EXHIBIT 4.5(ii)
Payment Agreement for Xxxxx Xxxxxxxx
AGREEMENT
THIS AGREEMENT dated as of the 31th day of March, 2003, by and among
SUNRISE U.S.A. INCORPORATED, a Nevada corporation with its principal executive
offices located at 0000 Xxxxxxx Xx. Xxx Xxxxxx, XX 00000 ("Company") and Xxxxx
Xxxxxxxx, 000 Xxxxxxxxx Xxx. Xxxx Xxxxxxxx, XX 00000 (the "Advisor").
W I T N E S S E T H:
WHEREAS, Company and Advisor have agreed to enter into an agreement (the
"Agreement") concerning the payment for services (the "Fees") performed by
Advisor to the predecessor company of the Company during the calendar years 1999
and 2000, and.
WHEREAS, Advisor has agreed to accept and the Company has agreed to distribute
16,000,000 fully paid and non-assessable shares of the restricted $0.01 par
value common stock of the Company (the "Shares"), in full payment of the Fees.
NOW, THEREFORE, in consideration of the mutual promises of the other and other
good and valuable consideration the receipt and sufficiency of which is
acknowledged by each of the parties hereto. The parties hereto do hereby agree
as follows:
1. Payment and Distribution. Advisor agrees to accept the Shares in full and
complete payment for any and all services rendered to Company and or to the
predecessor of Company during the years 1999 and 2000. The Company agrees to
distribute the Shares to Advisor as soon as practicable after the execution of
this Agreement and Subscription Agreement attached hereto as Exhibit I. The
Company and Advisor acknowledge and agree that the Shares have a monetary value
of no more than $0.01 and are restricted from resale.
2. Representations and Warranties of Company. Company represents and
warrants to Advisor as follows:
(a) Organization; Good Standing. Company is duly organized and validly
exists in good standing as a corporation under the laws of the State of Nevada.
Company has the legal power and authority to own, operate and lease its
properties and assets and to carry on its business as now conducted, and is duly
qualified to do business wherever the nature and location of its business and
assets require such qualification.
(b) Capital Stock of Company. The authorized capital stock of Company
consists of One Million (1,000,000) shares of Preferred Stock of $0.01 par
value, non issued and Ninety Nine Million (99,000,000) shares of $0.01 par value
common stock (the "Company Common Stock"), of which Forty Four Million, Nine
Hundred Sixty Five Thousand, (44,965,724) shares representing the Outstanding
Shares are issued and outstanding. All of the Company Common Stock has been
validly issued and are fully paid and non-assessable.
(c) Authorization. Company has full right, power and authority to
enter into, execute, deliver and perform this Agreement and all corporate
proceedings on the part of Company necessary to authorize this Agreement and
consummate the transactions contemplated hereby have been or, as of the Closing
Date, will be taken. This Agreement constitutes a valid and binding agreement
of the Company, enforceable in accordance with its respective terms (subject to
applicable bankruptcy, insolvency and other laws affecting the enforceability
of creditors' rights generally and the discretion of courts in granting
equitable remedies).
(d) No Violation. To the knowledge of Company, the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
will not: (i) conflict with, or result in (or with notice or lapse of time
result in) a material breach of the terms of or default under, or violate in any
material respect any provision of law applicable to Company, any agreement,
commitment, contract, instrument, order, decree, ruling or injunction to which
Company is subject or a party or by which it is bound, or the Certificate of
Incorporation and Bylaws of Company, or (ii) result in the imposition of any
mortgage, security interest, pledge, lien or other encumbrance on the Shares.
(e) Consents. Company shall file all notices and obtain all consents from
any party necessary to effectuate the transfer of the Shares as contemplated by
this Agreement.
(f) Assets, Business and Financial Statements. Company has delivered to
Advisor true, correct and complete financial which truly, correctly and
completely present Company's financial condition as of the respective dates
presented therein (collectively referred to as the "Financial Statements"). All
such Financial Statements are correct and complete and have been prepared from
the books and records of the company in accordance with generally accepted
accounting principles consistently applied with those followed in prior periods.
(g) Information. All written material furnished or to be furnished by
Company to Advisor with respect to Company does not and will not contain any
statement which is false or misleading with respect to any material fact or omit
any statement needed to make such material not to be false or misleading with
respect to any material fact.
3. Investment Representation. Advisor acknowledges that, upon transfer to
him or her, the Shares will not have been "registered" and, therefore, will be
"restricted securities", as those terms are used under the Securities Act of
1933, as amended and the rules and regulations promulgated there under (the
"Securities Act"). By execution of this Agreement, Advisor agrees, represents
and warrants that his or her acquisition of the Shares hereunder is for
investment only, for his or her own account (both of record and beneficially)
and not with a view to "distribution" as that term is used under the Securities
Act. Advisor further acknowledges that Company shall cause the following legend
to be placed on the certificates representing the Shares:
"The securities represented by this certificate have not been registered under
the Securities Act of 1933, as amended, and may not be sold, transferred,
pledged, hypothecated or otherwise disposed of in the absence of (i) an
effective registration statement for such securities under said act or (ii) an
opinion of counsel acceptable to counsel to the Company that such registration
is not required."
4. Miscellaneous.
(i) Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and may
not be changed orally, but only by an instrument in writing signed by the party
against whom enforcement of such change is sought
(ii) Notices. All notices, directions and other communications hereunder shall
be in writing and shall be deemed to have been given when actually received or,
with respect to notices, when mailed by certified or registered United States
mail, return receipt requested as follows:
If to Company to:
Sunrise U.S.A Incorporated
0000 Xxxxxxx Xx.
Xxx Xxxxxx, XX 00000
(000) 000-0000
If to Advisor, to:
Xxxxx Xxxxxxxx
000 Xxxxxxxxx Xxx.
Xxxx Xxxxxxxx, XX 00000
Any party may change its address for notices hereunder by giving notice of such
change to the other parties in accordance with the provisions of this Section
7(ii)
(iv) Headings. The headings of the sections of this Escrow Agreement have
been inserted for convenience and shall not modify, define, limit or expand the
express provisions of this Escrow Agreement.
(v) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio for contracts made and to be
performed in such state without giving effect to the principles relating to the
conflict of law.
(vii) Binding Nature. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns.
(viii) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SUNRISE U.S.A. INCORPORATED
By: /S/ XXXX XXXXXXXXXX
---------------------------------
Title
Xxxxx Xxxxxxxx
/s/ XXXXX XXXXXXXX
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An Individual
