EXHIBIT 10.3
Chequemate International Inc August 8, 2000
000 Xxxxxxxxxx Xxx. 000
Xxxxxx Xxx Xxx, Xx. 90292
Attn: X. Xxxxxxx Xxxx CEO
cc. Xxxx Xxxxxx and Xxxx XxXxxxx
This letter is to confirm our phone conversation today between Xxxx XxXxxxx and
myself. We have agreed on the following in order to close the purchase of the
United Business Services ("UBS") assets by Chequemate ("C-3D"). The parties
agreed to the following amendments.
i. The remaining purchase price of the assets is $940,000.
ii. Chequemate will immediately deliver to the UBS a certificate
for 200,000 restricted shares and immediately file a
registration statement (S-3) with respect to those shares.
Chequemate will complete this registration no later than 45
days after receipt of shares.
iii. In addition, Chequemate will immediately deliver 440,000
restricted C-3D shares (144 stock). The holding period for
these shares will begin on the date of April 14, 2000
Chequemate will also deliver to UBS a letter from C-3D's
Securities attorney opinion letter to on or before April 14,
2001 for the removal of the 144 restrictions.
b. Chequemate at its option may repurchase any of the 144 stock from UBS at a
rate of $l.50 per share up and until April 14, 2001.
Signed: Signed:
/s/ X. XxXxxxxxx /s/ X. Xxxxxxx Xxxx
---------------------------------- ----------------------------------
X. XxXxxxxxx X. Xxxxxxx Xxxx
President United Business Services CEO Chequemate International Inc
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UNITED BUSINESS SERVICES
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") dated this ______ day of
March, 2000 between CHEQUEMATE INTERNATIONAL, INC., a Utah corporation
("Buyer") doing business as C-3D Digital, with its principal offices located
at 000 Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx xxx Xxx, XX 00000 ("Buyer"), and
United Business Services, Inc., a Nevada corporation, with its principal
offices located at 0000 X. Xxxx Xxxxxx Xxxx Xxxx, Xxxxxxx 00000 ("Seller");
WITNESSETH:
WHEREAS, Buyer desires to purchase from Seller and Seller desires to sell to
Buyer, on the terms and subject to the conditions of this Agreement, certain
assets belonging to Seller;
THEREFORE, in consideration of the mutual covenants, agreements, representations
and warranties contained in this Agreement, the parties agree as follows:
ARTICLE 1. TRANSFER OF ASSETS
Subject to the terms and conditions set forth in this Agreement, Seller agrees
to sell, convey, transfer, assign and deliver to Buyer, and Xxxxx agrees to
purchase from Seller at the Closing described in Article 3 hereof, all of the
assets of Seller relating to Video-On-Call Terminal and Video-On-Call
Credit-Card-Swipe and related services, of every character and description,
whether tangible, intangible, real, personal or mixed, and wherever located but
excluding any assets specifically excluded in the following Sections of this
Article 1, all of which are sometimes collectively referred to in this Agreement
as the "Assets," including, but without limitation to, the following:
1.1 EQUIPMENT: All the equipment (including essential replacement parts) and
other tangible personal property of every kind and description wherever
they may be located that are owned or leased by Seller, and are utilized in
connection with Seller's operations, a current list of which is attached
hereto as Schedule 1.2 (hereinafter referred to collectively as the
"Equipment"). At the Closing, Seller shall deliver to Buyer the equipment
as set forth in Schedule 1.2, or appropriate documents transferring the
ownership of the Equipment, free of any claim or encumbrance. Good and
marketable title to all such equipment shall be transferred on delivery,
free and clear of any encumbrances.
1.2 INTANGIBLES: All software, including all versions of source code, trade
names, trademarks, service marks, copyrights, patents, patent rights, trade
secrets, technical know-how, goodwill and other intangibles including any
tort claims or insurance proceeds arising out of any damage or destruction
of any of the Assets between the date of this Agreement and the Closing
Date (as hereinafter defined).
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1.3 BOOKS AND RECORDS: All papers and records in Seller's care, custody or
control relating to any or all of the above-described Assets and the
operation thereof, including, but not limited to, all blueprints,
schematics custom design boards, with all production drawings needed to
make more custom boards and specifications, personnel and labor relations
records, environmental control records, sales records, accounting and
financial records, maintenance and production records; and
0.4 OTHER ASSETS: All product rights in the equipment and all improvements
thereon. All prepaid expenses relating to any of the Assets and the
operation of Seller's business sold pursuant to this Agreement.
(a) Training in the use of the VOC software and technical support.
(In Atlanta GA facility)
(b) Provide and pay the salary for one field technician for the
period of one-year starting January 1, 2000 to travel and work on hotel
repair and installations.
(c) Provide and pay the salary for one service support technician
in the Atlanta GA facility from January 1, 2000 to April 30, 2000 to
provide technical support and to assemble VOC systems. At Buyer's
option, Buyer may retain the technician's services for an additional
six (6) month period with the rate of pay to be negotiated with the
technician.
(d) Atlanta Georgia support facility costs are to be covered by
seller from January 1, 2000 to April 30, 2000; this is to include rent,
utilities, and phone. Buyer may exercise an additional six (6) month
extension of the use of this facility, at Buyer's expense, at the rate
of $15,000.00 payable in six equal monthly installments of $2,500.00.
(e) The Seller will provide the use of its Salem, Oregon warehouse
facility for a period of one year from January 1, 2000 to December 31,
2000. Buyer may exercise an additional twelve (12) month extension of
the use of this facility, at Buyer's expense, at the rate of $18,000.00
payable in twelve equal monthly installments of $1,500.00.
(f) Buyer will pay all expenses incurred by technicians as
approved by their supervisor.
ARTICLE 2. PURCHASE PRICE
2.1 PAYMENT OF PURCHASE PRICE: In consideration for the transfer and assignment
by Seller of the Assets, and in consideration of the representations,
warranties and covenants of the Seller set forth herein, Buyer on the
conditions set forth herein and subject to the provisions in Article 9
states that:
(a) Buyer shall pay to Seller the Purchase price of $1,000,000.00.
(b) Xxxxx will deliver to seller $60,000.00 on the date of signing.
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(c) Payment will be made in full at the time of closing (April 14, 2000).
Payment will be by certified check or in the form of Chequemate
International, Inc. unrestricted common stock. Shares of stock shall be
valued at the average of the end of day closing price over the previous
five (5) days of trading, but in no event shall the per share price be
below $6.00. The number of shares to be issued shall be equal to the
balance due at closing.
(d) If closing is not completed within sixty (60) days after signing,
closing can be extended for one hundred twenty (120) days by payment of
interest on the balance at a rate of ten percent (10%) annually with
monthly payments due on the first day of the month or the next business
day following the first. The total extensions shall not exceed one
hundred and eighty (180) days after signing.
ARTICLE 3. THE CLOSING
The closing of the purchase and sale of the Assets by Seller to Buyer (the
"Closing") shall take place at the offices of Hotel Movie Network, which are
located at 0000 X. XxXxxxx Xxxxx 0 Xxxxxxx, XX 00000 at 10:00 A.M. local time,
on April 14, 2000, or at such other place and/or time as the parties may agree
in writing (the "Closing Date"). In the event that the conditions specified in
this Agreement have not been fulfilled by such date, Buyer may extend the
Closing Date (See 2.1 d).
Buyer shall perform as part of its due diligence, such inspection of Sellers
equipment, Software and all other items as Buyer reasonably deems necessary, and
shall complete such inspections on or before the Closing Date set forth above.
3.1 SELLER'S OBLIGATIONS AT THE CLOSING: At the Closing, Sellers shall deliver
or cause to be delivered to Buyer instruments of conveyance, assignment and
transfer of all of the Assets of Seller to be transferred hereunder, in
form and substance satisfactory to Xxxxx's counsel.
Simultaneously with the consummation of the transfer, Seller, through its
officers, agents, and employees, shall put Buyer into full possession and
enjoyment of all the Assets to be conveyed and transferred by this Agreement.
Seller, at any time before or after the closing Date, shall execute,
acknowledge, and deliver any further assignments, conveyances and other
assurances, documents and instruments of transfer, reasonably requested by Xxxxx
and shall take any other action consistent with the terms of this Agreement that
may reasonably be requested by Buyer for the purpose of assigning, transferring,
granting, conveying and confirming to Buyer, or reducing to possession, any or
all property and assets to be conveyed and transferred by this Agreement. If
requested by Xxxxx, Xxxxxx further agrees to prosecute or otherwise enforce in
its own
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name for the benefit of Buyer any claims, rights, or benefits that are
transferred to Buyer by this Agreement and that require prosecution or
enforcement in the Seller's name. Any prosecution or enforcement of claims,
rights, or benefits under this Section shall be solely at Buyer's expense,
unless Xxxxxx makes the prosecution or enforcement necessary by Xxxxxx's breach
of this Agreement.
3.2 BUYER'S OBLIGATIONS AT CLOSING: Subject to the provisions of Article 9, at
the Closing, Buyer shall deliver to Seller the following instruments and
documents against delivery of the items specified in Section 3.1:
(a) Stock Certificates issued in the name of Seller, for the balance due at
closing, of Buyers common stock. (See Section 2.1); and
(b) the certificate of the President or Secretary of the Buyer confirming
that proper minutes and resolutions of the Buyer's Board of Directors
have been secured prior to the Closing whereby the purchase of the
Assets has been approved.
(c) Purchase may be made in whole or in part in the form of cash or
certified funds.
ARTICLE 4. ASSUMPTION OF LIABILITIES
Buyer is not assuming any debt, liability or obligation of Seller, whether known
or unknown, fixed or contingent except as herein specifically otherwise
provided. Xxxxxx agrees to indemnify Buyer against, and hold Xxxxx harmless
from, all debts, claims, liabilities and obligations of Seller not expressly
assumed by Buyer hereunder, and to pay any and all attorneys fees and legal
costs incurred by Xxxxx, its successors and assigns in connection therewith.
ARTICLE 5. EXCISE AND PROPERTY TAXES
Seller shall pay all sales, use and transfer taxes arising out of the transfer
of the Assets and shall pay its portion, prorated as of the Closing Date, of
state and local personal property taxes of the business. Buyer shall not be
responsible for any business, occupation, withholding or similar tax, or for any
taxes of any kind related to any period before the Closing Date.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer that the following facts and
circumstances are, and except as contemplated hereby, at all times up to the
Closing Date will be, true and correct, and hereby acknowledges that such facts
and circumstances constitute the basis upon which Xxxxx is induced to enter
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into and perform this Agreement. Each warranty set forth in this Article 6 shall
survive the Closing and any investigation made by or on behalf of Xxxxx.
6.1 ORGANIZATION. GOOD STANDING AND QUALIFICATION: Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of Nevada, has all necessary powers to own its properties and to
carry on its business as now owned and operated by it, and is duly
qualified to transact interstate business and is in good standing in all
jurisdictions in which the nature of its business or of its properties
makes such qualification necessary.
6.2 TAX RETURNS AND AUDITS: Within the times and in the manner prescribed by
law, Xxxxxx has filed all domestic and foreign, federal, state and local
tax returns required by law and has paid all taxes, assessments and
penalties due and payable. There are no present disputes as to taxes of any
nature payable by Seller.
6.3 INVENTORIES: None of the Assets has been pledged as collateral or is held
by the Seller on consignment from others.
6.4 OTHER TANGIBLE PERSONAL PROPERTY: The Equipment described in Section 1.2
and SCHEDULE 1.2 of this Agreement constitutes all the items of tangible
personal property owned by, in the possession of, or used by Seller in
connection with the business sold pursuant to this Agreement. The Equipment
listed in SCHEDULE 1.2 constitutes all tangible personal property necessary
for the conduct by Seller of the business as now conducted.
The equipment inventory listed in SCHEDULE 1.2 is new equipment, or is used
equipment in good condition and repair; and is sufficient in kind and
quality for the installation of fully operational pay-per-view services.
6.5 TITLE TO ASSETS: Seller has good and marketable title to all of the Assets
and interests in Assets, whether personal, tangible, and intangible, which
constitute all the Assets and interests in assets that are used in the
business of Seller to be sold pursuant to this Agreement. All the Assets
are free and clear of mortgages, liens, pledges, charges, encumbrances,
equities, claims, easements, rights of way, covenants, conditions, or
restrictions, EXCEPT (i) the lien of current taxes not yet due and payable;
and (ii) possible minor matters that, in the aggregate, are not substantial
in amount and do not materially detract from or interfere with the present
or intended use of any of the Assets, nor materially impair business
operations. All tangible personal property of Seller is in good operating
condition and repair, ordinary wear and tear excepted. Except as set forth
on the appropriate SCHEDULE listing such Assets,
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neither any officer, nor any director or employee of Seller, nor any
spouse, child or other relative of any of these persons, owns, or has any
interest, directly or indirectly, in any of the personal property owned by
or leased to Seller or any copyrights, patents, trademarks, trade names or
trade secrets licensed by Seller for use in the business to be sold
pursuant to this Agreement. Seller does not occupy any real property in
violation of any law, regulation or decree.
6.6 CUSTOMERS AND SALES: SCHEDULE 1.1 to this Agreement is a correct and
current list of all customers of Seller for the business to be sold
pursuant to this Agreement. Seller has no information and is not aware of
any facts indicating that any of these customers intend to cease doing
business with Seller or materially alter the amount of the business that
they are presently doing with Seller.
6.7 OTHER CONTRACTS: The Assets are not bound by any distributor's or
manufacturer's representative or agency agreement, any agreement not
entered into in the ordinary course of business, any indenture, mortgage,
deed of trust, lease or any agreement that is unusual in nature, duration
or amount. Seller is not a party to, nor is Seller or the Assets bound by,
any agreement that is materially adverse to the business, property, or
financial condition of Seller.
6.8 COMPLIANCE WITH LAWS: Seller has complied with, and is not in violation of,
applicable federal, state or local statutes, laws and regulations
(including, without limitation, any applicable environmental, health,
building, zoning or other law, ordinance or regulation) affecting the
Assets or the operation of its business to be sold pursuant to this
Agreement.
6.9 LITIGATION: There is no suit, action, arbitration or legal, administrative
or other proceeding, or governmental investigation pending, or to the best
knowledge of Seller, threatened, against or affecting Seller, or any of its
business, assets or financial condition. Seller is not in default with
respect to any order, writ, injunction or decree of any federal, state,
local or foreign court, department, agency or instrumentality. Seller is
not presently engaged in any legal action to recover moneys due to it or
damages sustained by it.
6.10 ASSETS SUFFICIENT FOR CONDUCT OF BUSINESS: The Assets constitute all of the
assets required for Buyer to conduct the business of Seller as it is
presently conducted.
6.11 AGREEMENT WILL NOT CAUSE BREACH OR VIOLATION: Neither the entry into this
Agreement nor the consummation of the transactions contemplated hereby will
result in or constitute any of the following: (i) a breach of any term or
provision of this Agreement; (ii) a default or an event that, with notice
or lapse of time, or both, would be a default, breach or violation of the
Articles of Incorporation or Bylaws of Seller
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or any lease, license, promissory note, conditional sales contract,
commitment, indenture, mortgage, deed of trust or other agreement,
instrument or arrangement to which Seller is a party or by which Seller or
the Assets are bound; (iii) an event that would permit any party to
terminate any agreement or to accelerate the maturity of any indebtedness
or other obligation of Seller; (iv) the creation or imposition of any lien,
charge or encumbrance on any of the Assets; or (v) the violation of any
law, regulation, ordinance, judgment, order or decree applicable to or
affecting Seller or the Assets.
6.12 AUTHORITY AND CONSENTS: Seller has the right, power, legal capacity and
authority to enter into, and perform its obligations under this Agreement,
and no approvals or consents of any persons or entity other than Seller are
necessary in connection with it. The execution and delivery of this
Agreement by Seller have been duly authorized by all necessary corporate
action of Seller (including any necessary action by Seller's security
holders), and this Agreement constitutes a legal, valid and binding
obligation of Seller enforceable in accordance with its terms.
6.13 DOCUMENTS DELIVERED: Each copy or original of any agreement, contract or
other instrument which is identified in any exhibit delivered by Seller or
their counsel to Buyer (or its counsel or representatives), whether before
or after the execution hereof, is in fact what it is purported to be by the
Seller and has not been amended, canceled or otherwise modified.
6.14 FULL DISCLOSURE: None of the representations and warranties made by Seller
or made in any letter, certificate or memorandum furnished or to be
furnished by Seller, or on their behalf, contains or will contain any
untrue statement of a material fact, or omits any material fact the
omission of which would make the statements made misleading. There is no
fact known to Seller which materially adversely affects, or in the future
may (so far as Seller can now reasonably foresee) materially adversely
affect the condition, Assets, liabilities, business operations or prospects
of Seller that has not been set forth herein or heretofore communicated to
Buyer in writing pursuant hereto.
6.15 BULK SALES PROVISIONS: The parties shall cooperate in making such filings
and publishing such notices as may be necessary under the bulk sales laws
of Oregon and Georgia.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Seller as follows:
7.1 ORGANIZATION AND QUALIFICATION: Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah.
All subsidiaries of Buyer are legal entities that are duly organized,
validly existing and in good standing under the laws of their respective
jurisdictions of
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incorporation. Buyer has all requisite power and authority to own or
operate its properties and conduct its business as it is now being
conducted. Buyer is duly qualified and in good standing as a foreign
corporation or entity authorized to do business in each of the
jurisdictions in which the character of the properties owned or held under
lease by it or the nature of the business transacted by it makes such
qualification necessary.
7.2 AUTHORITY RELATIVE TO THIS AGREEMENT: Xxxxx has all requisite corporate
power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of Buyer, and no
other corporate proceedings on the part of Buyer are necessary to authorize
this Agreement or to consummate the transactions so contemplated. This
Agreement has been duly and validly executed and delivered by Xxxxx and,
assuming this Agreement constitutes a valid and binding obligation of the
Seller, this Agreement constitutes a valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms.
7.3 SEC REPORTS: Since January 1, 1998, to the best of its knowledge Buyer has
filed all required forms, reports and documents ("Buyer SEC Reports") with
the Securities and Exchange Commission (the "SEC") required to be filed by
it pursuant to the federal securities laws and the SEC rules and
regulations thereunder, all of which have complied in all material respects
with all applicable requirements of the Securities Act of 1933 (the
"Securities Act") and the Securities Exchange Act of 1934 (the "Exchange
Act"), and the rules and interpretive releases promulgated thereunder. None
of such Buyer SEC Reports, including without limitation any financial
statements, notes, or schedules included therein, at the time filed,
contained any untrue statement of a material fact, or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
Each of the consolidated balance sheets in or incorporated by reference
into the Buyer SEC Reports fairly presents or will fairly present the
financial position of the entity or entities to which it relates as of its
date, and each of the related consolidated statements of operations and
retained earnings and cash flows or equivalent statements in the Buyer SEC
Reports (including any related notes and schedules) fairly presents or will
fairly present the results of operations, retained earnings and cash flows,
as the case may be, of the entity or entities to which it relates for the
period set forth therein (subject in the case of unaudited interim
statements, to normal yearend audit adjustments) in each case in accordance
with generally-accepted accounting principles applicable to the particular
entity consistently applied throughout the periods involved, except as may
be noted therein; and independent certified public
53
accountants for Buyer have rendered or will render an unqualified opinion
with respect to each audited financial statement included in the Buyer SEC
Reports. The consolidated financial statements included in the Buyer SEC
Reports are hereinafter sometimes collectively referred to as the "Buyer
Financial Statements."
7.4 CONSENTS AND APPROVALS: NO VIOLATION: Neither the execution and delivery of
this Agreement by Buyer nor the consummation of the transactions
contemplated hereby nor compliance by Buyer with any of the provisions
hereof will conflict with or result in any breach of any provision of the
Articles of Incorporation or by-laws of Buyer or any Subsidiary, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority, except pursuant to the
Securities Act and the Exchange Act, such filings and approvals as may be
required under the "blue sky", takeover or securities laws of various
states, or result in a default (with or without due notice or lapse of time
or both) (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, contract, license, agreement or other instrument
or obligation to which Buyer is a party or by which Buyer, any of its
Subsidiaries or any of their respective assets may be bound, result in the
creation or imposition of any lien, charge or other encumbrance on the
assets of Buyer or violate any order, writ, injunction, decree, statute,
rule or regulation applicable to Buyer or any of its respective assets.
7.5 LITIGATION ETC.: Except as disclosed in the Buyer SEC Reports and in
SCHEDULE 7.5, there is no action, claim, or proceeding pending or, to the
knowledge of Buyer, threatened, to which Buyer is or would be a party
before any court or Governmental Authority acting in an adjudicative
capacity or any arbitrator or arbitration tribunal with respect to which
there is a reasonable likelihood of a determination having, or which,
insofar as reasonably can be foreseen in the future would have, a material
adverse effect on Buyer and since December 31, 1997, there have been no
claims made or actions or proceedings brought against any officer or
director of Buyer arising out of or pertaining to any action or omission
within the scope of his employment or position with Buyer, which claim,
action or proceeding would involve a material adverse effect on Buyer taken
as a whole. All material litigation and other material administrative,
judicial or quasi-judicial proceedings to which Buyer is a party or to
which it has been threatened to be made a party are described in the Buyer
SEC Reports and in SCHEDULE 7.5.
7.6 COMPLIANCE WITH LAW AND PERMITS: Buyer has owned and operated its
properties and assets in substantial compliance with the provisions and
requirements of all laws, orders, regulations, rules and ordinances issued
or promulgated by all Governmental Authorities having jurisdiction with
respect thereto. All necessary governmental certificates, consents,
permits, licenses or other authorizations with regard to the ownership or
operation by Buyer of its properties and assets have been obtained and no
violation
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exists in respect of such licenses, permits or authorizations. None of the
documents and materials filed with or furnished to any Governmental
Authority with respect to the properties, assets or businesses of Buyer
contains any untrue statement of a material fact or fails to state a
material fact necessary to make the statements therein not misleading.
7.7 BUYER COMMON STOCK: The shares to be issued by Buyer pursuant to this
Agreement have been duly authorized and, when issued in accordance with the
terms of the this Agreement, will be validly authorized and issued and
fully paid and nonassessable, and no shareholder of Buyer will have any
preemptive rights or dissenter's rights with respect thereto.
ARTICLE 8. SELLER'S OBLIGATIONS BEFORE CLOSING.
Seller covenants that, except as otherwise agreed in writing by Xxxxx, from the
date of this Agreement until the Closing:
8.1 BUYER'S ACCESS TO PREMISES AND INFORMATION: Buyer and its counsel,
accountants and other representatives shall be entitled to have full access
during normal business hours to all Seller's properties, books, accounts,
records, agreements and documents of or relating to the Assets. Seller
shall furnish or cause to be furnished to Buyer and its representatives all
data and information concerning the business, finances and properties of
Seller that may reasonably be requested.
8.2 CONDUCT OF BUSINESS IN NORMAL COURSE: Seller shall carry on its business
and activities diligently and in substantially the same manner as it
previously has been carried on, and shall not make or institute any unusual
or novel methods of purchase, sale, lease, management, accounting or
operation that will vary materially from the methods used by Seller as of
the date of this Agreement.
8.3 PRESERVATION OF BUSINESS RELATIONSHIPS: Seller shall use its best efforts,
without making any commitments on behalf of Buyer, to preserve its business
organization intact, to keep available to Seller its present employees, and
to preserve its present relationships with suppliers, customers and others
having business relationships with it.
8.4 MAINTENANCE OF INSURANCE: Seller shall continue to carry its existing
insurance, subject to variations in amounts required by the ordinary
operations of its business. At the request of Xxxxx and at Buyer's sole
expense, the amount of insurance against fire and other casualties which,
at the date of this Agreement, Seller carries on any of the Assets or in
respect of its operations shall be increased by such amount or amounts as
Buyer shall specify. Seller shall cause Buyer to be named as an additional
insured on each existing insurance policy carried by Seller. In all events,
the risk of loss remains upon Seller prior to
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Closing, and becomes Xxxxx's risk only after Closing.
8.5 NEW TRANSACTIONS: Seller shall not do, or agree to do without the prior
written consent of the Buyer, any of the following acts:
(a) enter into any contract, commitment or transaction not in the usual and
ordinary course of its business; or
(b) enter into any contract, commitment or transaction in the usual and
ordinary course of business involving an amount exceeding $1,000.00
individually, or $10,000.00 in the aggregate; or
(c) make any capital expenditures in excess of $5,000.00 for any single
item or $10,000.00 in the aggregate, or enter into any leases of
capital equipment or property under which the annual lease charge is in
excess of $5,000.00; or
(d) sell or dispose of any capital assets with a net book value in excess
of $1,000.00 individually, or $10,000.00 in the aggregate.
8.7 EXISTING AGREEMENTS: Seller shall not modify, amend, cancel or terminate
any of its existing contracts or agreements, or agree to do any of those
acts, without the prior written consent of Buyer..
8.8 CONSENT OF OTHERS: As soon as reasonably practical after the execution and
delivery of this Agreement, and in any event on or before the Closing Date,
Seller shall obtain the written consent of the persons described in
SCHEDULE 8.8 to this Agreement and will furnish to Buyer executed copies of
these consents.
8.9 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING: Seller shall use its best
efforts to assure that all representations and warranties of Seller set
forth in this Agreement and in any written statements delivered to Buyer by
Seller under this Agreement will also be true and correct as of the Closing
Date as if made on that date and that all conditions precedent to Closing
shall have been met.
8.10 SALES AND USE TAX ON PRIOR SALES: Seller agrees to furnish to Buyer a
clearance certificate from the appropriate agencies and any related
certificates that Buyer may reasonably request as evidence that all sales
and use and other tax liabilities of Seller (other than income tax
liabilities) accruing before the Closing Date have been fully satisfied or
provided for.
8.11 STATUTORY FILINGS: Seller shall cooperate fully with Buyer in preparing and
filing all information and
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documents deemed necessary or desirable by Buyer under any statutes or
governmental rules or regulations pertaining to the transactions
contemplated by this Agreement.
ARTICLE 9. CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
The obligations of Buyer to purchase the Assets under this Agreement are subject
to the satisfaction, at or before the Closing, of all the conditions set out
below in this Article 9. Buyer may waive any or all of these conditions in
accordance with Section 15.2 hereof, provided however, that no such waiver of a
condition shall constitute a waiver by Buyer of any of its other rights or
remedies, at law or in equity, if Seller shall be in default of any of its
representations, warranties or covenants under this Agreement.
9.1 ACCURACY OF SELLERS REPRESENTATIONS AND WARRANTIES: All representations and
warranties by Seller in this Agreement or in any written statement that
shall be delivered to Buyer by Seller under this Agreement shall be true on
and as of the Closing Date as though made at that time.
9.2 ABSENCE OF LIENS: At or prior to the Closing, Buyer shall have received UCC
search reports dated as of a date not more than five days before the
Closing Date issued by the Secretaries of each State where assets are
located, indicating that there are no filings under the Uniform Commercial
Code on file with such Secretary of State which name Seller or any other
name used by the Seller as debtor, other than the liens otherwise disclosed
in the Schedules hereto.
9.3 SELLER PERFORMANCE: Seller shall have performed, satisfied, and complied
with all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by Seller on or before the Closing Date.
9.4 CERTIFICATION BY SELLER: Buyer shall have received a certificate, dated the
Closing Date, signed and verified by Xxxxxx's president or vice president
and its treasurer or assistant treasurer, certifying, in such detail as
Xxxxx and its counsel may reasonably request, that the conditions specified
in Sections 9.1 and 9.3 have been fulfilled.
9.5 ABSENCE OF LITIGATION: No action, suit or proceeding before any court or
any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened on or before the Closing Date.
9.6 CORPORATE APPROVAL: The execution and delivery of this Agreement by Seller,
and the performance of its covenants and obligations under it, shall have
been duly authorized by all necessary corporate action, and Buyer shall
have received copies of all resolutions pertaining to that authorization,
certified by the
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secretary of Seller.
9.7 CORPORATION TAX CLEARANCE: Buyer shall have received a Certificate of Good
Standing for Seller as of a date not more than 3 days before the Closing
Date and a Letter of Account Status for Seller as of a date not more than 3
days before the Closing Date certifying that all sales taxes or other taxes
of the Seller have been paid. Such documents are to be issued by the states
where business has been done.
9.8 CERTIFICATE REGARDING EMPLOYMENT TAX OBLIGATIONS: Buyer shall have received
a Certificate of the President and Secretary of the Seller stating that, as
of the Closing Date, no contributions, interest, or penalties are unpaid by
Seller with regard to any payroll taxes, or unemployment or workers'
compensation contributions for periods prior to most recent filing
deadlines.
9.9 CONSENTS: All necessary agreements and consents of any parties to the
consummation of the transaction contemplated by this Agreement, or
otherwise pertaining to the matters covered by it, shall have been obtained
by Seller and delivered to Buyer.
9.10 APPROVAL OF DOCUMENTATION: The form and substance of all certificates,
instruments and other documents delivered to Buyer under this Agreement
shall be satisfactory in all reasonable respects to Buyer and its counsel.
9.11 CONDITION OF ASSETS: The Assets shall not have been materially or adversely
affected in any way as a result of any fire, accident, storm, or other
casualty or labor or civil disturbance or act of God or the public enemy.
9.12 VALUATION OF ASSETS: Buyer shall have accepted the valuation of the Assets,
as set forth on the schedules attached hereto (as adjusted as of the
Closing Date).
9.13 COMPLETION OF DUE DILIGENCE: All due diligence reasonably required by the
Buyer has been completed, and the results of such due diligence are
satisfactory to the Buyer in its sole discretion and judgment with regard
to all aspects of the transaction, including but not limited to matters
relating to the Assets.
9.14 COMPLIANCE WITH BULK SALES LAWS: The parties have complied with all
applicable Bulk Sales Laws or similar provisions.
ARTICLE 10. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The obligations of Seller to sell and transfer the Assets under this Agreement
are subject to the satisfaction, at or before the Closing, of all the following
conditions:
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10.1 ACCURACY OF BUYER'S REPRESENTATIONS AND WARRANTIES: All representations and
warranties by Buyer contained in this Agreement or in any written statement
delivered by Buyer under this Agreement shall be true on and as of the
Closing as though such representations and warranties were made on and as
of that date.
10.2 BUYER'S PERFORMANCE: Buyer shall have performed and complied with all
covenants and agreements, and satisfied all conditions that it is required
by this Agreement to perform, comply with, or satisfy, before or at the
Closing.
10.3 BUYER'S CORPORATE APPROVAL: Buyer shall have received corporate
authorization and approval for the execution and delivery of this Agreement
and all corporate action necessary or proper to fulfill the obligations of
Buyer to be performed under this Agreement on or before the Closing Date.
ARTICLE 11. EMPLOYEE PLANS
Seller represents that the Seller has no Employee Plan in effect or to which the
Seller is subject. For purposes of this Agreement, the term "Employee Plan"
includes all pension, retirement, disability, medical, dental or other health
insurance plans, life insurance or other death benefit plans, profit sharing,
deferred compensation, stock option, bonus or other incentive plans, vacation
benefit plans, severance plans, or other employee benefit plans or arrangements
including, without limitation, any pension plan as defined in Section 3(2) of
the Employee Retirement Income Security Act of 1974 ("ERISA") and any welfare
plan as defined in Section 3(1) of ERISA, whether or not funded, covering any
employee or to which Seller is a party or bound or makes or has made any
contribution or by which Seller may have any liability to any employee
(including any such plan formerly maintained by or in connection with which
Seller may have any liability to any employee, and any such plan which is a
multi employer plan as defined in Section 3(37) (A) of ERISA.
ARTICLE 12. SELLER'S OBLIGATIONS AFTER THE CLOSING
12.1 PRESERVATION OF GOODWILL: Following the Closing, Seller will restrict its
activities so that Buyer's reasonable expectations with respect to the
goodwill, business reputation, employee relations and prospects connected
with the Assets will not be materially impaired. Additionally, Seller will
not disclose to any person or use for its own benefit any price lists,
pricing data, customer lists, or similar matters possessed by it relating
to the Assets or the business transferred to Buyer unless it first clearly
demonstrates to Buyer that such matters are, at the time of the proposed
disclosure or use, of common knowledge within the trade.
12.2 SELLER INDEMNITIES: Seller shall indemnify, defend and hold harmless Buyer
and its officers, directors, and agents against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies, including interest, penalties and
reasonable attorneys fees, that Buyer, or its officers, directors, or
agents shall incur or suffer, which arise, result from or relate
59
to any breach of, or failure by Seller to perform, any of its
representations, warranties, covenants or agreements in this Agreement or
in any schedule, certificate, exhibit or other instrument furnished or to
be furnished by Seller under this Agreement. Notwithstanding any other
provision of this Agreement, Seller shall not be liable to Buyer, or its
officers, directors, or agents on any warranty, representation or covenant
made by Seller in this Agreement, regarding any single claim, loss,
expense, obligation or other liability that does not exceed $10,000;
provided, however, that when the aggregate amount of all such claims,
losses, expenses, obligations and liabilities not exceeding $10,000 each
reaches $10,000, Seller shall thereafter be liable in full for all such
breaches and indemnities, and regarding all those claims, losses, expenses,
obligations, and liabilities.
12.3 ACCESS TO RECORDS: From and after the Closing, Seller shall allow Xxxxx,
and its counsel, accountants and other representatives, such access to
records which after the Closing are in the custody or control of Seller as
Buyer reasonably requires in order to comply with its obligations under the
law or under contracts assumed by Buyer pursuant to this Agreement.
ARTICLE 13. COSTS
Each of the parties shall pay all costs and expenses incurred or to be incurred
by it in negotiating and preparing this Agreement and in closing and carrying
out the transactions contemplated by this Agreement.
ARTICLE 14. SECURITIES ASPECTS OF AGREEMENT
14.1 All parties to this Agreement mutually understand, agree and covenant that
any referenced sale or other disposition of any security under this
Agreement shall be controlled and governed by this section. Specifically
should there arise any conflict of application or interpretation under this
section and any other provision or section of this Agreement; this section
shall be given primary definition and control. The term "securities" for
the purposes of this Agreement shall mean and include all shares of
Chequemate, and any warrants to acquire those shares as well as any other
instrument or obligation customary or commonly described as a security.
Each of the following terms and conditions of the issuance and distribution
of the securities shall be fully applicable unless otherwise specifically
waived or treated in the following paragraphs.
14.2 Each security issued pursuant to the terms of this Agreement shall be a
"restricted" security unless otherwise specifically referenced as being
issued pursuant to a registration or offering.
14.3 Seller understands and agrees that a restricted security for the purposes
of this Agreement is one, which is issued without meeting registration
requirements under both federal and state law within the United States.
Each party to this Agreement further agrees and acknowledges that the
nature of
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restricted security is that it is not freely tradable. That is, the holder
of such security cannot immediately market or further distribute such
security in the open market, or through private transactions without the
express written consent of the issuer, primarily Chequemate under the terms
of this Agreement.
14.4 Seller fully acknowledges and understands that the resale of a restricted
security will normally require substantial holding periods unless
subsequently subject to an intervening registration under applicable
federal and state securities laws. Seller acquiring restricted stock under
this Agreement further acknowledges and agrees that the principal, though
not exclusive, means by which restricted securities are resold under United
States law and conforming state laws and regulations is Securities and
Exchange Commission ("SEC") Rule 144, which essentially requires a holding
period of one year before the stock can be resold or any interest therein
further sold or assigned. In general terms, Rule 144 would require that
there be current public information about the Company before the provisions
of the Rule could be relied upon for subsequent resale, that the
aforementioned holding period had been met, that the sales occurred through
independent arms-length and unsolicited brokerage transactions, that
certain volume limitations on the number of shares sold in each three month
period be observed, and that a report of sales will be filed with the SEC.
Seller understands that the foregoing constitutes only a general
description of Rule 144 and that such person is or has the means to become
familiar with all of the specific provisions and terms of Rule 144 through
his independent legal advisors. Seller further acknowledges and agrees that
while Rule 144 is not exclusive, that it is anticipated and intended that
it would be the primary means by which securities acquired under this
Agreement could be resold absent the specific registration provisions of
this Agreement.
14.5 Any entity acquiring securities pursuant to this Agreement with the intent
to divide such securities among its principal shareholders as part of the
acquisition process, will be responsible for obtaining the knowledgeable
consent and agreement of such actual shareholder to the terms of this
Agreement, specifically referencing this paragraph.
14.6 Seller fully understands and agrees that should such person be deemed to be
in a "control" position as to Chequemate incident to the completion of this
Agreement, that such person must comply with the volume limitations of Rule
144 to complete sales of his or her securities acquired, except for
securities which have been otherwise registered pursuant to this Agreement.
A control person has been defined by the SEC, and by most state securities
regulatory agencies, as a person who has the capacity to exercise control
over the issuing company. While no precise mathematical formulation of a
control person is applicable to all situations, the following are generally
presumed to be control people:
(i) a person holding 10% or more of the shares of the issuing company;
61
(ii) any principal officer or any director of the issuing company.
14.7 Seller represents that it is acquiring the Shares for its own account, for
investment and not with a view to the distribution or resale thereof. The
Seller further represents that its financial and other circumstances are
such that it has adequate means of providing for its current and
anticipated future needs without having to sell or otherwise dispose of the
Shares, and that the Seller is able to bear the economic risks of this
investment and consequently is able to hold the Shares for an indefinite
period of time and to sustain the loss of its entire investment in the
Shares, in the event such a loss should occur.
14.8 Seller acknowledges and represents that, due to its knowledge and
experience in financial and business matters, its investment experience
generally and its experience with investments similar to the Shares in
particular, Seller, either alone or together with its advisors, if any, is
able to understand and merits of, and the risks involved in, its proposed
investment in the Shares. Seller, either alone or together with its
advisors, if any, has the capacity to protect its own interests in
connection with this transaction.
14.9 Seller acknowledges that Xxxxx has furnished or made available to Seller
all financial and other data relating to Buyer, required by Seller to
enable it to make an informed decision concerning its approval of this
transaction and its resulting acquisition of the Shares. In particular,
Seller acknowledges that it has received and reviewed the financial
statements of Buyer for the past two years and complete copies of all of
the Buyer's SEC Reports for such period. Seller acknowledges that it has
been informed that Xxxxx has not previously conducted business except as
disclosed in the Buyer's SEC Reports. Seller represents and acknowledges
that it and its principals have been engaged in the business of providing
pay-per-view and cable services in the hotel/lodging industry, which is
intended area of business for which the Assets are being acquired by the
Buyer. In this regard, Xxxxxx has been acquainted with the Chief Executive
Officer of Buyer. Seller further represents and acknowledges that it has
had full opportunity to obtain additional information from Buyer to verify
the accuracy of the information supplied by it and to evaluate the merits
of its investment decision, including, without limitation, full opportunity
to ask questions of and receive satisfactory answers and other information
from Buyer, its officers, directors and other persons acting on its behalf,
and all such questions have been answered, and such other information
supplied, to Seller's full satisfaction. Seller is aware of, and has
thoroughly evaluated, to its own satisfaction, the high degree of risk
associated with investing in Buyer, including but not limited to, the
specific risks associated with Buyer's business and the risks associated
with the ownership of common stock.
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14.10 Seller hereby represents and warrants to Buyer that Seller is an
"accredited investor" as that term is defined in Rule 501(a) of Regulation
D. Seller further represents and warrants that it is a corporation, and
that each of the equity owners of Seller are "accredited investors" by
reason of the fact that each of the equity owners meets one or both of the
following criteria:
(i) The owner is a natural person whose individual net worth, or joint
net worth with owner's spouse, at the time of this agreement,
exceeds $1,000,000; or
(ii) The owner is a natural person who had an individual income in
excess of $200,000 in each of the two most recent years, or joint
income with owner's spouse in excess of $300,000 in each of those
years, and has a reasonable expectation of reaching the same
income level in the current year.
14.11 Seller hereby agrees (of behalf of itself and subsequent transferees of
the Securities) that the Securities shall not be sold, transferred, pledged or
hypothecated unless, in the opinion of counsel satisfactory to Buyer, such
registration is not required, and that each certificate evidencing any of the
Securities shall bear a legend in substantially the following form:
"The securities represented by this certificate have not been
registered under the United States Securities Act of 1933 or under the
securities laws of any state, and such securities may not be sold or
offered for sale, transferred, pledged or hypothecated unless in the
opinion of counsel satisfactory to the Company such registration is not
required."
In addition, Seller hereby agrees that, if Buyer maintains its own share
records, a notation consistent with such legend may be made in such share
transfer records restricting any such sale, transfer, pledge or hypothecation or
such other notation appropriate to ensure compliance with federal and state
securities laws, or, if such share transfer records are maintained by a
registrar, Buyer may issue to such registrar stop transfer instructions or other
instructions appropriate to ensure compliance with federal and state securities
laws. The foregoing restrictions and related legend provisions shall remain in
effect until, in the opinion of counsel satisfactory to Buyer, they are no
longer required.
Seller further agrees that it will defer the receipt of the Securities until
such time as the Additional Listing Application related to the Securities is
approved by AMEX. Xxxxx agrees to promptly file the Additional Listing
Application and pursue its approval with reasonable diligence.
14.12 Registration Rights (piggyback clause).
If the Company proposes to register any of its stock or other securities under
the Securities Act of 1933 (the "Act") in connection with the public offering of
such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan, or a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Shares) the Company shall, subject to the provisions of
this paragraph, use its reasonable efforts to cause to be registered under the
Act all of the Shares that Seller has
63
acquired under this Agreement. In connection with any registrations in which the
Shares have the right to be included pursuant to this paragraph, and which
involve an underwriting of securities being issued by the Company, the Company
shall not be required to include any of the Shares in such underwriting unless
Seller accepts the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it, and then only in such quantity as will not,
in the opinion of the underwriters, jeopardize the success of the offering by
the Company. It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this paragraph that Seller shall furnish to the
Company such information regarding Seller, the Shares held by Seller, and the
intended method of disposition of such Shares as shall be required to effect the
registration of its Shares.
ARTICLE 15. FORM OF AGREEMENT
15.1 HEADINGS: The subject headings of the Articles and Sections of this
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
15.2 ENTIRE AGREEMENT, MODIFICATION: WAIVER: This Agreement constitutes the
entire agreement between the parties pertaining to the subject matter contained
in it and supersedes all prior and contemporaneous agreements, representations,
and understandings of the parties. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all the parties.
No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
15.3 COUNTERPARTS: This Agreement may be executed simultaneously in one or more
counterparts, each of, which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
ARTICLE 16. PARTIES
16.1 PARTIES IN INTEREST: Nothing in this Agreement, whether express or implied,
is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third persons to
any party to this Agreement, nor shall any provisions give any third
persons any right of subrogation or action over against any party to this
Agreement.
16.2 ASSIGNMENT: This Agreement shall be binding on and shall inure to the
benefit of the parties to it and their respective heirs, legal
representatives, successors and assigns. This Agreement shall not be
assignable without the written consent of the Seller, which consent shall
not be unreasonably withheld or delayed.
ARTICLE 17. REMEDIES
17.1 RECOVERY OF LITIGATION COSTS: If any legal action or any arbitration or
other proceeding so brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default or
64
misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be entitled
to recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it or they
may be entitled.
17.2 CONDITIONS PERMITTING TERMINATION: Subject to the provisions of Article 2
relating to the postponement of the Closing Date, either party may on or
prior to the Closing Date terminate this Agreement by written notice to the
other, without liability to the other, if any bona fide action or
proceeding shall be pending against either party on the Closing Date that
could result in an unfavorable judgment, decree or order that would prevent
or make unlawful the carrying out of this Agreement.
17.3 DEFAULTS PERMITTING TERMINATION: If either Buyer or Seller materially
defaults in the due and timely performance of any of its warranties,
covenants, or agreements under this Agreement, the non-defaulting party or
parties may on the Closing Date give notice of termination of this
Agreement, in the manner provided in Article 19. The notice shall specify
with particularity the default or defaults on which the notice is based.
The termination shall be effective five days after the Closing Date, unless
the specified default or defaults have been cured on or before this
effective date for termination.
ARTICLE 18. SURVIVAL OF REPRESENTIONS AND WARRANTIES
All representations, warranties, covenants and agreements of the parties
contained in this Agreement, or in any instrument, certificate, opinion or other
writing provided for in it, shall survive the Closing.
ARTICLE 19. NOTICES
All notices, requests, demands and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given on the date of
service if served personally on the party to whom notice is to be given, or on
the third day after mailing if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, postage prepaid, and
properly addressed as follows:
Seller:
X.X. XxXxxxxxx
United Business Services, Inc.
0000 X. Xxxx Xxxxxx Xxxx #0-000
Xxxx, XX 00000
Buyer:
C-3D Digital c/o Xxxx Xxxxxx
000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx xxx Xxx, XX 00000
65
with copy to:
Xxxx X.X. XxXxxxx
Hotel Movie Network
000 X. XxXxxxx Xxxxx 0
Xxxxxxx, XX 00000
Any party may change its address for purposes of this Article by giving the
other parties written notice of the new address in the manner set forth above.
ARTICLE 20. GOVERNING LAW
This Agreement shall be construed in accordance with, and governed by, the laws
of the State of Arizona
ARTICLE 21. FURTHER ASSURANCES
The parties agree to execute any and all further documents reasonably necessary
to give full effect to the intentions of the parties as set forth herein.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
as of the day and year first above written.
BUYER
CHEQUEMATE INTERNATIONAL, INC.,
a Utah corporation
By
-----------------------------
Its:
SELLER
UNITED BUSINESS SERVICES, INC.
a Nevada corporation
By
-----------------------------
Its:
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