THIS AGREEMENT made the 29th day of September, 2000
BETWEEN:
Mondetta Telecommunications Inc.,
a corporation existing under the laws of Canada,
(the "Vendor")
- and -
Symphony Telecom Inc.,
a corporation existing under the laws of Ontario,
(the "Purchaser")
WHEREAS the Purchaser wishes to purchase certain assets of the Vendor;
AND WHEREAS the Purchaser is a wholly owned subsidiary of Symphony
Telecom International Inc. ("SYMY");
AND WHEREAS SYMY has agreed to provide the covenants, representations
and warranties contained in this Agreement;
NOW THEREFORE in consideration of the respective covenants, agreements,
representations, warranties and indemnities of the parties herein contained and
for other good and valuable consideration (the receipt and sufficiency of which
are acknowledged by each party), the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 DEFINED TERMS
For the purposes of this Agreement, unless the context otherwise
requires, the following terms shall have the respective meanings set out below
and grammatical variations of such terms shall be corresponding meanings:
(a) "Business Day" means any day, other than a Saturday or a Sunday, or
statutory holiday in Ontario;
(b) "Closing Date" means September 29 , 2000 or such other date as the
Vendor and the Purchaser may mutually determine;
(c) "ETA" means Part IX of the Excise Tax Act (Canada), as amended from
time to time;
(d) "GST" means all taxes payable under the ETA or under any provincial
legislation similar to the ETA, and any reference to a specific provision of the
ETA or any such provincial legislation shall refer to any successor provision
thereto of like or similar effect;
<PAGE>
(e) "Purchase Price" has the meaning set out in section 3.1;
(f) "Purchased Assets" has the meaning set out in section 2.1;
(g) "Share" means a common shares of SYMY together with a warrant to
purchase one common share of SYMY for $U.S.3.00, and "Shares" means more than
one Share;
(h) "Tax Act" means the Income Tax Act (Canada), as amended from time
to time;
(i) "Time of Closing" means 2 p.m. Toronto time on the Closing Date, or
such other time on the Closing Date as the Vendor and the Purchaser may mutually
determine; and
(j) "Third Party" means the person or persons who have entered into any
one of the Contracts, as defined in section 2.1 (c), with the Vendor.
1.2 CURRENCY
Unless otherwise indicated, all dollar amounts in this Agreement are
expressed in Canadian funds.
1.3 SECTIONS AND HEADINGS
The division of this Agreement into Articles, sections and subsections
and the insertion of headings are for convenience of reference only and shall
not affect the interpretation of this Agreement.
1.4 NUMBER, GENDER AND PERSONS
In this Agreement, words importing the singular number only shall
include the plural and vice versa, words importing gender shall include all
genders and words importing persons shall include individuals, corporations,
partnerships, associations, trusts, unincorporated organizations, governmental
bodies and other legal or business entities of any kind whatsoever.
1.5 ACCOUNTING PRINCIPLES
Any reference in this Agreement to generally accepted accounting
principles refers to generally accepted accounting principles that have been
established in Canada, including those approved from time to time by the
Canadian Institute of Chartered Accountants or any successor body thereto.
1.6 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral. There are
no conditions, covenants, agreements, representations, warranties or other
provisions, express or implied, collateral, statutory or otherwise, relating to
the subject matter hereof except as herein provided.
<PAGE>
1.7 TIME OF ESSENCE
Time shall be the essence of this Agreement.
1.8 APPLICABLE LAW
This Agreement shall be construed, interpreted and enforced in
accordance with, and the respective rights and obligations of the parties shall
be governed by, the laws of the Province of Ontario and the federal laws of
Canada applicable therein, and each party irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of such province and all
courts competent to hear appeals therefrom.
1.9 SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties and, where the context so permits, their
respective successors and permitted assigns.
1.10 SEVERABILITY
If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
such determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is hereby
declared to be separate, severable and distinct.
1.11 AMENDMENTS AND WAIVERS
No amendment or waiver of any provision of this Agreement shall be
binding on either party unless consented to in writing by such party. No waiver
of any provision of this Agreement shall constitute a waiver of any other
provision nor shall any waiver constitute a continuing waiver unless otherwise
provided.
1.12 SCHEDULES
The following Schedule is attached to and forms an integral part of
this Agreement:
Schedule 1 - Contracts
ARTICLE II
PURCHASE AND SALE OF PURCHASED ASSETS
2.1 Purchased Assets
Subjects to the provisions of this Agreement, the Vendor hereby sells,
assigns and transfers to the Purchaser and the Purchaser agrees to purchase from
the Vendor, effective as of July 1, 2000, following assets (the "Purchased
Assets"):
(a) The customer base of Mondetta (generating at May 31, 2000
approximately $650,000 per month);
(b) All accounts receivable, trade accounts and notes receivable;
<PAGE>
(c) All rights in the contracts described in Schedule 1 (the
"Contracts");
(d) All goodwill, together with the exclusive right to use the name
"Mondetta"; but
(e) Excluding all other assets of the Vendor's business, including
without limitation: all cash, bank balances, money in possession of banks and
other depositories, all shares, notes, bonds, debentures of or issued by other
corporations or persons owned or held by or for the account of the Vendor, all
corporate and financial records not relating to the customer base, chattels,
fixtures and other tangible and intangibles not related to the customer base.
ARTICLE III
PURCHASE PRICE
3.1 PURCHASE PRICE
The aggregate purchase price (the "Purchase Price") payable by the
Purchaser to the Vendor for the Purchased Assets is calculated on a mathematical
valuation of $6,000,000 further calculated as follows: (revenues from the
customer base for the month ending May 30, 2000) multiplied by 8.5 less (the net
amount of the receivables, receivables factoring and accrued receivables minus
accrued liabilities, carrier liabilities and AT&T long term debt). The Purchase
Price shall be satisfied by the Purchaser delivering to the Vendor or as the
Vendor may direct within 10 days of the Closing Date approximately 1,000,000
Shares calculated by dividing the Purchase Price by a factor of 6, with the
Shares valued at $U.S.3.
3.2 ADJUSTMENT OF THE PURCHASE PRICE
The Purchase Price shall be adjusted within 60 days of the Closing Date
to take into account a change in the net amount of the receivables, receivables
factoring and accrued receivables minus accrued liabilities, carrier liabilities
and AT&T Long Term Debt, as defined in Schedule 1.
3.3 ETA ELECTION
The Purchaser and the Vendor shall, within 60 days of the Closing Date,
elect jointly under subsection 167(1) of the ETA, in the form prescribed for the
purposes of that subsection, in respect of the sale and transfer of the
Purchased Assets hereunder. The Purchaser shall file such election with Revenue
Canada, Excise not later than the day on which it is required to file its GST
return for its reporting period which includes the Closing Date.
3.4 TRANSFER TAXES
The Purchaser shall be liable for and shall pay all federal and
provincial sales taxes (including any retail sales taxes and land transfer
taxes) and all other taxes, duties, fees or other like charges of any
jurisdiction properly payable in connection with the transfer of the Purchased
Assets by the Vendor to the Purchaser.
<PAGE>
ARTICLE IV
ASSUMPTION OF LIABILITIES
4.1 ASSUMPTION OF CERTAIN LIABILITIES BY THE PURCHASER
Subject to the provision of this Agreement, the Purchaser agrees to
assume, pay, satisfy, discharge, perform and fulfil, from and after the Time of
Closing, all obligations and liabilities of the Vendor existing as at the Time
of Closing including without limitation AT&T payables and under the Contracts
described in Schedule 1 (the "Assumed Liabilities").
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor represents and warrants to the Purchaser as follows and
acknowledges that the Purchaser is relying on such representations and
warranties in connection with its purchase of the Purchased Assets:
5.1 ORGANIZATION
The Vendor is a corporation incorporated and organized and subsisting
under the laws of Canada and has the corporate power to enter into this
Agreement and to perform its obligations hereunder.
5.2 AUTHORIZATION
This Agreement has been duly authorized, executed and delivered by the
Vendor and is a valid and binding obligation of the Vendor, enforceable against
the Vendor by the Purchaser in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency and other laws affecting the rights of
creditors generally and except that equitable remedies may be granted only in
the discretion of a court of competent jurisdiction.
5.3 OTHER AGREEMENTS TO PURCHASE
No person other than the Purchaser has any written or oral agreement or
option for the purchase or acquisition from the Vendor of any of the Purchased
Assets.
5.4 NO VIOLATION
The execution and delivery of this Agreement by the Vendor and the
consummation of the transactions herein provided for does not result in:
(a) the breach or violation of any of the provisions of, or constitute
a default under, or conflict with or cause the acceleration of any obligation of
the Vendor under:
(i) any provision of the constating documents or bay-laws
or resolutions of the board of directors (or any
committee thereof) or shareholders of the Vendor;
(ii) any judgment, decree, order or award of any court,
governmental body or arbitration having jurisdiction
over the Vendor;
(iii) any licence, permit, approval, consent or
authorization held by the Vendor or necessary to the
operation if the Purchased Business; or
(iv) any applicable law, statute, ordinance, regulation or
rule.
5.5 TITLE TO THE PURCHASED ASSETS
The Purchased Assets are owned absolutely and beneficially by the
Vendor with a good and marketable title save for the contracts and agreements
the assignment or transfer of which is subject to obtaining the consent o a
third party.
<PAGE>
5.6 COMPLIANCE WITH LAWS
The Vendor has complied with all laws, statutes, ordinance,
regulations, rules, judgments, decrees or orders applicable to the Purchased
Assets.
5.7 RESIDENCY
The Vendor is a resident of Canada for the purposes of the Tax Act.
5.8 GST REGISTRATION
The Vendor is a registrant for purposes of the ETA whose registration
number is 86835 1289 RT0001.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Vendor as follows and
acknowledges and confirms that the Vendor is relying on such representations and
warranties in connection with its sale of the Purchased Assets:
6.1 ORGANIZATION
The Purchaser is a corporation duly incorporated and organized and
validly subsisting under the laws of the Province of Ontario and has the
corporate power to enter into this Agreement and to perform its obligations
hereunder.
6.2 AUTHORIZATION
This Agreement has been duly authorized, executed and delivered by the
Purchaser and is a legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser by the Vendor in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency and other
laws affecting the rights of creditors generally and except that equitable
remedies may only be granted in the discretion of a court of competent
jurisdiction.
6.3 NO VIOLATION
The execution and delivery of this Agreement by the Purchaser and the
consummation of the transactions herein provided for does not result in the
violation of, or constitute a default under, or conflict with or cause the
acceleration of any obligation of the Purchaser under:
<PAGE>
(a) any provision of the constating documents or by-laws or resolutions
of the board of directors (or any committee thereof) or shareholders of the
Purchaser;
(b) any judgment, decree, order or award of any court, governmental
body or arbitrator having jurisdiction over the Purchaser; or
(c) any applicable law, statute, ordinance, regulation or rule.
6.4 INVESTMENT CANADA
The Purchaser is a Canadian within the meaning of the Investment Canada
Act.
<PAGE>
6.5 GST REGISTRATION
The Purchaser is a registrant for purposes of the ETA whose
registration number is 8959 60599 .
6.6 TITLE OF SHARES
The Purchaser is now and will be at Closing the owner, beneficially and
of record, of the Shares and has and will have at Closing good title, free and
clear.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF SYMY
SYMY represents and warrants to the Vendor as follows and acknowledges
and confirms that the Vendor is relying on such representations and warranties
in connection with its sale of the Purchased Assets:
7.1 ORGANIZATION
SYMY is a corporation duly incorporated and organized and validly
subsisting under the laws of Utah in the United States and has the corporate
power to enter into this Agreement and to perform its obligations hereunder.
7.2 AUTHORIZED AND ISSUE CAPITAL
The authorized capital of SYMY consists of 50,000,000 common shares, of
which 16,260,409 common shares are issued and outstanding as at the Time of
Closing as fully paid and non-assessable.
7.3 AUTHORIZATION
This Agreement has been duly authorized, executed and delivered by SYMY
and is a legal, valid and binding obligation of SYMY, enforceable against SYMY
by the Vendor in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency and other laws affecting the rights of
creditors generally and except that equitable remedies may only be granted in
the discretion of a court of competent jurisdiction.
<PAGE>
7.4 NO VIOLATION
The execution and delivery of this Agreement by SYMY and the
consummation of the transactions herein provided for does not result in the
violation of, or constitute a default under, or conflict with or cause the
acceleration of any obligation of SYMY under:
(a) any provision of the constating documents or by-laws or resolutions
of the board of directors (or any committee thereof) or shareholders of SYMY;
(b) any judgment, decree, order or award of any court, governmental
body or arbitrator having jurisdiction over SYMY; or
(c) any applicable law, statute, ordinance, regulation or rule.
7.5 CURRENT LISTING OF SYMY
SYMY is a publicly traded company listed on the NASD OTC Bulletin
Board, has satisfied all current Public Information Requirements of SEC Rule 144
(c) at the Closing Date, is not subject to cease trading, judicial or regulatory
order affecting the ability to sell the Shares, and has made all necessary
public filings required under Federal and State securities laws.
7.6 IDEMNITY
To the fullest extent lawful, SYMY will indemnify the Vendor and its
agents against all actions, claims, costs, and expenses resulting or arising
from any violation by SYMY and\or the Purchaser or their agents, servants,
employees of any securities laws or from their registration, offer and sale of
the Registrable Share and the Vendor will indemnify SYMY against all expenses
incurred in any action arising from information contained in the Prospectus that
was provided by the Vendor.
(a) Actions includes threatened, pending or completed actions,
litigation or proceedings, whether administrative, civil, criminal or
investigative;
(b) Expenses include liabilities, expenses, court costs, reasonable
attorneys' fees, judgments, fines, penalties, contribution obligations, and
amounts paid in settlement. Such expenses may be incurred when investigating,
preparing or defending the action;
(c) This indemnity excludes any expenses due to the gross negligence or
intentional, bad faith misconduct of the party seeking indemnification.
This indemnity shall bind and inure to the benefit of any successors of SYMY and
the Vendor.
7.7 REGISTRATION EXPENSES
SYMY shall pay all expenses (including without limitation, government
fees, printing expenses, accounting fees, attorneys fees and other expenses)
incurred under the above registration rights provisions expect underwriter's
compensation.
<PAGE>
ARTICLE VIIII
SURVIVAL OF COVENANTS, REPRESENTATIONS
AND WARRANTIES
8.1 SURVIVAL OF COVENANTS, PRESENTATIONS AND WARRANTIES
To the extent that they have not been fully performed at or prior to
the Time of Closing, the covenants, representations and warranties contained in
this Agreement and in all certificates and documents delivered pursuant to or
contemplated by this Agreement shall survive the closing of the transactions
contemplated hereby and shall continue for the applicable limitation period
notwithstanding such closing nor any investigation made by or on behalf of the
party entitled to the benefit thereof.
ARTICLE IX
COVENANTS
9.1 DELIVERY OF BOOKS AND RECORDS
The Vendor shall deliver to the Purchaser all of the books and records
relating to the customer base.
9.2 CHANGE THE USE OF NAME
The Vendor shall within 60 days of the Closing Date change its name to
a name that does not include the word "Mondetta".
9.3 RETAIL SALES TAX CERTIFICATE
The Vendor shall deliver to the Purchaser a certificate, if available,
issued by the Minister of Revenue of Ontario under subsection 6(1) of the Retail
Sales Tax Act (Ontario).
9.4 DELIVERY OF VENDOR'S CLOSING DOCUMENTATION
The Vendor shall within 60 days of the Closing Date deliver to the
Purchaser a certificate of an officer or director of the Vendor as the Closing
Date, of its constating documents and by-laws and of the resolution authorizing
the execution, delivery and performance by the Vendor of this Agreement and any
documents to be provided by it pursuant to the provisions hereof.
9.5 DELIVERY OF PURCHASER'S CLOSING DOCUMENTATION
The Purchaser shall within 60 days of the Closing Date deliver to the
Vendor a certificate of an officer or director of the Purchaser as of the
Closing Date, of its constating documents and by-laws and of the resolution
authorizing the execution, delivery and performance by the Purchaser of this
Agreement and any documents to be provided by it pursuant to the provisions
hereof.
<PAGE>
9.6 SALE OF THE SHARES BY THE VENDOR
Except as provided in section 9.9 the Vendor during the 12 months
following the Closing Date shall not sell the Shares and thereafter the Vendor
may sell the Shares pursuant to Securities and Exchange Commission ("SEC") Rule
144.
9.7 RULE 144 SALES
SYMY shall at all times use its best efforts to satisfy the "Current
Public Information" requirement of SEC Rule 144(c) and upon request by the
Vendor provide to the Vendor copies of any SEC Rule 144(c) information not
available on the SEC's EDGAR System.
9.8 LOAN FACILITY FOR THE VENDOR
The Purchaser shall during the period of one year after the Closing
Date, loan to the Vendor within 5 days of the Vendor's request, up to $600,000
without interest, for a term of at least one year from the date of the advance
of such loan to the Vendor, provided the Vendor shall upon receipt of such
advance deliver a pledge of Shares with value not greater than $600,000 (based
upon a value of $U.S.3 per Share) to the Purchaser which may be perfected by the
Purchaser under the Personal Property Act (Ontario).
9.9 SEC REGISTRATION OF 25% OF THE SHARES
In the event the loan referred to in section 9.8 is not advanced within
5 days of the Vendor's request then, at the request of the Vendor SYMY shall
file immediately a registration statement pursuant to the Securities Act, 1933
to register the resale of 25% of the Shares (the "Registrable Shares") held by
the Vendor and any other person to whom the Vendor may have directed the Shares,
including without limitation, using its best efforts to:
(a) Prepare and file the appropriate SEC registration statement
(preferably Form S-3) plus all amendments, exhibits, and other documents
necessary for the registration statement to become effective;
(b) Ensure eligibility of the Registrable Shares for sale under the
securities laws of such States reasonably requested by the Vendor;
(c) List the Registrable Shares for trading on all securities exchanges
or quotation systems on which the Shares trade;
(d) Provide copies of the prospectus, as amended and supplemented
("Prospectus") required for registration of the Shares, to the Vendor and its
agents;
(e) Maintain the eligibility of the Registrable Shares until the
earlier of the Vendor and\or any person to whom it directed the Shares has sold
all of the Registrable Shares or 180 days from the date on which the Registrable
Shares become eligible for sale;
1
<PAGE>
(f) Notify the Vendor if the sale of the Registrable Shares should
cease (temporarily or permanently) because of a stop order, or any untrue,
misleading or omitted statement of material fact in the Prospectus;
(g) Remedy any cause resulting in a cease of trading of the Shares;
(h) Perform all actions necessary for the sale of the Registrable
Securities; and
(i) If SYMY fails to proceed with the above provisions within 60 days
of the request then the Purchaser and or SYMY will repurchase 15% of the Shares
delivered to the Vendor at a price equal to the greater of $U.S.3 per Share or
the weighted average price for the 10 days immediately preceeding the date of
repurchase.
9.10 REVENUES PRIOR TO JULY 1, 2000
The Purchaser and the Vendor agree that all revenue generated and
related to the customer base prior to July 1, 2000 is the property of the Vendor
and all revenue generated and related to the customer base from July 1, 2000 to
the Closing Date is the property of the Purchaser, provided the Vendor shall be
entitled to an adjustment to the Purchase Price for a management fee in the
amount of $1,300,000 for the period from July 1, 2000 to the Closing Date.
9.11 ASSUMPTION OF CONTRACTS
The Purchaser shall within 60 days of the Closing Date enter into an
agreement with each Third Party to assume the Assumed Liabilities under such
Third Party's Contract and obtained a release of the Vendor from the Assumed
Liabilities under such Contract from such Third Party. If the Purchaser is
unable to obtain the releases of the Vendor's Assumed Liabilities under the
Contracts with AT&T and UUNET listed as numbers 1,2 and 3 on Schedule 1 then at
the Vendor's option, the Vendor may return all of the Shares delivered by the
Purchaser and\or SYMY pursuant to this Agreement and the Purchaser shall return
all of the Purchased Assets with appropriate adjustments for the Vendor's losses
and costs, if any, resulting from the Purchaser's use of the customer base.
ARTICLE X
CLOSING DATE AND TRANSFER OF POSSESSION
10.1 TRANSFER
The transfer of possession of the Purchased Assets shall be deemed to
have taken effect as at July 1, 2000.
10.2 PLACE OF CLOSING
The closing shall take place at the Time of Closing at the Toronto
offices of Gowling Lafleur Henderson LLP, counsel for the Vendor.
10.3 FURTHER ASSURANCES
From the time subsequent to the Closing Date, each party to this
Agreement covenants and agrees that it will at all times after the Closing Date,
at the expense of the requesting party, promptly execute and deliver all such
documents, including, without limitation, all such additional conveyances,
transfers, consents and other assurances and do all such other acts and things
as the other party, acting reasonably, may from time to time request be executed
or done in order to better evidence or perfect or effectuate any provision of
this Agreement or of any agreement or other document executed pursuant to this
Agreement or any of the respective obligations intended to be created hereby or
thereby.
<PAGE>
ARTICLE XI
INDEMNIFICATION
11.1 INDEMNIFICATION BY THE VENDOR
The Vendor agrees to indemnify and save harmless the Purchaser from all
claims, actions, costs and losses suffered or incurred by the Purchaser as a
result of or arising directly or indirectly out of or in connection with:
(a) any breach by the Vendor of the provisions of the Bulk Sales Act
(Ontario) or any inaccuracy of any representation or warranty of the Vendor
contained in this Agreement or in any agreement, certificate or other document
delivered pursuant hereto (provided that the Vendor shall not be required to
indemnify or save harmless the Purchaser in respect of any breach or inaccuracy
of any representation or warranty; and
(b) any breach or non-performance by the Vendor of any covenant to be
performed by it that is contained in this Agreement or in any agreement,
certificate or other document delivered pursuant hereto.
11.2 IDEMNIFICATION BY THE PURCHASER
The Purchaser and SYMY agree, jointly and severally, to indemnify and
save harmless the Vendor from all claims, actions, losses and costs suffered or
incurred by the Vendor as a result of or arising directly or indirectly out of
or in connection with:
(a) any breach by the Purchaser or SYMY of or any inaccuracy of any
representation or warranty contained in this Agreement or in any agreement,
instrument, certificate or other document delivered pursuant hereto;
(b) any breach or non-performance by the Purchaser or SYMY of any
covenant to be performed by it that is contained in this Agreement or in any
agreement, certificate or other document delivered pursuant hereto; and
(c) any failure by the Purchaser to pay, satisfy, discharge, perform or
fulfil any of the Assumed Liabilities.
ARTICLE XII
MISCELLANEOUS
12.1 NOTICES
(a) Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered in person, transmitted by
fax or similar means of recorded electronic communication or sent by registered
mail, charges prepaid, addressed as follows:
(i) if to the Vendor:
4 King Street West, Suite 1402
Attention: the President
Fax: (416) 365-0789
(ii) if the Purchaser and or SYMY:
Attention: the President
347 Bay Street, Suite 502
Fax: (416) 366-2245
<PAGE>
(b) Any such notice or other communication shall be deemed to have been
given and received on the day on which it was delivered transmitted (or, if such
day is not a Business Day, on the next following Business Day) or, if Mailed, on
the third Business Day following the date of mailing; provided, however, that if
at the time of mailing or within three Business Days there-after there is or
occurs a labour dispute or other event that might reasonably be expected to
disrupt the delivery of documents by mail, any notice or other communication
hereunder shall be delivered or transmitted by means of recorded electronic
communication as aforesaid.
(c) Either party may at any time change its address for service from
time to time by giving notice to the other party in accordance with this section
12.1
12.2 BEST EFFORTS
The parties acknowledge and agree that, for all purpose of this
Agreement, an obligation on the part of either party to use its best efforts to
obtain any waiver, consent, approval, permit, licence of other document shall
not require such party to make any payment to any person for the purpose of
procuring the same, other than payments for amounts due and payable to such
person, payments for incidental expenses incurred by such person and payments
required by any applicable law or regulation.
12.3 COUNTERPARTS
This Agreement may be executed in counterparts and delivered by
facsimile transmission, each of which shall constitute an original and all of
which taken together shall constitute one and the same instrument.
12.4 BULK SALES
The requirements of the Bulk Sales Act (Ontario) shall not apply to the
Vendor.
IN WITNESS WHEREOF this Agreement has been executed by the parties.
Mondettta Telecommunications Inc.
By /s/ Lorn Becker
---------------------------------
Lorn Becker, Director
By /s/ Clarence Bell
---------------------------------
Clarence Bell, President
Symphony Telecom Inc. Symphony Telecom International Inc.
By /s/ Dan Cullen By /s/ Dan Cullen
------------------- ----------------------------
Name: Dan Cullen Name: Dan Cullen
Title: President Title: President
BUSINESS LAW\694450_6
<PAGE>
SCHEDULE 1 - CONTRACTS
1. AT&T Promissory Note dated May 19-2000 (October, November and December
2000 instalments each of $ 187,074.92 are remaining of the original 8
instalments); and (b) interim shareholders loans in the amount of
$295,782 from Becker Capital Management used to pay down the AT&T
Promissory Note (the "AT&T Long Term Debt").
2. AT&T Traffic Agreement.
3. UUNET Contract.
4. ATM Contract.
5. Group Telecom Contract.
6. TRG billing Contract.
7. Ashlar Security Agreement dated April 28, 2000.
8. Neopost Lease - for bill stuffing machine.
9. Worldlinx Lease.
BUSINESS LAW\694450_5
October 3, 2000
