EXHIBIT 10.47
SHARE EXCHANGE AGREEMENT
MADE EFFECTIVE AS OF THE 7th DAY OF AUGUST 2000 (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 Xxxxxxxxx
Xxxxxxx, Xxxxxxxx X, Xxxxx 000, Xxxx Xxxxxx, XX 00000 ("E*Comnetrix");
AND: XXXXXX XXXXXX ("Karwat"), of 0000 Xxxxx Xxxxxx , Xxxxxxx, XX 00000,
and the shareholders who execute and deliver this Agreement;
(collectively, the "Shareholders" and individually, a "Shareholder");
AND: MOVING BYTES, INC., a Nevada corporation having an office at 000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 ("MOVINGBYTES");
WHEREAS:
A. The authorized share capital of MOVINGBYTES consists of 20,000,000
shares of common stock of which 570,317 are issued and outstanding
(each an "MOVINGBYTES Share" and collectively, the "MOVINGBYTES
Shares").
B. Each Shareholder legally and beneficially owning the number of shares
and the percentage of the issued and outstanding MOVINGBYTES Shares,
set beside such shareholder's on Schedule A; attached hereto and
incorporated by this reference;
C. The Shareholders and E*Comnetrix have agreed to exchange the
MOVINGBYTES Shares for common shares of E*Comnetrix, on the terms and
conditions described in this Agreement (the "Share Exchange");
1. SHARE EXCHANGE
1.1 Subject to the terms and conditions of this Agreement, the Shareholders
shall transfer at least Fifty One (51%) of the MOVINGBYTES Shares to E*Comnetrix
in exchange for $0.001 US per share payable by delivery of immediately available
funds.
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 Xxxxxxxxx Xxx., Xxx. 000X, Xxxx Xxxxxx, Xxxxxxxxxx 9494 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 September 15, 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 and MOVINGBYTES
(collectively, the "MOVINGBYTES Group") shall have complied with all
of their respective covenants and agreements contained in this
Agreement;
(b) at Closing, the MOVINGBYTES Group shall transfer, or will cause to be
transferred, to E*Comnetrix at least Fifty One percent (51%) of the
issued and outstanding MOVINGBYTES Shares (the percentage of the
issued and outstanding MOVINGBYTES Shares exchanged shall be referred
to as the "Exchange Percentage");
(c) as of the Time of Closing, the MOVINGBYTES Group 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 MOVINGBYTES Group 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) MOVINGBYTES shall have presented to E*Comnetrix audited financial
statements for the year ended December 31, 1999, and interim financial
statements for the fiscal period ended June 30, 2000, each to the
reasonable satisfaction of E*Comnetrix;
(f) MOVINGBYTES shall have no outstanding options or warrants;
(g) MOVINGBYTES shall have only one Director who is Karwat; and
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
(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.
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3. COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS
3.1 Each of the MOVINGBYTES Group jointly and severally covenants and
agrees with E*Comnetrix that each of the MOVINGBYTES Group shall:
(a) from and including the Effective Date through to and including the
Time of Closing, permit E*Comnetrix, through its directors, officers,
employees and authorized agents and representatives, at E*Comnetrix's
own cost, full access to the books, records and property of
MOVINGBYTES including, without limitation, all of the assets,
contracts, correspondence, accounts and minute books of MOVINGBYTES,
so as to permit E*Comnetrix to make such investigation ("E*Comnetrix's
Investigation") of MOVINGBYTES as E*Comnetrix considers advisable;
(b) 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;
(c) 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
MOVINGBYTES Group contained in this Agreement or any certificates or
documents delivered by any of them pursuant to this Agreement remain
true and correct;
(d) from and including the Effective Date through to and including the
Time of Closing, preserve and protect all of the goodwill, assets,
business and undertaking of MOVINGBYTES and, without limiting the
generality of the foregoing, carry on the development of the assets of
MOVINGBYTES in a reasonable and prudent manner; and
(e) 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 MOVINGBYTES Group
shall arrange for any director, officer, employee, authorized agent or
representative of any member of the MOVINGBYTES Group to enter into,
and each of the MOVINGBYTES Group themselves shall enter into, a
non-disclosure agreement with E*Comnetrix in a form acceptable to
E*Comnetrix acting reasonably.
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(f) not issue any shares or other securities of MOVINGBYTES or any of its
subsidiaries;
(g) not declare, pay, authorise or make any dividend, payment or
distribution of any kind or nature to its shareholders or redeemed or
purchased or otherwise acquire any of its capital stock or agree to do
so;
(h) not waive any rights of material value;
(i) not enter into any transaction or into any contracts or agreements or
modifications or cancellations thereof, other than in the ordinary
course of business;
(j) not make or authorise any payment to officers, directors or employees
in their capacity as such except in the ordinary course of business
and at rates of salary, bonus or other remuneration consistent with
remuneration of previous years; and
(k) not use any funds other than in the ordinary course of business as
theretofore carried on.
3.2 Each of the MOVINGBYTES Group 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 MOVINGBYTES Group shall not:
(a) do any act or thing that would render any representation or warranty
of any of the MOVINGBYTES Group 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 MOVINGBYTES
Shares or any other shares, goodwill, assets, business or undertaking
of MOVINGBYTES.
3.3 Each of the MOVINGBYTES Group jointly and severally acknowledges to and
agrees with E*Comnetrix that E*Comnetrix's Investigation shall in no way limit
or otherwise adversely affect the rights of E*Comnetrix as provided for
hereunder in respect of the representations and warranties of each of the
MOVINGBYTES Group contained in this Agreement or in any certificates or
documents delivered by any of them pursuant to this Agreement.
3.4 E*Comnetrix covenants and agrees with the MOVINGBYTES Group 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 Closing, 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;
(c) from and including the Effective Date through to and including the
Time of Closing, subject to its legal reporting obligations, keep
confidential all discussions and communications (including all
information communicated therein) between the parties,
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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
and, if so requested by MOVINGBYTES, E*Comnetrix shall arrange
for any director, officer, employee, authorized agent or
representative of E*Comnetrix to enter into, and E*Comnetrix
itself shall enter into, a non-disclosure agreement with
MOVINGBYTES in a form acceptable to MOVINGBYTES acting
reasonably.
3.5 E*Comnetrix covenants and agrees with the MOVINGBYTES Group that, from
and including the Effective Date through to and including the Time of Closing,
E*Comnetrix shall not do any act or thing that would render any representation
or warranty of E*Comnetrix contained in this Agreement or any certificates or
documents delivered by it pursuant to this Agreement untrue or incorrect.
4. REPRESENTATIONS AND WARRANTIES
4.1 In order to induce E*Comnetrix to enter into this Agreement and
complete its transactions contemplated hereunder, each of the Shareholders
jointly and severally represents and warrants to E*Comnetrix that: (a)
MOVINGBYTES was duly incorporated under the laws of Nevada and:
(i) is not a "reporting company" within the meaning of Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and is not subject to any statutory registration or filing
requirements applicable to public reporting companies;
(ii) has the power, authority and capacity to enter into this
Agreement and carry out its terms; and
(iii)is in good standing with respect to the filing of all annual
reports required under the laws of Nevada;
(b) the Directors and Officers of MOVINGBYTES are as follows:
(i) Xxxxxx Xxxxxx - Director, President, and Chief Financial Officer;
(c) the authorized and issued share capital of MOVINGBYTES is as set
forth in Recital A of this Agreement;
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(d) except for the MOVINGBYTES Shares, there are no documents,
instruments or other writings of any kind whatsoever which
constitute a security of MOVINGBYTES 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 MOVINGBYTES;
(e) Attached hereto as Exhibit 4.1(e) are the true, accurate and
correct Articles of Incorporation and Bylaws of MOVINGBYTES, as
amended (the "Corporate Documents"), which have not been altered,
and a certificate of good standing for MOVINGBYTES as issued by
the State of Nevada and dated within thirty (30) days of the
Closing Date;
(f) all of the material transactions of MOVINGBYTES which are
required to be recorded or filed in or with the books or records
of MOVINGBYTES have been promptly and properly so recorded or
filed and the minute books of MOVINGBYTES contain all records of
the meetings and proceedings of the shareholders and directors of
MOVINGBYTES its incorporation;
(g) MOVINGBYTES hold all licences and permits that are required for
carrying on its business in the manner in which such business has
been carried on;
(h) MOVINGBYTES is the registered and beneficial owner of all rights,
title and interest in and to all tangible and intangible property
(collectively the "Assets") associated with all business carried
on by MOVINGBYTES, including without limitation assets listed on
Schedule 4.1(h) to this Agreement, subject only to such
qualifications and limitations as are indicated in Schedule
4.1(h);
(i) MOVINGBYTES has good and marketable exclusive title to each of
the Assets free and clear of all liens, charges and encumbrances
of any kind whatsoever save and except those specified as
"Permitted Encumbrances" on Schedule 4.1(i) to this Agreement.
MOVINGBYTES owns or has the right to use, without payment to any
other person, all intellectual property ("IP") used in its
business, or portions thereof, free and clear of all liens or
other encumbrances. MOVINGBYTES has no notice or knowledge of any
objection or claim being asserted by any Person with respect to
the ownership, validity, enforceability or use of any such IP or
challenging or questioning the validity or effectiveness of any
license relating thereto. The conduct of MOVINGBYTES's business,
as presently conducted and as proposed to be conducted do not
violate, conflict or infringe any contract, license, patent,
copyright, trademark, trade secret, or other intellectual
property rights, or privacy, publicity or similar rights of any
other person. There are no unresolved conflicts with, or pending
claims of, any other person, whether in litigation or otherwise,
involving the IP, and there are no liens or rights of any other
person, including moral rights, which would prevent MOVINGBYTES
from fulfilling its obligations under this Agreement. No activity
of any employee of MOVINGBYTES as or while an employee of
MOVINGBYTES has caused a violation of any trade secret of
MOVINGBYTES;
(j) each item of machinery and equipment of any kind whatsoever
comprised in the Assets is in reasonable operating condition and
in a state of reasonable maintenance and repair taking into
account its age and use;
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(k) all deposit, savings, investment and brokerage accounts and
safety deposit boxes of MOVINGBYTES are listed on Schedule 4.1(k)
attached hereto;
(l) MOVINGBYTES has the corporate power to own the assets it owns,
and to carry on the business carried on by it, and is duly
qualified to carry on business in all jurisdictions in which it
carries on business;
(m) the financial statements of MOVINGBYTES for the periods ending 31
December 1999 and June 30, 2000 (collectively, the "Financial
Statements"), copies of which are attached hereto as Schedule
4.1(m) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis and are true
and correct in every material respect and present fairly and
accurately the financial position and results of the operations
of MOVINGBYTES for the periods then ended, and there has been no
material adverse change to the financial position of MOVINGBYTES
since the date of the last of the Financial Statements;
(n) save for any costs and expenses arising in the ordinary course of
business, all material outstanding liabilities, whether direct,
indirect, absolute, contingent or otherwise, whatsoever of
MOVINGBYTES have been disclosed in writing to E*Comnetrix prior
to the Effective Date, and the total liabilities of MOVINGBYTES
do not exceed $o;
(o) except as set forth on Schedule 4.1(o) of this Agreement:
(i) no dividends or other distributions of any kind whatsoever
on any shares in the capital of MOVINGBYTES has been made,
declared or authorized;
(ii) no new machinery or equipment of any kind whatsoever has
been ordered by, or installed or assembled on the premises
of, MOVINGBYTES;
(iii)MOVINGBYTES is not indebted to any of the Shareholders,
except in respect of miscellaneous expenses incurred on
behalf of MOVINGBYTES which do not exceed, in the aggregate,
US$5,000;
(iv) none of the Shareholders or any other officer, director or
employee of MOVINGBYTES is indebted or under obligation to
MOVINGBYTES on any account whatsoever; and
(v) MOVINGBYTES has not guaranteed or agreed to guarantee any
debt, liability or other obligation of any kind whatsoever
of any person, firm or corporation of any kind whatsoever;
(p) since 31 December 1999, and up to the Effective Date except as
set forth on Schedule 4.1(p):
(i) there has not been any material adverse change of any kind
whatsoever in the financial position or condition of
MOVINGBYTES, or any damage, loss or other change of any kind
whatsoever in circumstances materially affecting the
business or Assets of MOVINGBYTES or the right or capacity
of MOVINGBYTES to carry on its business;
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(ii) MOVINGBYTES has not waived or surrendered any right of any
kind whatsoever of material value;
(iii)except as may be expressly permitted under this Agreement,
MOVINGBYTES has not discharged, satisfied or paid any lien,
charge or encumbrance of any kind whatsoever or obligation
or liability of any kind whatsoever other than current
liabilities in the ordinary course of its business;
(iv) MOVINGBYTES has not issued authorised the issuancee of any
shares or other securities;
(v) MOVINGBYTES has not declared, paid, authorized or made any
dividend, payment or distribution of any kind or nature to
its shareholders or redeemed or purchased or otherwise
acquired any of its capital stock or agreed to do so;
(vi) MOVINGBYTES has not entered into any transaction or into any
contracts or agreements or modifications or cancellations
thereof, other than in the ordinary course of business; and
(vii)MOVINGBYTES has not made or authorized any payment to
officers, directors or employees in their capacity as such
except in the ordinary course of business and at rates of
salary, bonus or other remuneration consistent with
remuneration of previous years;
(q) the directors, officers, key employees and independent
contractors and consultants of MOVINGBYTES, and all of their
compensation arrangements with MOVINGBYTES, whether as directors,
officers, employees, independent contractors or consultants, are
as listed on Schedule 4.1(q) to this Agreement;
(r) no payments of any kind whatsoever have been made or authorized
by MOVINGBYTES directly or indirectly to or on behalf of any of
the Shareholders or any of the directors, officers, key
employees, independent contractors or consultants of MOVINGBYTES
except in accordance with those compensation arrangements
specified on Schedule 4.1(r) to this Agreement;
(s) there are no pension, profit sharing, group insurance or similar
plans or other deferred compensation plans of any kind whatsoever
affecting MOVINGBYTES other than those, if any, specified on
Schedule 4.1(s) to this Agreement;
(t) MOVINGBYTES is not now, nor has it ever been, a party to any
collective agreement with any labour union or other association
of employees of any kind whatsoever, no collective bargaining
agent has been certified in respect of MOVINGBYTES, and there is
no application pending for certification of a collective
bargaining agent in respect of MOVINGBYTES;
(u) the contracts and agreements included on Schedule 4.1(u) to this
Agreement to this Agreement (collectively the "Material
Contracts") constitute all of the material contracts and
agreements of MOVINGBYTES;
(v) except as may be noted on the appropriate Schedule to this
Agreement, the Material Contracts are in good standing in all
material respects and not in default in any respect;
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(w) MOVINGBYTES has not licensed, leased, transferred, disposed of or
encumbered any of the Assets in any way, or permitted any third
party access to any of the Assets the value of which may be
compromised by such access, including in particular the source
code to any computer software, any subscriber lists or any trade
secret information included in the Assets, except only in
accordance with the terms of the Material Contracts;
(x) no third party privacy or intellectual property rights, including
without limitation, copyright, trade secret or patent rights,
were violated in the creation, compilation or acquisition of, or
are violated by the use of, any of the Assets by MOVINGBYTES or
by any party through whom MOVINGBYTES acquired title or a license
or to whom MOVINGBYTES has granted a license in respect of the
Assets, and in particular the use of the Domain Names by
MOVINGBYTES does not infringe upon or induce or contribute to the
infringement of any intellectual property rights, domestic or
foreign, of any other person;
(y) MOVINGBYTES is not in material breach of any applicable law,
ordinance, statute, regulation, by-law, order or decree of any
kind whatsoever including, without limitation, any applicable
securities laws;
(z) all tax returns and reports of MOVINGBYTES that are required by
law to have been filed have been filed and are substantially
true, complete and correct and all taxes and other government
charges of any kind whatsoever of MOVINGBYTES have been paid or
disclosed in writing to E*Comnetrix before E*Comnetrix entered
into this Agreement;
(aa) MOVINGBYTES has not:
(i) made any election under any applicable tax legislation with
respect to the acquisition or disposition of any property at
other than fair market value;
(ii) acquired any property for proceeds greater than the fair market
value thereof; or
(iii)disposed of anything for proceeds less than the fair market value
thereof;
(bb) MOVINGBYTES has made all elections required to have been made under
any applicable tax legislation in connection with any dividends or
other distributions made by MOVINGBYTES and all such elections were
true and correct and filed in the prescribed form and within the
prescribed time period;
(cc) adequate provision has been made for taxes payable by MOVINGBYTES for
the current period for which tax returns are not yet required to be
filed and there are no agreements, waivers or other arrangements of
any kind whatsoever providing for an extension of time with respect to
the filing of any tax return by, or payment of, any tax or
governmental charge of any kind whatsoever by MOVINGBYTES;
(dd) MOVINGBYTES does not have any contingent tax liabilities of any kind
whatsoever, and there are no grounds which would prompt a reassessment
of MOVINGBYTES, including for aggressive treatment of income or
expenses in earlier tax returns filed;
(ee) there are no amounts outstanding and unpaid for which MOVINGBYTES has
previously claimed a deduction under any applicable tax legislation;
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(ff) MOVINGBYTES has made all collections, deductions, remittances and
payments of any kind whatsoever and filed all reports and returns
required by it to be made or filed under the provisions of all
applicable statutes requiring the making of collections, deductions,
remittances or payments of any kind whatsoever;
(gg) there are no actions, suits, judgements, investigations or proceedings
of any kind whatsoever outstanding, pending or known to be threatened
against or affecting MOVINGBYTES at law or in equity or before or by
any federal, provincial, state, municipal or other governmental
department, commission, board, bureau or agency of any kind whatsoever
and there is no basis therefore;
(hh) MOVINGBYTES has good and sufficient power, authority and capacity to
enter into this Agreement and complete its respective transactions
contemplated under this Agreement on the terms and conditions set
forth herein;
(ii) MOVINGBYTES 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;
(jj) this Agreement has been duly executed and delivered by MOVINGBYTES
and, assuming the due authorisation, execution and delivery hereof by
E*Comnetrix and the Shareholders, constitutes a legal, valid and
binding obligation of MOVINGBYTES, 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;
(kk) except as disclosed to E*Comnetrix, MOVINGBYTES 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 MOVINGBYTES in
connection with the execution, delivery or performance by MOVINGBYTES
of this Agreement or the completion of any of the transactions
contemplated herein, and complete and correct copies of any agreements
under which MOVINGBYTES is obligated to request or obtain any such
consent have been provided to E*Comnetrix;
(ll) the execution and delivery of this Agreement, the performance of its
obligations under this Agreement and the Completion will not:
(i) conflict with, or result in the breach of or the acceleration of
any indebtedness under, or constitute default under, any of the
Corporate Documents of MOVINGBYTES, or any of the terms of any
indenture, mortgage, agreement, lease, licence or other
instrument of any kind whatsoever to which any of the MOVINGBYTES
Group is a party or by which any of them is bound, or any
judgement or order of any kind whatsoever of any court or
administrative body of any kind whatsoever by which any of them
is bound; nor
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(ii) result in the violation of any law or regulation applicable to
any of the MOVINGBYTES Group;
(mm) MOVINGBYTES has not incurred any liability for agency, brokerage,
referral or finder's fees, commissions or compensation of any kind
whatsoever with respect to this Agreement or any transaction
contemplated under this Agreement; and
(nn) 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 MOVINGBYTES
Shares or the Assets.
(oo) MOVINGBYTES is in compliance in all material respects with all
federal, state and municipal environmental laws and regulations (the
"Environmental Laws"). The existing activities of MOVINGBYTES, its
business and its prior uses and activities and the uses and activities
of other property now or previously owned or operated by MOVINGBYTES,
comply and at all times have complied with all Environmental Laws.
MOVINGBYTES has filed all environmental reports and notifications
required to be filed under applicable laws and regulations;
4.2 In order to induce E*Comnetrix to enter into this Agreement and
complete its transactions contemplated hereunder, each of the Shareholders
jointly and severally 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, MOVINGBYTES 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;
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(e) the MOVINGBYTES 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 MOVINGBYTES 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;
4.3 The representations and warranties of 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.
4.4 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 MOVINGBYTES prior to
the Effective Date:
(a) 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;
(b) 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;
(c) this Agreement has been duly executed and delivered by E*Comnetrix
and, assuming the due authorisation, execution and delivery hereof by
MOVINGBYTES 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;
(d) 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 MOVINGBYTES Group;
(e) 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
12
the transactions contemplated hereby, will not constitute or
result in a violation or breach of or default under:
(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;
(f) 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
(g) E*Comnetrix has received a signed release from each Shareholder
who is a party to this Agreement in the form set forth in
Schedule 6.1(f).
4.5 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 MOVINGBYTES Group, then the party or parties responsible for
any such 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
13
out of any material assessment or reassessment levied upon
MOVINGBYTES 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.
(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 monies received by such Shareholder in exchange for such
Shareholder's MOVINGBYTES 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 the monies the parties
received pursuant to Section 1.1 of this Agreement.
6. CLOSING
6.1 At the Time of Closing, the MOVINGBYTES Group shall deliver to
E*Comnetrix:
a. certified true copies of the resolutions of the directors of
MOVINGBYTES evidencing that the directors of MOVINGBYTES have approved
this Agreement and all of the transactions of MOVINGBYTES contemplated
hereunder, specifically referring to:
14
1. the exchange and transfer of the MOVINGBYTES Shares from the
Shareholders to E*Comnetrix as provided for in this Agreement;
2. the cancellation of the share certificates (the "Old Share
Certificates") representing the MOVINGBYTES Shares held as set forth in
Recital A of this Agreement; and
3. the issuance of a new share certificate (the "New Share
Certificate") representing the MOVINGBYTES Shares registered in the name of
E*Comnetrix;
b. the Old Share Certificates;
c. the New Share Certificate;
d. all minute books and seals of MOVINGBYTES;
e. all original and duplicate certificates evidencing registration
anywhere in the world of any interest in tangible or intangible
property included in the Assets;
f. releases in the form of Schedule 6.1(f) to this Agreement (the
"Releases") from each of the Shareholders of all claims against
MOVINGBYTES for outstanding amounts owing by MOVINGBYTES on account of
any loans, bonuses, reimbursements, compensation, fees, royalties,
dividends or other consideration whatsoever;
g. certificates of confirmation and investor certificates from each of
the Shareholders, in the form of Schedule 6.1(g) to this Agreement;
and
h. 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 ten business days subsequent to the Time of Closing E*Comnetrix shall
deliver to the solicitors for the Shareholders:
a. a check for good and payable funds in the name of each
Shareholder as jointly directed by the Shareholders in
writing.
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.
15
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 Nevada, and the parties attorn to the
non-exclusive jurisdiction of the courts of Nevada for the resolution of
all disputes arising under this Agreement.
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 Xxxxxx Xxxxxx in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxxxx Xxxxxx
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
16
SIGNED, SEALED & DELIVERED )
by Xxxxx Xxxxxxx in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxxx Xxxxxxx
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
SIGNED, SEALED & DELIVERED )
by Xxxxxx Dumper in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxxxx Dumper
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
SIGNED, SEALED & DELIVERED )
by Xxxxx Gorokin Morganster )
in the presence of: )
____________________________ )
Signature of Witness ) _________________________________
) Xxxxx Gorokin Morganster
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
SIGNED, SEALED & DELIVERED )
by Xxxxxx Xxxxxxx in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxxxx Xxxxxxx
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
17
SIGNED, SEALED & DELIVERED )
by Xxxxxxxx Design Group in the presence of:)
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxxxxxx Design Group
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
SIGNED, SEALED & DELIVERED )
by Xxxx Xxxxxxx in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxx Xxxxxxx
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
SIGNED, SEALED & DELIVERED )
by Xxxx Xxxxxxx in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxx Xxxxxxx
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
SIGNED, SEALED & DELIVERED )
by Xxxxx Xxxxx in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxxx Xxxxx
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
18
SIGNED, SEALED & DELIVERED )
by Xxxxxxx Xxxxxx in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxxxxx Xxxxxxx
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
SIGNED, SEALED & DELIVERED )
by Xxxxxxx X. Xxxx in the presence of: )
)
____________________________ )
Signature of Witness ) _________________________________
) Xxxxxxx X. Xxxx
Name: )
-------------------------------- )
Address: )
----------------------------- )
)
--------------------------------------- )
Occupation: )
-------------------------- )
EXECUTED by MOVINGBYTES, Inc. by:
___________________________________
Name: Xxxxxx Xxxxxx
Title: President )
)
___________________________________ )
Name: _____________________________ )
Title:_____________________________ )
)
)
)
EXECUTED by E*Comnetrix Inc. )
)
by: )
-------------------------------- )
Xxxx Xxxxx )
President )
)
)
)
19
Schedule A - Shareholders of Movingbytes
Name Address Shares Percentage
Xxxxx Xxxxxxx 000 Xxxxxxx Xxxxx, Xxx #0 Xxxxxxxx Xxxx XX 00000 2,000 00.35%
Xxxxxx Dumper 00 Xxxxx Xxxxx Xxxxx, Xxxxxxx, XX 00000 12,000 02.10%
Xxxxx Xxxxxxxxxx 0000 Xxxx Xxx., Xxx# 000, Xxxxxxxxx, XX 00000 6,800 01.19%
Xxxxxx Xxxxxxx 000 Xxx Xxxxxxx, Xxxxxxx Xxxxx, XX 00000 5,000 00.88%
Xxxxxxxx Design Group 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, XX 00000 8,000 01.40%
Xxxx Xxxxxxx 0000 Xxxxxx Xxx., Xxxx Xxxxx Xxxx, XX 00000 400 00.07%
Xxxx Xxxxxxx 000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000 48,000 08.42%
Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000 328,972 57.68%
Xxxxx Xxxxx 0000 Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000 2,000 00.35%
Xxxxxxx Xxxxxx 0 Xxxx Xxx, Xxx. 000, Xxx Xxxxxxxxx, XX 00000 47,453 08.32%
Xxxxxx X. Xxxx 000 Xxxxxx Xxxx, Xxxxxxxx, XX 00000 109,692 19.23%
