AGREEMENT
by and among
EBUX, INC.
a Florida corporation
and
3838421 Canada Inc.
Effective as of February 22, 2001
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into
this 22nd day of February, 2001, by and among EBUX, INC., a
Florida corporation ("EBUX"), and 3838421 Canada Inc.
("3838421").
Premises
A. 3838421 owns a license giving it exclusive rights to
certain property as set forth on Schedule A attached hereto (the
"Property").
B. 3838421 desires to sell, transfer and assign and EBUX
desires to acquire the Property, the whole in accordance with the
terms and the conditions of this Agreement.
Agreement
NOW, THEREFORE, on the stated premises and for and in
consideration of the mutual covenants and agreements hereinafter
set forth and the mutual benefits to the parties to be derived
herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF 3838421 AND
XXXXXXXX XXXXXXXXX
As an inducement to and to obtain the reliance of EBUX,
3838421 and Xxxxxxxx Xxxxxxxxx jointly and severally make the
representations and warranties set forth on Schedule B attached
hereto.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES OF EBUX AND
XXXXX X. XXXXXX
As an inducement to, and to obtain the reliance of 3838421,
EBUX and Xxxxx X. Xxxxxx jointly and severally make the
representations and warranties set forth on Schedule C attached
hereto.
ARTICLE III
SALE OF PROPERTY
Section 3.1 Sale, Transfer and Assignment. 3838421 hereby
sells, transfers and assigns all of its rights, title and
interest in and to the Property to EBUX according to the terms
and the conditions set forth in this Agreement.
Section 3.2 Consideration. The purchase price for the
Property is U.S. $1,000,000 plus the aggregate of the Additional
Amounts (as defined hereinbelow). EBUX hereby agrees to tender
and shall pay over to 3838421 the sum of U.S. $1,000,000 in
accordance with the modalities set forth herein. EBUX shall also
pay to 3838421 the following:
(a) EBUX shall pay 3838421 within thirty (30) days of the
end of each calendar quarter during the term hereof
(including the last day of any such calendar quarter
following the termination hereof) (i) an amount equal
to twenty percent (20%) of EBUX's revenue before taxes,
and (ii) an amount equal to ten percent (10%) of EBUX's
financing receipts with respect to such calendar
quarter ("Additional Amounts"). The ten percent (10%)
referred to in (ii) hereinabove shall not apply to the
U.S. $2,000,000 offering discussed in Section 3.4
herein below.
(b) All payments hereunder shall be made in lawful currency
of the United States of America. Payments shall be
wired to an account designated by 0000000 from time to
time by notice to EBUX.
(c) All payments to be made by EBUX hereunder shall be made
in full as and when due, free and clear of and without
any deduction of or withholding for or on account of
any present or future taxes, governmental charges, or
assessments. If EBUX shall be required by law to make
any such deduction or withholding from any payment to
3838421 hereunder then EBUX shall pay to 3838421 such
additional amounts as may be necessary in order that
every net payment hereunder, after withholding or
deduction on or account of any such tax, governmental
charge, or assessment, will not be less than the amount
provided for in Section 3.2(a); provided that the
foregoing obligation shall not apply to any tax,
governmental charge, or assessment that would not have
been imposed but for 3838421's failure to comply with
certification, information, or other reporting
requirements concerning its nationality, residence,
identity, or connection with Canada if such compliance
is required as a precondition to relief or exemption
from such tax, governmental charge, or assessment. Any
default of payment under this section shall entitle
3838421 to rescind the sale of the Property, in which
case all Property sold hereunder shall be returned
forthwith to 3838421 with 3838421 retaining all payments
then received from EBUX.
Section 3.3 Reports
(a) Within thirty (30) days after the last day of the first
three calendar quarters during each calendar year
(including the calendar quarter following the
termination of this Agreement) EBUX shall furnish to
3838421 an unaudited consolidated balance sheet and
income statement of EBUX and its Subsidiaries as at the
end of, and for, such calendar quarter, such financial
statements to set forth sufficient detail to
substantiate the computation of the Additional Amounts
payable under Section 3.2(a) for such quarter.
(b) Within ninety (90) days after the last day of each
calendar year during the term hereof (including the
calendar year following the termination hereof) 3838421
shall:
(i) furnish to 3838421 the audited consolidated
balance sheet and income statement of the EBUX and
its subsidiaries as at the end of, and for such
calendar year, such financial statements to set
forth sufficient details to
substantiate the computation of the Additional Amounts
payable under Section 3.2(a) for such year, and
(ii) pay to 3838421 any additional amounts payable
under Section 3.2(a) as such audited financial
statements may show to be due with respect to such
calendar year. Any reduction in amounts due
3838421 shown by such audited financial statements
shall, subject to acceptance of such audited
financial statements by 3838421 (which acceptance
shall not be unreasonably withheld), be subtracted
from the next succeeding payments due 3838421
hereunder unless this Agreement shall have
terminated on or before the end of such calendar
year, in which case 3838421 shall repay such
amount to EBUX within sixty (60) days of its
receipt of such audited financial statements.
(c) Upon the request of 3838421, EBUX shall permit an
independent certified public accountant selected by
3838421 to have access once in each calendar year,
during the term hereof and for one (1) year thereafter,
during regular business hours and upon reasonable
notice to EBUX, to such of the records of EBUX as may
be necessary to verify the accuracy of the payments and
reports theretofore made by EBUX to 3838421 hereunder.
Such examination shall be at 3838421's expense unless
it shall reveal a discrepancy from the amounts
previously reported by EBUX in EBUX's favour by five
percent (5%) or more, in which case all costs of such
examination shall be borne by EBUX and shall be paid by
EBUX to 3838421 promptly upon written demand therefor.
Section 3.4 Subsequent Events. As further consideration
the applicable party or parties shall use their best efforts to
see that the following events take place:
(a) [Intentionally Omitted].
(b) EBUX shall undertake to raise no less than U.S.
$2,000,000, U.S. $1,000,000 of which to be available to
EBUX as operating capital and U.S. $1,000,000 pursuant
to Section 3.2 above. The initial U.S. $1,000,000 shall
be raised within 60 days of the date hereof and shall be
divided equally between 3838421 and EBUX. The second
U.S. $1,000,000 shall be raised within 30 days
thereafter and shall be divided equally between 3838421
and EBUX.
(c) EBUX shall name (i) Xxxxxxxx Xxxxxxxxx; (ii) Xxxxx
Sidwall; (iii) Xxxxxxxx Xxxxxxxx; (iv) Xxxx Xxxxxx; and
(v) Xxxxxxx Xxxxxx to serve as directors and officers
of EBUX, pursuant to executive employment contracts
providing for compensation in salary and warrants to
purchase between them 6,700,000 EBUX voting shares at
market price as at the close of business on February 9,
2001, and shall immediately commence the necessary work
to register the said warrants with the Securities and
Exchange Commission; Xxxxx X. Xxxxxx shall resign from
the Board of Directors at such time as any of the
above-named persons are appointed to the Board.
(d) EBUX shall exclusively engage the services of 3838421 to
continuously develop and improve the Property pursuant
to a service contract to be entered into at a base price
of U.S. $75,000 per month for the first year, payable in
accordance with a schedule to be determined and
initialled by the parties within thirty (30) days
following signature hereof.
(e) EBUX shall at all times use its best efforts to work
actively to exploit the Property sold pursuant to this
Agreement and to promote the sale and use of the
Gnotella Client Software to the best of its abilities.
EBUX further agrees to use its best efforts at all
times in obtaining any regulatory approvals that may be
required to market the Gnotella Client Software. EBUX
shall not during the term hereof, directly or
indirectly, sell, develop or perform any research or
development (or finance any research or development)
with respect to any product that would compete with the
Gnotella Client Software.
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Third Party Consents. 3838421 and EBUX agree to
cooperate with each other in order to obtain any required third
party consents to this Agreement and the transactions herein
contemplated.
Section 4.2 Indemnification.
(a)3838421 and Xxxxxxxx Xxxxxxxxx hereby agree to
indemnify EBUX and each of the officers, agents and
directors of EBUX as of the date of execution of this
Agreement against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened
or any claim whatsoever), to which it or they may become
subject arising out of or based on any inaccuracy or
misrepresentation made by 3838421 in this Agreement. The
indemnification provided for in this paragraph shall survive
the consummation of the transactions contemplated hereby and
termination of this Agreement for a period of 18 months.
(b) EBUX and Xxxxx X. Xxxxxx hereby agree to indemnify
3838421 and each of the officers, agents, directors and
current shareholders of 3838421 as of the date hereof
against any loss, liability, claim, damage or expense
(including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened
or any claim whatsoever), to which it or they may become
subject arising out of or based on any inaccuracy appearing
in or misrepresentation made in this Agreement and
particularly the representation regarding no liabilities.
The indemnification provided for in this paragraph shall
survive the consummation of the transactions contemplated
hereby and termination of this Agreement for a period of 18
months.
(c) EBUX hereby further agrees to indemnify 3838421
and each of the officers, agents, directors and shareholders
of 3838421 against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened
or any claim whatsoever), to which it or they may become
subject arising out of or during the term of EBUX's use
and/or commercialisation of the Property. The
indemnification provided for in this paragraph shall survive
the consummation of the transactions contemplated hereby and
termination of this Agreement.
ARTICLE V
INVESTMENT IN EBUX
Section 5.1 The parties acknowledge that the commercial success
of 3838421 and EBUX is in each of their respective best interests.
The parties further acknowledge that certain shareholders of
3838421 and affiliated corporations (the "Designated
Shareholders"), as well as 3838421, are interested in
participating in EBUX by acquiring shares of its capital stock,
and that EBUX will benefit from such investment. To facilitate the
investment by 3838421 in EBUX, EBUX has granted to 3838421
warrants to purchase 13,300,000 EBUX voting shares at market price
as at the close of business on February 9, 2001, and shall
immediately commence the necessary work to register the said
warrants with the Securities and Exchange Commission. To
facilitate the participation in EBUX by the Designated
Shareholders, the Designated Shareholders shall be given the
opportunity to exchange their shares of 3838421 (or such
affiliated corporations, as the case may be) for shares of EBUX on
a 1:1 basis (up to a maximum of 1,000,000 shares), and EBUX shall
obtain registration of a sufficient number of EBUX shares, not to
exceed 1,000,000 shares, as are necessary to effect such a 1:1
share exchange. The parties hereby agree that such exchange shall
be structured in such a manner as to minimise taxes payable by
3838421 and the Designated Shareholders in respect of such
exchange.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Brokers and Finders. Each party hereto hereby
represents and warrants that it is under no obligation, express
or implied, to pay certain finders in connection with the
bringing of the parties together in the negotiation, execution,
or consummation of this Agreement. The parties each agree to
indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with
respect to this Agreement or the transactions contemplated hereby
based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or
implied from the actions of the indemnifying party.
Section 6.2 Law, Forum and Jurisdiction. This Agreement shall
be construed and interpreted in accordance with the laws of
Quebec and Canada.
Section 6.3 Notices. Any notices or other communications
required or permitted hereunder shall be sufficiently given if
personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by prepaid telegram addressed
as follows:
If to 3838421: 3838421 Canada Inc.
attn: Xxxxxxxx Xxxxxxxxx
X/x X.X. Xxxxxx
XxXxxxxx X,xxxxxx
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx XX X0X 0X0
If to EBUX: EBUX, Inc.
Attn: President
0 Xxxxxx Xxxxx
Xxxxxxx Xxxxx Xxxxxx, XX 00000
or such other addresses as shall be furnished in writing by any
party in the manner for giving notices hereunder, and any such
notice or communication shall be deemed to have been given as of
the date so delivered, mailed, or telegraphed.
Section 6.4 Attorneys' Fees. In the event that any party
institutes any action or suit to enforce this Agreement or to
secure relief from any default hereunder or breach hereof, the
breaching party or parties shall reimburse the non-breaching
party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or
collecting any judgment rendered therein.
Section 6.5 Third Party Beneficiaries. This contract is
solely among 3838421 and EBUX and, except as specifically
provided, no director, officer, stockholder, employee, agent,
independent contractor or any other person or entity shall be
deemed to be a third party beneficiary of this Agreement.
Section 6.6 Entire Agreement This Agreement represents the
entire agreement between the parties relating to the subject
matter hereof. This Agreement alone, along with its annexes and
schedules fully and completely expresses the agreement of the
parties relating to the subject matter hereof. There are no
other courses of dealing, understandings, agreements,
representations or warranties, written or oral, except as set
forth herein and in annex or schedule hereto. This Agreement may
not be amended or modified, except by a written agreement signed
by all parties hereto.
Section 6.7 Survival; Termination. Except as otherwise
provided herein, the representations, warranties and covenants of
the respective parties shall survive the execution of this
Agreement and the consummation of the transactions herein
contemplated.
Section 6.8 Counterparts Facsimile Execution. For purposes of
this Agreement, a document (or signature page thereto) signed and
transmitted by facsimile machine or telecopier is to be treated
as an original document. The signature of any party thereon, for
purposes hereof, is to be considered as an original signature,
and the document transmitted is to be considered to have the same
binding effect as an original signature on an original document.
At the request of any party, a facsimile or telecopy document is
to be re-executed in original form by the parties who executed
the facsimile or telecopy document. No party may raise the use
of a facsimile machine or telecopier machine as a defense to the
enforcement of the Agreement or any amendment or other document
executed in compliance with this Section.
Section 6.9 Amendment or Waiver. Every right and remedy
provided herein shall be cumulative with every other right and
remedy, whether conferred herein, at law, or in equity, and may
be enforced concurrently herewith, and no waiver by any party of
the performance of any obligation by the other shall be construed
as a waiver of the same or any other default then, theretofore,
or thereafter occurring or existing. This Agreement may be
amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition
of this Agreement may be waived or the time for performance
hereof may be extended by a writing signed by the party or
parties for whose benefit the provision is intended.
Section 6.10 Incorporation of Recitals. All of the recitals
hereof are incorporated by this reference and are made a part
hereof as though set forth at length herein.
Section 6.11 Expenses. Each party herein shall bear all of
their respective costs and expenses incurred in connection with
the negotiation of this Agreement and in the consummation of the
transactions provided for herein and the preparation therefore.
Section 6.12 Headings; Context. The headings of the sections
and paragraphs contained in this Agreement are for convenience of
reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of this Agreement.
Section 6.13 Benefit. This Agreement shall be binding upon and
shall inure only to the benefit of the parties hereto, and their
permitted assigns hereunder. This Agreement shall not be
assigned by any party without the prior written consent of the
other party.
Section 6.14 Public Announcements. Except as may be required
by law, neither party shall make any public announcement or
filing with respect to the transactions provided for herein
without the prior consent of the other party hereto.
Section 6.15 Severability. In the event that any particular
provision or provisions of this Agreement or the other agreements
contained herein shall for any reason hereafter be determined to
be unenforceable, or in violation of any law, governmental order
or regulation, such unenforceability or violation shall not
affect the remaining provisions of such agreements, which shall
continue in full force and effect and be binding upon the
respective parties hereto.
Section 6.16 No Strict Construction. The language of this
Agreement shall be construed as a whole, according to its fair
meaning and intendment, and not strictly for or against either
party hereto, regardless of who drafted or was principally
responsible for drafting the Agreement or terms or conditions
hereof
Section 6.17 Execution Knowing and Voluntary. In executing
this Agreement, the parties severally acknowledge and represent
that each: (a) has fully and carefully read and considered this
Agreement; (b) has been or has had the opportunity to be fully
apprised by its attorneys of the legal effect and meaning of this
document and all terms and conditions hereof; and (c) is
executing this Agreement voluntarily, free from any influence,
coercion or duress of any kind.
Section 6.18 Shareholder Meeting following Closing. In
addition to the obligations contained herein, as soon as
practicable after the signing of this Agreement, all parties to
this Agreement shall cooperate to cause a meeting of the
shareholders of EBUX to be held at which
the EBUX shareholders shall adopt and approve amendments to the EBUX
Articles of Incorporation changing the business plan to focus on the
commercialization of the Property and of peer-to-peer
technologies generally, and its name and ticker symbol shall be
changed appropriately.
Section 6.19 Best Efforts. The parties shall contribute their
best efforts to the promotion of the ventures and achievement of
the goals described in this Agreement.
Section 6.20 Further Assurances. The parties shall do all
things and execute all instruments as necessary to give full
force and effect to the transactions contemplated in this
Agreement.
Section 5.21 Future Developments. Any and all future
developments or enhancements of the Property made by EBUX shall
attach to the Property and shall belong to 3838421 in the event
the Property is ever returned to 3838421 for any reason.
Section 5.22 English. The parties request that this
Agreement be drawn up in English only. Les parties exigent par
la pr,sente que cette convention soit r,dig,e en anglais
seulement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers, hereunto
duly authorized, and entered into as of the date first above
written.
EBUX, INC., a Florida corporation 3838421 Canada Inc.
By:/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------- ------------------------
Xxxxx X. Xxxxxx Xxxxxxxx Xxxxxxxxx
Its: President Its: President
The undersigned, Xxxxx X. Xxxxxx, intervenes personally herein to
guarantee the veracity of each and every representation and
warranty of EBUX, Inc. as set forth in Schedule C, and undertakes
each and every obligation ascribed to him in Article 2, Article
3, section 3.4(c) and Article 4, section 4.2(b) hereof.
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
The undersigned, Xxxxxxxx Xxxxxxxxx, intervenes personally herein
to guarantee the veracity of each and every representation and
warranty of 3838421 Canada Inc. in Schedule B, and
undertakes each and every obligation ascribed to him in Article 1, and
Article 4, section 4.2(a) hereof.
/s/ Xxxxxxxx Xxxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxxx
SCHEDULE A
The "Property"
1. For the purpose of this Agreement, the Property is comprised
of the following two rights, which 3838421 sells, transfers
and assigns to EBUX, subject to the terms of the Agreement:
a. 3838421's exclusive worldwide right to use and commercialise
the client software known as Gnotella Client, used as an
interface for peer-to-peer file transfer over the Gnutella
Net network, available, as at the execution date of this
agreement, for download in object code format as freeware at
the Internet location with the URL xxxxxxxx.xxxxxxxx.xxx or
any successor URL (the "Software"), as well as the
documentation relating to the Software, typically made
available to end users thereof (the "Documentation").
b. 3838421's exclusive worldwide right to display and use the
unregistered word xxxx "GNOTELLA" (the "Trade-xxxx"), solely
in connection with the sale, advertisement, service and
promotion of the Software and Documentation (the "Trade-xxxx
License").
2. The Trade-xxxx License is subject to the following
restrictions:
a. EBUX acknowledges that the Trade-xxxx and the whole of the
goodwill associated therewith, whether now existing or
arising in the future, is the sole and exclusive property of
3838421. EBUX further acknowledges its obligation to avoid
any loss of distinctiveness in the Trade-xxxx. THIS TRADE-
XXXX LICENSE IS SUBJECT TO TERMINATION AT 3838421'S ENTIRE
DISCRETION, EFFECTIVE IMMEDIATELY UPON WRITTEN NOTICE.
b. All representations of the Trade-xxxx that EBUX intends to
use shall be exact copies of those used by 3838421 or shall
first be submitted to 3838421 for approval of design, color
and other details, which shall not be unreasonably withheld
or delayed. To ensure trade-xxxx quality, EBUX shall fully
comply with all written guidelines provided by 3838421
concerning the use of the Trade-marks. EBUX agrees to
change or correct any material or activity that 3838421
determines to be inaccurate, objectionable, misleading or a
misuse of the Trade-marks.
c. 3838421 reserves the right, from time to time, to inspect,
upon reasonable prior written notice, EBUX's place of
business and/or marketing materials to ensure that EBUX's
use of the Trade-xxxx is consistent with 3838421's then
current trade-xxxx use guidelines and that the nature,
standard and quality of the Software are satisfactory to
3838421.
d. EBUX shall from time execute all such documents and do all
such acts as may be required by 3838421 to give effect to
the intent of the Agreement including all such documents and
acts as may be required to obtain and maintain registration
of the Trade-xxxx.
e. Upon expiration or termination of this Agreement or upon
termination of this trade-xxxx license pursuant to this
Section 2 of Schedule A, EBUX shall cease all display,
advertising and use of the Trade-xxxx and shall not
thereafter use, advertise or display trade-xxxx, trade name
or logo that is, or any part of which is, confusingly
similar to the Trade-xxxx.
3. Notwithstanding any other provision of the Agreement, no
ownership rights in and to the Software and Documentation
pass to EBUX. EBUX does not acquire any right to the
Software and Documentation, except the right to use and
commercialise same strictly in accordance with the
provisions of the Agreement. The Licensee does not acquire
any interest or rights in or to the ideas, concepts, know-
how and techniques included in the Software and
Documentation except the right to use and commercialise the
Software and Documentation strictly in accordance with the
provisions of the Agreement.
SCHEDULE B
Organization. 3838421 is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction
of its incorporation and has the corporate power and is duly
authorized, qualified, franchised and licensed under all
applicable laws, regulations, ordinances and orders of public
authorities to own the Property. The execution and delivery of
this Agreement do not and the consummation of the transactions
contemplated by this Agreement in accordance with the terms
hereof will not violate any provision of 3838421's articles of
incorporation or bylaws. 3838421 has full power, authority and
legal right and has taken all action required by law, its
articles of incorporation, its bylaws or otherwise to authorize
the execution and delivery of this Agreement.
Title and Related Matters. 3838421 has good and marketable title
to and is the sole and exclusive owner of the Property. No third
party has any right to any product, technology, data, trade
secrets, know-how, proprietary techniques or copyrights which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse
effect on 3838421's rights to sell, transfer or assign the
Property pursuant to this Agreement.
Litigation and Proceedings. To the best of 3838421's knowledge
and belief, there are no actions, suits, proceedings or
investigations pending or threatened by or against 3838421, at
law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign or before any arbitrator
of any kind that would have a material adverse effect on the
assets of 3838421. 3838421 does not have any knowledge of any
default on its part with respect to any judgment, order, writ,
injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result
in the discovery of such a default.
No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated
by this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any
material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which 3838421 is a party or
to which any of its properties or operations are subject.
Approval of Agreement The board of directors and shareholders of
3838421 have to the extent necessary authorized the execution and
delivery of this Agreement by 3838421 and have approved the
transactions contemplated hereby.
Limited Warranty 3838421 does not offer any warranty with respect
to the Property other than as set forth in this Schedule B.
Without limiting the generality of the foregoing, 3838421 makes
no warranty, either express or implied, in respect of the
Property, including merchantability, quality, durability or
fitness for a particular purpose. EBUX does not warrant that the
functions contained in the Property will satisfy all the needs of
EBUX or that the operation of the Software will always be error-
free or uninterrupted or that all programming errors in the
Software may be detected or corrected.
SCHEDULE C
Organization. EBUX is a corporation duly organized, validly
existing and in good standing under the laws of the state of
Florida and has the corporate power and is duly authorized,
qualified, franchised and licensed under all applicable laws,
regulations, ordinances and orders of public authorities to own
all of its properties and assets and to carry on its business in
all material respects as it are now being conducted, including
qualification to do business as a foreign corporation in the
states in which the character and location of the assets owned by
it or the nature of the business transacted by it requires
qualification. Included in the documents heretofore provided to
3838421 by EBUX are complete and correct copies of the articles
of incorporation and bylaws of EBUX as in effect on the date
hereof. The execution and delivery of this Agreement does not
and the consummation of the transactions contemplated by this
Agreement in accordance with the terms hereof will not, violate
any provision of EBUX's articles of incorporation or bylaws.
EBUX has taken all action required by law, its articles of
incorporation, its bylaws or otherwise to authorize the execution
and delivery of this Agreement. EBUX has full power, authority
and legal right and has taken all action required by law, its
articles of incorporation, bylaws or otherwise to consummate the
transactions herein contemplated.
Capitalization. The authorized capitalization of EBUX consists
of 50,000,000 shares of common stock, par value $0.001 per share.
As of the date hereof there are 8,500,000 common shares of EBUX
issued and outstanding.
Subsidiaries. EBUX owns 309 out of 310 shares of
XxxxxxxxXxxxxx.xxx, a company housed in Luxembourg. EBUX has no
other subsidiaries.
Liabilities. As of the date hereof, EBUX has no liabilities,
including without limitation, liabilities with respect to the
payment of any federal, state, county, local or other taxes
(including any deficiencies, interest or penalties). Further,
EBUX has no accounts payable and no contingent liabilities,
direct or indirect, matured or unmatured, with the sole exception
of a note payable to a shareholder in the amount of $79,222 and
accrued expenses of $44,877.
Information. The information concerning EBUX as set forth in
this Agreement is complete and accurate in all material respects
and does not contain any untrue statement of a material fact or
omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made,
not misleading.
Options and Warrants. There are no existing options, warrants,
calls or commitments of any character to which EBUX is a party
and by which it or its securities are bound and there are no
shares of EBUX which are not as yet issued pursuant to the
exercise of any option, warrant or other commitment except as
required under the terms of this Agreement.
Absence of Certain Changes or Events. Except as described
herein, EBUX has not: (i) granted or agreed to grant any
options, warrants or other rights for its stocks, bonds or other
corporate securities calling for the issuance thereof, which
option, warrant or other right has not been cancelled as of the
date hereof; or (ii) borrowed or agreed to borrow any funds or
incurred or become subject to, any material obligation or
liability, absolute or contingent.
Title and Related Matters. As of the date hereof and except as
disclosed herein, EBUX owns no real, personal or intangible
property.
Litigation and Proceedings. There are no actions, suits or
proceedings pending or, to the best of EBUX's or Xxxxx X.
Xxxxxx'x knowledge and belief, threatened by or against or
affecting EBUX, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind that would have a material
adverse effect on the business, operations, financial condition,
income or business prospects of EBUX. EBUX does not have any
knowledge of any default on its part with respect to any
judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or
instrumentality.
Contracts. As of the date hereof:
(a) there are no material contracts, agreements,
franchises, license agreements, or other commitments to
which EBUX is a party.
(b) EBUX is not a party to any contract, agreement,
commitment or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ,
injunction, decree or award which materially and adversely
affects, or in the future may (as far as EBUX can now
foresee) materially and adversely affect, the business,
operations, properties, assets or conditions of EBUX;
(c) EBUX is not a party to any material oral or written:
(i) contract for the employment of any officer or employee;
(ii) profit sharing, bonus, deferred compensation, stock
option, severance pay, pension, benefit or retirement plan,
agreement or arrangement covered by Title IV of the Employee
Retirement Income Security Act, as amended; (iii) agreement,
contract or indenture relating to the borrowing of money;
(iv) guaranty of any obligation for the borrowing of money
or otherwise; (v) consulting or other similar contract;
(vi) collective bargaining agreement; or (vii) agreement
with any present or former officer or director of EBUX; and
(d) EBUX is not bound by the letter of intent with
Laxford Finance.
Governmental Authorizations. To the best of EBUX's and Xxxxx X.
Xxxxxx'x knowledge, EBUX has all licenses, franchises, permits
and other governmental authorizations that are legally required
to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance
with federal and state securities or corporation laws, no
authorization, approval, consent or order of, or registration,
declaration or filing with, any court or other governmental body
is required in connection with the execution and delivery by EBUX
of the transactions contemplated hereby.
Compliance With Laws and Regulations. To the best of EBUX's and
Xxxxx X. Xxxxxx'x knowledge and belief, EBUX has complied with
all applicable statutes and regulations of any federal, state or
other governmental entity or agency thereof, except to the extent
that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of EBUX or
would not result in EBUX's incurring any material liability.
Further, EBUX is, as of the date of this Agreement, a "reporting
company" under Section 12 of
the Securities Exchange Act of 1934, as amended, and is current in
filing all reports required to be filed pursuant to said Act except
as has been disclosed in writing to 3838421.
Approval of Agreement The board of directors of EBUX have
authorized the execution and delivery of this Agreement by EBUX
and have approved the transactions contemplated hereby.
Labor Relations. EBUX has never had a work stoppage resulting
from labor problems. EBUX has no employees other than its
officers and directors.
Previous Sales of Securities. Since inception, EBUX has sold
8,500,000 common shares to investors in reliance upon applicable
exemptions from the registration requirements under the laws of
the United States and all such sales were made in accordance with
the laws of said jurisdictions.
Further Assurances. EBUX and Xxxxx X. Xxxxxx are jointly and
severally obligated to provide to 3838421 within 10 business days
of the date hereof:
- a copy of the Form D prepared in conjuction with the
offering of shares in December of 1998 pursuant to Rule 504;
- a copy of the letter of intent with Laxford Finance;
- an opinion of counsel acceptable to 3838421 that the
shareholder action taken on April 5, 2000, complied with
Florida law; and
- signed resignations, or as the case may be, resolutions
indicating the dismissal of Messrs. Burke, Buffone, Xxxxx
and Dahmata.
SEC Filing. EBUX and Xxxxx X. Xxxxxx are jointly and severally
obligated to provide to 3838421 within 45 business days of the
date hereof, certification that they have caused at their own
expense, EBUX to comply with Rule 14(c) promulgated under the
Securities and Exchange Act of 1934 as it relates to shareholder
action taken on April 5, 2000, including the preparation of and
the filing of Schedule 14C with the Securities and Exchange
Commission and the answering of any comments made by the
Securities and Exchange Commission staff in connection therewith.
