R E C I T A L S
EXHIBIT 23.1
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PURCHASE
AGREEMENT dated
July 4, 2008, among XxXxxx
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Christmas
and E and A Enterprise Trust. ("E and A”), EMAX
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WORLDWIDE,
INC.., a Utah
corporation (“EMXC”) and Xxxxxxxxx
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Xxxxxxxxxx
(“Purchaser”).
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R
E C I T A L S
E
and A
Enterprises Trust, and other persons affiliated with E and A Enterprise Trust
in
Schedule 1 annexed hereto (collectively, “Sellers or E and A”) own 64,000,000
shares of common stock of EMAX Worldwide, Inc and trading under the ticker
symbol of “EMXC” on the Pinksheets (the “Shares”);
The
Shares,
because of the current positions of E and A Enterprises with EMXC, constitute
“restricted shares,” as said term is used in Rule 144 promulgated by the
Securities and Exchange Commission (“SEC”) under the Securities Act of 1933, as
amended (the “Securities Act”);
Purchaser
desires to acquire from the Sellers, and the Sellers desire to sell to
Purchaser, all of the Shares on the terms and subject to the conditions set
forth below.
NOW,
THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
I.
PURCHASE
Purchase.
At the Closing (as defined in Section 2.1 below), Sellers severally shall sell,
and Purchaser shall purchase, the Shares for a purchase price of $640 at the
Closing (the “Purchase Price”), which funds, contemporaneously herewith, is
being deposited with the Escrow Agent pursuant to the terms of the Escrow
Agreement referred to in Section 3.1 below.
II.
ACTION TO BE TAKEN AT CLOSING
The
Closing
of the transactions contemplated hereby (the “Closing”) shall take place on the
tenth day following the filing with the SEC of the Statement on Schedule 14F
referred to in Section 3.7 below (or on the next following business day, if
such
day is not a business day)
SECTION
2.1 Transfer of
Warrants Held by Xxxxxxx Xxxxx. Warrants to purchase an aggregate of 25,000,000
shares of common stock of EMXC held by Xxxxxxx Xxxxx to be assigned to
Buyer.
SECTION
2.2 Resignation. Xxxxxxx
Xxxxx will resign her position as President and Chairman of the Board but will
remain as Secretary and director until other nominees have been evaluated and
hired to replace Xxxxxxx Xxxxx. At that time she will also resign all positions
as a director and officer of EMXC, and EMXC shall accept such
resignations.
SECTION
2.3 Employment Agreement.
Any existing employment agreements of Xxxxx with EMXC will stay in effect until
Xxxxx finishes with all administration filing and dividend distribution matters
at which time she will then resign in all capacities as officer or director
of
EMXC.
SECTION
2.4 Certificate of
Absence of Material Adverse Change. Xxxxx shall sign and deliver to Purchaser
a
certificate stating that, since 12/31/98 , there has been no event or
circumstances which has had, or reasonably can be expected to have, a material
adverse effect on the business, financial condition or operations of
EMXC.
III.
ACTION PENDING CLOSING
SECTION
3.1 Escrow Agreement.
Contemporaneously with the execution and delivery of this Agreement, Sellers,
Purchaser and EMXC shall enter into an escrow agreement, in the form of Exhibit
3.1 hereto (the “Escrow Agreement”), with [Sellers’ counsel] as escrow agent
(“Escrow Agent”) providing, contemporaneously with its execution, for the
deposit with the Escrow Agent of a lease agreement for the use of land owned
by
Buyer. The Escrow Agreement will include provisions for application of property
deposited pursuant thereto..
SECTION
3.2 No
Solicitation.
(a) Xxxxx,
prior to the
termination of this Agreement, E and A
or any
other Seller shall not seek to solicit, initiate, knowingly facilitate or
encourage (including by way of furnishing or disclosing information) any merger,
consolidation, other business combination involving EMXC, acquisition of all
or
any substantial portion of the assets or capital stock of EMXC or the purchase
or other disposition of the Shares, or inquiries or proposals concerning or
which would reasonably be expected to lead to, any of the foregoing (an
“Acquisition Transaction”) or negotiate, explore or otherwise knowingly
communicate in any way with any third party (other than Purchaser or its
affiliates, or the Escrow Agent with respect to the Escrow Agreement) with
respect to any Acquisition Transaction or enter into any agreement, arrangement
or understanding requiring it to abandon, terminate or fail to consummate any
transactions expressly contemplated by this Agreement, or contemplated to be
a
material part thereof.
(b) Notwithstanding
the
foregoing, in the event that there is an unsolicited written proposal for an
Acquisition Transaction from a bona fide financially capable third party that
contains no financing contingency, EMXC, in its discretion, shall be permitted
to furnish to and communicate with any such party all publicly available
information requested by such party. EMXC thereafter, shall promptly advise
Purchaser in writing of the identity of such party. In the event that such
party
requests information in addition to that which is publicly available, EMXC
may furnish to and communicate with such third party non-public information
only
if (i) contemporaneous written notice is given to Purchaser; and (ii) (A) EMXC’s
Board of Directors shall have been satisfied that such third party is
financially capable, without any financing contingency, of consummating an
Acquisition Transaction, (B) EMXC’s Board of Directors shall have been advised,
by the opinion of outside counsel to EMXC, that any failure to provide such
non-public information to such party would constitute a breach of the fiduciary
responsibilities of the Board of Directors to the stockholders of EMXC and
(C)
the Board of Directors, after weighing such advice, determines that taking
such
action is more likely than not to lead an Acquisition Transaction and that
failing to furnish such information would constitute a breach of the Board’s
fiduciary duties.
SECTION
3.3 Access to
Information. E and A shall cause EMXC to afford to the Purchaser, the
Purchaser’s accountants, counsel, financial advisors and other representatives
reasonable access during normal business hours throughout the period prior
to
the Closing to all properties, books, contracts, commitments and records of
EMXC
and, during such period, shall furnish promptly (a) a copy of each report,
schedule and other documents filed or received by EMXC during such period
pursuant to the requirements of federal or state securities laws or filed by
EMXC during such period with the SEC in connection with the transactions
contemplated by this Agreement or which may have a material effect on its
business properties or personnel and (b) such other information concerning
EMXC’s business, properties and personnel as the Purchaser shall reasonably
request; provided, however, that, no investigation pursuant to this Section
3.3
shall affect any representation or warranty made herein. All non-public
documents and information furnished to Purchaser shall be deemed to have been
received pursuant to and shall be subject to the provisions of the
confidentiality and non-disclosure agreement heretofore entered into between
Purchaser and EMXC (the “Confidentiality Agreement”).
SECTION
3.4 No Exercise of
Warrants. Xxxxxxx Xxxxx has assigned her interest to 25,000,000 warrants to
purchase shares of common stock of EMXC to Xxxxx Xxxxxxxxxx at the date of
this
Agreement and prior to Closing.
SECTION
3.5 Additional
Share Issuances and Material Transactions. EMXC agrees that it shall not
authorize the issuance of any additional shares of its common stock or enter
into any material contracts or agreements after the date hereof and prior to
the
Closing without first obtaining the consent of Purchaser, which consent shall
not be unreasonably withheld.
SECTION
3.6 Rule 14f-1
Statement. A Statement on Schedule 14F shall be filed by EMXC with the SEC,
promptly following the execution and delivery of this Agreement..
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIESOF SELLER AND EMXC
E
and A Enterprises
jointly and severally represent and warrant to the Purchaser as follows, with
the knowledge and understanding that the Purchaser is relying materially upon
such representations and warranties:
SECTION
4.1 Organization
and Standing. EMXC is a
corporation duly organized, validly existing and in good standing under the
laws
of the State of Utah. EMXC has all requisite corporate power to carry on its
business as it is now being conducted. The copies of the Certificate of
Incorporation and By-laws of EMXC, as amended to date and delivered to
Purchaser, are true and complete copies of these documents as now in
effect.
SECTION
4.2
Capitalization.
The
authorized capital stock of
EMXC, the number of shares of capital stock which are issued and outstanding
and
the par value thereof are as set forth in Schedule C hereof. All of such shares
of capital stock that are issued and outstanding are duly authorized, validly
issued and outstanding, fully paid and non-assessable, and were not issued
in
violation of the preemptive rights of any person. Except as set forth in EMXC’s
SEC Reports (as defined below) or as otherwise disclosed therein and herein,
there are no subscriptions, options, rights or calls or other commitments or
agreements to which EMXC is a party or by which it is bound, calling for any
issuance, transfer, sale or other disposition of any class of securities of
EMXC. Other than as set forth in EMXC’s SEC Reports, there are no outstanding
securities convertible or exchangeable, actually or contingently, into common
stock or any other securities of EMXC.
SECTION
4.3 Authority.
EMXC's Board of Directors has approved and ratified this
Agreement.
SECTION
4.4 No
Breaches. The making and performance of this Agreement and the other
agreements contemplated hereby by EMXC will not (i) conflict with or violate
the
Certificate of Incorporation or the by-laws of EMXC, (ii) violate any laws,
ordinances, rules, or regulations, or any order, writ, injunction or decree
to
which EMXC is a party or by which EMXC or any of its material assets,
businesses, or operations may be bound or affected or (iii) result in any breach
or termination of, or constitute a default under, or constitute an event which,
with notice or lapse of time, or both, would become a default under, or result
in the creation of any encumbrance upon any material asset of EMXC under, or
create any rights of termination, cancellation or acceleration in any person
under, any material agreement, arrangement or commitment to which
EMXC.
SECTION
4.5 EMXC’s
SEC Reports. Except as provided for in Schedule 4.5, EMXC has filed all
reports, registrations and other documents, together with any amendments
thereto, required to be filed under the Securities Act and the Exchange Act
through and as filed as up to the period ending September 31, 1995 (all such
reports, registrations and documents filed with the SEC up to the date as of
September 31, 1995 are collectively referred to as "EMXC's SEC Reports"). As
of
their respective dates, EMXC's SEC Reports complied in all material respects
with all rules and regulations promulgated by the SEC and did not contain any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary in order to make the statements therein, in
light
of the circumstances under which they were made, not misleading. Since June
30,
1998, there have been no events or circumstances which have, or reasonably
can
be expected to have, a material adverse effect on the business, financial
condition or operations of EMXC.
SECTION
4.6 Title
to Shares. Each Seller owns the Shares he or she proposes to sell
pursuant to this Agreement free and clear of all liens, claims and encumbrances
and,, when such Shares are purchased and paid for pursuant to this Agreement
and
the Escrow Agreement, Purchaser (or EMXC in the case of the redeemed Shares)
shall acquire ownership of such Shares free and clear of all liens, claims
and
encumbrances created by or through Sellers.
SECTION
4.7
Binding Effect. This Agreement constitutes the valid and binding
obligation of each of E and A s enforceable in accordance with its
terms.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants to EMXC and the Sellers as follows, with the knowledge
and understanding that EMXC and the Sellers each is relying materially on such
representations and warranties:
SECTION
5.1 Organization
and Standing of Purchaser. Purchaser is a an individual residing in the
state of Florida. Purchaser has all requisite power to carry on its business
as
now conducted.
SECTION
5.2 Information.
The draft statement on Schedule 14f-1 prepared by Purchaser and furnished to
EMXC in anticipation of the execution and delivery of this Agreement insofar
as
the information contained therein relates to Purchaser, its designees for
membership on the Board of Directors of EMXC and its plans or intentions
regarding EMXC, satisfies the information requirements of Rule 14f-1 promulgated
by the SEC pursuant to the Exchange Act and does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statement therein, in light
of
the circumstances under which they were made, not misleading.
ARTICLE
VI
TERMINATION
SECTION
6.1 Termination.
This Agreement may be terminated by either the Purchaser or the Sellers
if the Closing does not take place within thirty (30) days from the date hereof
provided that a party whose action or inaction the reason for the Closing not
taking place shall not have the right to give notice of
termination.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1 Expenses.
EMXC, Sellers and Purchaser shall each pay their own expenses incident
to
the negotiation, preparation, and carrying out of this Agreement, including
all
fees and expenses of its counsel for all activities of such counsel undertaken
pursuant to this Agreement.
SECTION
7.2 Survival
of Representations and Warranties. All statements contained in this
Agreement or in any certificate delivered by or on behalf of Purchaser and
the
Sellers pursuant hereto or in connection with the transactions contemplated
hereby shall be deemed representations and warranties by Purchaser and the
Sellers, as the case may be, hereunder. All representations and warranties
made
by Purchaser and the Sellers in this Agreement, or pursuant hereto, shall
survive the Closing only until November 30, 2008 and no action based thereon
may
be commenced after such date; provided, however, that all representations and
warranties related to any claim asserted in writing prior to the expiration
of
the above period shall survive until such claim shall be resolved and payment
in
respect thereof, if any is owing, shall be made; and provided, further, that
the
representation and warranty contained in Section 4.6 shall survive
indefinitely.
SECTION
7.3 Succession
and Assignments; Third Party Beneficiaries. This Agreement may not be
assigned (either voluntarily or involuntarily) by any party hereto without
the
express written consent of the other party. Any attempted assignment in
violation of this Section shall be void and ineffective for all purposes. In
the
event of an assignment permitted by this Section, this Agreement shall be
binding upon the heirs, successors and assigns of the parties hereto. There
shall be no third party beneficiaries of this Agreement.
SECTION
7.4 Notices.
All notices, requests, demands, or other communications with respect
to
this Agreement shall be in writing and shall be (i) sent by facsimile
transmission, (ii) sent by the United States Postal Service, registered or
certified mail, return receipt requested, or (iii) personally delivered by
a
nationally recognized express overnight courier service, charges prepaid, to
the
following addresses (or such other addresses as the parties may specify from
time to time in accordance with this Section):
(a) To
Purchaser:
Xxxxxxxxx
Xxxxxxxxxxx
0000
Xxxx
Xxxxxx
Xxxxxxxx,
Xxxxxxx
00000
Attn:
Xxxxxxxxx
Xxxxxxxxxx
With
a copy
to:
Xxxxxx
Xxxxxxx.
P.A.
000
X Xxxxxx
Xxxxxx
Xxxxxx,
Xxxxxxxx
00000
Attn:
Xxxx
Xxxxxxx
Fax
No.:
000-000-0000
(b) To
EMAX WORLDWIDE INC.
(EMXC):
000
X 000
Xxxxxx
Xxxxx
X000
Xxxx
Xxxx Xxxx Xxxx
00000
Attn:
Xxxxxxx
Xxxxx
With
a copy
to:
Xxxxxx
Xxxxxxx,
P.A.
000
Xxxxxx
Xxxxxx
Xxxxx
000
Xxxxxx
Xxxxxxxx
00000
(c) To
the
Sellers:
E
and A Enterprises
Trust
000
X Xxxxx
Xxxxxx
Xxxxx
Xxxxxxx
00000
XxXxxx
Christmas
Trustee
With
a copy
to:
Xxxxxx
Xxxxxxx,
Esquire
000
Xxxxxx
Xxxxxx
Xxx
000
Xxxxxx
Xxxxxxxx
00000
Any
such
notice shall, when sent in accordance with the preceding sentence, be deemed
to
have been given and received on the earliest of (i) the day delivered to such
address or sent by facsimile transmission or electronic mail, (ii) the fifth
business day following the date deposited with the United States Postal Service,
or (iii) 24 hours after shipment by such courier service.
SECTION
7.5 Construction.
This Agreement shall be construed and enforced in accordance with the internal
laws of the State of Florida without giving effect to the principles of
conflicts of law thereof.
SECTION
7.6 ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT SHALL BE BROUGHT
IN
THE COURTS OF THE STATE OF UTAH SITUATED IN SALT LAKE CITY COUNTY AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE PURCHASER, SELLER AND EMXC ALL
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY GENERALLY THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURT. THE PURCHASER, SELLER AND EMXC EACH HEREBY
IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING, (A) ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS AND (B) THE RIGHT TO INTERPOSE ANY NONCOMPULSORY SET-OFF,
COUNTERCLAIM OR CROSS-CLAIM. THE PURCHASER, EACH SELLER AND EMXC EACH
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT THE ADDRESS SET FORTH
IN
SECTION 7.4 HEREOF.
SECTION
7.7 Counterparts.
This Agreement may be executed in two or more counterparts, each of
which
shall be deemed an original, but all of which shall together constitute one
and
the same Agreement.
SECTION
7.8 No
Implied Waiver; Remedies. No failure or delay on the part of the parties
hereto to exercise any right, power, or privilege hereunder or under any
instrument executed pursuant hereto shall operate as a waiver nor shall any
single or partial exercise of any right, power, or privilege preclude any other
or further exercise thereof or the exercise of any other right, power, or
privilege. All rights, powers, and privileges granted herein shall be in
addition to other rights and remedies to which the parties may be entitled
at
law or in equity.
SECTION
7.9 Entire
Agreement. This Agreement, including the Exhibits attached hereto, and
the Confidentiality Agreement sets forth the entire understandings of the
parties with respect to the subject matter hereof, and it incorporates and
merges any and all previous communications, understandings, oral or written,
as
to the subject matter hereof, and cannot be amended or changed except in
writing, signed by the parties.
SECTION
7.10 Headings.
The headings of the Sections of this Agreement, where employed, are for the
convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meanings of the parties.
SECTION
7.11 Severability.
To the extent that any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted hereof and the remainder of such
provision and of this Agreement shall be unaffected and shall continue in full
force and effect.
IN
WITNESS WHEREOF, the parties hereto have
executed this Agreement the day and year first above written.
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E
AND A ENTERPRISES TRUST
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By:
____________________________________
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Name:
XxXxxx
Christmas
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Title:
President/Secretary
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EMAX
WORLDWIDE,
INC.
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By:
______________________________________
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Name:
Xxxxxxx
Xxxxx
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Title:
President
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By:
______________________________________
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Name:
Dorliss
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Title:
Director
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XXXXXXXXX
XXXXXXXXXX
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By:___________________ _________
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Name:
Slavljub
Stefanovic
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Title:
Principal
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EXHIBIT
23.1
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ESCROW
AGREEMENT (this
"Agreement"), dated as of July 4, 2008,
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by
and among Xxxxxx
Christmas ("Christmas”), and certain persons
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affiliated
with E and A
Enterprises Trust identified in the signature
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pages
hereof (collectively, “Sellers”), EMAX Worldwide
Inc., a
Utah
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corporation
(the "Company”) and Xxxxxxxxx Xxxxxxxxxx, a
resident of
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Florida
(“Purchaser”), and Xxxxxx
Xxxxxxx P.A. (the "Escrow
Agent").
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The
Company,
the Sellers and the Purchaser have entered into a Purchase Agreement, dated
as
of the date hereof (the "Purchase Agreement"), pursuant to which the Purchaser
has agreed to purchase certain shares of common stock of the Company (“Common
Stock”) owned by Sellers (the "Relevant Shares") at a price of $6400. (the
“Purchase Price”). The company has also entered into an agreement to pay certain
professional fees associated with EMXC for past services. Xxxxxx Xxxxxxx is
to
be paid $36,000, the transfer agent needs to be paid 10,000 to process and
mail
stock dividends and other fees listed on Schedule A
A. The
Escrow Agent is
willing to act as escrow agent pursuant to the terms of this Agreement with
respect to the Purchase Price to be paid for the Relevant Shares and the
delivery of the certificates representing the Relevant Shares being sold to
the
Purchaser as set forth in the Purchase Agreement (the "Certificates"). The
payment of EMXC past due professional service fees to Xxxxxx Xxxxxxx to be
paid
$25,500 will be paid by the purchaser as agreed in the attached payout schedule
D.
B.
Upon
the closing of the transactions contemplated by the Purchase Agreement (the
"Closing"), the Escrow Agent shall take the steps contemplated by the Purchase
Agreement for the Escrow Agent to take in accordance with the terms of this
Agreement.
C.
All capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Purchase Agreement.
NOW,
THEREFORE, IT IS AGREED:
1.
Deposit
of Collateral. (a) The
Purchaser shall deposit with the Escrow Agent a copy of the Purchase Agreement
and this Escrow Agreement, each executed by the Sellers and the Purchaser;
and
$6400.00. (“Deposit ”). The Company shall deliver to the Escrow Agent (i) the
Purchase Agreement signed by the Company and (ii) this Escrow Agreement signed
by the Company. The Sellers shall deposit with the Escrow Agent a copy of the
Purchase Agreement and this Escrow Agreement executed by the Sellers and
certificates, representing the Relevant Shares owned by the Sellers, duly
endorsed for transfer, with guarantees of signature.
i) The
Deposit shall be
delivered by the Purchaser to the Escrow Agent by way of mail to the following
address:
Law
Offices of Xxxxxx
Xxxxxxx P.A.
000
Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxxxx
Re:
EMXC Controlling
Acquisition Corporation
(ii) Certificates
representing the Relevant Shares shall be delivered to the Escrow Agent at
its
address for notice indicated in Section 5(a).
(b)
The Escrow Agent agrees to hold the
Collateral and the Relevant Shares received by it in accordance with the terms
and conditions set forth herein (collectively, the “Escrow Fund”) until it has
received all of the Escrow Fund;
(c)
The
Purchaser and the Company understand that all deposited documents and agreements
and cash equivalents delivered to the Escrow Agent pursuant to Section 1(a)
shall be held in escrow in a non-interest bearing account until the Closing.
The
parties hereto hereby authorize and instruct the Escrow Agent to promptly effect
those stages contemplated by Article II of the Purchase Agreement to be effected
as part of the Closing.
2.
Terms
of
Escrow.
(a)
The
Escrow Agent shall hold the Collateral and the Relevant Shares in escrow until
the earlier to occur of (i) the receipt by the Escrow Agent of a notice,
executed by each of the Company, the Sellers and the Purchaser, stating that
the
Closing under the Purchase Agreement is to take place and directing the
disposition of the Escrow Fund in the manner set forth in the Purchase Agreement
or (ii) as set forth in subparagraph (b) below.
(b)
If
the Escrow Agent, prior to delivering or causing to be delivered the Escrow
Fund
in accordance herewith, receives notice of objection, dispute, or other
assertion in accordance with any of the provisions of this Agreement, the Escrow
Agent shall continue to hold the Escrow Fund until such time as the Escrow
Agent
shall receive (i) written instructions jointly executed by the Purchaser,
Sellers and the Company, directing distribution of such Escrow Fund, or (ii)
a
certified copy of a judgment, order or decree of a court of competent
jurisdiction, final beyond the right of appeal, directing the Escrow Agent
to
distribute said Escrow Fund to any party or parties hereto or as such judgment,
order or decree shall otherwise specify (including any such order directing
the
Escrow Agent to deposit the Escrow Fund into the court rendering such order,
pending determination of any dispute between any of the parties). In addition,
the Escrow Agent shall have the right to deposit any of the Escrow Fund with
a
court of competent jurisdiction without liability to any party if said dispute
is not resolved within 15 days of receipt of any such notice of objection,
dispute or otherwise.
3.
Duties
and
Obligations of the Escrow Agent.
(a) The
parties
hereto agree that the duties and obligations of the Escrow Agent are only such
as are herein specifically provided and no other. The Escrow Agent's duties
are
as a depositary only, and the Escrow Agent shall incur no liability whatsoever,
except as a direct result of its willful misconduct or gross
negligence.
(b) The
Escrow
Agent may consult with counsel of its choice, and shall not be liable for any
action taken, suffered or omitted by it in accordance with the advice of such
counsel.
(c) The
Escrow
Agent shall not be bound in any way by the terms of any other agreement to
which
the Purchaser, Sellers, and the Company are parties, whether or not it has
knowledge thereof, and the Escrow Agent shall not in any way be required to
determine whether or not any other agreement has been complied with by the
Sellers, Purchaser and the Company. The Escrow Agent shall not be bound by
any
modification, amendment, termination, cancellation, rescission or super session
of this Agreement unless the same shall be in writing and signed jointly by
each
of the Purchaser, the Sellers and the Company, and agreed to in writing by
the
Escrow Agent.
(d)
If
the Escrow Agent
shall be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands which, in its opinion, are in conflict with
any
of the provisions of this Agreement, it shall be entitled to refrain from taking
any action, other than to keep safely all property held in escrow, until it
shall jointly be directed otherwise in writing by the Purchaser, the Sellers
and
the Company or by a final judgment of a court of competent
jurisdiction.
(e) The
Escrow Agent shall be fully
protected in relying upon any written notice, demand, certificate or document
which it, in good faith, believes to be genuine. The Escrow Agent shall not
be
responsible for the sufficiency or accuracy of the form, execution, validity
or
genuineness of documents or securities now or hereafter deposited hereunder,
or
of any endorsement thereon, or for any lack of endorsement thereon, or for
any
description therein; nor shall the Escrow Agent be responsible or liable in
any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any such document, security
or
endorsement.
(f) The
Escrow
Agent shall not be required to institute legal proceedings of any kind and
shall
not be required to defend any legal proceedings which may be instituted against
it or in respect of the Escrow Fund.
(g) If
the Escrow
Agent at any time, in its sole discretion, deems it necessary or advisable
to
relinquish custody of the Escrow Fund, it may do so by delivering the same
to
any other escrow agent mutually agreeable to the Purchaser and the Company
and,
if no such escrow agent shall be selected within three days of the Escrow
Agent's notification to the Purchaser, the Sellers and the Company of its desire
to so relinquish custody of the Escrow Fund, then the Escrow Agent may do so
by
delivering the Escrow Fund (a) to any bank or trust company in the County,
City
and State of New York, which is willing to act as escrow agent thereunder in
place and instead of the Escrow Agent, or (b) to the clerk or other proper
officer of a court of competent jurisdiction as may be permitted by law. The
fee
of any such bank or trust company or court officer shall be borne by the
Company. Upon such delivery, the Escrow Agent shall be discharged from any
and all responsibility or liability with respect to the Escrow Fund and the
Company, Sellers and the Purchaser shall promptly pay to the Escrow Agent all
monies which may be owed it for its services hereunder, including, but not
limited to, reimbursement of its out-of-pocket expenses pursuant to paragraph
(i) below.
(h) This
Agreement shall not create any fiduciary duty on the Escrow Agent's part to
the
Purchaser, the Sellers or the Company, nor disqualify the Escrow Agent from
representing either party hereto in any dispute with the other, including any
dispute with respect to the Escrow Fund. The parties understand that the Escrow
Agent has acted and will continue to act as counsel to the Sellers and the
Company in connection with the Purchase Agreement and the transactions
contemplated thereby.
(i)
The
reasonable
out-of-pocket expenses paid or incurred by the Escrow Agent in the
administration of its duties hereunder, including, but not limited to, postage,
all outside counsel to the Escrow Agent and advisors' and agents' fees and
all
taxes or other governmental charges, if any, shall be paid by the
Company.
4.
Indemnification.
(a)
The Purchaser,
Sellers and the Company, jointly and severally, hereby indemnify and hold the
Escrow Agent harmless from and against any and all losses, damages, taxes,
liabilities and expenses that may be incurred by the Escrow Agent, arising
out
of or in connection with its acceptance of appointment as the Escrow Agent
hereunder and/or the performance of its duties pursuant to this Agreement,
including, but not limited to, all legal costs and expenses of the Escrow Agent
incurred defending itself against any claim or liability in connection with
its
performance hereunder, provided that the Escrow Agent shall not be entitled
to
any indemnity for any losses, damages, taxes, liabilities or expenses that
directly result from its willful misconduct or gross negligence.
5.
Miscellaneous.
(a)
All notices,
requests, demands and other communications hereunder shall be in writing, with
copies to all the other parties hereto, and shall be deemed to have been duly
given when (i) if delivered by hand, upon receipt, (ii) if sent by telecopier,
upon receipt of proof of sending thereof, (iii) if sent by Express Mail, Federal
Express or other express delivery service (receipt requested), the next business
day or (iv) if mailed by first-class registered or certified mail, return
receipt requested, postage prepaid, upon receipt, in each case if delivered
to
the following addresses:
(i)
If to the
Company:
At
the address set forth in the
Purchase Agreement
(ii)
If to the
Sellers: E and A Enterprises Trust
At
the address set
forth in the Purchase Agreement
(ii)
If to the
Purchaser: Xxxxxxxxx Xxxxxxxxxx
At
the address set
forth in the Purchase Agreement
(iii)
If to the
Escrow Agent:
Attn:
Xxxxxx
Xxxxxxx
000
Xxxxxx
Xxxxxx
Xxxx
000
Xxxxxx,
Xxxxxxxx
00000
Fax
No.:
000-000-0000
or
at such other address as any of the
parties to this Agreement may hereafter designate in the manner set forth above
to the others.
(b)
This
Agreement shall
be construed and enforced in accordance with the law of the State of Florida
applicable to contracts entered into and performed entirely within
Florida.
|
Schedule
A
Liabilities
|
|
|
Short
Term Liabilities
|
Total
Due
|
|
Legal
fees to Attorney Xxxxxx Xxxxxxx
|
|
|
EMXC
|
26,000
|
|
Gold
Rush Investments
|
10,000
|
|
Corporate
Office Annual Renewal Fees
|
700
|
|
State
of Delaware Sales Tax
|
3200
|
|
Transfer
Agent and Dividend Transfer Fees
|
12,000
|
|
(printing
new dividend certificates, mailing etc)
|
|
|
Auditor
Retainer
|
|
|
In
future
|
5,000
|
|
Sec
Attorney Retainer
|
5,000
|
|
In
Future
|
|
|
Fees
owed to DTC and Nobos
|
2700
|
|
Fees
for filings to SEC forms and Press
|
2000
|
|
ScheduleB
|
|
|
Authorized
Common Shares
|
1,400,000,000
|
|
Issued
and Outstanding Shares
|
1.135,859,000
|
|
Restricted
Shares
|
883,045,102
|
|
Shares
Freely Trading
|
251,328,612
|
|
Shares
Stopped
|
491,650
|
|
Authorized
Preferred Stock
|
40,000,000
|
|
Issued
and Outstanding Authorized Shares
|
0
|
IN
WITNESS WHEREOF, the parties hereto have
caused this Agreement to be signed the day and year first above
written.
|
E
AND A ENTERPRISES TRUST
|
||
|
By:
______________________________________
|
||
|
Name:
XxXxxx
Christmas
|
||
|
Title:
Trustee
|
||
| Slavljub Stefanovic | ||
|
By:
______________________________________
|
||
|
Name:
Slavljub
Stefanovic
|
||
|
Title:
Principal
|
||
|
M.
Xxxxxx Xxxxxxx P.A.
|
||
|
|
||
|
By:
______________________________________
|
||
|
Name:
Xxxxxx X
Xxxxxxx
|
||
|
Title:
Attorney
|
||
|
|
