement
to the
extent of such prohibition.
|
7.8 |
Counterparts
- This
Agreement may be executed by the Parties in separate counterparts
each of
which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute one and the same
instrument.
|
IN
WITNESS WHEREOF
the
Parties have hereunto duly executed this Agree-ment as of the date first
written
above.
WITNESS
|
XXXXX
XXXXXXXXX
|
XXXXXX
DISTRIBUTORS LTD.
|
||
|
|
|
By: | ||
Name: Xxxx Xxxxxxxx |
||
Title: CFO
I have authority to bind the
Corporation
|
14