SHARE EXCHANGE AGREEMENT
THIS AGREEMENT is dated the 24th day of August 2001
BETWEEN:
E-VIDEOTV, INC., a corporation duly incorporated under the laws of
Nevada and having an office located at 0000 Xxxx Xxxxxxxxxx Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx, XXX, 00000
("e-VideoTV")
AND:
ZIRACOM DIGITAL COMMUNICATIONS INC., a corporation duly incorporated
under the laws of Delaware and having an office located at Xxxxx 0000
- 000 Xxxxxx Xx, Xxxxxxxxx, X.X. X0X 0X0.
("Ziracom")
AND:
XXXXX XXXXX, businessman, with an address at 0000 Xxxxx Xxx. Xxxxxxx,
XX X0X 0X0
("Xxxxx")
AND:
XXXXX XXXXXXX, businessman, with an address at 00000 XxxxXxxx Xx.
Xxxxx, XX X0X 0X0
("Xxxxxx")
AND:
ZIGURTS STRAUTS, Businessman, with an address at 00000 Xxxxxxxxxx Xx.
Xxxxxx, XX X0X 0X0
("Zigurts")
AND:
CERTAIN SHAREHOLDERS OF ZIRACOM, as identified in Schedule "A" hereto,
(the "Shareholders")
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WHEREAS:
A. The Shareholders are the beneficial and recorded owners of those shares
issued and outstanding in the capital of Ziracom (the "Shares") as set out in
Schedule "A" hereto:
B. Based upon the representations and warranties set forth herein, e-VideoTV has
agreed to purchase from the Shareholders, on the terms and conditions set forth
herein, the Shares in consideration of the allotment and issuance of restricted
voting shares with par value of $0.0001 in the capital of e-VideoTV as herein
provided for;
NOW THEREFORE in consideration of the premises and of the respective warranties,
representations, covenants and agreements contained herein, the parties agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 Interpretation.
For all purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) "this Agreement" means this Agreement, the Disclosure Schedule (as
hereinafter defined in section 5.1(a)) and all Schedules attached
hereto;
(b) any reference in this Agreement to a designated "Article", "Section",
"Schedule" or other subdivision refers to the designated Article,
Section, Schedule or other subdivision of this Agreement;
(c) the words "herein" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision of this Agreement;
(d) the word "including", when following any general statement term or
matter, is not to be construed to limit such general statement, term
or matter to the specific items or matters set forth immediately
following such work or to similar items or matters, whether or not
non-limited language (such as "without limitation" or "but not limited
to" or words of similar import) is used with reference thereto but
rather refers to all other items or matters that could reasonably fall
within the broadest possible scope of such general statement, term or
matter;
(e) any reference to a statute includes and, unless otherwise specified
herein, is a reference to such statute and to the regulations made
pursuant thereto, with all amendments made thereto and in force from
time to time, and to any statute or regulations that may be passed
which has the effect of supplementing or superseding such statute or
such regulation; and
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(f) words importing the masculine gender include the feminine or neuter
gender and words in the singular include the plural, and vice versa.
(g) Joint and Several Obligations. The obligations of Ziracom, Xxxxx, and
Xxxxxx hereunder are joint and several unless otherwise specified
herein.
1.2 Schedules.
The following are the Schedules to this Agreement, and are incorporated herein
by reference:
Schedule "A": List of Shareholders of Ziracom
Schedule "B": Piggyback Registration Rights
Schedule "C": Disclosure Schedule
Schedule "D": Projected Earnings Before Tax and
Depreciation Statement
ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale.
Subject to the terms and conditions of this Agreement, on the Closing Date, the
Shareholders will sell, convey, transfer and assign to e-VideoTV, and e- VideoTV
will purchase from the Shareholders, 45,645,352 Common shares of Ziracom (the
"Ziracom Shares"), representing all the issued and outstanding capital stock of
Ziracom.
2.2 Consideration.
e-VideoTV will acquire the Ziracom Shares from the Shareholders in exchange for
8,655,138 restricted voting Common shares of e-VideoTV, each with a par value of
$0.0001 (the "e-Video Shares"). e-VideoTV will grant piggyback registration
rights to the Shareholders as per Schedule "B" respecting the e-VideoTV Shares
under the terms of the registration rights agreement (the "Registration Rights
Agreement") attached as Schedule "C " hereto, such shares to be issued as
follows:
On Closing - 50% of the agreed allotment, being 4,327,569, shall be issued
while the balance - 4,327,569, representing the remaining 50% of the agreed
allotment, shall be held in a mutually agreeable escrow account to be
issued provided;
a) 1,081,892, being 12.5% of the agreed allotment, shall be issued provided
Ziracom achieves sales objective of $382,000 for the period August 1, 2001
to January 31, 2001 per schedule attached as Schedule "D". Should Ziracom
achieve the sales target, then e-VideoTV, Inc will cause trustee to release
1,081,892 common shares, being 12.5% of the agreed to amount of shares.
1,081,893, being 12.5% of the agreed allotment, shall be issued provided
Ziracom has completed version 4.0 of Alpha Omega. This version must be
ready for market and it must achieve a file size of 70% of original file
size (based on Alpha Omega Version 3.2), have DRM ability, and be
compatible with Media Player version 7 and 8 and windows CE for hand held
devices. Should Ziracom achieve version 4.0 of Alpha Omega in acceptable
market format by Dec 31, 2001 with above deliverables, then e-VideoTV, Inc
will cause
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trustee to release 1,081,893 common shares, being 12.5% of the agreed to
amount of shares.
b) 2,163,785 being 25% of the agreed allotment shall be issued provided
Ziracom achieves its target of pre-tax earnings of $1,406,460 - as detailed
on Schedule "D".
c) A floor price of $0.50 per share shall be established for all releases
of escrowed stock. In the event the market price at the release date is
below $0.50 per share, then additional shares will be issued to affect the
same value as if the market price was at $0.50 per share.
2.3 Financial Statements.
The parties contemplate that:
(i) after the Closing Date, as hereinafter defined, e-VideoTV will own at
least ninety percent (90%) of the issued and outstanding shares of
Ziracom; and
(ii) Ziracom, as a new subsidiary of e-VideoTV's consolidated group, will
have its financial results included in e-VideoTV's consolidated
financial statements for the period after August 1, 2001.
2.4 Closing Date.
The closing of the purchase and sale of the Ziracom Shares and the exchange of
the e-VideoTV Shares under this Agreement shall take place at the offices of
Ziracom Digital Communications Inc., at 900 - 1055 West Hastings Street,
Vancouver, B.C. or by facsimile transfer of documents, on October 12, 2001 at
10:00 a.m. (the "Closing Date"), or sooner if agreed by all parties, or as soon
as practicable upon the satisfaction of all conditions to closing set forth
herein.
2.5 Extension.
e-VideoTV may, at its option, extend the Closing Date for an additional fifteen
(15) days upon written notice to Ziracom and the Shareholders. Any further
extension of the Closing Date may be made only with the written consent of all
of the parties hereto.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Ziracom, Xxxxx, Zigurts and Xxxxxx.
Ziracom, Xxxxx, and Xxxxxx jointly and severally represent and warrant to
e-VideoTV, except as set out in the Disclosure Schedule (as hereinafter defined
in Schedule "C") as follows, as continuing representations and warranties which
are true and correct on the date hereof or, if any such representation and
warranty is expressed to be made and given in respect of a particular date other
than the date hereto, then such representation and warranty shall be true and
correct on such date, and all representations and warranties herein shall be
true and correct on each day thereafter to and including the Closing Date with
the same effect as if made and given on and as of each such day, and confirm
that e-VideoTV is relying upon the accuracy of each of such representations and
warranties:
(a) Ziracom is a corporation duly organize and existing in good standing
under the laws of the State of Nevada. Ziracom has full corporate
power and authority to carry on its business as now conducted and to
own or lease and operate the properties and assets now owned or leased
and operated by it. Ziracom is duly qualified to transact business in
the State of Nevada.
(b) The authorized capital of Ziracom consists of 100,000,000 Class "A"
Common shares, each with a par value of $0.001 per share, and
25,000,000 Class "B" non-voting Preferred shares, without par value.
The 45,645,352 issued and outstanding Class "A" shares constitute the
only issued and outstanding shares in the capital of Ziracom. The
Ziracom Shares are validly issued, fully paid and non-assessable and
are not subject to any restrictions on transfer, except those imposed
by the Securities Act of 1933, as amended. There are, and as of the
Closing Date there will be, no outstanding options, warrants, rights,
calls, commitments, conversion rights, plans or other agreements of
any kind providing for the purchase, issuance or sale of, or any
securities convertible into, the capital of Ziracom, whether issued,
unissued or held in its treasury.
(c) The execution, delivery and performanc of this Agreement by Ziracom
have been duly authorized by its Board of Directors. This Agreement is
valid and binding upon Ziracom and is enforceable against Ziracom in
accordance with its terms, subject to laws relating to or affecting
creditors' rights generally. The execution, delivery and performance
of this Agreement by Ziracom will not result in the violation or
breach of any term or provision of charter instruments applicable to
Ziracom or constitute a material default under any indenture,
mortgage, deed of trust or other contract or agreement to which
Ziracom is a party or by which Ziracom or any of its properties is
bound and will not cause the creation of a lien or encumbrance on any
properties owned by or leased to or by Ziracom.
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(d) Ziracom holds 100% of the shares in a British Columbia subsidiary
under the corporate name of Ziracom Digital Communications Inc.
Ziracom does not presently hold five percent (5%) or more of any
securities having voting power of any other corporation, nor would it
hold such securities in such amount upon the closing of any existing
purchase obligations for securities.
(e) Ziracom has no liabilities or obligations of any nature whether
accrued, absolute, contingent or otherwise except as detailed in
Schedule "C". Ziracom further undertakes to cancel all existing
management contracts.
(f) During the period from July 31, 2001- through to and including the
Closing Date, Ziracom has not:
(i) suffered any adverse material change affecting its assets,
liabilities, financial condition or business;
(ii) made any material change in the compensation payable, or to
become payable, to any of its employees or agents, or made any
bonus payments or compensation arrangements to or with any of its
employees or agents;
(iii)paid or declared any dividends, distributions or other payments
due or owing to the Shareholders or redeemed or repurchased (or
agreed to redeem or repurchase) any of its shares;
(iv) issued any shares, or granted any stock options or warrants to
purchase shares or issued any securities convertible into common
shares of Ziracom;
(v) sold or transferred any of it assets or cancelled any
indebtedness or claims owing to it, except in the ordinary course
of business and consistent with its past practices; and
(vi) borrowed any money or incurred, directly or indirectly (as a
guarantor or otherwise), any indebtedness in excess of $25,000,
except in the ordinary course of business and consistent with its
past practices (except for those advances made by e-VideoTV on
July 15, 2001 for $20,000, August 15, 2001 for $22,600, August
31, 2001 for $25,000, September 18, 2001 for $29,000 and any
other advances from e-VideoTV prior to Closing).
(g) Ziracom's business has been conducted in the normal course and there
are no new or significant liabilities, or material events that might
cause e- VideoTV, acting reasonably, to consider canceling the
transaction.
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(h) Ziracom has not filed all tax returns, including federal, state, local
and foreign tax returns, tax reports and forms and paid any and all
applicable taxes, including federal and state income, sales and
property taxes. No examination, audit, or inquiry of any tax return,
federal, state or otherwise of Ziracom is currently in progress.
(i) Ziracom does not presently own or leas any real property, but owns or
leases certain personal property. Ziracom has good and marketable
title to all personal property reflected on its books and records as
owned by it or otherwise required or used in the operation of its
business, free and clear of all security interests, liens,
encumbrances, mortgages or charges of any nature, except as set forth
in this section. Such tangible personal property is in good operating
condition and repair, and suitable for the purpose for which it is
being used, subject in each case to ordinary wear and tear,
maintenance and periodic replacement.
(j) Ziracom has sole interest in and owns all domestic and foreign letters
patent, patents, patent applications, patent licenses, software
licenses and know-how licenses, trade names, trademarks, copyrights,
unpatented inventions, the entire software source code to all Ziracom
products (including those commercially released, pending, and in
development), service xxxx registrations and applications and
copyright registrations and applications owned or used by Ziracom in
the operation of its business (collectively, the "Intellectual
Property).
(k) Ziracom is not in default under any provision of any contract,
commitment, or agreement respecting Ziracom or its assets to which
Ziracom is a party or by which it is bound.
(l) There are no lawsuits, arbitration actions or other proceedings
(equitable, legal, administrative or otherwise) pending or threatened,
and there are no investigations pending or threatened against Ziracom
which could have a material adverse effect on the properties,
business, assets or financial condition of Ziracom or which could
adversely affect the validity or enforceability of this Agreement or
the obligation or ability of Ziracom to perform its obligations under
this Agreement or to carry out the transactions contemplated by this
Agreement other than as disclosed in Schedule "C".
(m) Ziracom owes no fees or commissions, or other compensation or payments
to any broker, finder, financial consultant, or similar person
claiming to have been employed or retained by or on behalf of Ziracom
in connection with this Agreement or the transactions contemplated
hereby, other than Priority Traders Inc.
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(n) There are no employees of Ziracom other than contracted consultants,
nor are there any applicable profit sharing plans or bonus sharing
plans.
(o) The minute books of Ziracom provided to e-VideoTV prior to the Closing
Date contain complete and accurate records of any and all proceedings
and actions at all meetings, including written consents executed in
lieu of meetings of its shareholders, directors and committees
thereof.
(p) No Shareholder nor any corporation or entity with which it is
affiliated is indebted to Ziracom, and Ziracom is not indebted nor
liable to any Shareholder or any corporation or entity with which it
is affiliated.
(q) Ziracom is not subject to any agreement, judgment or decree adversely
affecting its ability to enter into this Agreement and to consummate
the transactions contemplated herein nor are there any laws or
regulations prohibiting the consummation of the transactions
contemplated by this Agreement. No consent, approval or authorization
of, or notification to or registration with, any governmental
authority, whether federal, state or local, is required in connection
with the execution, delivery and performance of this Agreement by
Ziracom.
3.2 Representations and Warranties of the Shareholders
Each of the Shareholders severally represents and warrants to e-VideoTV as
follows with respect to each such Shareholder personally and such Shareholder's
shares, as continuing representations and warranties which are true and correct
on the date hereof or, if any such representation and warranty is expressed to
be made and given in respect of a particular date other than the date hereto,
then such representation and warranty shall be true and correct on such date,
and all representations and warranties herein shall be true and correct on each
day thereafter to and including the Closing Date with the same effect as if made
and given on and as of each such day, and confirm that e-VideoTV is relying upon
the accuracy of each of such representations and warranties:
(a) such Shareholder has the power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby and to
transfer the legal and beneficial title and ownership of the
Shareholder's shares to e- VideoTV;
(b) this Agreement has been duly and validly executed and delivered by
such Shareholder and constitutes a legal, valid and binding obligation
of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except as may be limited by laws of general
application affecting the rights of creditors;
(c) such Shareholder is the beneficial and recorded owner of the
Shareholder's shares, which shares are free and clear of any actual,
pending, or threatened liens, charges, claims, options, set-offs,
encumbrances, voting
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agreements, voting trusts, escrow restrictions or other limitations or
restrictions of any nature whatsoever except as expressly disclosed
herein; each of the Shareholder's shares has been validly issued and
is outstanding and fully paid and non-assessable, no person or company
has any right, agreement or option, present or future, contingent or
absolute, or any right capable of becoming a right, agreement or
option to purchase or otherwise acquire any of such shares; and
(d) such Shareholder has such knowledge an experience in financial and
business matters as to be capable of evaluating the merits and risks
of the transaction and is able to bear the economic risk of loss of
such Shareholder's entire investment.
3.3 Representations and Warranties of Purchaser.
E-VideoTV represents and warrants to Ziracom and to the Shareholders as follows,
as continuing representations and warranties which are true and correct on the
date hereof or, if any such representation and warranty is expressed to be made
and given in respect of a particular date other than the date hereof, then such
representation and warranty shall be true and correct on such date, and all
representations and warranties herein shall be true and correct on each day
thereafter to and including the Closing Date with the same effect as if made and
given on and as of each such day, and confirms that Ziracom and the Shareholders
are relying upon the accuracy of each of such representations and warranties:
(a) e-VideoTV is a corporation duly organized and existing in good
standing under the laws of the State of Delaware. e-VideoTV has full
corporate power and authority to carry on its business as now
conducted and to own or lease and operate the properties and assets
now owned or leased and operated by it. e-VideoTV is duly qualified to
transact business in the State of Delaware and in all states and
jurisdictions in which the business or ownership of e-VideoTV's
properties or assets makes it necessary to so qualify.
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(b) e-VideoTV is a publicly held company and files reports under the
Securities Exchange Act of 1934, as amended ("Exchange Act"). All
reports due under the Exchange Act have been filed as of the date of
this Agreement and are true, correct and complete in all material
respects.
(c) the authorized capital of e-VideoTV consists of 100,000,000 Common
shares, each with a par value of $0.0001 per share, of which the
16,757,072 Common shares constitute the only outstanding shares in the
capital of e-VideoTV . There are also 4,670,000 stock options issued
as per public filing in latest 10K. There will be 1,387,000 common
shares issued in settlement of debt of $741,000 on or before Closing.
The e-VideoTV Shares are validly issued, fully paid and
non-assessable and are not subject to any restrictions on transfer,
except those imposed by the Securities Act of 1933, as amended. There
are, and as of the Closing Date there will be, no outstanding options,
warrants, rights, calls, commitments, conversion rights, plans or
other agreements of any kind providing for the purchase, issuance or
sale of, or any securities convertible into, the capital of e-VideoTV,
whether issued, unissued or held in its treasury.
(d) the execution, delivery and performanc of this Agreement by e-VideoTV
have been duly authorized by its Board of Directors. This Agreement is
valid and binding upon e-VideoTV and is enforceable against e-VideoTV
in accordance with its terms, subject to laws relating to or affecting
creditors' rights generally. The execution, delivery and performance
of this Agreement by e-VideoTV will not result in the violation or
breach of any term or provision of charter instruments applicable to
e-VideoTV or constitute a material default under any indenture,
mortgage, deed of trust or other contract or agreement to which
e-VideoTV is a party or by which e-VideoTV or any of its properties is
bound and will not cause the creation of a lien or encumbrance on any
properties owned by or leased to or by e- VideoTV .
(e) e-VideoTV has no liabilities or obligations of any nature whether
accrued, absolute, contingent or otherwise that is not already
disclosed in quarterly financial statements filed with the SEC.
(i) made any material change in the compensation payable, or to
become payable, to any of its employees or agents, or made any
bonus payments or compensation arrangements to or with any of its
employees or agents;
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(ii) paid or declared any dividends, distributions or other payments
due or owing to the Shareholders or redeemed or repurchased (or
agreed to redeem or repurchase) any of its shares;
(iii)sold or transferred any of it assets or cancelled any
indebtedness or claims owing to it, except in the ordinary course
of business and consistent with its past practices; and
(iv) borrowed any money or incurred, directly or indirectly (as a
guarantor or otherwise), , except in the ordinary course of
business and consistent with its past practices;
(f) Issuance of e-VideoTV Shares. The e- VideoTV Shares, when issued as
contemplated by this Agreement, will be duly and validly issued, fully
paid and non-assessable and will be restricted common shares subject
to resale under rule 144. Ziracom's minority shareholders as outlined
in Exhibit " B " will be included in the next registration statement
filed by e-VideoTV as referred to in section 2.1. E-Video TV will
endeavour to file a registration statement on or before March 31st
2002 in regards to shareholders as identified in section 2.1 and its
related exhibit.
(g) E-Video TV will become a "Reporting Issuer" (within the meaning of the
Securities Act (British Columbia) and the Securities Act ( Alberta)
within the province of British Columbia and Alberta prior to the
registration of shares of the minority shareholders.
(h) E-VideoTV will provide (1) one seat on the board of directors of e-
VideoTV for a representative of the Ziracom shareholders
(i) The escrowed shares are to be released within 30 days of the company
achieving its targets as defined in Section 2.2.
(j) e-VideoTV's business has been conducte in the normal course and there
are no new or significant liabilities, or material events that might
cause Ziracom or the Shareholders, acting reasonably, to consider
cancelling the transaction
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(k) e-VideoTV has not filed all tax returns, including federal, state,
local and foreign tax returns, tax reports and forms and paid any and
all applicable taxes, including federal and state income, sales and
property taxes. All tax returns are complied and filed by the
Company's auditor and said filings are currently in process of being
completed. No examination, audit, or inquiry of any tax return,
federal, state or otherwise of e-VideoTV is currently in progress.
(l) e-VideoTV does not presently own or lease any real property. e-VideoTV
has good and marketable title to all personal property reflected on
its books and records as owned by it or otherwise required or used in
the operation of its business, free and clear of all security
interests, liens, encumbrances, mortgages or charges of any nature,
except as set forth in this section. Such tangible personal property
is in good operating condition and repair, and suitable for the
purpose for which it is being used, subject in each case to ordinary
wear and tear, maintenance and periodic replacement.
(m) e-VideoTV is not in default under any provision of any contract,
commitment, or agreement respecting e-VideoTV or its assets to which
e- VideoTV is a party or by which it is bound.
(n) there are no lawsuits, arbitration actions or other proceedings
(equitable, legal, administrative or otherwise) pending or threatened,
and there are no investigations pending or threatened against
e-VideoTV which could have a material adverse effect on the
properties, business, assets or financial condition of e-VideoTV or
which could adversely affect the validity or enforceability of this
Agreement or the obligation or ability of e-VideoTV to perform its
obligations under this Agreement or to carry out the transactions
contemplated by this Agreement.
(o) e-VideoTV owes no fees or commissions, or other compensation or
payments to any broker, finder, financial consultant, or similar
person claiming to have been employed or retained by or on behalf of
e-VideoTV in connection with this Agreement or the transactions
contemplated hereby.
(p) No shareholder nor any corporation or entity with which it is
affiliated is indebted to e-VideoTV, and e-VideoTV is not indebted nor
liable to any shareholder or any corporation or entity with which it
is affiliated other than disclosed in public filings.
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(q) e-VideoTV is not subject to any agreement, judgment or decree
adversely affecting its ability to enter into this Agreement and to
consummate the transactions contemplated herein nor are there any laws
or regulations prohibiting the consummation of the transactions
contemplated by this Agreement. No consent, approval or authorization
of, or notification to or registration with, any governmental
authority either federal, state or local, is required in connection
with the execution, delivery and performance of this Agreement by
e-VideoTV.
3.4 Survival of Representations and Warranties.
The representations and warranties made by Ziracom, e-VideoTV and the
Shareholders and contained in this Agreement, or contained in any document or
certificate given in order to carry out the transactions contemplated hereby,
will survive the Closing Date and, notwithstanding any closing or an
investigation made by or on behalf of Ziracom, e-VideoTV or the Shareholders, as
applicable, or any other person, or any knowledge of Ziracom, e-VideoTV or the
Shareholders, as applicable, or any other person, shall continue in full force
and effect for the benefit of Ziracom, e-VideoTV or the Shareholders, as
applicable, for a period of 18 months from the Closing Date.
ARTICLE 4
COVENANTS
4.1 Covenants of Ziracom.
Ziracom covenants and agrees with e-VideoTV that, prior to the Closing Date:
(a) The business of Ziracom will be conducted in the usual and ordinary
course in accordance with sound and prudent business practice;
(b) Ziracom has not and will not, without VideoTV's prior written
approval:
(i) take any action, or permit an event or condition to occur that
would materially affect the value of the shares and/or the
corporation, its business, or its assets;
(ii) enter into any material agreement, contract, commitment, or
undertaking other than in the ordinary course of business;
(iii)alter any existing agreement or pay or agree to pay any salary,
bonus, raise or advances, to any employee or officer except in
the ordinary course of business consistent with past practice or
fund any discretionary retirement or other benefit plans;
(iv) dispose of or alter any marketable asset or any material amount
of its assets;
(v) institute any material litigation, claim, or other proceeding
before any court or governmental authority;
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(vi) make any extraordinary capita expenditures or prepay any lease
obligations or incur any additional indebtedness;
(vii)issue additional shares or grant any options, warrants, or other
rights to acquire any such shares; or
(viii)declare or pay any dividends, distributions or other payments to
shareholders;
(c) All books and records (both corporate and financial) of Ziracom will
be maintained completely and accurately without any change in
accounting methods or practices except as specifically approved by
e-VideoTV;
(d) Ziracom will use commercially reasonable efforts to obtain all
necessary consents and any additional consents as may be required to
effect the transaction contemplated hereby; and
(e) Ziracom will not enter into or pursue any arrangements or negotiations
with any party relative to the sale of all or substantially all of the
assets of Ziracom or to otherwise transfer shareholder control of
Ziracom.
4.2 Covenants of e-VideoTV.
E-VideoTV covenants and agrees with the Shareholders and Ziracom that:
(a) The business of e-VideoTV will be conducted in the usual and ordinary
course in accordance with sound and prudent business practice;
(b) E-VideoTV, Inc shall supply necessary capital to Ziracom for execution
of its business plan as currently outlined. As representatives of e-
VideoTV,Inc will be on the board of directors, said funding will be
determined at that level and implemented.
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ARTICLE 5
CONDITIONS
5.1 e-VideoTV's Conditions.
The obligations of e-VideoTV to complete the transactions contemplated hereby
are subject to the following conditions (which are for the exclusive benefit of
e-VideoTV) having been satisfied or expressly waived in writing by e- VideoTV on
or before the Closing Date or such other date as may be specified in this
Section 5.1, and Ziracom will use its commercially reasonable best efforts to
ensure that such conditions are fulfilled:
(a) Ziracom will have delivered the disclosure schedule to this Agreement
(the "Disclosure Schedule"). e-VideoTV shall have seven (7) days after
its receipt of the Disclosure Schedule to determine, in its sole
discretion, if it shall accept the representations and warranties as
modified by the Schedules. If e-VideoTV determines that any part of
the Schedules are unacceptable, e-VideoTV may provide Ziracom
additional time to remedy the matter or may terminate this Agreement
in accordance with the termination provisions hereunder.
(b) All representations and warranties of the Shareholders and Ziracom
contained in this Agreement shall have been true in all respects when
made on the date of execution of this Agreement, and also at and as of
the Closing Date as if such representations and warranties were made
at and as of the Closing Date. Ziracom shall furnish e-VideoTV with a
certificate, dated the Closing Date and signed on behalf of Ziracom by
a duly authorized officer thereof stating the above in such form as
e-VideoTV may reasonably request.
(c) Ziracom and the Shareholders shall hav performed and complied with all
agreements, terms and conditions required by this Agreement to be
performed or complied with by them, and Ziracom shall deliver a
certificate, in form and substance satisfactory to e-VideoTV, to that
effect, dated the Closing Date.
(d) The Shareholders shall deliver to e- VideoTV the Ziracom Shares free
and clear of any liens, encumbrances and other obligations.
(e) Ziracom shall have no contingent or other liabilities connected with
its business, except as disclosed in its financial statements. The
review of the business, premises and operations of Ziracom and the
financial statements by e-VideoTV at its expense shall not have
revealed any matter which, in the commercially reasonable judgment of
e-VideoTV, makes the transaction on the terms herein set forth
inadvisable for e-VideoTV.
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(f) There shall exist no injunction or final judgment, law or regulation
prohibiting the consummation of the transactions contemplated by this
Agreement. Any required governmental or regulatory consents shall have
been obtained.
(g) There shall not have occurred any material adverse change in the
assets, business, condition or prospects of Ziracom.
(h) Ziracom shall have provided, to e- VideoTV's full satisfaction,
evidence that Ziracom's technology performs both as advertised and as
stated to e- VideoTV.
5.2 Ziracom's and Shareholders' Conditions.
The obligations of Ziracom and the Shareholders to complete the transactions
contemplated hereby are subject to the following conditions (which are for the
exclusive benefit of Ziracom and the Shareholders) having been satisfied or
expressly waived in writing by Ziracom and each of the Shareholders on or before
the Closing Date or such other date as may be specified in this Section 5.2, and
e-VideoTV will use its commercially reasonable best efforts to ensure that such
conditions are fulfilled:
(a) Ziracom and each of the Shareholders being satisfied, in their sole
discretion with their due diligence investigations of e-VideoTV;
(b) All representations and warranties of VideoTV contained in this
Agreement shall have been true in all respects when made on the date
of execution of this Agreement, and also at and as of the Closing Date
as if such representations and warranties were made at and as of the
Closing Date. e-VideoTV shall furnish Ziracom and the Shareholders
with a certificate, dated the Closing Date and signed on behalf of
Ziracom by a duly authorized officer thereof stating the above in such
form as Ziracom and the Shareholders may reasonably request.
(c) e-VideoTV shall have performed and complied with all agreements, terms
and conditions required by this Agreement to be performed or complied
with by it, and e-VideoTV shall deliver a certificate, in form and
substance satisfactory to Ziracom and the Shareholders, to that
effect, dated the Closing Date.
(d) e-VideoTV shall deliver to the Shareholders the e-Video Shares free
and clear of any liens, encumbrances and other obligations.
(e) e-VideoTV shall have no contingent or other liabilities connected with
its business, except as disclosed in its financial statements. The
review of the business, premises and operations of e-VideoTV and the
financial statements by Ziracom and the Shareholders shall not have
revealed any matter which, in the reasonably commercial judgment of
Ziracom and the Shareholders, makes the transaction on the terms
herein set forth inadvisable for Ziracom and the Shareholders.
-16-
(f) There shall exist no injunction or final judgment, law or regulation
prohibiting the consummation of the transactions contemplated by this
Agreement. Any required governmental or regulatory consents shall have
been obtained.
(g) There shall not have occurred any material adverse change in the
assets, business, condition or prospects of e-VideoTV.
5.3 Waiver or Termination.
The conditions contained in Sections 5.1 and 5.2 are inserted for the exclusive
benefit of the party in whose favour they are given and may be waived in whole
or in part by such party at any time. Each of Ziracom, e-VideoTV and the
Shareholders acknowledge that the waiver by Ziracom, e-VideoTV or the
Shareholders of any condition or any part of any condition will constitute a
waiver only of such condition or such part of such condition, as the case may
be, and will not constitute a waiver of any covenant, agreement, representation
or warranty made by Ziracom, e-VideoTV or the Shareholders, as applicable, that
corresponds or is related to such condition or such part of such condition, as
the case may be. If any of the conditions contained in Section 5.1 or 5.2 are
not fulfilled or complied with as herein provided, Ziracom, e-VideoTV or the
Shareholders may, on or prior to the Closing Date, at their respective options,
rescind this Agreement by notice in writing to the other parties, as applicable,
and in such event Ziracom, e-VideoTV or the Shareholders, as applicable, will be
released from all obligations under this Agreement.
ARTICLE 6
CONFIDENTIALITY
6.1 Confidential Information.
e-VideoTV shall keep all confidential information relating to the business of
Ziracom confidential pending the closing of the transaction contemplated by this
Agreement. Ziracom and the Shareholders shall keep all confidential information
relating to the business of e-VideoTV confidential pending the closing of the
transaction contemplated by this Agreement. No party to this Agreement shall be
liable for the disclosure of confidential information if such disclosure is
required by law or if the confidential information is already publicly
available. Upon termination of this Agreement, Ziracom, e- VideoTV and each of
the Shareholders shall return all such confidential information and documents
which they have received and agree not to disclose or use such information in
any manner which damages the businesses or prospects of e-VideoTV or of Ziracom,
as the case may be. The term "confidential information" as used in this
Agreement shall mean all information of any nature and in any form which at the
time or times concerned is not generally known to the public and which relates
to any one or more of the aspects of the present and past business of Ziracom
and/or e-VideoTV or any of its predecessors, including, but not limited to,
e-VideoTV's and Ziracom's business plan, inventions and improvements, whether
patentable or not, development projects, policies, processes, formulas,
techniques, know-how and other facts relating to sales, advertising,
franchising, promotions, financial matters, customers, customer lists, customer
purchases or requirements, licenses, or trade secrets.
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ARTICLE 7
INDEMNIFICATION
7.1 Indemnification by Parties.
e-VideoTV agrees to indemnify and hold Ziracom and each of the Shareholders
harmless, from and after the Closing Date, against and in respect of all matters
in connection with any losses, liabilities, costs or damages (including
reasonable attorneys' fees whether incurred at trial or in arbitration
proceedings, or in connection with an appeal, petition for review, petition for
certiorari or special action) incurred by Ziracom or any Shareholder that
results from any misrepresentation or breach of the warranties by e-VideoTV
herein, or any breach or non-fulfillment of any agreement or covenant on the
part of e-VideoTV contained in this Agreement, and any other document executed
in connection with this Agreement and all suits, actions, proceedings, demands,
judgments, costs and expenses incident to the foregoing matters, including
reasonable attorneys' fees. Ziracom and each Shareholder also agrees to
indemnify and hold e-VideoTV harmless, from and after the Closing Date, against
and in respect of all matters in connection with any losses, liabilities, costs
or damages (including reasonable attorneys' fees whether incurred at trial or in
arbitration proceedings, or in connection with an appeal, petition for review,
petition for certiorari or special action) incurred by e- VideoTV that results
from any misrepresentation or breach of the warranties by Ziracom or the
Shareholders herein.
7.2 Arbitration.
If Ziracom, e-VideoTV or any of the Shareholders believe that a matter has
occurred that entitles any of them to indemnification under Section 7.1,
Ziracom, the Shareholder or e-VideoTV, as the case may be (the "Indemnified
Party"), shall give written notice to the party or parties against whom
indemnification is sought (each of whom is referred to herein as an
"Indemnifying Party") describing such matter in reasonable detail. The
Indemnified Party shall be entitled to give such notice prior to the
establishment of the amount of its losses, liabilities, costs or damages, and to
supplement its claim from time to time thereafter by further notices as they are
established. The Indemnifying Party shall send a written response to such claim
for indemnification within thirty (30) days after receipt of the claim stating
its acceptance or objection to the indemnification claim, and explaining its
position in respect thereto in reasonable detail. If such Indemnifying Party
gives a timely objection notice, then the parties will negotiate in good faith
to attempt to resolve the dispute, and upon the expiration of an additional
thirty (30) day period from the date of the objection notice or such longer
period as to which the Indemnified and Indemnifying Parties may agree, any such
dispute shall be submitted to arbitration in Phoenix, Arizona to a member of the
American Arbitration Association mutually appointed by the Indemnified Party and
Indemnifying Party (or, in the event the Indemnified Party and Indemnifying
Party cannot agree on a single such member, to a panel of three members of such
Association selected in accordance with the rules of such association), who
shall promptly arbitrate such dispute in accordance with the rules of such
Association and report to the parties upon such disputed items, and such report
shall be final, binding and conclusive on the parties. Judgment upon the award
by the arbitrator(s) may be entered in any court having jurisdiction. The
prevailing party in any such arbitration shall be entitled to recover from, and
have paid by, the other party hereto all fees and disbursements of such
arbitrator or arbitrators. For this purpose, a party shall be deemed to be the
prevailing party only if such party would be deemed to be a prevailing party
under Section 8.5.
7.3 Third Person Claim Procedures. <
If any third person asserts a claim against an Indemnified Party in connection
with the matter involved in such claim, the Indemnified Party shall promptly
(but in no event later than ten (10) days prior to the time at which an answer
or other responsive
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pleading or notice with respect to the claim is required) notify the
Indemnifying Party of such claim. The Indemnifying party shall have the right,
at its election, to take over the defense or settlement of such claim by giving
prompt notice to the Indemnified Party that it will do so, such election to be
made and notice given in any event at least five (5) days prior to the time at
which an answer or other responsive pleading or notice with respect thereto is
required. If the Indemnifying Party makes such election, the Indemnifying Party
may conduct the defense of such claim through counsel of its choosing (subject
to the Indemnified Party's approval, not to be unreasonably withheld), will be
responsible for the expenses of such defense, and shall be bound by the results
of its defense or settlement of the claim to the extent it produces damage or
loss to the Indemnified Party. The Indemnifying Party shall not settle such
claims without prior notice to and consultation with the Indemnified Party, and
no such settlement involving any injunction or material and adverse effect on
the Indemnified Party may be agreed to without its consent. As long as the
Indemnifying Party is diligently contesting any such claim in good faith, the
Indemnified Party shall not pay or settle any such claim. If the Indemnifying
Party does not make such election, or having made such election does not proceed
diligently to defend such claim prior to the time at which an answer or other
responsive pleading or notice with respect thereto is required, or does not
continue diligently to contest such claim, then the Indemnified Party may take
over defense and proceed to handle such claim in its exclusive discretion, and
the Indemnifying Party shall be bound by any defense or settlement that the
Indemnified Party may make in good faith with respect to such claim. The parties
agree to cooperate in defending such third party claims, and the defending party
shall have access to records, information and personnel in control of the other
part, which are pertinent to the defense thereof.
7.4 Limitation of Remedies.
The parties understand that this Agreement requires that all disputed claims
shall be submitted to arbitration in accordance with Section 7.2.
ARTICLE 8
TERMINATION
8.1 Termination Events.
This Agreement may be terminated and abandoned by notice given in the manner
hereinafter provided:
(a) By e-VideoTV if, without any fault of VideoTV, all of the conditions
set forth in Section 5.1 shall not have been satisfied (or are
incapable of being satisfied) on or before the Closing Date and have
not been waived by e- VideoTV.
(b) By Ziracom or the Shareholders if, without their fault, all of the
conditions set forth in Section 5.2 shall not have been satisfied (or
are incapable of being satisfied) on or before the Closing Date and
have not been waived by Ziracom or Shareholders.
8.2 Effect of Termination.
In the event this Agreement is terminated pursuant to this Article, this
Agreement shall forthwith become null and void and there shall be no liability
or continuing obligations on the part of any of the parties hereunder, except
that Ziracom shall repay any and all loans outstanding from e-VideoTV, Inc
pertaining to the July 31, August 15th August 31st, 2001, September 18, 2001
loans and any other loans executed, per terms as detailed on executed promissory
notes duly executed on behalf of Ziracom by Xxxxx Xxxxx. .
-19-
8.3 Expenses.
Each party shall be solely responsible for paying its own expenses and costs
incident to the preparation of this Agreement and to the consummation of the
transactions contemplated by this Agreement, and shall have no obligation for
paying such expenses or costs of the other parties.
8.4 Prevailing Party.
Notwithstanding any of the other provisions hereof, in the event of arbitration
and/or litigation with respect to the interpretation or enforcement of this
Agreement or any provisions hereof, the prevailing party in any such matter
shall be entitled to recover from the other party their or its reasonable costs
and expense, including reasonable attorneys' fees, incurred in such arbitration
and/or litigation. For purposes of this Agreement, a party shall be deemed to be
the prevailing party only if such party
(a) receives an award or judgment in such arbitration and/or litigation
for more than 50% of the disputed amount involved in such matter; or
(b) is ordered to pay the other party less than 50% of the disputed amount
involved in such matter; or
(c) succeeds in having imposed a material equitable remedy on the other
party (such as an injunction or order compelling specific
performance); or
(d) succeeds in defeating the other party' request for such an equitable
remedy.
8.5 Notification of Claims.
Each party will promptly notify the other of any third party claims against any
party relating to Ziracom of which it receives knowledge or notice so as to
permit such party an opportunity to prepare a timely defense to such claim or to
attempt settlement.
8.6 Ziracom Board of Directors.
On the Closing Date, the Board of Directors and officers of Ziracom shall
consist of Xxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxx.
8.7 e-VideoTV Board of Directors.
On the Closing Date, the Board of Directors and officers of e- VideoTV shall
consist of those already appointed plus the nomination of a director as
recommended by Ziracom. Said recommendation must meet the approval of the
existing board of directors of x-XxxxxXX.Xxx.
ARTICLE 9
MISCELLANEOUS
9.1 Assignment.
This Agreement and all of the provisions hereof shall be binding upon and enure
to the benefit of the parties hereto, their legal representatives, successors
and assigns.
9.2 Entire Agreement.
This Agreement and its exhibits and schedules constitute the entire contract
among the parties hereto with respect to the subject matter thereof, superseding
all prior communications and discussions and no party hereto shall be bound by
any communication on
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the subject matter hereof unless such is in writing signed by any necessary
party thereto and bears a date subsequent to the date hereof
9.3 Modification.
This Agreement may be waived, changed, amended, discharged or terminated only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, amendment, discharge or termination is sought.
9.4 Notices.
Any notice, document or communication required or permitted to be given
hereunder shall be in writing at the following addresses, or such other
addresses as the parties may specify in writing
If to Ziracom or the Shareholders:
Ziracom Digital Communications Inc.
Xxxxx 0000 - 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX X0X 0X0
Attn: Xxxxx Xxxxx
Fax: 000-000-0000
With copy to:
Fasken Xxxxxxxxx DuMoulin LLP
0000 - 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
If to e-VideoTV:
e-VideoTV, Inc.
0000 X. Xxxxxxxxxx Xxxxx Xx.
Xxxxx 000, Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax: 000-000-0000
With copy to:
Xxxx Xxxxx
Paradise Village Park
00000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx Xxxxxxx 00000-0000
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or to such other address as any party shall designate to the other in writing.
The parties shall promptly advise each other of changes in addresses for such
notices.
Notices shall be effective if delivered by facsimile transmission or personally
to either e- VideoTV, Ziracom or the Shareholders or, if mailed, shall be deemed
to have been received ten (10) days after deposit in a post office in Canada or
in the United States of America. If there should be at the time of mailing or
between the time of mailing and actual receipt thereof, a mail strike, slowdown
or other labour dispute which may affect the delivery of such notice by mail,
then such notice shall only be effective if actually delivered.
9.5 Choice of Law.
This Agreement shall be governed by, construed, interpreted and enforced
according the laws of the State of Arizona.
9.6 Severability.
If any portion of this Agreement shall be finally determined by any court or
governmental agency of competent jurisdiction to violate applicable law or
otherwise not to conform to requirements of law and, therefore, to be invalid,
the parties will cooperate to remedy or avoid the invalidity, but, in any event,
will not upset the general balance of relationships created or intended to be
created between them as manifested by this Agreement and the instruments
referred to herein. Except insofar as it would be an abuse of the foregoing
principle, the remaining provisions hereof shall remain in full force and
effect.
9.7 Other Documents.
The parties shall upon reasonable request of the other, execute such documents
as may be necessary or appropriate to carry out the intent of this Agreement.
9.8 Time is of the Essence.
Time is of the essence of this Agreement.
9.9 No Waiver and Remedies.
No failure or delay on a parties part to exercise any right or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise by a
party of a right or remedy hereunder preclude any other or further exercise. No
remedy or election hereunder shall be deemed exclusive but it shall, wherever
possible, be cumulative with all other remedies in law or equity.
9.10 Counterparts.
This Agreement may be executed in two or more counterparts, and by the different
parties hereto on separate counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
9.11 Further Assurances.
Each of the parties hereto shall use commercially practicable efforts to fulfill
all of the conditions set forth in this Agreement over which it has control or
influence (including obtaining any consents necessary for the performance of
such party's obligations hereunder) and to consummate the transactions
contemplated hereby, and shall execute and deliver such further instruments and
provide such documents as are necessary to effect this Agreement.
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9.12 Third Party Beneficiaries.
Each party hereto intends this Agreement shall not be benefit or create any
right or cause of action in or on behalf of any person other than the parties
hereto.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and year first set forth above.
E-VIDEOTV INC.
Authorized Signatory
ZIRACOM DIGITAL
COMMUNICATIONS INC.
Authorized Signatory
SIGNED, SEALED AND DELIVERED by )
XXXXX XXXXX in the presence of: )
)
)
--------------------------------------- ---------------------------------
Witness ) XXXXX XXXXX
)
---------------------------------------
Address )
)
---------------------------------------
)
)
---------------------------------------
Occupation )
SIGNED, SEALED AND DELIVERED by )
XXXXX XXXXXXX in the presence of: )
)
)
--------------------------------------- ---------------------------------
Witness ) XXXXX XXXXXXX
)
---------------------------------------
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---------------------------------------
Address )
)
---------------------------------------
)
)
---------------------------------------
Occupation )
SIGNED, SEALED AND DELIVERED by )
ZIGURTS STRAUTS in the presence of: )
)
)
--------------------------------------- ---------------------------------
Witness ) ZIGURTS STRAUTS
)
---------------------------------------
Address )
)
---------------------------------------
)
)
---------------------------------------
Occupation )
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SCHEDULE "A"
LIST OF SHAREHOLDERS OF ZIRACOM
Closing Allocation
Name Certificate # Amount $USD # Of Shares E-video 23-Oct-01 at 50% Address
---- ------------- ----------- ----------- ------- ---------------- -------
Xxxxx Xxxxxx #053 $10,000.00 40,000 7,585 3,792 00000 Xxxxxxxx Xxxxx
Xxxxx, XX X0X 0X0 Xxxxxx
Xxxxx X.X. Xxx #052 $5,375.00 21,500 4,077 2,038 0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxx Xxxxxxxxx #038 $2,570.00 11,000 2,086 1,043 0000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX X0X 0X0 Xxxxxx
Xxxxxxx XxXxxxxxx #049 $10,000.00 40,000 7,585 3,792 0000 Xxxxxxxxxx Xxx
X Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxx Xxxxxxx #047 $10,000.00 40,000 7,585 3,792 Xxx 00000, Xxxxx Xxxx XXX
Xxxxxx, XX, X0X 0X0 Xxxxxx
Xxxx Xxxxxxxxx #046 $2,000.00 8,000 1,517 758 0000 Xxxxx Xxx
Xxxxxxx, XX X0X 0X0 Xxxxxx
Xxxx Xxxxxxxx #040 $22,100.00 88,400 16,762 8,381 0000 Xxxxxxxxx Xx.
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxx X. Xxxx #045 $50,000.00 200,000 37,923 18,962 0000 Xxxx Xxxx
Xxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxx Xxxxx Xxxxx - XXX #000 $100,000.00 400,000 75,847 37,923 0000-0000 Xxxxxx Xxx
Xxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxx Xxxx Xxxx #043 $50,000.00 200,000 37,923 18,962 0000 Xxxxxxx Xxxxxxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxx Xxxxxxx #039 $2,835.00 11,340 2,150 1,075 0000 XxXxxxxx Xx.
Xxxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxxxx Xxxx #037 $8,555.00 34,000 6,447 3,223 000 Xxxx Xxxxx Xx.
X Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxxx Porcina #048 $600.00 2,400 455 228 8506 109B Street
Delta, BC
Xxxxxxx Xxxxx #051 $1,675.00 6,700 1,270 635 0000-00 Xxxxxxxxxxxx Xxxxx
X Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxx Xxxx #050 $670.00 2,680 508 254 00000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx XX X0X 0X0 Xxxxxx
Xxxx Xxxxx #054 $20,000.00 80,000 15,169 7,585 0000 00xx Xxx Xxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxx Xxxxxxxx #073 $15,000.00 60,000 11,377 5,689 0000 Xxxxxx Xxxxx
X Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxx Xxxxx #042 $25,000.00 100,000 18,962 9,481 000 Xxxxxxxx Xxx, XX
Xxxxxxx, XX, X0X 0X0 Xxxxxx
Xxxxx Xxxxxxx #041 $5,000.00 20,000 3,792 1,896 000-0000 Xxxx Xxxxxx
Xxxxxxxx, XX X0X 0X0 Xxxxxx
Xxx Xxxxxxxxx #072 $5,000.00 20,000 3,792 1,896 0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0 Xxxxxx
Worldwide Mortgage Corp #065 $150,000.00 600,000 113,770 56,885 Box 61, Grand Caymen Island
British West Indies
Xxxxxxx Xxxxxxx #066 Services 1,640 311 155 00000 Xxxxxxxx Xxxxx
Xxxxx, XX X0X 0X0 Xxxxxx
Xxxx Xxxx #038 $0.00 200,000 37,923 18,962 0000 Xxxxxxxx Xx.
X Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxxxx Xxxx #039 $0.00 200,000 37,923 18,962 0000 Xxxx 0xx Xxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx Xx #040 $0.00 200,000 37,923 18,962 0000-000 Xxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxxx Xxx #055 Commission 50,000 9,481 4,740 000-0000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxx Ewachniuk #063 Services 150,000 28,443 14,221 000 X. Xxxx Xxxxxx Xxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Sophia Ewachniuk #064 Services 50,000 9,481 4,740 0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxxx Xxxxxx #056 Services 10,710 2,031 1,015 000 Xxxx 0xx Xxxxxx
X Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Subtotal $0.25 per share 2,848,370 540,100
--------- -------
Closing Allocation
Name Certificate # Amount $USD # Of Shares E-video 23-Oct-01 at 50% Address
---- ------------- ----------- ----------- ------- ---------------- -------
Xxxx & Xxxxx Xxxx #058 $30,000.00 30,000 5,689 2,844 0000 000xx Xxxxxx
Xxxxxxxx, XX, X0X 0X0 Xxxxxx
Shen Xxxx Xxxxxx #059 $30,000.00 30,000 5,689 2,844 0000 Xxxx Xx.
Xxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxx Xxxx #060 $30,000.00 30,000 5,689 2,844 0000 Xxxx Xx.
Xxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxx Xxxxx Xxx Xxx #061 $70,000.00 70,000 13,273 6,637 0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Helai Ma #062 $10,000.00 10,000 1,896 948 000-0000 Xxxxx Xxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxx & Britain
Xxxxxxxxxxxx #057 $5,000.00 5,000 948 474 00000 00xx Xxx
Xxxxxx, XX X0X 0X0 Xxxxxx
Xxxxxxx Holds #067 $5,000.00 10,000 10,000 5,000 00000 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx #068 $10,000.00 20,000 20,000 10,000 0000-0000 X. Xxxxxxx Xx.
Xxxxxxxxx XX X0X 0X0 Xxxxxx
Pacific Entertainment #069 $6,000.00 12,000 12,000 6,000 0000 Xxxxx Xxx.
Xxxxxxx XX X0X 0X0 Xxxxxx
Xxxxxx Xxxxxxx #070 $10,000.00 20,000 20,000 10,000 0000 Xxxxxxxxxxx Xxxxx
Xxxxxxx XX X0X 0X0 Xxxxxx
Xxxxxxx Xxxxxx #071 $10,000.00 20,000 20,000 10,000 000 Xxxxxxx Xx.
Xxxxxxx XX X0X 0X0 Xxxxxx
Xxx Xxxxxx #074 $5,000.00 10,000 10,000 5,000 0000 Xxxxx Xxx.
Xxxxx Xxxxxxx, XX
98103Andrew Xxxxxxxx #075 $9,950 19,900 19,900 9,950 #0-0000 Xxxxxxx Xxx
Xxxxxxx XX X0X 0X0 Xxxxxx
Xxxx Xxxxx #076 $333.50 667 667 334 Apt 00-000 X. Xxxxxxx Xx.
Xxxxxxxxx XX Xxxxxx
Xxxx Jachecki #077 $1,217.50 2,435 2,435 1,218 Apt 00-000 X. Xxxxxxx Xx.
Xxxxxxxxx XX Xxxxxx
Xxxxx Fedynyszyn #078 $406.00 812 812 406 Apt 00-000 X. Xxxxxxx Xx.
Xxxxxxxxx XX Xxxxxx
Xxxxxx Xxxxx #079 $811.50 1,623 1,623 000 Xxx 00-000 X. Xxxxxxx Xx.
Xxxxxxxxx XX Xxxxxx
Xxxxxx Xxxxxxxx #080 $2,272.50 4,545 4,545 2,273 #0-0000 Xxxxxxx Xxx
Xxxxxxx XX X0X 0X0 Xxxxxx
Xxx Xxxxxx #081 $2,500.00 5,000 5,000 2,500 0000 Xxxxx Xxx.
Xxxxx Xxxxxxx, XX 00000
Xxxxxx Sparrows #082 Services 20,000 3,792 1,896 00000 Xxxxxx Xxxxx Xx.
Xxxxxxxxx XX 00000
Tech Innovations Services 50,000 9,481 4,740 #4 Athol St.
Xxxxxxx, Isle of Man 1M1 1LD
Xxxx Xxxxx Services 50,000 9,481 4,740 0000 Xxxxx Xxx.
Xxxxxxx, XX X0X 0X0 Xxxxxx
Xxxxxxx Xxxxxxx Services 50,000 9,481 4,740 00000 Xxxxxxxx Xxxxx
Xxxxx XX X0X 0X0 Xxxxxx
Subtotal $1.00 and $0.50 per share 471,982 192,400
FOUNDERS
Zigurts Strauts #003 4,340,777 1,745,445 872,723 00000 Xxxxxxxxxx Xxxx.
Xxxxxx XX X0X 0X0 Xxxxxx
Zigurts Strauts #004 5,000,000 -
Xxxxxx Xxxxxxx #005 4,340,777 1,745,445 872,723 00000 Xxxxxxxx Xxxxx
Xxxxx, XX X0X 0X0 Xxxxxx
Xxxxxx Xxxxxxx #006 5,000,000 -
Xxxxx Xxxxx #007 4,340,777 1,745,445 872,723 0000 Xxxxx Xxx.
Xxxxxxx, XX, X0X 0X0 Xxxxxx
Xxxxx Xxxxx #008 5,000,000 -
Xxxx Xxxxxx 2,000,000 379,234 189,617 00000 Xxxx 00 Xx.
Xxxxxx Xxxxx, XX 00000
GNB Holdings Ltd 922,912 75,000 37,500 0000 Xxxxxx Xx.
Xxxx Xxxxx XX X0X 0X0 Xxxxxx
Xxxx Xxxxxxx Entertainment Inc. 395,534 175,000 87,500 Suite 000-0000 X. Xxxxxxxx Xx.
Xxxxxxxxx XX X0X 0X0 Xxxxxx
Priority Traders 1,318,446 250,000 125,000 0000-000, 00xx Xx.
X Xxxxxxxxx, XX X0X 0X0
Xxx Xxxxxx 925,000 175,396 87,698 Xxxxx 0X 0000 Xxxxxxxxx Xxx.
Xxxxxxxx XX X0X 0X0 Xxxxxx
World Wide Mortgage Corp 8,740,777 1,631,674 815,837 Xxx 00, Xxxxx Xxxxxx Xxxxxx,
Xxxxxxx Xxxx Indies
Subtotal Founders 42,325,000 -
---------- --------- --------
Total O/S 45,645,352 8,655,138 4,327,569
========== ========= =========
Conversion factor 5.273787
========
** Notes Amount of EVTV shares
A) 500,000 shares from the four founders to Xxxxx Xxxxx/Priority Traders
B) Shareholders 67 - 81 were promised not to be rolled back, therefor those
shares are transferred from the four founders
SCHEDULE "B"
Piggyback Registration Rights
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the " Agreement") is entered into on
the 23rd day of October, 2001, among e-VideoTV, Inc, a Delaware corporation (
the "Company"), and the persons identified in schedule "A" of the Share Exchange
Agreement (collectively the "Holders") who are all of those persons that
represent less that 5% of the outstanding common shares of Ziracom Digital
Communications Inc, ( Ziracom) and have acquired restricted shares of common
stock, par value $0.0001 per share (the "Shares" or the "Common Stock") of the
Company in connection with the Company's offering of one (1) share of the
Company for 5.2737 shares of Ziracom.
RECITALS:
A. As an inducement to cause the Holders to exchange 5.2737 Ziracom shares
for 1 share of the Company, the Company has agreed to grant the holders
registration rights under and as described in this Agreement with respect to the
Shares acquired by Holders.
B. Holders have exchanged 1,232,500 shares of the Company's shares in
exchange for 5,927,244 Shares of Ziracom. 50% exchange amounts to 616,350
restricted shares of the Company.
C. The Company desires to grant the Holders the registration rights defined
in this Agreement.
COVENANTS:
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Article 1
REGISTRATION RIGHTS AGREEMENT
1.1 Registration Rights Available. The Company agrees to provide Holders
with the following registration rights with respect to the Shares and any other
securities issued or issuable at any time or from time-to-time in respect of the
Shares upon a stock split, stock dividend, recapitalization or other similar
event involving the Company (collectively, the "Securities"): one right to cause
the Company to include the Securities, on a "piggyback" basis, in any
registration statement filed by the Company under the Securities Act of 1933 in
connection with a firm commitment underwritten offering of the Company's Common
Stock, subject to the provisions of this Agreement (the right to one piggyback
registration hereunder being "Registration Rights").
1.2 Piggyback Registration. With respect to Holders' right to piggyback on
any registration of the Company securities pursuant to Section 1.1, the parties
agree as follows:
1.2.1 Notice and Inclusion of Securities. Pursuant to Section 1.1, the
Company will (i) promptly give to Holders written notice of any
registration of the Company securities; and (ii) include in such
registration, and in the underwriting involved therein, all the Securities
specified in Holders' written request or requests, mailed to the Company
within 30 days after the date of such written notice from the Company.
1.2.2 Certain Conditions-Coordination with Underwriting. The right of
Holders to registration pursuant to Section 1.1 shall be conditioned upon
Holders' participation in such underwriting, and the inclusion of the
Securities in the underwriting shall be limited to the extent provided
herein. Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company. Notwithstanding any other
provision of this Agreement, if the managing underwriter determines that
marketing factors require a limitation of the number of Securities to be
underwritten, the managing underwriter may limit some or all of the
Securities that may be included in the registration and underwriting as
follows: the number of Securities that may be included in the registration
and underwriting by each Holder shall be determined by multiplying the
number of Securities of all selling shareholders of the Company which the
managing underwriter is willing to include in such registration and
underwriting, times a fraction, the numerator of which is the number of
Securities requested to be included in such registration and underwriting
by each such Holder, and the denominator of which is the total number of
Securities which all selling shareholders of the Company have requested to
have included in such registration and underwriting. To facilitate the
allocation of shares in accordance with the above provisions, the Company
may round the number of shares allocable to any such person to the nearest
100 shares. If a Holder disapproves of the terms of any such underwriting,
it may elect to withdraw therefrom by written notice to the Company and the
managing underwriter, delivered not less than seven days before the
effective date. Any securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration, and shall not be transferred in
a public distribution prior to 120 days after the effective date of the
registration statement relating thereto, or such other shorter period of
time as the underwriters may require. Nothing herein shall prevent the
Company from at any time abandoning or delaying any registration.
1.3 Registration Procedure. With respect to any registration of Securities
pursuant to an exercise of the Registration Rights, the following provisions
shall apply:
1.3.1 Information to be Supplied by Holders. Holders shall be
obligated to furnish to the Company and the underwriters (if any) such
information regarding the Securities and the proposed manner of
distribution of the Securities as the Company and the underwriters may
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to herein and shall
otherwise cooperate with the Company and the underwriters in connection
with such registration, qualification or compliance.
1.3.2 Prospectuses. The Company agrees that it will furnish to Holders
such number of prospectuses, offering circulars or other documents incident
to any registration, qualification or compliance referred to herein as
provided or, if not otherwise provided, as the Holders from time to time
may reasonably request.
1.3.3 Blue Sky Qualifications. The Company shall use its best, efforts
and incur reasonable expense in light of the amount if Securities to be
qualified for sale in any particular state, to register or qualify the
Securities covered by the registration statement under the state securities
or blue sky laws of such jurisdictions as may be required in order to
effect the sale of the Securities covered by the registration statement,
except the Company shall not for any purpose be required to execute a
general consent to service of process or qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified.
1.3.4 Expenses. All expenses (except for costs of any interim audit
required by underwriters, any underwriting and selling discounts and
commissions and legal fees for Holders' attorneys) of any registrations
permitted pursuant to this Agreement and of all other offerings by the
Company (including, but not limited to, the expenses of any qualifications
under the blue-sky or other state securities laws and compliance with
governmental requirements of preparing and filing any post-effective
amendments required for the lawful distribution of the Securities to the
public in connection with such registration, of supplying prospectuses,
offering circulars or other documents) will be paid by the Company.
Expenditures incurred by the Company for blue sky qualifications in any
state shall be reasonable in relation to the aggregate amount of proceeds
from securities proposed to be distributed in each such state. Compliance
by the Company with affirmative requirements imposed on the Company or its
shareholders by any merit review state shall be in the reasonable
discretion of the Company and the Holders.
1.3.5 Preparation of Registration Statement and Prospectus-Access to
Information. In connection with the preparation and filing of a
registration statement under the Securities Act pursuant to this Agreement,
the Company will give Holders, their counsel and accountants, the
opportunity, on behalf of the Holders, to observe, and to review and
comment upon, the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such
access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be
necessary to conduct a reasonable investigation within the meaning of the
Securities Act.
1.3.6 Registration Rights Not Assignable. The Registration Rights
under this Agreement shall be personal to the original Holder that acquired
the Shares in the offering of Units directly from the Company and shall not
in any way or under any circumstances be available to any subsequent
holder, assignee or transferee of the Shares.
1.4 Exclusive Obligation to Register. Except as provided in this Agreement,
the Company will have no obligation to any Holder to register under the
Securities Act any Securities.
Article 2
INDEMNIFICATION
2.1 Indemnification by the Company. In the event of any registration of the
Securities of the Company under the Securities Act, the Company agrees to
indemnify and hold harmless Holders and each other person who participates as an
underwriter in the offering or sale of such Securities against any and all
claims, demands, losses, costs, expenses, obligations, liabilities, joint or
several, damages, recoveries and deficiencies, including interest, penalties and
attorneys' fees (collectively, "Claims"), to which Holders or underwriter may
become subject under the Securities Act or otherwise, insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based on any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which Holders'
Securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse Holders and each such
underwriter for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such Claim (or action or
proceeding in respect thereof); provided, that the Company shall not be liable
in any such case to the extent that any such Claim (or action or proceeding in
respect thereof) or expense arises out of or is based on an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance on and in conformity
with written information furnished to the Company through an instrument duly
executed by Holders specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of Holders or any such underwriter and shall
survive the transfer of the Securities by Holders.
2.2 Indemnification by Holders. The Company may require, as a condition to
including the Securities in any registration statement filed pursuant to this
Agreement, that the Company shall have received an undertaking satisfactory to
it from Holders, to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 2.1) the Company, each director of the
Company, each officer of the Company and each other person, if any, who controls
the Company, within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance on and in conformity with
written information furnished to the Company through an instrument duly executed
by Holders specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Notwithstanding the foregoing, the maximum
liability hereunder which any holder shall be required to suffer shall be
limited to the net proceeds to such Holder from the Shares sold by such Holder
in the offering. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the transfer of the
Securities by Holders.
2.3 Notices of Claims, etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a Claim
referred to in this Article 2, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to the latter of the commencement of such action, provided that the failure of
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Article 2, except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnifying party, unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist in respect of such Claim,
the indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof, other than reasonable costs of investigation. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such Claim.
2.4 Indemnification Payments. The indemnification required by this Article
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
Article 3
MISCELLANEOUS
3.1 Binding Agreement. The Parties covenant and agree that this Agreement,
when executed and delivered by the Parties, will constitute a legal, valid and
binding agreement between the Parties and will be enforceable in accordance with
its terms.
3.2 Further Documents. Each of the Parties for themselves, their heirs,
personal representatives and assigns hereby covenant and agree that they shall
from time to time and at such time as may be required, execute such further
agreements, supplemental agreements and other documents and instruments as may
reasonably be required and necessary to carry out and to effectuate the
provisions hereof. This Agreement shall be binding on each of the Parties and
their respective heirs, executors, administrators, personal representatives,
successors and assigns.
3.3 Applicable Law shall be governed by and construed in accordance with
the laws of the State of Arizona.
3.4 Construction. Whenever required by the context hereof, the singular
shall include the plural and vice versa, and the masculine gender shall include
the feminine and neuter genders, and vice versa. Section headings and captions
contained in this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision hereof.
3.5 Severability. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, rulings of courts of competent
jurisdiction interpreting applicable laws, ordinances, rules and regulations of
the United States and the State of Nevada. If any provision of this Agreement,
or any application thereof to any person or circumstances shall, for any reason
and to any extent, be invalid or unenforceable, the remainder of this Agreement
and the application of such provision to other persons or circumstances shall
not be affected thereby, but shall be enforced to the greatest extent permitted
by law.
3.6 Resolution of Disputes - Arbitration. The Parties are desirous of
reducing the time and cost involved in resolution of any disputes that may arise
between them. At the option of either party, disputes arising from or connected
with this Agreement may be settled by arbitration initiated by either party by
giving written notice to the other of his intention to arbitrate the dispute in
accordance with the rules of the American Arbitration Association. The decision
of the Arbitrator in such arbitration shall be final and binding upon all
Parties and judgment may be entered thereon in a court of general jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the first
date set forth above.
e-VideoTV, Inc
----------------------------------
President & CEO
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On Behalf of the Holders
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Name of Agent on Behalf of Holders
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Address of Agent
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City, Province, Zip Code
SCHEDULE "C"
Disclosure Statement
Verified Document
-------- --------
Ziracom Digital Communications Inc. Disclosure
Minute Book
Articles of Incorporation
Corporate By-Laws
List of Liabilities
Copy of Patents
Documentation on Lawsuits
Contract with Priority Traders
Xxxxxx verifying the source code of Alpha Omega 3.x
/s/ RB (initialed)
/s/ JA (initialed)
SCHEDULE "D"
Projected Earnings Before Tax, and Depreciation Statement
