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EXHIBIT (6)c
S.I.Q. (SERVICE INTERNET QUEBEC) INC.
AND
AXYN CANADA CORPORATION
AND
AXYN CORPORATION
PURCHASE AGREEMENT
JH:dd
1999-06-30
File No. AXYN-90622
XXXX XXXXXXXXX
BARRISTER AND SOLICITOR
#000-000 XXXXXXXX XXXX
XXXXXX, XXXXXXX
X0X 0X0
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PURCHASE AGREEMENT
MEMORANDUM OF AGREEMENT in duplicate this 30th day of June, 1999.
BETWEEN: XXX XXXXXX, C.R.E. INC. AND 9013 7720 QUEBEC INC.
The shareholders of S.I.Q. (Service Internet Quebec) Inc., a
company incorporated under the laws of Quebec
(hereinafter referred to as the "VENDORS")
OF THE FIRST PART
AND: AXYN CANADA CORPORATION
a company incorporated under the laws
of Ontario
(hereinafter referred to as the "PURCHASER")
OF THE SECOND PART
AND: AXYN CORPORATION
a company incorporated under the laws
of Colorado
(hereinafter referred to as the "AXYN")
OF THE THIRD PART
THIS AGREEMENT WITNESSES that for and in consideration of the mutual
covenants and agreements contained in this Agreement and other good and
valuable consideration (the receipt and sufficiency of which are
acknowledged), the parties covenant and agree as follows:
1. PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale of Shares. Subject to the terms and conditions of this
Agreement, the Vendors agree to sell, assign and transfer to the
Purchaser and the Purchaser agrees to purchase from the Vendors as at and
from the close of business on June 30, 1999 (the "CLOSING DATE") 75 "A"
category Shares that represents all of the issued and outstanding common
shares in the capital stock of S.I.Q. (Service Internet Quebec) Inc. (the
"PURCHASED SHARES") and to convert all shareholder loans for the equity
in the Purchaser, as described in clause 2.1.
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2. PURCHASE PRICE AND PAYMENT
2.1 Purchase Price and Payment. The purchase price payable to the Vendors for
the Purchased Shares shall be satisfied as follows:
i. by the issuance on the Closing Date of 110,000 shares of the
Purchaser which shall be convertible one for one into an equal
number of shares of AXYN. As follows:
XXX XXXXXX 50,000 shares
C.R.E. Inc. 30,000 shares
9013 7720 QUEBEC Inc. 30,000 shares
2.2 Share Restrictions. The Vendors acknowledge that they will be subject to
restrictions on the sale of shares of AXYN and the Purchaser, as the case
may be, in accordance with the laws of the United States and Canada, the
applicable securities regulations thereto and the terms of this
Agreement. The Shares issued to the Vendors shall bear such restrictions
on the face of the share certificates. The restrictions on the transfer
of the common shares issued by the Purchaser pursuant to this Agreement
shall be removed upon the Purchaser's compliance with applicable
securities regulations in the relevant jurisdiction and in proportion to
all other issued common shares of AXYN.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of the Vendors. The Vendors represent and
warrant as follows to the Purchaser and acknowledges that the Purchaser
is relying on such representations and warranties in connection with the
purchase by it of the Purchased Shares:
a) Corporate Status. S.I.Q. (Service Internet Quebec) Inc. (the
"CORPORATION") is a corporation duly incorporated and organized and
validly subsisting in good standing under the laws of the province of
Quebec. The Corporation has the corporate power, authority and capacity
to own its property and to carry on its business as now being conducted
by it. No bankruptcy, insolvency or receivership proceedings have been
instituted or are pending against the Corporation and the Corporation is
able to satisfy its liabilities as they become due.
b) Authorized and Issued Capital. The authorized capital of the Corporation
consists of an unlimited number of common shares of which 75 "A" category
shares have been validly issued to the Vendors and are outstanding as
fully paid and non-assessable (the "TOTAL SHARES"). No shares, options,
warrants or other rights for the purchase, subscription or issuance of
shares or other securities of the Corporation or securities convertible
into or exchangeable for shares of the Corporation have been authorized
or agreed to be issued or are outstanding, which would have the effect of
reducing the percentage ownership represented by the Purchased Shares
below 100%.
c) Purchased Shares. The Vendors are the legal and beneficial owners of the
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Purchased Shares. On the Closing Date, the Purchaser shall acquire good
and marketable title to the Purchased Shares, free and clear of all
agreements, mortgages, liens, charges, pledges, hypothecs, security
interests, encumbrances or other rights or claims of others. The Total
Shares constitute all of the issued and outstanding shares in the capital
of the Corporation owned by the Vendors and there are no restrictions on
the transfer of the Purchased Shares except those set forth in the
constating documents of the Corporation.
d) No Other Agreements. No person, firm or corporation has any written or
oral agreement, option, understanding or commitment, or any right or
privilege capable of becoming an agreement, for the purchase from the
Vendors of any of the Total Shares.
e) Corporate Records. The corporate records and minute books of the
Corporation contain complete and accurate minutes of all meetings of and
copies of all by-laws and all resolutions passed by the directors and
shareholders of the Corporation since its incorporation. All such
meetings were duly called and held, all such by-laws and resolutions were
duly passed and the share certificate books, registers of shareholders,
registers of transfers and other corporate registers of the Corporation
are complete and accurate in all material respects.
f) Accurate Records. The books and records of the Corporation fairly and
correctly set out and disclose in all material respects, in accordance
with generally accepted accounting principles, the financial position of
the Corporation as at the date of this Agreement and all financial
transactions relating to the Corporation have been accurately recorded in
those books and records.
g) Financial Statements. The financial statements of the Corporation as at
June 30, 1999 (the "BALANCE SHEET DATE") and for the period then ended
have been prepared in accordance with generally accepted accounting
principles applied on a basis consistent with those of previous fiscal
years and are true and correct and present fairly the assets, liabilities
(whether accrued, absolute, contingent or otherwise) and the financial
condition of the Corporation as at the Balance Sheet Date, and the sales
and earnings of the Corporation during the period covered by those
financial statements.
h) Title to Assets. The Corporation has good and marketable title to all of
its properties and assets, free and clear of all mortgages, pledges,
charges, hypothecs, liens, title retention agreements, security
interests, encumbrances or rights of others of any kind or character,
other than those disclosed on the balance sheet of the Corporation.
i) Undisclosed Liabilities. The Corporation has no liabilities (whether
accrued, absolute, contingent or otherwise) of any kind except
liabilities incurred in the ordinary course of business since the Balance
Sheet Date which are not inconsistent with past practice, and are not, in
the aggregate, material and adverse to the business, properties, assets,
financial condition or results of operation of the Corporation.
j) No Loans. After the Closing Date, no loans by the Corporation or other
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indebtedness due to the Corporation shall be outstanding (other than the
normal salaries, bonuses, fringe benefits and the obligation to reimburse
for expenses incurred on behalf of the Corporation in the normal course
of employment) from the Vendors or from any person or corporation not
dealing at arm's length or who is affiliated (as those terms are used in
the INCOME TAX ACT (Canada)) with the Vendors.
k) Tax Returns. The Corporation has duly filed all tax returns required to
be filed by it (including all information returns as to which non-filing
or late filing could result in interest or penalties), has made complete
and accurate disclosure in such returns and has duly paid all taxes due
from it to federal, provincial or local taxing authorities, including,
without limitation, those due in respect of its properties, income,
capital, sales, use of property and payroll. The Corporation has also
paid all assessments and reassessments and all other taxes, governmental
charges, penalties, interest and fines due and payable by the Corporation
up to the date of this Agreement. The Corporation has made adequate
provision for and will have sufficient cash on hand to satisfy any taxes
which are payable during the current fiscal period for which tax returns
are not yet required to be filed. There are no agreements, waivers or
other arrangements providing for an extension of time with respect to the
assessment or reassessment of income tax or the filing of any tax return
by, or payment of any tax by, or levying of any governmental charge
against the Corporation. There are no actions, audits, assessments,
reassessments, suits, proceedings, investigations or claims now
threatened or pending against the Corporation in respect of taxes or
governmental charges or any matters under discussion with any
governmental authority relating to taxes or governmental charges asserted
by any such authority. The Corporation has withheld from each payment
made by it the amount of all taxes and other deductions required to be
withheld from it and has paid the same to the proper taxing or other
authority within the time prescribed under any applicable legislation or
regulation.
l) Ordinary Course. Since the Balance Sheet Date:
i. the Corporation has not carried on any business, other than its
ordinary continuing business;
ii. no capital expenditures have been made or authorized by the
Corporation;
iii. there has been no change in the affairs, business, prospects,
operations or condition of the Corporation, financial or
otherwise;
iv. the Corporation has not transferred, assigned, sold or otherwise
disposed of any of its property or assets other than those
disclosed in writing to the Purchaser;
v. the Corporation has not suffered an extraordinary loss nor waived
any rights of material value nor entered into any material
commitment or transaction;
vi. the Corporation has not declared or paid any dividends or declared
or made any other distribution on any of its securities or shares,
and has not,
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directly or indirectly, redeemed, purchased or otherwise acquired
any of its securities or shares or agreed to do so except as
disclosed in writing and agreed to by the Purchaser;
vii. the Corporation has not incurred or assumed any obligation or
liability (fixed or contingent), except secured and unsecured
current obligations and liabilities, particulars of which have
been disclosed in writing to the Purchaser or its representatives;
or
viii. the Corporation has not amended or changed or taken any action to
amend or change its constating documents.
m) Non-Arm's Length Transactions. The Corporation has not entered into any
contracts, agreements, options or arrangements or incurred or assumed any
obligation or liability (whether fixed or contingent) with, on behalf of
or with respect to the Vendors or any other non-arm's length person or
any affiliate of the Vendors (as those terms are defined in the INCOME
TAX ACT (Canada)), whether jointly or severally.
n) Material Contracts. The Corporation is not a party to nor bound by any
material agreement, contract or commitment, whether written or oral, of
any nature or kind whatsoever, other than those disclosed on Schedule 4.
The Corporation is not in default or breach of any agreement, contract or
commitment and there exists no state of facts which after notice or lapse
of time or both would constitute a default or breach and all agreements,
contracts or commitments are now in good standing and in full force and
effect without amendment and the Corporation is entitled to all benefits
under them.
o) Leases. The Corporation is not a party to any lease of real property or
agreement in the nature of a lease, whether as lessor or lessee, other
than those disclosed on Schedule 5.
p) Consents. There are no consents, authorizations, licenses, franchise
agreements, permits, approvals or orders of any person or government
required to permit the Vendors to complete the transactions contemplated
by this Agreement.
q) No Breaches of Charter or Other Agreements. Neither the Vendors nor the
Corporation are a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, instrument, statute, regulation,
arbitration award, charter or by-law provisions, order or judgement which
would be violated, contravened, breached by or under which any default
would occur as a result of the execution and delivery of this Agreement
or the consummation of the transactions contemplated by it or which might
prevent or interfere with the use of the Corporation's assets or which
may limit or restrict or otherwise adversely affect the Corporation's
business, properties, assets or financial condition. The entering into of
this Agreement and the consummation of the transactions contemplated in
it will not:
(I) give rise to any right of acceleration by any person in respect of
any indebtedness or other obligation of the Corporation; or
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(II) result in the loss of any rights, privileges or advantages
presently enjoyed by the Corporation.
(r) No Actions. There is no suit, action, litigation, arbitration, proceeding
or governmental proceeding, including appeals and applications for
review, in progress, pending or threatened against or involving the
Corporation or relating to the Total Shares (collectively referred to as
"actions") and the Vendors are not aware of any existing ground on which
any actions might be commenced with any reasonable likelihood of success.
There is not presently outstanding any judgement, decree, injunction,
rule or order of any court, governmental department, commission, agency,
instrumentality or arbitrator (collectively referred to as
"judgements")against the Corporation or which would affect the Vendors'
ability to sell the Purchased Shares as provided in this Agreement other
than those actions or judgements disclosed on Schedule 6.
s) Powers of Attorney. No person has any tax or other power of attorney from
the Corporation with respect to any matter.
t) Guarantees. The Corporation has not given nor agreed to give nor is it a
party to or bound by any guarantee, indemnification, surety or other
similar obligation.
u) Corporate Authorization. The completion of the transaction contemplated
in this Agreement has been duly and validly authorized by all necessary
corporate action on the part of the Corporation and on the part of any
corporate Vendors.
v) Residency. The Vendors are not a non-resident of Canada within the
meaning of the INCOME TAX ACT (Canada).
w) Subsidiaries. The Corporation does not own shares in any other
corporation and has not agreed to acquire any shares in the capital of
any other corporation or to acquire or lease or invest, directly or
indirectly, in any other business operation.
x) Securities Legislation. The sale of the Purchased Shares by the Vendors
to the Purchaser will be made in compliance with all applicable
securities legislation.
y) Enforceability of Obligations. This Agreement constitutes a valid and
binding obligation of the Vendors enforceable against them in accordance
with its terms, provided that enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar
laws generally affecting creditors' rights and that equitable remedies
such as specific performance and injunction are in the discretion of the
Court from which they are sought.
z) Family Law Act. No order has been given under the FAMILY LAW ACT - QUEBEC
nor is there any application pending under that Act by the spouse of
Xxxxxx Xxxxxx or does affect the Purchased Shares in any manner.
aa) No Relevant Information. None of the representations and warranties in
this section 3.1 contains any untrue statement of material fact or omits
to state any material fact necessary to make any representation or
warranty not misleading to a prospective purchaser of the Purchased
Shares seeking full information concerning the matters which are the
subject of those representations and warranties.
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3.2 Representations and Warranties of the Purchaser. The Purchaser and AXYN
represent and warrant as follows to the Vendors and acknowledge that the
Vendors are relying on such representations and warranties in connection
with the sale of the Purchased Shares:
a) Corporate Status. The Purchaser is a corporation duly continued and
organized and validly subsisting in good standing under the laws of
Ontario. The Purchaser has the corporate power, authority and capacity to
own its property and to carry on its business as now being conducted by
it. No bankruptcy, insolvency or receivership proceedings have been
instituted or are pending against the Purchaser and the Purchaser is able
to satisfy its liabilities as they become due.
b) Corporate Authorization. The completion of the transactions contemplated
by this Agreement shall be duly and validly authorized by all necessary
corporate and other action of the Purchaser and AXYN prior to the Closing
Date.
c) Enforceability of Obligations. This Agreement constitutes a valid and
binding obligation of the Purchaser enforceable against it in accordance
with its terms, provided that enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar
laws generally affecting creditors' rights and that equitable remedies
such as specific performance and injunction are in the discretion of the
Court from which they are sought. d) Issue Capital. Effective as of the
Closing Date contemplated by this agreement, the Shares issued to the
Vendors on the Closing Date pursuant to Section 2.1 hereof shall be duly
and validly issued and outstanding as fully paid and non-assessable
shares of the Purchaser and will have been issued in full compliance with
and all applicable securities legislation.
4. COVENANTS
4.1 Covenants of the Vendors. Unless otherwise permitted, on or before the
Closing Date, the Vendors covenant and agree with the Purchaser as
follows:
a) Non-Arm's Length Payables and Receivables. The Corporation shall have
satisfied or caused to be satisfied all amounts owed by the Vendors to
the Corporation in accordance with Section 3.1(j) of this Agreement.
b) Actions to Satisfy Closing Conditions. The Vendors shall diligently take
all actions and do all things necessary to ensure compliance with the
conditions set forth in section 6.1 of this Agreement.
c) Transfer of Purchased Shares. The Vendors shall take, and will cause the
Corporation to take, all necessary steps and proceedings as approved by
counsel for the Purchaser to permit the Purchased Shares to be duly and
validly transferred to the Purchaser.
d) Resignation of Directors and Officers. The Vendors shall resign as a
Director and Officer of the Corporation at a time specified by the
Purchaser.
e) Releases. The Vendors shall cause to be executed and delivered to the
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Purchaser at the Closing Date a release in the form attached to this
Agreement as Schedule 2.
f) Tax Returns. Within 90 days of the Closing Date, the Vendors shall cause
the Corporation to duly and timely file all financial, securities and tax
returns required to be filed since the Balance Sheet Date and promptly
pay all taxes, assessments and governmental charges shown on those tax
returns to be due and payable and shall cause the Corporation not to
enter into any agreement, waiver or other arrangement providing for an
extension of time with respect to the filing of a tax return or the
payment or assessment of any tax or governmental charge.
g) Employment and Non-Compete Agreements. The Vendors shall ensure that the
employees of S.I.Q. (Service Internet Quebec) Inc. shall enter into
consulting and non-compete agreements with the Purchaser in accordance
with Section 8.1(e) of this Agreement.
h) Employee Agreements. The Vendors shall ensure that all key employees of
the Corporation, as determined by the Purchaser, to enter into employment
and non-compete agreements with the Purchaser.
4.2 Covenants of the Purchaser and AXYN. The Purchaser and AXYN covenant and
agree with the Vendors as follows:
a) Release. The Purchaser shall cause to be executed and delivered to the
Vendors at the Closing Date a release in the form attached to this
Agreement as Schedule 3.
b) Issuance of Shares. The Purchaser shall issue the shares set out in
Section 2.1 to the Vendors.
5. CONDITIONS
5.1 Conditions for the Benefit of the Purchaser. The purchase and sale of the
Purchased Shares is subject to the following terms and conditions for the
exclusive benefit of the Purchaser to be fulfilled or performed at or
prior to the times specified in this section:
a) Covenants and Warranties. The covenants, representations and warranties
of the Vendors contained in this Agreement or in any other document
delivered pursuant to it shall be true and correct as of the Closing Date
with the same force and effect as if such covenants, representations and
warranties had been made on and as of that date.
b) Compliance. The Vendors shall have performed or complied with all
covenants and agreements in this Agreement to be performed or caused to
be performed or complied with by them prior to the time specified in this
Agreement for performance or compliance.
c) No Changes. On the Closing Date, there shall have been no material
adverse change in the properties, assets, liabilities, affairs, financial
condition or prospects of the Corporation from that shown on or reflected
in the financial
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statements attached to in this Agreement as Schedule 1, except as
otherwise disclosed in this Agreement. The title of the Vendors to the
Purchased Shares and all other matters in the opinion of the Purchaser's
counsel which are material in connection with the transactions
contemplated in this Agreement shall be subject to the favourable opinion
of that counsel.
d) No Actions. On the Closing Date, no action or proceeding in Canada or the
United States by law or in equity shall be existing or threatened by any
person, company, firm, governmental authority, regulatory body or agency
to enjoin, restrict or prohibit the purchase and sale of the Purchased
Shares contemplated by this Agreement.
e) Consents. On or before the Closing Date, there shall have been obtained
from all appropriate federal, provincial, municipal or other
governmental, non-governmental or administrative bodies all such
approvals, licences and consents in form and terms satisfactory to the
Purchaser as may be required in order to permit the implementation of the
transactions contemplated in this Agreement without affecting or
resulting in the cancellation or termination of any licence or permit
required in the conduct of the Corporation's business.
f) Closing Deliveries. The Vendors shall deliver to the Purchaser on the
Closing Date those items set forth in section 8.1 of this Agreement in
form and content satisfactory to the Purchaser and its counsel.
g) Change of Control Filing. The Vendors shall prepare at their expense to
be filed within the time period prescribed by the INCOME TAX ACT (Canada)
and any other applicable legislation, all tax returns and tax filings
required to be made by the Corporation consequent upon the acquisition of
control of the Corporation by the Purchaser, within 90 days of the
Closing Date in accordance with section 4.1(f) of this Agreement.
If any of the foregoing conditions is not fulfilled or performed as at the
Closing Date unless otherwise specified in this section to the satisfaction of
the Purchaser, the Purchaser may:
a) give notice thereof to the Vendors, whereupon this Agreement shall be
terminated and each of the parties shall be released from all of its
obligations under it without further liability whatsoever and the Vendors
shall return all payments received up to the date thereof, whether such
payments be in the form of cash or shares; or
b) waive compliance with any of these conditions in whole or in part if it
sees fit to do so without prejudice to any of its rights of termination
in the event of non-performance of any other condition in whole or in
part, provided that any waiver shall be binding upon the Purchaser only
if it is in writing; or
c) require the Vendors to indemnify the Purchaser in respect of any costs
incurred in fulfilling or performing the conditions outlined in this
Section.
5.2 Conditions for the Benefit of the Vendors. The purchase and sale of the
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Purchased Shares is subject to the following terms and conditions for the
exclusive benefit of the Vendors to be fulfilled or performed at or prior
to the times specified in this section:
a) Covenants and Warranties. The covenants, representations and warranties
of the Purchaser and AXYN contained in this Agreement or in any other
document delivered pursuant to it shall be true and correct as of the
Closing Date with the same force and effect as if such covenants,
representations and warranties had been made on and as of that date.
b) Compliance. The Purchaser and AXYN shall have performed or complied with
all covenants and agreements in this Agreement to be performed or caused
to be performed or complied with by it prior to the time specified in
this Agreement for performance or compliance.
6. INDEMNIFICATION AND SET-OFF
6.1 Indemnification of Purchaser. The Vendors covenant and agree to
indemnify and save harmless the Purchaser of and from any costs
whatsoever arising out of or pursuant to:
a) any reassessment for income, sales, excise, corporate or other tax of
the Corporation (and all interest or penalties relating to it) for any
period up to and including the Closing Date;
b) all judgements and awards against the Corporation, including all
interest and penalties, in consequence of any action, suit or
proceeding, whether or not disclosed to the Purchaser and whether or
not commenced after the Closing Date, if based upon any acts or
omissions or other circumstances which occurred or arose prior to the
Closing Date;
c) any loss, costs and expenses suffered by the Purchaser as a result of
any breach of any representation, warranty or covenant on the part of
the Vendors contained in this Agreement or in any schedule to it; and
d) all claims, demands, costs and expenses, including all reasonable
legal, audit and other professional fees, incurred in respect of any of
the foregoing.
6.2 Indemnification of Vendors. The Purchaser and Axyn covenant and agree
to indemnify and save harmless the Vendors of and from any loss
whatsoever arising out of or pursuant to:
a) any loss, costs and expenses suffered by the Vendors as a result of any
breach of any representation, warranty or covenant on the part of the
Purchaser; and
b) all claims, demands, costs and expenses, including all reasonable
legal, audit and other professional fees, incurred in respect of any of
the foregoing.
6.3 Right of Set Off. The Purchaser shall have the right to satisfy any
amount from time to time owing by them to the Vendors, including
amounts payable under the employment agreement, royalty payments or
other payments owing to the Vendors by way of set off against any
amount owing from time to time by the
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Vendors to the Purchaser, arising out of this Agreement.
7. SURVIVAL OF CONDITIONS, COVENANTS, REPRESENTATIONS AND WARRANTIES
7.1 Survival. The conditions, covenants, representations and warranties of
the parties to this Agreement or in any certificates or documents
delivered pursuant to it or in connection with the transactions
contemplated in it and the rights of Indemnification and set off set
out in Section 6 of this Agreement shall continue in full force and
effect after the Closing Date, and shall not merge for a period of
three (3) years from the Closing Date, except for the representations
contained in Section 3.1(k) and 3.1(aa) and the covenants contained in
Section 4.1(f) which shall not merge for a period of five (5) years
from the Closing Date.
8. CLOSING ARRANGEMENTS
8.1 Deliveries. On or before the Closing Date and upon fulfilment of all of
the conditions in this Agreement which have not been waived by the
Purchaser, the Vendors shall deliver to the Purchaser:
a) certificates representing the Purchased Shares duly endorsed in blank
for transfer or accompanied by a duly executed stock transfer power;
b) all necessary directors' and shareholders' resolutions of the
Corporation consenting to and authorizing the sale of the Purchased
Shares;
(c) a certificate of status for the Corporation dated a current date;
(d) release of the Vendors outlined in the form attached as Schedule 2;
(e) consulting and non-competition agreements for the Vendors;
(f) such further and other documents as the Purchaser's counsel may
consider reasonably necessary or advisable to implement the
transactions contemplated in this Agreement.
8.2 On or before the Closing Date and upon fulfilment of all of the
conditions in this Agreement which have not been waived by the Vendors,
the Purchaser shall deliver to the Vendors:
(b) share certificates representing the shares of the Purchaser in
accordance with section 2.1 of this Agreement;
(c) copies of all necessary directors' resolutions of AXYN authorizing the
issuance of the Shares;
(d) a certificate of status for the Purchaser dated a current date;
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8.3 Place of Closing. The closing shall take place at Ottawa on the Closing
Date at the offices of the Corporation.
9. GENERAL MATTERS
9.1 Schedules. The following are the schedules attached to and incorporated
in this Agreement by reference and deemed to be part of this Agreement:
Schedule 1 - June 30, 1999 Financial Statements
Schedule 2 - Release of the Vendors
Schedule 3 - Release of Purchaser
Schedule 4 - Material Contracts
Schedule 5 - Leases
Schedule 6 - Actions against Corporation
9.2 Currency. All dollar amounts referred to in this agreement are in
Canadian funds unless otherwise specified.
9.3 Entire Agreement. This Agreement, including the schedules to it,
together with the agreements and other documents to be delivered
pursuant to it, constitute the entire agreement between the parties
pertaining to the subject matter of this Agreement and supersede all
prior agreements, understandings, negotiations and discussions, whether
written or oral, of the parties, and there are no warranties,
representations or other agreements between the parties in connection
with the subject matter of it. No amendment, modification, waiver or
termination of this Agreement shall be binding unless executed in
writing by the party to be bound by it. No waiver of any provision of
this Agreement shall be deemed to constitute a waiver of any other
provision (whether or not similar) nor shall that waiver constitute a
continuing waiver unless expressly provided.
9.4 Governing Laws. This Agreement shall be construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable
in it and shall be treated in all respects as an Ontario contract. The
parties attorn to the exclusive jurisdiction of the courts of the
Province of Ontario with respect to any matter arising under this
Agreement or any of the schedules or documents to be entered into or
delivered pursuant to it.
9.5 Expenses. Unless otherwise specified herein, all costs and expenses
(including, without limitation, the fees and disbursements of legal
counsel) incurred in connection with this Agreement and the
transactions contemplated by it shall be paid by the party incurring
the cost or expense.
9.6 Notices. Any notice or other writing required or permitted to be given
under this Agreement may be delivered personally or sent by prepaid
registered mail or transmitted by telex, facsimile or other form of
recorded telecommunication transmission:
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(a) to the Vendors at:
0000 Xxxxxxxxx Xxxxxxxxxxx, Xxxx 000
Xxxxxx Xxxx, Xxxxxx X0X 0X0
PH: 000-000-0000 FAX: 000-000-0000
(b) to the Purchaser and AXYN at:
000-000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxx X0X 0X0
PH: 000-000-0000 Fax: 000-000-0000
or at such other address as the parties may from time to time deliver
pursuant to this section. Any notice delivered or transmitted by telex,
facsimile or other form of recorded telecommunication shall be deemed
to be given and received on the date of its delivery or transmission,
as the case may be, provided that such day is not a Saturday, Sunday or
statutory holiday. Any notice mailed shall be deemed to have been given
and received on the third business day following the date of its
mailing.
9.7 Further Assurances. The parties shall with diligence do all things and
provide all such assurances as may be required to consummate the
transactions contemplated by this Agreement, 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 Date.
9.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed
to be an original of this Agreement and fully binding upon the
signatory to it, but all counterparts shall together constitute one and
the same instrument.
9.9 Time of Essence. Time shall be of the essence of this Agreement.
9.10 Language. The parties hereto have agreed that this document be drawn up
in the English language. Les parties presentes ont convenu que ce
document soit redige en anglais.
9.11 Successors and Assigns. This Agreement shall enure to the benefit of
and be binding upon the parties to it and their respective heirs,
successors, executors, administrators and assigns, as applicable. This
Agreement may not be assigned or transferred by the Vendors without the
prior written consent of the Purchaser, such consent not to be
unreasonably withheld.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the day, month
and year first above written.
AXYN CANADA CORPORATION
PER _________________________c/s
PER _________________________c/s
AXYN CORPORATION
PER _________________________c/s
PER _________________________c/s
SIGNED SEALED AND DELIVERED
in the presence of
)
__________________ )__________________________________
WITNESS ) XXX XXXXXX - VENDOR
)
__________________ )__________________________________
WITNESS ) C.R.E. INC. - VENDOR
)
__________________ )__________________________________
WITNESS ) 9013 7720 QUEBEC INC. - VENDOR
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15
SCHEDULE 1
FINANCIAL STATEMENTS OF THE CORPORATION
JUNE 30, 1999
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SCHEDULE 2
RELEASE
TO: AXYN Canada Corporation and AXYN Corporation (the "Purchaser")
AND TO: S.I.Q. (SERVICE INTERNET QUEBEC) INC. (the "Corporation")
RE: AXYN Canada Corporation purchase of all of the issued and
outstanding shares in the capital of the Corporation
In consideration of the sum of One Dollar ($1.00) and of other
good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the undersigned hereby remises, releases and forever discharges
the Purchaser and the Corporation from all manner of actions, causes of action,
suits, debts, dues, accounts, bonds, covenants, contracts, claims or demands
whatsoever which the undersigned may now have or hereafter can have, against the
Purchaser or the Corporation existing up to the date of this release, including
by virtue of them being or ceasing to be an officer, director, employee or
contractor of the Corporation as the case may be, provided that nothing herein
contained shall be construed so as to release the Purchaser from its obligations
and covenants arising out of or in respect of a Purchase Agreement made the 30th
day of June, 1999 in respect of the sale by the undersigned to the Purchaser of
all of the issued and outstanding shares in the capital of the Corporation or
any documents delivered pursuant to such agreement.
DATED at Ottawa this 30th day of June, 1999.
S.I.Q. (SERVICE INTERNET QUEBEC)
INC.
___________________________________
Per: XXX XXXXXX
___________________________________
Per: C.R.E. INC.
___________________________________
Per: 9013 7720 QUEBEC INC.
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17
SCHEDULE 3
RELEASE
TO: XXX XXXXXX, C.R.E. Inc. and 9013 7720 QUEBEC Inc. ("VENDORS")
RE: AXYN Canada Corporation purchase of all of the issued and outstanding
shares in the capital of S.I.Q. (Service Internet Quebec) Inc. (the
"Corporation")
In consideration of the sum of One Dollar ($1.00) and of other
good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the undersigned hereby remises, releases and forever discharges
VENDORS of and from all manner of actions, causes of action, suits, debts, dues,
accounts, bonds, covenants, contracts, claims or demands whatsoever which the
undersigned may now have or hereafter can have, against the VENDORS existing up
to the date of this release, by virtue of them being an officer, director,
employee or contractor of the Corporation as the case may be, except those
actions, causes of action, suits, debts, dues, accounts, bonds, covenants,
contracts, claims or demands arising from the terms of the Purchase Agreement
between the parties dated June 30th, 1999.
DATED at Ottawa this 30th day of June, 1999.
AXYN Canada Corporation
Per: ___________________________c/s
Per: ___________________________c/s
AXYN Corporation
Per: ___________________________c/s
Per: ___________________________c/s
S.I.Q. (SERVICE INTERNET QUEBEC)
INC.
____________________________
Per: XXX XXXXXX
____________________________
Per: C.R.E. INC.
____________________________
Per: 9013 7720 QUEBEC INC.
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SCHEDULE 4
MATERIAL CONTRACTS
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19
SCHEDULE 5
LEASES
21
20
SCHEDULE 6
ACTIONS OR JUDGMENTS AGAINST CORPORATION
