EXHIBIT 10.50
SHARE EXCHANGE AGREEMENT
MADE EFFECTIVE AS OF THE 19th DAY OF JANUARY 2001 (the "Effective Date"),
BETWEEN: E*Comnetrix Inc. (formerly, USV Telemanagement, Inc.), a company
incorporated under the laws of the Canada and having an office at 000 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 ("E*Comnetrix");
AND: Xxxxxxxx Design Group, Inc., a California corporation of 000 Xxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, XX 00000 and Xxxxxxx X. Xxxxxx, an
individual, of 0 Xxxx Xxx., Xxx. 000, Xxx Xxxxxxxxx, XX 00000;
(collectively, the "Shareholders" and individually, a "Shareholder");
AND: EXSTREAM DATA, INC., a California corporation having an office at 000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 ("EXSTREAM");
WHEREAS:
A. The authorized share capital of EXSTREAM consists of 5,000,000 shares
of common stock of which 570,317 are issued and outstanding (each an
"EXSTREAM Share" and collectively, the "EXSTREAM Shares").
B. Each Shareholder legally and beneficially owning the number of shares
and the percentage of the issued and outstanding EXSTREAM Shares, set
beside such shareholder's on Schedule A; attached hereto and
incorporated by this reference;
C. The Shareholders legally and beneficially own Xxxxxxxxxxx.xxx, Inc., a
Nevada corporation ("Moving Bytes") and will transfer to E*Comnetrix
ownership of Moving Bytes prior to the Share Exchange;
D. The Shareholders and E*Comnetrix have agreed to exchange the EXSTREAM
Shares for common shares of E*Comnetrix, on the terms and conditions
described in this Agreement (the "Share Exchange"); and
THEREFORE, in consideration of the covenants and representations set forth
herein, and for other good and valuable consideration, the parties agree as
follows:
1. SHARE EXCHANGE
1.1 Subject to the terms and conditions of this Agreement, the Shareholders
shall transfer One Hundred Percent (100%) of the EXSTREAM Shares to E*Comnetrix
in exchange for common shares of E*Comnetrix (the "E*Comnetrix Shares"), each
one EXSTREAM Share shall be exchanged for 5.25 E*Comnetrix Shares (the "Exchange
Ratio") with any fractional E*Comnetrix Shares rounded down to the nearest whole
share.
1.2 Except as expressly noted otherwise, the transactions contemplated
under this Agreement shall be completed (the "Completion") at the offices of
E*Comnetrix at 000 Xxxxx Xxx. Xxx. 000, Xxxxxxx, Xxxxxxxxxx or at such other
place as may be agreed between the parties, at 5 p.m. local time in Pacific
time, or at such other time as may be agreed between the parties, (the "Time of
Closing") on or before November 30, 2000, or on such other date as may be agreed
between the parties (the "Closing Date").
2. CONDITIONS PRECEDENT
2.1 E*Comnetrix's obligations to carry out the terms of this Agreement and to
complete its transactions contemplated under this Agreement are subject to the
fulfilment to the satisfaction of E*Comnetrix of each of the following
conditions that:
(a) as of the Time of Closing, each of the Shareholders shall have
complied with all of their respective covenants and agreements
contained in this Agreement;
(b) at Closing, the Shareholders shall transfer, or will cause to be
transferred, to E*Comnetrix One Hundred Percent (100%) of the issued
and outstanding EXSTREAM Shares held in the name of the Shareholder
(the percentage of the issued and outstanding EXSTREAM Shares
exchanged shall be referred to as the "Exchange Percentage");
(c) as of the Time of Closing, the Shareholders shall have transferred, or
will cause to be transferred, to E*Comnetrix a percentage of the
issued and outstanding shares of Moving Bytes, Inc., a Nevada
corporation, equal to the Exchange Percentage;
(d) as of the Time of Closing, the representations and warranties of each
of the Shareholders contained in this Agreement or contained in any
certificates or documents delivered by any of them pursuant to this
Agreement shall be completely true as if such representations and
warranties had been made as of the Time of Closing;
(e) E*Comnetrix shall have received a fully executed and delivered
settlement, dismissal and release agreement by and between Xxxxxxx X.
Xxxxxx and Exstream Data, Inc., with respect to (a) any and all claims
arising out of the complaint filed by Xxxxxxx X. Xxxxxx in the
Superior Court of California, County of Alameda (No. 826985-0) and (b)
any and all manner of action and causes of action, suits, debts, dues,
accounts, contracts, agreements, judgments, claims and demands
whatsoever brought by Xxxxxxx X. Xxxxxx against Exstream Data and
Xxxxxxxxxxx.xxx, Inc., whether in law or in equity, which now exist or
may subsequently arise based on facts or circumstances in existence on
the Time of Closing.
The conditions set forth above are for the exclusive benefit of
E*Comnetrix and may be waived by E*Comnetrix in whole or in part at any
time at or before the Time of Closing.
2.2 The Shareholders' obligations to carry out the terms of this Agreement
and to complete the transactions contemplated under this Agreement are subject
to the fulfilment to their satisfaction of each of the following conditions
that:
(a) as of the Time of Closing, E*Comnetrix shall have complied with all of
its covenants and agreements contained in this Agreement; and
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(b) as of the Time of Closing, the representations and warranties of
E*Comnetrix contained in this Agreement or contained in any
certificates or documents delivered by it pursuant to this Agreement
shall be completely true as if such representations and warranties had
been made by E*Comnetrix as of the Time of Closing.
The conditions set forth above are for the exclusive benefit of the Shareholders
and may be waived by the Shareholders in whole or in part at or before the Time
of Closing.
2.3 The parties acknowledge and agree each with the other that this
Agreement and all of the transactions contemplated under this Agreement are
subject to receipt of any regulatory approvals that may be required under
applicable laws. If any such approvals are required but are not obtained by the
Closing Date, then this Agreement shall terminate and be of no further force or
effect.
3. COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS
3.1 Each of the Shareholders jointly and severally covenants and agrees
with E*Comnetrix that each of the Shareholders shall:
(a) provide to E*Comnetrix all such further documents, instruments
and materials and do all such acts and things as may be required
by E*Comnetrix to obtain any regulatory approvals that may be
required under applicable laws;
(b) from and including the Effective Date through to and including
the Time of Closing, do all such acts and things that may be
necessary to ensure that all of the representations and
warranties of each of the Shareholders contained in this
Agreement or any certificates or documents delivered by any of
them pursuant to this Agreement remain true and correct;
(c) from and including the Effective Date through to and including
the Time of Closing, keep confidential all discussions and
communications (including all information communicated therein)
between the parties, and all written and printed materials of any
kind whatsoever exchanged by the parties, except only any
information or material that:
(i) was in the public domain at the time of disclosure to a
party (the "Recipient");
(ii) was already in the possession of the Recipient prior to
disclosure, as demonstrated by the Recipient through
tangible evidence;
(iii)subsequently enters the public domain through no fault of
the Recipient or any officer, director, employee or agent of
the Recipient; or
(iv) is required to be disclosed by law or by a court or
regulatory authority of competent jurisdiction;
and, if so requested by E*Comnetrix, each of the Shareholders
shall arrange for any director, officer, employee, authorized
agent or representative of any member of the Shareholders to
enter into, and each of the Shareholders themselves shall
enter into, a non-disclosure agreement with E*Comnetrix in a
form acceptable to E*Comnetrix acting reasonably.
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3.2 Each of the Shareholders jointly and severally covenants and agrees
with E*Comnetrix that, from and including the Effective Date through to and
including the Time of Closing, each of the Shareholders shall not:
(a) do any act or thing that would render any representation or
warranty of any of the Shareholders contained in this Agreement
or any certificates or documents delivered by any of them
pursuant to this Agreement untrue or incorrect; nor
(b) sell, encumber or dispose of, or negotiate with any other person
in respect of a sale, encumbrance or disposition of, the EXSTREAM
Shares or any other shares, goodwill, assets, business or
undertaking of EXSTREAM.
3.3 E*Comnetrix covenants and agrees with the Shareholders that E*Comnetrix
shall:
(a) use its reasonable best efforts to obtain any regulatory
approvals for this Agreement and the transactions contemplated
hereunder required by applicable laws on or before the Closing
Date;
(b) from and including the Effective Date through to and including
the Time of losing, do all such acts and things that may be
necessary to ensure that all of the representations and
warranties of E*Comnetrix contained in this Agreement or in any
certificates or documents delivered by it pursuant to this
Agreement remain true and correct;
4. REPRESENTATIONS AND WARRANTIES
4.1 For the Purposes of this Section 4, an individual will be deemed to
have "Knowledge" of a particular fact or other matter if:
(a) such individual is actually aware of such fact or other matter at
the time in question; and
(b) A person (other than an individual) will be deemed to have
"Knowledge" of a particular fact or other matter if any
individual who is serving as a director, officer, partner,
executor, or trustee of such Person (or in similar capacity) has,
or at any time had, "Knowledge" of such fact or other matter.
4.2 In order to induce E*Comnetrix to enter into this Agreement and
complete its transactions contemplated hereunder, Exstream and each of the
Shareholders, to the best of such Shareholder's Knowledge, represents and
warrants to E*Comnetrix that:
(a) except for the EXSTREAM Shares, there are no documents,
instruments or other writings of any kind whatsoever which
constitute a security of EXSTREAM and, except as is provided for
by operation of this Agreement, there are no options, agreements
or rights of any kind whatsoever to acquire directly or
indirectly any other shares of EXSTREAM;
(b) the execution and delivery of this Agreement, the performance of
its obligations under this Agreement and the Completion will not
result in the violation of any law or regulation applicable to
any of the Shareholders;
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(c) the representations and warranties of the Shareholders contained
in this Agreement disclose all material facts known to each of
them specifically relating to the transactions contemplated under
this Agreement which, so far as the Shareholders are aware,
materially and adversely affect, or in the future may materially
and adversely affect, their respective abilities to perform their
respective obligations under this Agreement or the value of the
EXSTREAM Shares.
4.3 In order to induce E*Comnetrix to enter into this Agreement and
complete its transactions contemplated hereunder, each of the Shareholders
represents and warrants to E*Comnetrix that, in respect of that Shareholder:
(a) that Shareholder has good and sufficient power, authority and capacity
to enter into this Agreement and complete the transactions
contemplated under this Agreement on the terms and conditions set
forth herein;
(b) that Shareholder has taken all necessary or desirable actions, steps
and corporate and other proceedings to approve or authorise, validly
and effectively, the entering into of, and the execution, delivery and
performance of, this Agreement;
(c) this Agreement has been duly executed and delivered by that
Shareholder and, assuming the due authorisation, execution and
delivery hereof by E*Comnetrix, EXSTREAM and the other Shareholders,
constitutes a legal, valid and binding obligation of that Shareholder,
enforceable against it in accordance with its terms subject to:
(i) bankruptcy, insolvency, moratorium, reorganisation and other laws
relating to or affecting the enforcement of creditors' rights
generally; and
(ii) the fact that equitable remedies, including the remedies of
specific performance and injunction, may only be granted in the
discretion of a court;
(d) except as disclosed to E*Comnetrix, that Shareholder is not under any
obligation, contractual or otherwise, to request or obtain the consent
of any person, and no permits, licenses, certifications,
authorisations or approvals of, or notifications to, any federal,
state, municipal or local government or governmental agency, board,
commission or authority are required to be obtained by that
Shareholder in connection with the execution, delivery or performance
by that Shareholder of this Agreement or the completion of any of the
transactions contemplated herein, and complete and correct copies of
any agreements under which that Shareholder is obligated to request or
obtain any such consent have been provided to E*Comnetrix;
(e) the EXSTREAM Shares indicated in Recital A of this Agreement opposite
his, her or its name are and will on the Closing Date immediately
prior to Completion be validly issued and outstanding fully paid and
non-assessable common shares of EXSTREAM registered in the name of,
and legally and beneficially owned by, that Shareholder, free and
clear of all voting restrictions, trade restrictions, liens, claims,
charges or encumbrances of any kind whatsoever;
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(f) the Shareholder has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of an investment in the E*Comnetrix Shares and is able to bear the
economic risk of loss of the Shareholder's entire investment;
(g) E*Comnetrix has provided to the Shareholder the opportunity to ask
questions and receive answers concerning the terms and conditions of
the issuance of the E*Comnetrix Shares and the Shareholder has had
access to such information concerning E*Comnetrix as the Shareholder
has considered necessary or appropriate in connection with the
investment decision to acquire the E*Comnetrix Shares;
(h) the Shareholder is acquiring the E*Comnetrix Shares for the
Shareholder's own account, for investment purposes only and not with a
view to any resale, distribution or other disposition of the
E*Comnetrix Shares in violation of applicable United States securities
laws;
(i) the Shareholder has not agreed to acquire the E*Comnetrix Shares as a
result of any form of general solicitation or general advertising,
including advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast
over radio, or television, or any seminar or meeting whose attendees
have been invited by general solicitation or general advertising;
(j) The Shareholder understands and agrees that the E*Comnetrix Shares
have not been and will not be registered under the 1933 Act, and the
Shares are being offered and issued by E*Comnetrix to the Shareholder
in reliance upon Rule 506 of Regulation D under the 1933 Act; and
(k) upon the issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the 1933 Act or
applicable U.S. state laws and regulations, the certificates
representing the E*Comnetrix Shares will bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). THESE SECURITIES MAY BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) IN COMPLIANCE WITH THE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE 1933 ACT PROVIDED BY RULE
144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, OR (C) IN A TRANSACTION
THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY
APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND
SALE OF SECURITIES, AND THE HOLDER HAS, PRIOR TO SUCH SALE,
FURNISHED TO THE COMPANY AN OPINION OF COUNSEL, OF RECOGNISED
STANDING, OR OTHER EVIDENCE OF EXEMPTION, REASONABLY
SATISFACTORY TO THE COMPANY."
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4.4 The representations and warranties of EXSTREAM and each of the
Shareholders
contained in this Agreement shall be true at the Time of Closing as though they
were made at the Time of Closing, and they shall survive the Completion and
remain in full force and effect thereafter for the benefit of E*Comnetrix.
4.5 Each of the Shareholders acknowledges and agrees that:
(a) the E*Comnetrix Shares have not been and will not be registered under
the 1933 Act or the securities laws of any state of the United States
or other jurisdiction and that the exchange contemplated hereby is
being made in reliance on the Shareholder's representations and
warranties regarding the circumstances required for an exemption from
such registration requirements;
(b) the issuance of the E*Comnetrix Shares has not been approved or
disapproved by the United States Securities and Exchange Commission,
any state securities agency, or any foreign securities agency,
E*Comnetrix has no obligation to register the E*Comnetrix Shares under
the 1933 Act;
(c) E*Comnetrix shares are registered under the Exchange Act; and
(d) if the Shareholder decides to offer, sell or otherwise transfer any of
the E*Comnetrix Shares, he will not offer, sell or otherwise transfer
any of the E*Comnetrix Shares directly or indirectly, unless:
(i) the sale is to E*Comnetrix;
(ii) the sale is made pursuant to the exemption from the registration
requirements under the 1933 Act provided by Rule 144 thereunder
and in accordance with any applicable state securities or "Blue
Sky" laws;
(iii)the E*Comnetrix Shares are sold in a transaction that does not
require registration under the 1933 Act or any applicable state
laws and regulations governing the offer and sale of securities,
and he has prior to such sale furnished to E*Comnetrix an opinion
of counsel to that effect reasonably satisfactory to E*Comnetrix;
or
(iv) The E*Comnetrix shares are registered by E*Comnetrix under the
1933 Act and all applicable state and other securities laws.
(e) Shareholders have not traded in the common stock of E*Comnetrix and
will refrain from trading in or selling short any shares in the common
stock of E*Comnetrix or entering into any derivative transactions of
same prior to the Closing Date.
4.6 Each of the Shareholders consents to E*Comnetrix making a notation on
its records or giving instructions to any transfer agent of E*Comnetrix to
implement the restrictions on transfer set forth and described herein.
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4.7 Each of the Shareholders acknowledges and accepts that there may be
material tax consequences to a Shareholder in respect of an acquisition or
disposition of the E*Comnetrix Shares, and that E*Comnetrix gives no opinion and
makes no representation with respect to the tax consequences to the Shareholder
under United States, state, local or foreign tax law in respect of the
Shareholder's acquisition or disposition of the E*Comnetrix Shares.
4.8 In order to induce the Shareholders to enter into this Agreement and
complete the transactions contemplated hereunder, E*Comnetrix represents and
warrants to the Shareholders that, except as disclosed to EXSTREAM prior to the
Effective Date:
(a) E*Comnetrix was and remains duly incorporated and validly existing
under the laws of Canada, and E*Comnetrix is in good standing with
respect to all filings required by Industry Canada, the Canada
Business Corporations Act and the British Columbia Securities
Commission;
(b) the E*Comnetrix Shares to be issued on Completion will be, when
issued, validly issued as fully paid and non-assessable;
(c) E*Comnetrix has good and sufficient power, authority and capacity to
enter into this Agreement and complete its transactions contemplated
under this Agreement on the terms and conditions set forth herein;
(d) E*Comnetrix has taken all necessary or desirable actions, steps and
corporate and other proceedings to approve or authorise, validly and
effectively, the entering into of, and the execution, delivery and
performance of, this Agreement;
(e) this Agreement has been duly executed and delivered by E*Comnetrix
and, assuming the due authorisation, execution and delivery hereof by
EXSTREAM and the Shareholders, constitutes a legal, valid and binding
obligation of E*Comnetrix, enforceable against it in accordance with
its terms subject to:
(i) bankruptcy, insolvency, moratorium, reorganisation and other laws
relating to or affecting the enforcement of creditors' rights
generally; and
(ii) the fact that equitable remedies, including the remedies of
specific performance and injunction, may only be granted in the
discretion of a court;
(f) E*Comnetrix is not under any obligation, contractual or otherwise, to
request or obtain the consent of any person, and no permits, licenses,
certifications, authorisations or approvals of, or notifications to,
any federal, state, municipal or local government or governmental
agency, board, commission or authority are required to be obtained by
E*Comnetrix in connection with the execution, delivery or performance
by E*Comnetrix of this Agreement or the completion of any of the
transactions contemplated herein, and complete and correct copies of
any agreements under which E*Comnetrix is obligated to request or
obtain any such consent have been provided to the Shareholders;
(g) the execution, delivery and performance of this Agreement and each of
the other agreements contemplated or referred to herein by
E*Comnetrix, and the completion of the transactions contemplated
hereby, will not constitute or result in a violation or breach of or
default under:
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(i) any term or provision of any of the memorandum, articles or other
constating documents of E*Comnetrix; or
(ii) the terms of any indenture, agreement (written or oral),
instrument or understanding or other obligation or restriction to
which E*Comnetrix is a party or by which it is bound; or
(iii)any term or provision of any licenses, registrations or
qualifications of E*Comnetrix or any order of any court,
governmental authority or regulatory body or any applicable law
or regulation of any jurisdiction;
(h) the representations and warranties and other factual statements of
E*Comnetrix contained in this Agreement, and all information in the
Schedules hereto, taken as a whole, do not contain any false statement
of material fact or omit to state a material fact necessary to prevent
the statements made herein and therein from being misleading; and
(i) E*Comnetrix has received a signed release from each Shareholder
who is a party to this Agreement.
4.9 The representations and warranties of E*Comnetrix contained in this
Agreement shall be true at the Time of Closing as though they were made at the
Time of Closing, and they shall survive the Completion and remain in full force
and effect thereafter for the benefit of the Shareholder.
5. INDEMNITIES
5.1 Indemnities
(a) Notwithstanding the completion of the transactions contemplated under
this Agreement or E*Comnetrix's Investigation, the representations,
warranties and acknowledgements of any of the Shareholders contained
in this Agreement or any certificates or documents delivered by any of
them pursuant to this Agreement shall survive the Completion and shall
continue in full force and effect thereafter for the benefit of
E*Comnetrix. If any of the representations, warranties or
acknowledgements given by any of the Shareholders is found to be
untrue or there is a breach of any covenant or agreement in this
Agreement on the part of any of the Shareholders, then the party or
parties responsible for any misrepresentation or breach of warranty,
acknowledgement, covenant or agreement shall jointly and severally
indemnify and save harmless E*Comnetrix from and against any and all
liability, claims, debts, demands, suits, actions, penalties, fines,
losses, costs (including legal fees, disbursements and taxes as
charged on a lawyer and own client basis), damages and expenses of any
kind whatsoever which may be brought or made against E*Comnetrix by
any person, firm or corporation of any kind whatsoever or which may be
suffered or incurred by E*Comnetrix, directly or indirectly, arising
out of or as a consequence of any such misrepresentation or breach of
warranty, acknowledgement, covenant or agreement. Without in any way
limiting the generality of the foregoing, this shall include any loss
of any kind whatsoever which may be suffered or incurred by
E*Comnetrix, directly or indirectly, arising out of any material
assessment or reassessment levied upon EXSTREAM for tax, interest
and/or penalties relating to any period of business operations up to
and including the Closing Date and all claims, demands, costs
(including legal fees, disbursements and taxes as charged
9
on a lawyer and own client basis) and expenses of any kind whatsoever
in respect of the foregoing.
(b) Notwithstanding the completion of the transactions contemplated under
this Agreement or any investigation by the Shareholders, the
representations, warranties and acknowledgements of E*Comnetrix
contained in this Agreement or any certificates or documents delivered
by E*Comnetrix pursuant to this Agreement shall survive the Completion
and shall continue in full force and effect thereafter for the benefit
of the Shareholders. If any of the representations, warranties or
acknowledgements given by E*Comnetrix is found to be untrue or there
is a breach of any covenant or agreement in this Agreement on the part
of E*Comnetrix, then E*Comnetrix shall indemnify and save harmless the
Shareholders from and against any and all liability, claims, debts,
demands, suits, actions, penalties, fines, losses, costs (including
legal fees, disbursements and taxes as charged on a lawyer and own
client basis), damages and expenses of any kind whatsoever which may
be brought or made against the Shareholders by any person, firm or
corporation of any kind whatsoever or which may be suffered or
incurred by the Shareholders, directly or indirectly, arising out of
or as a consequence of any such misrepresentation or breach of
warranty, acknowledgement, covenant or agreement. Without in any way
limiting the generality of the foregoing, this shall include any loss
of any kind whatsoever which may be suffered or incurred by the
Shareholders, directly or indirectly, arising out of any material
assessment or reassessment levied upon E*Comnetrix for tax, interest
and/or penalties relating to any period of business operations up to
and including the Closing Date and all claims, demands, costs
(including legal fees, disbursements and taxes as charged on a lawyer
and own client basis) and expenses of any kind whatsoever in respect
of the foregoing. Subject to any regulatory approval that may be
required, each of the Shareholders may elect to receive in lieu of a
cash settlement, common shares at the simple average closing price for
the common shares of E*Comnetrix for the 30 trading days preceding the
date of any award ordered by a court pursuant to this indemnity.
5.2 With the exception of claims based on fraud or intentional
misrepresentation, the indemnification obligations of each of the Shareholders
shall not exceed the E*Comnetrix Shares received by such Shareholder in exchange
for such Shareholder's EXSTREAM Shares pursuant to Section 1.1 of this Agreement
and the satisfaction of such indemnification obligations shall be accomplished
on a pro rata basis among parties involved in any misrepresentation or breach of
warranty, acknowledgement, covenant or agreement as to their Exchange Shares
issued pursuant to Section 1.1 of this Agreement.
6. CLOSING
6.1 At the Time of Closing, the Shareholders shall deliver to E*Comnetrix:
(a) releases from each of the Shareholders of all claims against
EXSTREAM for outstanding amounts owing by EXSTREAM on account of any
loans, bonuses, reimbursements, compensation, fees, royalties,
dividends or other consideration whatsoever;
(b) certificates of confirmation and investor certificates from each
of the Shareholders;
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(c) any other materials that are, in the opinion of the attorneys for
E*Comnetrix, reasonably required to complete the transactions
contemplated under this Agreement.
6.2 Within Fifteen (15) business days subsequent to the Time of Closing
E*Comnetrix shall deliver to the solicitors for the Shareholders share
certificates representing the E*Comnetrix Shares registered in the
names of the Shareholders.
7. GENERAL
7.1 Time and each of the terms and conditions of this Agreement shall be of
the essence of this Agreement and any waiver by the parties of this paragraph
7.1 or any failure by them to exercise any of their rights under this Agreement
shall be limited to the particular instance and shall not extend to any other
instance or matter in this Agreement or otherwise affect any of their rights or
remedies under this Agreement.
7.2 The Schedules to this Agreement incorporated by reference and the
recitals to this Agreement constitute a part of this Agreement.
7.3 This Agreement constitutes the entire Agreement between the parties
hereto in respect of the matters referred to herein and there are no
representations, warranties, covenants or agreements, expressed or implied,
collateral hereto other than as expressly set forth or referred to herein.
7.4 The headings in this Agreement are for reference only and do not
constitute terms of the Agreement.
7.5 The provisions contained in this Agreement which, by their terms,
require performance by a party to this Agreement subsequent to the Closing Date
of this Agreement, shall survive the Closing Date of this Agreement.
7.6 No alteration, amendment, modification or interpretation of this
Agreement or any provision of this Agreement shall be valid and binding upon the
parties hereto unless such alteration, amendment, modification or interpretation
is in written form executed by the parties directly affected by such alteration,
amendment, modification or interpretation.
7.7 Whenever the singular or masculine is used in this Agreement the same
shall be deemed to include the plural or the feminine or the body corporate as
the context may require.
7.8 The parties hereto shall execute and deliver all such further documents
and instruments and do all such acts and things as any party may, either before
or after the Closing Date, reasonably require in order to carry out the full
intent and meaning of this Agreement.
7.9 Any notice, request, demand and other communication to be given under
this Agreement shall be in writing and shall be delivered by hand to the
appropriate party at the address as first set out above or to such other
addresses or by such other means as may be designated in writing by the parties
hereto in the manner provided for in this paragraph, and shall be deemed to have
been received on the date of delivery by hand, or if delivered by e-mail or
telecopy, then on the date transmission completes.
7.10 This Agreement shall be subject to, governed by, and construed in
accordance with the laws of the State of California, and the parties attorn to
the non-exclusive jurisdiction of the courts of the State of California for the
resolution of all disputes arising under this Agreement.
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7.11 This Agreement may be signed by the parties in as many counterparts as
may be deemed necessary, each of which so signed shall be deemed to be an
original, and all such counterparts together shall constitute one and the same
instrument.
IN WITNESS WHEREOF the parties have hereunto set their hands and seals as of the
Effective Date:
SIGNED, SEALED & DELIVERED by
Xxxxxxxx Design Group in the presence of: )
)
___/s/ X. Xxxxxxx ___________________ )
Signature of Witness )
)/s/ [Illegible]_____________
Name: Xxxxxx Xxxxxxx )Xxxxxxxx Design Group, Inc.
------------------------------
000 Xxxxxxxxxx Xx.
Xxxxxxx:-----------------------------
Xxx Xxxxxxxxx, XX 00000 )
------------------------------------- )
)
Occupation: PB- Xxxxx Fargo Bank )
------------------------
SIGNED, SEALED & DELIVERED by
Xxxxxxx X. Xxxxxx in the presence of: )
)
___/s/ Xxxxxx X. Castillo___________ )
Signature of Witness )_____/s/ Xxxxxxx X. Xxxxxx ___
)Xxxxxxx X. Xxxxxx
Name:__Judith T. Castillo___________
Address: 0000 Xxxxxxxx Xx )
------------------------------------- )
Xxx Xxxxxxxxx, XX 00000 )
------------------------------------ )
)
Occupation: Asst. Br. Manager- Xxxxx Fargo Bank )
---------------------------------
EXECUTED by Exstream Data, Inc.
___/s/ Xxxxxx Karwat____________
Xxxxxx Xxxxxx
President
EXECUTED by E*Comnetrix Inc.
___/s/ [Illegible]______________
Xxxx Xxxxx
President
12
Schedule A - Shareholders of Exstream
Name Address Shares Percentage
Xxxxxxxx Design Group 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, XX 00000 8,000 01.40%
Xxxxxxx X. Xxxxxx 0 Xxxx Xxx, Xxx. 000, Xxx Xxxxxxxxx, XX 00000 47,453 08.32%
13
