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Exhibit 10.1
MEMORANDUM OF AGREEMENT OF SALE OF ASSETS made
and entered into in the City and District of Montreal, Province of
Quebec, with an effective date of february 15, 2008;
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BY
AND BETWEEN :
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9191-4200 QUEBEC INC., legal person, duly incorporated
according to law, having its head office 500 St-Martin Blvd, suite
500, City of Laval, Province of Quebec, herein represented by
Gilles Poliquin, duly authorized as he so declares;
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Hereinafter collectively referred to as the:
[[ “ VENDOR ”
]]
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AND
:
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TELIPHONE INC., legal person, duly incorporated according to
law, having its head office at 194 St-Paul west, suite 303, in the
City and District of Montreal, Province of Quebec, herein
represented by George Metrakos, duly authorized as she so
declares;
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Hereinafter referred to as the:
[[ “ PURCHASER ”
]]
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AND
:
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9151-4877 QUEBEC INC., legal person, doing business as
“ DIALEK
TELECOM ” duly incorporated according to law, having
its head office at 175 Chemin Bates, Suite 201 in the City and
District of Montreal, Province of Quebec, herein represented by
Gilles Poliquin, duly authorized as he so declares;
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Hereinafter referred to as the:
[[ “ COMPANY ”
]]
WHEREAS the
VENDOR is the
registered holder and beneficial owner of all of the issued
and outstanding capital stock {hereinafter referred to as the
“ SHARES ”}
of the COMPANY
.
WHEREAS
the VENDOR is
desirous of selling unto the PURCHASER ,
hereto present and accepting, certain assets and liabilities
as presented in schedule A {hereinafter referred to as the
“ ASSETS ”}
of COMPANY , the
whole for a price and subject to the terms and conditions
mutually agreed upon by and between the Parties hereto, and
as hereinafter set forth.
NOW THEREFORE, THE PARTIES HERETO HAVE AGREED AS
FOLLOWS:
1. PREAMBLE
1.01
THAT the
preamble hereto shall form an integral part hereof as if recited
herein at length;
2. SALE OF ASSETS
2.01
THAT the
VENDOR does
hereby sell, transfer, assign, and make over unto the PURCHASER hereto
present and accepting, the said ASSETS , the whole
under the terms and conditions hereinafter set forth.
3. PURCHASE PRICE
AND PAYMENT
3.01
THAT
consideration for the sale of VENDOR's right, title
and interest in and to the said ASSETS (the “
PURCHASE
PRICE ”) is THREE HUNDRED AND EIGHTY-THREE THOUSAND,
FOUR HUNDRED AND SIXTY FOUR CANADIAN DOLLARS {$383,464} as per the
payment plan described in Schedule B attached herein.
3.02
THAT
VENDOR
renders to PURCHASER’s
disposal an operating line of credit of ONE HUNDRED AND FIFTY
THOUSAND CANADIAN DOLLARS {$150,000.00} at an
annualized interest rate of 18%.
4.
VENDOR'S WARRANTIES
4.01
THAT VENDOR
hereby makes and extends the following representations, warranties
and covenants, all of which are essential to this Agreement, and
without which this Agreement would not have been made:
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(a)
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the
VENDOR is a
resident in Canada within the meaning of the Income Tax Act
(COMPANY) and the Quebec Taxation Act;
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(b)
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the
SHARES have
been validly allotted and issued by COMPANY and are fully
paid and non-assessable;
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(c)
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the
SHARES are
the property of the VENDOR and the
VENDOR has
the complete and exclusive right and authority to sell, transfer,
assign and deliver the ASSETS to the
PURCHASER ,
which shall acquire good, marketable and incontestable title to the
ASSETS
;
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(d)
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the
SHARES are
free and clear from and of any third party liens, encumbrances,
security interests, pledges, charges, rights or claims of any
nature whatsoever;
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(e)
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there
are no loans or any other amounts whatsoever owing by COMPANY to the
VENDOR or
any related person [as that term is defined in the Income Tax Act
(Canada)];
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(f)
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there
are no liabilities of COMPANY that have not
been recorded in the books and records of COMPANY and are known
to the VENDOR and are not
known to the PURCHASER the whole as
appears more fully from a List of Liabilities attached herewith as
Schedule "A" to avail as if more fully set forth herein at
length;
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(g)
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the
ASSETS of
COMPANY are
not subject to any lien, charge, security, pledge, hypothec or any
other encumbrance of any nature, kind or description whatsoever,
which have not been disclosed to PURCHASER
;
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(h)
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that
COMPANY has
not entered into any agreement or option to dispose of, alienate,
pledge, hypothecate, sell, assign, transfer, make over, or
otherwise encumber any asset of COMPANY , of any kind,
nature or description whatsoever;
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(i)
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COMPANY has timely filed all tax returns required to be
filed by it and has paid all taxes which are due and payable and
has paid all assessments and reassessments, and all other taxes,
governmental charges, penalties, interest and fines due and payable
by it on or before the date hereof; to the best of VENDOR's knowledge,
there are no agreements, waivers or other arrangements providing
for an extension of time with respect to the filing of any tax
return or payment of any tax, governmental charge or deficiency
against COMPANY ; to the best
of the VENDOR's knowledge,
there are no actions, suits, proceedings, investigations, or claims
now threatened or pending against COMPANY in respect of
taxes, governmental charges or assessments, or any matters under
discussion with any governmental authority relating to taxes,
governmental charges or assessments asserted by any such authority;
COMPANY has
withheld from each payment made to any of their officers,
directors, former directors and employees the amount of all taxes,
including but not limited to income tax and other deductions
required to be withheld there from in accordance with the Financial
Statements of COMPANY and has paid
the same to the proper tax or other receiving
officers;
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(j)
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COMPANY is not a party to or bound by any agreement of
guarantee, indemnification, assumption or endorsement or any other
like commitment of the obligations, liabilities or indebtedness of
any other person, firm or corporation;
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(l)
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that
to its knowledge and belief, there is no claim, action, injunction,
expropriation, labour dispute, arbitration, legal or other
proceeding or claim of any kind or nature against the VENDOR or COMPANY or with respect
to the business or the assets of COMPANY , either
existing, pending, or to the knowledge of the VENDOR , threatened;
and
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(m)
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the
corporate records and minute books of COMPANY , contain
complete and accurate minutes of all meetings of the directors and
shareholders of COMPANY held since the
incorporation of COMPANY , all such
meetings were duly called and held, the share certificate books,
register of directors of COMPANY are complete
and accurate.
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VENDOR’S UNDERTAKINGS RE: TAX ASSESSMENT
4.02
THAT
subject to the limitations hereinafter set forth, the VENDOR hereby
undertakes to indemnify and save harmless, PURCHASER from and
against any and all liability or loss to which either one of them
may be subject arising or resulting from any assessment or
reassessment by the Department of National Revenue, Government of
Canada, or the Minister of Revenue, Government of Quebec, or by
such other taxing authority of the Government of Canada or the
Government of Quebec respecting any income tax, sales tax, property
tax, excise tax, license fees, business tax or other duties of any
nature whatsoever connected with the business conducted, income
generated, assets or inventory held, or expenses claimed by either
COMPANY or
the COMPANY
at any time prior to the date hereof. The amount of the
liability or loss to which the present indemnity relates, includes
all penalties and interest charged in connection with the said
assessment or reassessment as well as all reasonable
professional fees, charges, or expenses incurred in investigating
or contesting any such assessment provided that such professional
fees, charges, or expenses are incurred at the behest of the
VENDOR
. The VENDOR shall be
entitled to cause each or all of the Parties hereunder
indemnified
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