STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "AGREEMENT") dated as of
the 30th day of June 2000, is by and amongst InsiderStreet.com Inc., a Nevada
corporation (hereinafter referred to as "Buyer" or "InsiderStreet") and,
ebizStreet, Inc., a Nevada corporation, (the "Company" or "ebiz"), and those
shareholders of ebiz who execute this Agreement or tender their share
certificates (the "Shareholders"
WHEREAS, the respective Board of Directors of Buyer and the
Company deem the acquisition by Buyer of all of the issued and outstanding
capital stock of the Company on the terms set forth in this Agreement to be
desirable, generally to the welfare and advantage of each, and in the best
interests of the shareholders of each;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants herein contained, and for the purpose of
prescribing the terms and conditions of such acquisition, the mode of carrying
it into effect, and such other details and provisions as are necessary or
desirable, the parties hereto hereby represent, warrant, covenant and agree as
follows:
ARTICLE I
PLAN OF AGREEMENT
1.01 Number of Shares. Subject to the further conditions of this Agreement and
the truth of the representations and warranties provided herein, the
Shareholders agree to transfer to Buyer a total of 1,684,887 issued and
outstanding shares of common stock of the Company (the "ebizStreet Stock") owned
by the Shareholders duly endorsed for transfer in exchange for a total of
1,684,887 shares of common stock of the Buyer (the "InsiderStreet Stock"),
valued at $11.937 per share for this agreement. Each Shareholder will receive
one (1) share of InsiderStreet Stock for each and every share of ebizStreet
Stock owned by them. The shares of InsiderStreet Stock to be issued to the
Shareholders will be restricted securities as that term is defined under the
Securities Act of 1933, as amended. In addition, Buyer will issue 83,773 and
83,773 shares of InsiderStreet Stock to CNet and Ingram, respectively, in
accordance with the terms and conditions set forth in separate agreements.
The total number of shares due the selling shareholders assumes that as
of the date of closing that ebiz has acquired all of the issued and outstanding
shares of common stock of both AMS Systems Inc. ("AMS") and HardwareStreet.com,
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Inc. ("HardwareStreet"). In addition it assumes that all of the HardwareStreet
8% Senior Secured Convertible Debentures have converted into the common stock of
ebiz, and the $812,500 Convertible Notes of HardwareStreet have converted into
the common stock of ebiz. To the extent that within 21 days of closing ebiz has
not acquired all of the issued and outstanding shares of common stock of AMS and
all of the issued and outstanding shares of common stock, 8% Senior Secured
Convertible Debentures, and Convertible Notes of HardwareStreet the Buyer shall
reserve for issuance such additional shares of common stock to facilitate the
future acquisition of the AMS and HardwareStreet common stock , HardwareStreet
8% Senior Secured Convertible Debentures, and HardwareStreet Convertible Notes.
Notwithstanding anything herein to the contrary, HardwareStreet shall have 21
days from the date of Closing to convert their 8% Senior Secured Convertible
Debentures in the shares of ebiz and 14 days from the date of Closing to convert
their Convertible Notes to ebiz stock.
Buyer shall not be required to tender any share certificates to the
ebiz shareholders until such time as the Shareholders tender their share
certificates or execute such appropriate documentation as deemed satisfactory to
indicate their consent.
The current Shareholders shall receive such number of shares of the
Buyer's shares of stock based upon their equity ownership in ebiz. Attached
hereto and marked Schedule 1.01(a) is a list of the Shareholders. Attached and
marked Schedule 1.01(b) is a list of the AMS shareholders and the number of ebiz
shares these shareholders will be entitled to receive. Attached and marked
Schedule 1.01(c) is a list HardwareStreet shareholders, 8% Senior Secured
Convertible Debenture Holders and Convertible Note Holders and the number of
ebiz shares the HardwareStreet shareholders will be entitled to receive. Each
Shareholder shall receive 1 share of the Buyer's common stock for each share of
ebiz.
The Shareholders who are executing this Agreement shall deliver their
shares of ebiz duly endorsed for transfer in exchange for their shares of
InsiderStreet. However, 10% of the ebiz shares attributable to the
HardwareStreet shareholders, 8% Senior Secured Convertible Debenture Holders and
Convertible Note Holders (a maximum of 67,961 shares shall be held in escrow
(the "Escrow Shares") by the Company.
The Escrow Shares shall be subject to the following terms and
conditions: If it is determined that the audited revenues of HardwareStreet for
1999 is less than $22 million, then in that event, for every 1% decline in
revenues, the total number of shares held in escrow attributable to the
HardwareStreet shareholders, 8% Senior Secured Convertible Debenture Holders and
Convertible Note Holders shall be reduced by 1%.
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Of the 983,602 ebiz shares issued and attributable to the Stockholders of AMS,
732,283 shares shall be delivered at closing and 251,319 shares shall be held in
escrow by the Company. In the event that the year 2000 audited revenues of the
business attributable to AMS reaches $18,000,000, the 251,319 escrowed shares
shall be released. If the audited revenues of AMS are less than $18 million, the
Company may cancel the 251,319 shares held in escrow for the benefit of AMS.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company represents and warrants to Buyer that:
2.01 Incorporation, Common Stock, Etc. The Company is a corporation duly
organized and existing in good standing under the laws of the State of Nevada.
Attached hereto as Schedule 2.01 is a copy of the Company's good standing
certificate and Articles of Incorporation. Company has full corporate power and
authority to carry on its business as it is now being conducted and to own and
operate its assets, businesses and properties. Company has authorized capital
stock consisting of 25,000,000 shares of Common Stock, par value .001 per share.
There are no preferred shares authorized. There are, and at the Closing will be
no outstanding subscriptions, options, warrants, convertible securities, calls,
commitments or agreements calling for or requiring issuance or transfer, sale or
other disposition of any shares of capital stock of the Company or calling for
or requiring the issuance of any securities or rights convertible into or
exchangeable (including on a contingent basis) for shares of capital stock. All
of the outstanding shares of the Company are duly authorized, validly issued,
fully paid and non-assessable. There are no dividends due, to be paid or are in
arrears with respect to any of the capital stock of Company.
2.02 Company Financial Statements. Attached hereto as Schedule 2.02 are the
most recent unaudited financial statements for the Company dated June 30, 2000
and HardwareStreet and AMS dated April 30, 2000. These un-audited financial
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statements present fairly the financial position of each of the Companies as of
the dates set forth in the unaudited financial statements. The unaudited
financial statements have been prepared in conformity with generally accepted
accounting principles consistently applied and consistent with the books and
records of each Company, except that the unaudited financial statements (i) were
or are subject to normal year-end adjustments which were not or are not expected
to be material, and (ii) may not contain footnote disclosures. There has been no
material change in the financial condition of the each Company since the date of
the financial statements. All known liabilities of the Company are set forth in
the financial statements and there are not undisclosed liabilities of any kind
or nature.
The Company, AMS and HardwareStreet further agree to provide the Buyer
within 60 days of Closing certified financial statements in conformity with
Securities and Exchange Commission reporting requirements. If the Company is
unable to provide the required certified financial statements or, the certified
financial statements reflect a material change in the financial condition of the
Company from that which was represented in the April 30, 2000 financial
statements, then in that event the Buyer may, in its sole and absolute
discretion and in addition to any remedies available at law, rescind this
Agreement and all monies paid or advanced to ebiz, HardwareStreet or AMS by
InsiderStreet shall be immediately repayable on demand by the respective
parties.
2.03 Litigation. Except as set forth in Schedule 2.03, there are no actions,
suits, proceedings, or investigations pending or, to the best of its knowledge,
threatened or contemplated against Company, AMS or Hardware Street at law or in
equity, before any federal, state, municipal or other governmental department,
commission, board, agency or instrumentality, domestic or foreign. The Company
is not subject to any outstanding judgments or operating under or subject to or
in default with respect to any order, writ, injunction or decree of any court or
federal, state, municipal or other governmental department, commission, board,
agency or instrumentality, domestic or foreign.
2.04 Compliance with Laws. To the best of its knowledge, the Company,
HardwareStreet and AMS have respectively complied in all material respects with
all laws, regulations, orders, domestic and foreign, and neither the present
uses of their properties nor the conduct of its business violate any such laws,
regulations, orders or requirements, and except as set forth in Schedule 2.04
(if applicable) the Company (and Hardware Street and AMS) have not received any
notice of any claim or assertion that it is not so in compliance.
2.05 Indebtedness. Except as set forth in the Company, HardwareStreet or AMS
Balance Sheet, the respective entities have not executed any instruments,
entered into any agreements or arrangements pursuant to which the either has
borrowed any money, incurred or guaranteed any indebtedness or established any
line of credit which represents a liability of the Company as of the date
thereof.
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2.06 No Material Adverse Change. Since the Company, AMS and HardwareStreet
Balance Sheet Dates, there has not been any material adverse change in the
condition, financial or otherwise, of any or in their business taken as a whole;
nor has there been any material transaction entered into by any of the entities.
Each has not incurred any material obligations, contingent or otherwise except
for legal and accounting fees and expenses in connection with the transactions
contemplated by this Agreement. There has not been any damage, destruction or
loss, whether or not covered by insurance adversely affecting any of the named
company's business, property or assets; nor has AMS, HardwareStreet or the
Company (a) created or incurred any indebtedness; (b) issued, sold, purchased,
redeemed or granted any shares of common stock or any other securities of
Company or any options, warrants or other rights to purchase any shares of
common stock of any of the companies except as set forth in Schedule 2.06; (c)
amended its Certificate of Incorporation or bylaws, (d) paid any obligation or
liability other than obligations or liabilities reflected in its Balance Sheet
dated as of the Company Balance Sheet Date or incurred any liabilities except
for legal and accounting fees and disbursements incurred in the ordinary course
of business or in connection with this Agreement and the transactions
contemplated hereby.
2.07 No Defaults. Neither the execution nor delivery of this Agreement nor the
consummation of the contemplated transaction are events which, of themselves or
with the giving of notice or passage of time or both, could constitute a
violation of or conflict with or result in any breach of or default under the
terms, conditions or provisions of any judgment, law or regulation or of AMS,
HardwareStreet or the Company's Certificate of Incorporation or Bylaws, or of
any agreement or instrument to which Company is a party or by which it is bound;
or could result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever on the property or assets of Company; and no consent of
any third party except as expressly contemplated herein is required for the
consummation of this Agreement by Company.
2.08 Corporate Action of Company. The Board of Directors of AMS, HardwareStreet
and the Company have duly authorized the execution and delivery of this
Agreement. Subject to the approval of the stockholders of the Company as
provided herein, this Agreement constitutes a valid, legal and binding agreement
of Company and is enforceable in accordance with its terms.
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2.09 Liabilities. As of the AMS, Hardware Street and Company Balance Sheet Date,
none have incurred no other liabilities except those incurred in the ordinary
course of business.
2.10 Taxes. Except as set forth on Schedule 2.10, all federal, state, and local
tax returns, reports and declarations of estimated tax or estimated tax deposit
forms required to be filed by Company, HardwareStreet and AMS have been duly
filed; each entity has paid all taxes which have become due pursuant to such
returns or pursuant to any assessment received by it, and has paid all
installments of estimated taxes due; and all taxes, levies and other assessments
which each is required by law to withhold or to collect have been duly withheld
and collected and have been paid over to the proper governmental authorities.
Each has no knowledge of any tax deficiency which has been or might be asserted
against each which would materially and adversely affect the business or
operations of each. At Closing, each shall provide Buyer with copies of all tax
returns, of any kind or nature, filed by Company, together with all accounting
information.
2.11 Title to Property; Leases. Except as set forth in Schedule 2.11, AMS,
HardwareStreet and the Company have good and defensible title in fee simple to,
or valid and enforceable leasehold estates in, all properties and assets, which
are material to its continued operations, free and clear of all liens,
encumbrances, charges or restrictions or are not materially significant or
important in relation to its operations and business. Except as set forth in
Schedule 2.11, all of such leases and subleases under which Company, AMS or
Hardware is the lessor or sublessor, lessee or sublessee of properties or assets
or under which Company holds properties or assets as lessee or sublessee are in
full force and effect. Company is not in default in respect of any of the terms
or provisions of any of such leases or subleases, and no claim has been asserted
by anyone adverse to the Company's rights as lessor, sublessor, lessee or
sublessee under any of the leases or subleases mentioned above, or affecting or
questioning the Company's rights to continued possession of the leased or
subleased premises or assets under any such lease or sublease; and Company
either owns or leases all such properties as are necessary to its operations as
now conducted.
Attached hereto and marked Schedule 2.11 is a list of all assets owned
by AMS, HardwareStreet and the Company including all tangible and intangible
assets and assets owned through any subsidiaries.
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2.12 Licenses. The Company, AMS and HardwareStreet have obtained all required
licenses, permits or other governmental authorization for the conduct of its
business as now being conducted.
2.13 Bank Accounts. Attached hereto as Schedule 2.13 is a listing of all bank
accounts and account numbers which are currently held by Company, AMS and
HardwareStreet.
2.14 Contracts and Commitments. Except as set forth in Schedule 2.14, there are
no contracts nor commitments of the Company HardwareStreet or AMS requiring any
future payment to an officer, director, employee, agent or shareholder of
Company. Also attached and marked as Exhibit 2.14 is a list of all current
Company, AMS and HardwareStreet employees and the salary of each.
2.15 Representations True and Correct. This Agreement and the Schedules and
Exhibits attached hereto do not contain any untrue statement of a material fact
concerning Company or omits any material fact concerning Company which is
necessary in order to make the statements therein not misleading. All of the
representations and warranties contained herein (including all statements
contained in any certificate or other instrument delivered by or on behalf of
the Shareholders pursuant hereto or in connection with the transactions
contemplated hereby) shall survive the Closing.
2.16 Retirement Plans. Neither the Company, AMS, HardwareStreet nor any
subsidiary, or affiliate is obligated under any pension plan, profit sharing or
similar employee benefit plan.
2.17 Intellectual Property Rights. Attached hereto as Schedule 2.17 is a list of
all trademarks and trade names which are owned by the Company, AMS or
HardwareStreet together with copies of any official notice from any issuing
governing organization.
2.18 Indemnification. The Company shall indemnify and hold Buyer, its officers
and directors, harmless of and in respect of:
(1) Any damage or loss resulting from any loss, liability damage,
misrepresentation, breach of warranty or non-fulfillment on the part of Company,
AMS or HardwareStreet under this Agreement or from any misrepresentation or
omission from any certificates or other instrument furnished to Buyer pursuant
to this agreement. Notwithstanding the foregoing here shall be no right of
indemnification and, Buyer shall not be entitled to a claim for indemnification
for any loss resulting from any change in the price of InsiderStreet common
stock.
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(2) All actions, suits, proceedings, demands assessments, judgments, costs
and expenses incident to any of the foregoing including reasonable attorney's
fees and all costs incurred by Buyer to enforce this Agreement against Company.
2.19 Status of AMS. As of the date of this Agreement or within 21 days hereof,
the Company will have acquired 100% of the issued and outstanding shares of
common stock of AMS. Attached and marked Schedule 2.19 are copies of all
outstanding agreements to acquire all of the remaining outstanding shares of
common stock of AMS. Upon acquisition of these shares, there will be no options,
rights, warrants or other agreements which may be converted into shares of
common stock of AMS.
2.20 Status of HardwareStreet. As of the date of this Agreement or within 21
days hereof, the Company will have acquired 85% of the aggregate issued and
outstanding shares of common stock 8% Senior Secured Convertible Debentures, and
Convertible Notes of HardwareStreet. Attached and marked Schedule 2.20 are
copies of all outstanding agreements to acquire all of the remaining outstanding
shares of common stock of HardwareStreet. The Company's 1998 Stock Option Plan
and Directors Stock Option Plan of HardwareStreet will be terminated as of the
date of Closing. HardwareStreet will honor options granted pursuant to such plan
in accordance with the terms and conditions of such plan prior to its
termination. At Closing, there are approximately_________shares that have been
granted pursuant to such plans. Warrants that remain unexercised at the Closing
will terminate by their respective terms. Except for the 8% Senior Secured
Convertible Debentures the Convertible Notes subject to this Agreement and an
option granted in the amount of ____ shares to iGo.com, Inc. there are no other
outstanding subscriptions, options, warrants, convertible securities, calls,
commitments or agreements calling for or requiring issuance of transfer, sale or
other disposition of any shares of securities or rights convertible into or
exchangeable (including on a contingent basis) for shares of capital stock of
HardwareStreet.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Shareholder and Company that:
3.01 Incorporation, Common Stock, Etc. Buyer is a corporation duly
organized and existing in good standing under the laws of the State of Nevada.
The Buyer has full corporate power and authority to carry on its business as it
is now being conducted and to own and operate its assets, businesses and
properties. The Buyer has authorized capital stock consisting of 100,000,000
shares of Common Stock, par value $.001 per share, of which 6,400,000 were
outstanding as of June 28, 2000. All of the outstanding shares of the Company
are duly authorized, validly issued, fully paid and non-assessable. There are no
dividends due, to be paid or are in arrears with respect to any of the capital
stock of Company.
3.02 Buyer Financial Statements. Attached hereto as Schedule 3.02 are
the most recent financial statements for the Buyer dated as of April 30, 2000 as
filed with the Securities and Exchange Commission. The Buyer Balance Sheet and
Income Statement present fairly the financial position of Buyer as of the dates
set forth in the financial statements. The Balance Sheet has been prepared in
conformity with generally accepted accounting principles. ("GAAP") All
liabilities of the Buyer are set forth in the financial statements and there are
no undisclosed liabilities of any kind or nature.
3.03 Litigation. Except as set forth on Schedule 3.03 there are no
actions, suits, proceedings, or investigations pending or, to the best of its
knowledge, threatened or contemplated against Buyer at law or in equity, before
any federal, state, municipal or other governmental department, commission,
board, agency or instrumentality, domestic or foreign. The Buyer is not subject
to any outstanding judgments or operating under or subject to or in default with
respect to any order, writ, injunction or decree of any court or federal, state,
municipal or other governmental department, commission, board, agency or
instrumentality, domestic or foreign.
3.04 Compliance with Laws. The Buyer has complied in all material
respects with all laws, regulations, orders, domestic and foreign, and neither
the present uses by Buyer of its properties nor the conduct of its business
violate any such laws, regulations, orders or requirements, and the Buyer has
not received any notice of any claim or assertion that it is not so in
compliance.
3.05 No Defaults. Neither the execution nor delivery of this Agreement
nor the consummation of the contemplated transaction are events which, of
themselves or with the giving of notice or passage of time or both, could
constitute a violation of or conflict with or result in any breach of or default
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under the terms, conditions or provisions of any judgment, law or regulation or
of Buyer's Certificate of Incorporation or Bylaws, or of any agreement or
instrument to which Buyer is a party or by which it is bound; or could result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever on the property or assets of Buyer; and no consent of any third party
except as expressly contemplated herein is required for the consummation of this
Agreement by Buyer.
3.06 Corporate Action of Buyer. The Board of Directors of the Buyer has
duly authorized the execution and delivery of this Agreement. This Agreement
constitutes a valid, legal and binding agreement of Buyer and is enforceable in
accordance with its terms.
3.07 Taxes. Except as set forth on Schedule 3.07, all federal, state,
and local tax returns, reports and declarations of estimated tax or estimated
tax deposit forms required to be filed by Buyer have been duly filed; Buyer has
paid all taxes which have become due pursuant to such returns or pursuant to any
assessment received by it, and has paid all installments of estimated taxes due;
and all taxes, levies and other assessments which Buyer is required by law to
withhold or to collect have been duly withheld and collected and have been paid
over to the proper governmental authorities. Buyer has no knowledge of any tax
deficiency which has been or might be asserted against Buyer which would
materially and adversely affect the business or operations of Buyer.
3.08 Title to Property; Leases. Buyer has good and defensible title in
fee simple to, or valid and enforceable leasehold estates in, all properties and
assets, which are material to its continued operations, free and clear of all
liens, encumbrances, charges or restrictions except as set forth in the attached
Schedule 3.08 or are not materially significant or important in relation to its
operations and business. All of such leases and subleases under which Buyer is
the lessor or sublessor, lessee or sublessee of properties or assets or under
which Buyer holds properties or assets as lessee or sublessee are in full force
and effect. Buyer is not in default in respect of any of the terms or provisions
of any of such leases or subleases, and no claim has been asserted by anyone
adverse to their respective rights as lessor, sublessor, lessee or sublessee
under any of the leases or subleases mentioned above, or affecting or
questioning their respective rights to continued possession of the leased or
subleased premises or assets under any such lease or sublease; and Buyer either
owns or leases all such properties as are necessary to its operations as now
conducted.
3.09 Representations True and Correct. This Agreement and the Schedules
and Exhibits attached hereto do not contain any untrue statement of a material
fact concerning Buyer or omits any material fact concerning Buyer which is
necessary in order to make the statements therein not misleading. All of the
representations and warranties contained herein (including all statements
contained in any certificate or other instrument delivered by or on behalf of
the Buyer) shall survive the closing.
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3.10 Indemnification. Buyer shall indemnify and hold Company,
HardwareStreet, AMS and their respective officers and directors, harmless of and
in respect of:
(1) Any damage or loss resulting from any loss, liability, damage,
misrepresentation, breach of warranty or non-fulfillment on the part of Buyer
under this agreement or from any misrepresentation or omission from any
certificates or other instrument furnished to Company pursuant to this
agreement.
(2) All actions, suits, proceedings, demands assessments, judgments,
costs and expenses incident to any of the foregoing including reasonable
attorney's fees and all costs incurred by Company to enforce this agreement
against Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
The Shareholders own 100% of the issued and outstanding shares of
stock of Company. The Shares are owned free and clear of any liens or
encumbrances and that the Shareholders are free to transfer the Shares without
the consent of any third party.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS of Buyer TO CLOSE
The obligations of Buyer under this Agreement are, subject to the
fulfillment of the following conditions at, or prior to, the closing date:
5.01 Representations, Warranties and Covenants. All representations and
warranties of Company contained in this Agreement and in any statement,
certificate, schedule or other document delivered by Company pursuant hereto or
in connection herewith shall have been true and accurate in all respects as of
the date when made and as of the Closing Date.
5.02 Covenants, Etc. Company shall have substantially performed and
complied with each and every covenant, agreement and condition required by this
Agreement to be performed or complied with by them prior to, or at, the Closing
Date.
5.03 Certificate. Company shall have delivered to Buyer a certificate
of the President and Secretary of Company, dated the Closing Date, certifying to
the fulfillment of the conditions set forth in Schedules 5.01 and 5.02.
5.04 Proceedings. No action or proceedings shall have been instituted or
threatened against the Company which could materially adversely affect the
business of the Company. No action or proceedings shall have been instituted or
threatened against any of the parties to this Agreement or their directors or
officers before any court or governmental agency to restrain, prohibit or obtain
substantial damages in respect of this Agreement or the consummation of the
transaction contemplated hereby.
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5.05 Corporate Documents. Prior to Closing the Company shall furnish to
Buyer copies of the Certificate of Incorporation of Company and each amendment
thereto, if any, which shall be certified by a proper state official; one copy
of the By-Laws and minutes of Company by its secretary or an assistant secretary
as being currently in effect, and a certificate of good standing issued by the
proper state officials of each state in which Company transacts business and is
required to qualify.
5.06 Document & Production. This Agreement is expressly conditioned on
Company providing all identified schedules and exhibits at the time of closing.
5.07 Acquisition of Hardware Street and AMS. This Agreement is expressly
conditioned upon the Company that the Company acquires 100% of the issued and
outstanding shares of common stock of AMS and 85% of aggregate issued and
outstanding shares of common stock, 8% Senior Secured Convertible Debentures,
and Convertible Notes of HardwareStreet, and a release of lien by BlueStone
Capital. If these conditions are not met within 21 days of the date of this
Agreement, Buyer may rescind this Agreement in its sole and absolute discretion
and all monies previously paid by Buyer shall be repaid.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE SHAREHOLDERS
The obligations of the Shareholders is subject to the fulfillment of the
following conditions at or prior to the Closing Date:
6.01 Representations, Warranties and Covenants. All representations and
warranties of Buyer contained in this Agreement and in any statement,
certificate, schedule or other document delivered pursuant hereto, or in
connection herewith, shall have been true and accurate in all respects as of the
date when made and as of the Closing Date.
6.02 Covenants, Etc. Buyer shall have substantially performed and
complied with each and every covenant, agreement and condition required by this
Agreement to be performed or complied with by it prior to, or at, the Closing
Date.
6.03 Proceedings. No action or proceedings shall have been instituted
or threatened against Buyer which could materially and adversely affect the
business of Buyer. No actions or proceedings shall have been instituted or
threatened against any of the parties to this Agreement, or their directors or
officers before any court or governmental agency to restrain, prohibit or obtain
substantial damages in respect to this Agreement or the consummation of the
transaction contemplated hereby.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
7.01 Abandonment of Agreement. This Agreement may be terminated and the
transaction hereby contemplated abandoned at any time prior to the Closing Date,
whether before or after the approval and adoption hereof by the shareholders of
each Company by (a) the mutual consent of the Board of Directors of Company and
Buyer or (b) the Board of Directors of the Company if any condition to its
obligations provided in this Agreement has not been met at the time such
condition is to be met and has not been waived by it, or (c) by the Board of
Directors of Buyer, if any condition to its obligations provided in this
Agreement has not been met at the time such condition is to be met and has not
been waived by it.
7.02 Liabilities. In the event this Agreement is terminated pursuant to
Section 7.01, no party hereto shall have any liability to the other and each
party shall bear their own costs incurred.
7.03 Assignments. This Agreement may not be assigned except with the
written consent of the nonassigning party. Notwithstanding the foregoing, the
rights of the Shareholders to receive the Shares shall be freely assignable.
7.04 Survival of Representations and Warranties. Company and Buyer
agree all representations and warranties contained herein or made hereunder
shall survive the Closing, except that any breach disclosed in writing to either
party prior to Closing is waived by such party if it elects to close
notwithstanding such breach.
7.05 Notices. All notices, demands and other communications which may
or are required to be given pursuant to this Agreement shall be given or made
when personally delivered or when deposited in the United States Mail, first
class, postage pre-paid, addressed as follows:
If to Buyer to: InsiderStreet.com
202 E. Madison Street
Tampa, FL 33602
With a copy to: Jeffrey Klein, Esquire
23123 State Road Seven
Suite 350B
Boca Raton, Florida 33428
or to such other address as Company may, from time to time, designate by Notice
to Buyer
If to Company to: EbizStreet, Inc.
639 Isbell Road 4th Floor
Reno, Nevada 89509
With a copy to: Golenbock, Eiseman, Assor & Bell
437 Madison Avenue
New York, New York 10022
Attention: Lawrence M. Bell, Esq.
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or to such other addresses as Company may, from time to time, designate by
notice to Buyer.
7.06 Closing. The closing date for the contemplated transaction shall
be on July 3, 2000.
7.07 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any and all prior agreements
between the parties relating to its subject matter. The representations,
warranties, covenants and conditions of the obligations of the parties hereto
may not be orally amended, modified or altered, but may be amended, modified or
altered in a writing signed by each of the parties, whether before or after the
meeting of shareholders of Company contemplated herein.
7.08 Captions. The captions of Articles and Sections of Articles hereof
are for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
7.09 Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Florida and
jurisdiction for any dispute shall be in Florida.
7.10 Waivers. Any failure of either party hereto to comply with any of
its obligations or agreements, or to fulfill conditions herein contained may be
waived in writing by the other party. No waiver by any party of any condition or
the breach of any provision, term, covenant, representation or warranty
contained in this Agreement, whether by conduct or otherwise, shall be deemed to
be or construed as a further or continuing waiver of any such condition or of
the breach of any other provision, term, covenant, representation, or warranty
of this Agreement.
7.11 Counterparts. This Agreement may be executed in several
counterparts and all so executed shall constitute one agreement, binding upon
all of the parties hereto, notwithstanding that not all of the parties are
signatory to the original or the same counterpart.
7.12 Successors. The terms covenants and conditions of the Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective heirs, legal representatives, successors and assigns.
7.13 Binding Agreement. This Agreement represents the entire agreement
among the parties hereto with respect to the matters described herein and is
binding upon and shall inure to the benefit of the parties hereto and their
legal representatives. This Agreement may not be assigned and, except as stated
herein, may not be altered or amended except in writing executed by the party to
be charged.
7.14 Legal representation- All parties to this transaction have been
represented by legal counsel.
7.15 Tax Status- This Agreement is designed to be construed as a tax
free exchange under Section 368 of the Internal Revenue Code of 1986, as
amended.
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<PAGE>
This Agreement entered into the date first entered above.
InsiderStreet.com Inc. WITNESS:
/s/ Raymond Miller
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BY: Raymond Miller pres
E Biz Street Inc.
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By:
The Shareholders
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15
