U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS UNDER SECTION
12(B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934
GLOBAL BUSINESS INFORMATION DIRECTORY, INC.
(Name of small business issuer in its charter)
COLORADO
84-1390878
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification Number)
3800-999 3RD AVENUE
SEATTLE, WASHINGTON 98104
(Address of Principal Executive Offices) (Zip Code)
(206) 224-4106
(Registrant's Telephone Number, Including Area Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
(None)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Common Stock, par value $0.001
Title of Class
<PAGE>
TABLE OF CONTENTS
PART I
Item 1 Description of Business.
Item 2 Plan of Operation.
Item 3 Description of Property.
Item 4 Security Ownership of Certain Beneficial Owners
and Management.
Item 5 Directors, Executive Officers, Promoters and
Control Persons.
Item 6 Executive Compensation.
Item 7 Certain Relationships and Related Transactions.
Item 8 Description of Securities.
PART II
Item 1 Market Price of and Dividends on the
Registrant's Common Equity and Other Shareholder
Matters.
Item 2 Legal Proceedings.
Item 3 Changes In and Disagreements With Accountants.
Item 4 Recent Sales of Unregistered Securities.
Item 5 Indemnification of Directors and Officers.
PART F/S
Financial Statements.
PART III
Item 1 Index to Exhibits.
Item 2 Description of Exhibits.
<PAGE>
This Registration Statement on Form 10-SB includes forward-looking
statements within the meaning of the Securities Exchange Act of 1934
(the "Exchange Act"). These statements are based on management's
current beliefs and assumptions about the Registrant and the
industry in which the Registrant competes in, and on information
currently available to management. Forward-looking statements
include, but are not limited to, the information concerning possible
or assumed future results of operations of the Registrant set forth
under the headings "Business", and "Plan of Operations."
Forward-looking statements also include statements in which words
such as "expect," "anticipate," "intend," "plan," "believe,"
"estimate," "consider" or similar expressions are used.
Forward-looking statements are not guarantees of future performance.
They involve risks, uncertainties and assumptions. The Registrant's
future results and shareholder values may differ materially from
those expressed or implied in these forward-looking statements.
Readers are cautioned not to put undue reliance on any
forward-looking statements. In addition, the Registrant does not
undertake to update forward-looking statements after the
effectiveness of this Registration Statement, even if new
information, future events or other circumstances have made them
incorrect or misleading.
PART I
ITEM 1 - DESCRIPTION OF BUSINESS
Global Business Information Directory, Inc. (the "Company" or
"Global") is an Internet based business portal providing global
business search directory services, Web page hosting, e-mail
services, and other business related Internet services. Global was
organized as a Colorado corporation on March 13, 1997 and is
currently based in Seattle, Washington.
The Company was originally incorporated under the laws of the State
of Colorado on March 13, 1997 as Snowy Peak Financial, Inc. Between
1997 to 1998, the Company was inactive. On May 7, 1998, in
contemplation of initiating a new business plan, the Company changed
its name to Consolidated Builders Supply Corporation. However, the
Company was unable to implement its new business plan. As a result,
the Company ceased its operations in the spring of 1998 and began a
search for new business opportunities.
On March 15, 1999, the Company (which at the time was designated
Consolidated Builders Supply Corporation, a Colorado corporation
("Consolidated")) acquired all of the outstanding common stock of
Global Business Information Directory, a Delaware corporation
("Global-Delaware") in a business combination described as a
"reverse merger." For accounting purposes, the merger has been
treated as the merger of Consolidated (the Registrant) into
Global-Delaware.
Immediately prior to the merger, Consolidated had 3,120,000 shares
of Common Stock outstanding. As part of Consolidated's
reorganization with Global-Delaware, Consolidated issued 5,258,705
shares of its Common Stock to all of the shareholders of
Global-Delaware. Immediately following the merger, Consolidated
changed its name to "Global Business Information Directory, Inc."
Consolidated had no significant operations prior to the merger. The
Company's common stock currently trades on the NASD OTC Bulletin
Board under the symbol "GBDI."
BUSINESS OF THE ISSUER
Product and Services
The Company operates an Internet based Website located at
www.gbid.com, featuring the Company's Global Business Information
Directory (the "Directory"). The Company's search Directory allows
users the ability to search for and locate businesses by specifying
the businesses' name, location, or services and products provided,
and offers several value added features, which the Company believes
makes it unique to other Internet search directories.
The heart of any internet directory or search engine is its basic
content. Content consists of detailed relevant contact information
on a specific company (e.g. company name, telephone and fax number,
URL, etc). For users of the internet, the better the content the
more useful the directory or search engine. The Company's Directory
is an enhanced business directory which catalogs its indexing
program by industry and geographical classification. The Directory is
intended to become one of the largest searchable global database of
corporate information for businesses. Currently, the Directory
allows users to locate business throughout most of the United States and
Canada. The Company is in the process of acquiring foreign
databases to expand the reach of its Directory. However, there can
be no assurances that the Company will be able to expand its
services on a global basis. See Foreign Operations.
<PAGE>
In addition to providing users with the ability to locate businesses
according to name, location, and product / services, Companies
desiring to enhance their presence on the Internet are able to
highlight their business within the Directory through the Company's
value added services. These include the Company's Corporate
Overview, Content Indexing, Web Hosting, e-commerce infrastructure,
and advertising services.
The Company's Corporate Overview service allows businesses to
provide a two page information sheet, divided into Company Profile
and Product and Services. This two page business summary is then
fully indexed and searchable within the Directory. Additionally,
the Company intends to offer companies the option to translate the
Corporate Overview to other language desired.
Content Indexing allows Companies with web sites hosted elsewhere
the ability to have their web site information fully indexed and
searchable within the Directory. This allows users the ability to
find a business by entering any keyword appearing in the businesses'
web site or corporate profile, such as brand name(s), product
name(s) and / or service(s).
Web Hosting & Design and E-Commerce services allow businesses the
option to have the Company design and host their web sites, as well
as provide an e-commerce back end software solution to support a
business' web site. Web sites hosted by the Company will
automatically be Content Indexed within the Directory.
Additionally, the Company also offers business the ability to
advertise through the use of banners, classified ads, and feature
vendor ads. Advertising can be tailored so as to target users
searching specific regions or services
To differentiate the Company from other Internet directories, the
Company has begun enhancing its offerings by adding additional value
added services. The Company's home page, the "GBID Business Portal"
currently combines specialized content, free e-mail, and will
provide a variety of retail and consumer offers to entice users into
making the GBID site their starting point as well as their principal
destination on the web. The GBID Business Portal is designed to
draw together content, products and services that are relevant to
the business person. The portal will take advantage of
heterogeneity, nurtured by users to create real communities and
relevance to the users. The attraction to the user is that they
will be led to the highest quality online business information and
web sites. All these features are provided in the forum of the
Company's business center in order to build the Company's registered
user base.
Competition
The market for Internet search directories and business portals is
new, rapidly evolving and competitive, and the Company expects
competition to intensify further in the future. Barriers to entry
are relatively low, and current and new competitors can launch new
sites at a relatively low cost using commercially available
software. The Company will compete with a number of other companies.
The Company's direct competitors expect to include various business
search directories such as Companies On-Line, Hoovers, and
Comfind.com. The Company also competes with general interest search
directories such as Yahoo, Alta Vista, Excite, Goto.com, Lycos,
Snap, and Ask Jeeves. The Company potentially faces competition
from a number of large online communities and services that have
expertise in developing online search directories.
Many of the Company's existing competitors, as well as a number of
potential new competitors, have longer operating histories, greater
name recognition, larger customer bases and significantly greater
financial, technical and marketing resources than the Company. Such
competitors may be able to undertake more extensive marketing
campaigns, adopt more aggressive pricing policies and make more
attractive offers to potential employees, distribution partners,
advertisers and content providers. Further, there can be no
assurance that the Company's competitors will not develop business
search and retrieval services or other online services that are
equal or superior to those of the Company or that achieve greater
market acceptance than the Company's offerings
DEPENDENCE ON KEY CUSTOMERS
The Company markets its services to a variety of businesses and is
not dependent on any key customers.
<PAGE>
MAJOR SUPPLIERS
The Company does not currently own its North American business
database data but rather provides such data pursuant to a
non-exclusive data license agreement with Acxiom Corporation. Under
the terms of the agreement, Acxiom has agreed to provide the Company
with a license to use Acxiom's database of North American businesses
for a one year term in exchange for $100,000. The agreement with
Acxiom will automatically renew each year unless otherwise
terminated by either party upon ninety (90) days written notice. In
addition, the Company is obligated to grant to Acxiom, 25% of all
unsold advertising space on Web pages displaying Acxiom data.
Although the Company believes that its relations with Acxiom are
strong and should remain so with continued contract compliance, the
termination of the Company's contract with Acxiom and the loss of
business data provided by Acxiom could have a material adverse
effect on the Company's results of operations.
The Company's e-mail services are currently provided pursuant to a
two-year contract with Arrow Communication Systems, Inc. ("Arrow").
Under the terms of the Company's contract with Arrow, Arrow has
agreed to design, host, and operate a customized e-mail service for
the Company's Web site. Pursuant to the terms of the agreement,
Arrow retains 80% of all net advertising revenue generated from the
operation of the e-mail service. Although the Company believes that
its relations with Arrow are strong and should remain so with
continued contract compliance, the loss of e-mail services provided
by Arrow, or a reduction in the quality of service the Company
receives from Arrow could have a material adverse effect on the
Company' s results of operations.
REGULATION
The Company is not currently subject to direct federal, state or
local regulation, and laws or regulations applicable to access to or
commerce on the Internet, other than regulations applicable to
businesses generally.
COST OF COMPLIANCE WITH ENVIRONMENTAL REGULATIONS
The Company currently has no costs associated with compliance with
environmental regulations. However, there can be no assurances that
the Company will not incur such costs in the future.
NUMBER OF EMPLOYEES
As of June 30, 1999, the Company employed 10 people on a full time basis.
ITEM 2 - PLAN OF OPERATIONS
The Company's prior full fiscal years ending December 31, 1998, are
not indicative of the Company's current business plan and
operations. During the period ending December 31, 1998, the Company
was inactive and had no revenues. After the Company's merger with
Global-Delaware, as previously discussed, the prior business plan of
the Company was discontinued and the current business plan
implemented in its place. Therefore, this discussion and analysis
will focus on the Company's current business plan of operations.
For information concerning the Company's prior full fiscal years,
the Company refers the reader to the financial statements attached
as Item F/S.
To capture a share of the US market, the Company plans to deploy a
direct marketing and promotional campaign in order to generate
direct sales of Corporate Overviews and advertising, as well as
sales leads for other products and services to be actively pursued
by the Company.
Currently the United States comprises the majority of web users.
However, Management believes that Internet user growth in Asia,
Europe and Latin America will soon outpace the rate of growth in
North America. The Company currently plans to begin marketing its
programs in the North American market in September of 1999. The
Company is currently pre-loading databases and securing independent
sales personnel to market the Company's services (referred to as
"Associated Partners" or "APs"). Associated Partners will be given
the rights to a geographically defined and protected region.
The Company has separated the sales and marketing strategies for the
domestic and international markets into two separate programs.
Target markets for the international expansion strategy are based on
factors including competition, Internet usage, availability of
talent, database availability, language barriers, and market size.
<PAGE>
- - Domestic
The Company focus will be set largely on efforts to sell the two
page Corporate Overview. To ensure that Global is meeting the needs
of its business customers, the Company will refine its suite of
products and services during a test market before a national
rollout. To increase the awareness and sales of the Corporate
Overview and Indexing in the Domestic market, the Company plans to
deploy a telemarketing campaign. The Company believes that this will
be the most efficient and effective means of educating key decision
makers on how Global can benefit the bottom line of their business.
This campaign is expected to generate direct sales of Corporate
Overviews, Indexing and Advertising as well as sales leads for other
products and services to be actively followed up on by the Company.
For businesses that already have their web site hosted with another
company the Company intends to offer Internet Service Providers and
Internet Access Providers the opportunity to become value added
resellers of the site indexing feature. The Company has identified
an established direct marketing network that has the potential to
market its services and provide accelerated growth. This type of
agreement allows the Company to immediately tap into a well trained
sales force while maintaining very low start up costs. The
organization is set to participate in the test phase of a selected
city, and ramp up to a roll out effort in September. It is
anticipated that any type of strategic alliance would be non-exclusive.
- - International
The Company has designed a sales program for the Associate Partners
and their sales teams that will guide them through the entire
process to ensure that the APs have a successful launch of their
business in their region. The Company will assist them by:
- - Pre-loading a database of the region in question.
- - Providing continual education and support through a combination of
person-to-person training and the corporate extranet.
- - Conducting regional adverting programs to assist brand name
recognition.
The marketing campaigns in the International markets will utilize a
combination of four sales channels, these include telemarketing,
direct sales, executive sales and promotions. The main difference in
the International strategy is that AP's will be the sole Company
representatives in their respective regions and will market a
bundled solution to their customers. It is the Company's intention
to only enter the markets that have a demonstrated usage of the
Internet and have built the necessary infrastructure for the
Internet to grow in their country. The Company has based its
international expansion strategy on factors that also include the
availability of databases, a country's general acceptance of
Internet technology, size of market, qualified Associate Partners,
and finally, government regulations.
As the Company expands internationally, such expansion will require
management's attention with respect to local regulations, standards,
and policies. The Company may also have to compete with local
companies who understand the local market better than it does. The
Company may not be successful in expanding into international
markets or in generating revenues from foreign operations. The
Company may also be subject to risks of doing business
internationally, including the following:
- regulatory requirements that may limit or prevent the
offering of the Company's services in local
jurisdictions;
- legal uncertainty including less Internet friendly basic
law and unique local laws;
- government-imposed limitations on the public's access to
the Internet;
- political instability;
- potentially adverse tax consequences; and
- administrative burdens in collecting local taxes,
including value-added taxes.
CAPITAL EXPENDITURES
Capital expenditures for the next twelve months consists primarily
of Web site related software in the amount of approximately
$120,000. Additionally, the Company anticipates spending
approximately $210,000 in acquiring or licensing business
information databases as it expands its operations globally.
Additionally, pursuant to its agreement with Exodus Communications,
Inc., the Company has contracted to lease computer equipment and
computer server space at Exodus' Boston facilities in support of its
Web site. Under the terms of the Company's agreement with Exodus,
the Company is committed to pay Exodus approximately $416,300
through June 30, 2000.
<PAGE>
LIQUIDITY
In the first two quarters of 1999, the Company raised a total of
$180,000 through the sale of its Common Stock, and $240,000 through
the issuance of a convertible debenture. The convertible debenture,
payable annually interest only at 6.0%, maturing on June 1, 2001, is
convertible at a price of $1.50 per share of Common stock, or
160,000 shares. Prior to its merger with the Company, GBID-Delaware
raised $98,600 through the sale of its Common Stock.
As of June 30, 1999, the Company had $97,553.21 in available cash,
and will require additional financing to carry out its business
plan. The Company is currently negotiating to obtain up to
$2,000,000 of additional funds through a private offering of the
Company's Common Stock. However, there can be no assurances that
the Company will be able to secure such financing. Failure to
secure such funding may adversely effect the Company's liquidity and
its results of operations.
The Company's long-term capital requirements will depend upon many
factors, including, but not limited to, the rate of market
acceptance of the Company's Web site and business directory, the
Company's ability to develop, maintain and expand its Web user base,
the level of resources required to expand the Company's marketing
and sales organization, information systems and development
activities and other factors, some of which are beyond the control
of the Company.
In particular, a slower than expected rate of acceptance of the
Company's Web site and business directory, or lower than expected
revenues generated from the Company's operations, would materially
adversely affect the Company's liquidity. The Company may need
additional capital sooner than anticipated. The Company currently
has no definitive commitments for additional financing, and there
can be no assurances that any such additional financing would be
available on a timely manner or, if available, would be on terms
acceptable to the Company. Furthermore, any additional equity
financing could be dilutive to our then-existing shareholders and
any debt financing could involve restrictive covenants with respect
to future capital raising activities and other financial and
operational matters.
INFLATION
Management believes that inflation has not had a material effect on
the Company's results of operations.
YEAR 2000 DISCLOSURE
The Company has completed a review of its computer systems to
identify all software applications and hardware that could be
affected by the inability of many existing computer systems to
process time-sensitive data accurately beyond the year 1999,
referred to as the Year 2000 or Y2K issue. The Company is dependent
on third-party computer systems and applications, particularly with
respect to such critical tasks as the operation of its Web site.
The Company also relies on its own computer systems. As a result of
its review, the Company has discovered no problems with its computer
systems relating to the Y2K issue. Although the Company believes
that its computer systems are Y2K compliant, the Company is
continuing to monitor its computer systems in a continual effort to
insure that its systems are Y2K compliant. Additionally, the
Company has obtained written assurances from its major suppliers
indicating that they have completed a review of their respective
computer systems and that such systems are Y2K compliant. Costs
associated with the Company's review were not material to its
results of operations.
While the Company believes that its procedures have been designed to
be successful, because of the complexity of the Y2K issue and the
interdependence of organizations using computer systems, there can
be no assurances that the Company's efforts, or those of third
parties with whom the Company interacts, have fully resolved all
possible Y2K issues. Failure to satisfactorily address the Y2K
issue could have a material adverse effect on the Company. The most
likely worst case Y2K scenario which management has identified to
date is that, due to unanticipated Y2K compliance problems, the
Company's planned Web site may not function at all or not function
as expected, and that the Company may be unable to bill its
customers, in full or in part, for services used. Should this
occur, it would result in a material loss of some or all gross
revenue to the Company for an indeterminable amount of time, which
could cause the Company to cease operations. The Company has not
yet developed a contingency plan to address this worse case Y2K
scenario, and does not intend to develop such a plan in the future.
<PAGE>
ITEM 3 - DESCRIPTION OF PROPERTY
Effective April 15, 1999, the Company began leasing administrative
office space in Seattle, Washington at a monthly rental rate of
$725.00 per month. This facility serves as the Company's currently
headquarters and primary place of business. The lease is currently
scheduled to expire on October 31, 1999 and will be renewed
automatically for an additional six-month term unless cancelled by
either party by August 31, 1999.
Due to anticipated growth, the Company anticipates the need to
secure additional space for its headquarters. Management believes
that it will be able to secure such space on terms reasonable to the
Company.
ITEM 4 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of August 31, 1999, certain
information with respect to the Company's equity securities owned of
record or beneficially by (i) each Officer and Director of the
Company; (ii) each person who owns beneficially more than 5% of each
class of the Company's outstanding equity securities; and (iii) all
Directors and Executive Officers as a group.
<TABLE>
<S> <C> <C> <C>
Title Common Stock Percent of
of Class Name and Address of Beneficial Owner Outstanding Outstanding
- ----------- ------------------------------------ ------------ -----------
Common Stock Steve Carmichael 1,090,000 9.58%
999 3rd Avenue, Suite 3800
Seattle, Washington 98104
Common Stock Natalie Prowse 50,000 0.44%
999 3rd Avenue, Suite 3800
Seattle, Washington 98104
Common Stock Dan McKenna 50,000 0.44%
999 3rd Avenue, Suite 3800
Seattle, Washington 98104
Common Stock Roland W. Fink(1) 12,000 <1%
1201 North Pacific Avenue, Suite 104
Glendale, California 91020
Common Stock Kendall L. Dorsett(2) 12,000 <1%
1201 North Pacific Avenue, Suite 104
Glendale, California 91020
Common Stock Raymond R. Cottrell(3) 921,000 8.09%
650 West Georgia Street, Suite 2250
Vancouver, BC V6B 4N7
Canada
Common Stock Tay Hing Heng 585,000 5.14%
Block 227 Lorong 8
Toa Payoh #15-130
Singapore, 310227
Singapore
<PAGE>
Common Stock Chelsea Jordan Inc. Commerce Chambers 2,180,000 19.16%
Road Town, Tortola
British Virgin Islands
Common Stock Patrick Lim 575,000 5.05%
P.O. Box 95
Farreo Road
Singapore
Singapore
Common Stock Chan Chik Weng10 Leedon Road, #02-06 585,000 5.14%
Singapore, 267833
Singapore
Common Stock All Directors and Officers as a Group (5 1,214,000 10.67%
Persons in total)
</TABLE>
(1) Does not include 912,000 shares currently held of record by Mr.
Fink and held in escrow but subject to closure of an agreement of sale.
(2) Does not include 912,000 shares currently held of record by Mr.
Dorsett and held in escrow but subject to closure of an agreement of
sale.
(3) Denotes shares beneficially owned by Mr. Cottrell but held of
record as follows: 121,000 shares held of record by McKinley
Greenfield Capital Corp. In addition, Mr. Cottrell claims
beneficial ownership to 811,055 shares currently held of record by
Mr. Fink and Mr. Dorsett pending closure of an agreement of sale
between Mr. Cottrell and Mr. Fink and Mr. Dorsett.
The Company believes that the beneficial owners of securities listed
above, based on information furnished by such owners, have sole
investment and voting power with respect to such shares, subject to
community property laws where applicable. Beneficial ownership is
determined in accordance with the rules of the Commission and
generally includes voting or investment power with respect to
securities. Shares of stock subject to options or warrants
currently exercisable, or exercisable within 60 days, are deemed
outstanding for purposes of computing the percentage of the person
holding such options or warrants, but are not deemed outstanding for
purposes of computing the percentage of any other person.
ITEM 5 - DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The following table sets forth the names and ages of the current
directors and executive officers of the Company, the principal
offices and positions with the Company held by each person and the
date such person became a director or executive officer of the
Company. The executive officers of the Company are elected annually
by the Board of Directors. The directors serve one year terms until
their successors are elected. The executive officers serve terms of
one year or until their death, resignation or removal by the Board
of Directors. There are no family relationships between any of the
directors and executive officers. In addition, there was no
arrangement or understanding between any executive officer and any
other person pursuant to which any person was selected as an
executive officer.
<PAGE>
The directors and executive officers of the Company are as follows
Name Age Positions
Stephen W. Carmichael 41 Chief Executive Officer,
President, Secretary,
Treasurer, and Chairman
of the Board of Directors
Natalie Prowse 37 Director of Research and
Development
Dan McKenna 40 Director of Marketing and
Sales
Roland W. Fink 44 Director
Kendall L. Dorsett 56 Director
STEPHEN W. CARMICHAEL is currently the Company's President, Chief
Executive Officer, Secretary, and Treasurer. Mr. Carmichael has a
Diploma in Mechanical Engineering Design from the British Columbia
Institute of Technology in Canada. From 1996 to 1998, Mr.
Carmichael founded and operated Expo Products and Services, Inc., a
marketing and promotions company. Between 1993 to 1996, Mr.
Carmichael founded and operated Rim Shot Productions, Inc., an event
production management company.
NATALIE PROWSE is currently the Company's Director of Research and
Development. Ms. Prowse has a Diploma of National Technology in
Computer Systems, Magna cum laude from the British Columbia
Institute of Technology in in Canada. From 1997 to the present,
Ms. Prowse has worked as an Internet Solutions Architect for Compaq
Canada. Between 1994 and 1997, Ms. Prowse was the Senior Technical
Architect for JetForm Corporation, a computer consulting services
company.
DAN MCKENNA is currently the Company's Director of Marketing and
Sales. Mr. McKenna has a Bachelor of Arts degree in Political
Science from McMaster University in Hamilton, Ontario. From 1998 to
the present, Mr. McKenna has been a Business Partner Account Manager
for ACCPAC International where he is responsible for opening new
accounts and servicing existing accounts. Between 1996 to 1998, Mr.
McKenna worked as a Manufacturers Representative for Channels
International. At Channels International, Mr. McKenna was
responsible for product training and demonstrations. Between 1991
to 1996, Mr. Mckenna work was employed by Kobelt Development, Inc.
ROLAND W. FINK is currently a director of the Company. Since March
1997, Mr. Fink, together with Mr. Dorsett, have been general
partners of Fink & Dorsett, a consulting firm located in Glendale,
California, specializing in corporate finance. Mr. Fink was the
managing partner of Greenberg & Jackson, a Los Angeles-based
certified public accounting firm from May 1992 through October 1995.
Mr. Fink received a Bachelor of Sciences degree in accounting from
Manchester College in North Manchester, Indiana in 1977.
KENDALL L. DORSETT is currently a director of the Company. Since March
1997, Dorsett, together with Mr. Fink has been a general partner of Fink &
Dorsett, a consulting firm located in Glendale, California specializing
in corporate finance. From 1990 to January 1995, Mr. Dorsett served as
the Vice President of Shareholder Relations for American Technologies
Group, Inc., a publically-held corporation whose securities trade on the
Over-the-Counter Bulletin Board under the symbol "ATEG." Mr.
Dorsett received his Bachelor of Arts degree in economics from the
University of California at Santa Barbara in 1966.
ITEM 6 - EXECUTIVE COMPENSATION
On March 24th, 1999 the Company entered into an Employment Agreement
with Stephen Carmichael, the Company's President and CEO, whereby
the Company will pay Mr. Carmichael an Annual Salary of $72,000.
Pursuant to the Agreement, Mr. Carmichael's salary shall increase to
$96,000.00 should the Company successfully completes a Form SB-2
registration offering of its securities. In addition to his salary,
the Agreement confirmed the issuance of 1,090,000 shares of the
Company's Common Stock to Mr. Carmichael.
<PAGE>
On April 1, 1999 Company entered into a Consulting Agreement with
Natalie Prowse, the Company's Director of Research and Development,
whereby the Company will pay Ms. Prowse an annual fee of $96,000.00.
In addition to her consulting fee, the Agreement confirmed the
issuance of 50,000 shares of the Company's Common Stock to Ms. Prowse.
On June 21, 1999 Company entered into an Employment Agreement with
Daniel McKenna, the Company's Director of Marketing and Sales in
North and South America, whereby the Company will pay Mr. McKenna an
Annual Salary of $65,000.00. Pursuant to the Agreement, Mr.
McKenna's salary shall increase to include 1.5 percent of total
sales related to the performance of the Marketing and Sales program
on a monthly basis. In addition to his salary, the Agreement
confirmed the issuance of 50,000 shares of the Company's Common
Stock to Mr. McKenna.
SUMMARY COMPENSATION TABLE
The Summary Compensation Table shows certain compensation
information for services rendered in all capacities to the Company
for the year ended December 31, 1998 and the period ended June 30, 1999.
Other than as set forth herein, no executive officer's salary and bonus
exceeded $100,000 in any of the applicable years. The following
information includes the dollar value of base salaries, bonus
awards, the number of stock options granted and certain other
compensation, if any, whether paid or deferred.
SUMMARY COMPENSATION TABLE
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Annual Compensation Long Term Compensation
-------------------------- ----------------------------------------------
Awards Payouts
----------------- --------------------------
Restricted Securities
Name and Other Annual Stock Underlying LTIP All Other
Principal Salary Bonus Compensation Awards Options SARs Payouts
Position Year ($) ($) ($) ($) (#) ($) ($)
- ----------------------------------------------------------------------------------------------------------------
Steven W. Carmichael 1999 12,000 -0- -0- 1,090,000 -0- -0- -0-
(President, CEO, (6/30)
Secretary,
Treasurer,
Director) 1998 n/a -0- -0- -0- -0- -0- -0-
1997 n/a -0- -0- -0- -0- -0- -0-
Natalie Prowse 1999 32,000 -0- -0- 50,000 -0- -0- -0-
(Director of (6/30)
Research &
Development)
1998 n/a -0- -0- -0- -0- -0- -0-
1997 n/a -0- -0- -0- -0- -0- -0-
Dan McKenna 1999 6,600 -0- -0- 50,000 -0- -0- -0-
(Director of (6/30)
Marketing and Sales)
1998 n/a -0- -0- -0- -0- -0- -0-
1997 n/a -0- -0- -0- -0- -0- -0-
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
OPTION/SAR GRANTS IN LAST FISCAL YEAR
(INDIVIDUAL GRANTS)
NUMBER OF SECURITIES PERCENT OF TOTAL
UNDERLYING OPTIONS/SAR'S OPTIONS/SAR'S
GRANTED (#) GRANTED TO EMPLOYEES EXERCISE OF BASE PRICE
NAME IN FISCAL YEAR ($/SH) EXPIRATION DATE
Steve Carmichael -0- n/a n/a n/a
Natalie Prowse -0- n/a n/a n/a
Dan McKenna -0- n/a n/a n/a
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FY-END OPTION/SAR
NUMBER OF UNEXERCISED VALUE OF UNEXERCISED
SECURITIES UNDERLYING IN-THE-MONEY
OPTIONS/SARS AT OPTION/SARS
SHARES ACQUIRED ON VALUE REALIZED FY-END (#) AT FY-END ($)
NAME EXERCISE (#) ($) EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE
- -----------------------------------------------------------------------------------------------------------------------
Steve Carmichael n/a n/a n/a n/a
Natalie Prowse n/a n/a n/a n/a
Dan McKenna n/a n/a n/a n/a
</TABLE>
COMPENSATION OF DIRECTORS
Currently, Directors do not receive any compensation for their
services.
ITEM 7 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On March 15, 1999, the Company entered into a Consulting Agreement
with McKinley Greenfield Capital Corporation ("McKinley"). As
part of the Agreement, McKinley has agreed to provide consultation
and corporate development services on behalf of the Company. In
return, the Company has agreed to compensate McKinley in the amount
of $10,000 per month. Raymond R. Cottrell, a shareholder of the
Company, is an officer and director of McKinley.
On June 30, 1999, the Company issued a convertible debenture to
Lincolnshire Investments, Inc., payable annually interest only at
6.0% per annum, maturing on June 1, 2001. This debenture is
convertible at the rate of $1.50 per share of the Company's Common
Stock or 160,000 shares.
ITEM 8 - DESCRIPTION OF SECURITIES
COMMON STOCK
The Company's Articles of Incorporation authorize the issuance of
100,000,000 shares of Common Stock, $0.001 par value per share, of
which 11,378,705 were outstanding as of August 31, 1999. On March
9, 1999, the Company approved a 1 for 5 reverse stock split of its
Common Stock. All references to the numbers of shares of the
Company's Common Stock are adjusted to reflect the 1 for 5 reverse
split of the Company's Common Stock. Holders of shares of Common
Stock are entitled to one vote for each share on all matters to be
voted on by the stockholders. Holders of Common Stock have no
cumulative voting rights. Holders of shares of Common Stock are
entitled to share ratably in dividends, if any, as may be declared,
from time to time by the Board of Directors in its discretion, from
funds legally available therefor. In the event of a liquidation,
dissolution or winding up of the Company, the holders of shares of
Common Stock are entitled to share pro rata all assets remaining
after payment in full of all liabilities. Holders of Common Stock
have no preemptive rights to purchase the Company's common stock.
There are no conversion rights or redemption or sinking fund
provisions with respect to the common stock. All of the outstanding
shares of Common Stock are fully paid and non-assessable.
<PAGE>
PREFERRED STOCK
The Company's Articles of Incorporation authorize the issuance of
10,000,000 shares of preferred stock, $0.001 par value. As of
August 31, 1999, there were no issued and outstanding shares of
Preferred Stock. The Company's Board of Directors has authority,
without action by the shareholders, to issue all or any portion of
the authorized but unissued preferred stock in one or more series
and to determine the voting rights, preferences as to dividends and
liquidation, conversion rights, and other rights of such series.
TRANSFER AGENT
The transfer agent for the Common Stock is U.S. Stock Transfer
Corporation, 1745 Gardena Avenue, Suite 200, Glendale, California
91204.
PART II
ITEM 1 - MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON
EQUITY AND OTHER SHAREHOLDER MATTERS
MARKET INFORMATION
The following table sets forth the high and low bid prices for
shares of the Company Common Stock for the periods noted, as
reported by the National Daily Quotation Service and the NASDAQ
Bulletin Board. Quotations reflect inter-dealer prices, without
retail mark-up, mark-down or commission and may not represent actual
transactions. The Company's Common Stock was originally listed on
the NASDAQ Bulletin Board as SPFK but did not begin trading until
the second quarter of 1998. On June 6, 1998, the Company's trading
symbol was changed to CBSC to reflect its name change to
Consolidated Builders Supply Corporation, as previously discussed.
On March 23, 1999, the Company's trading symbol was changed to GBDI
to reflect its merger with Global-Delaware, as previously discussed.
BID PRICES
YEAR PERIOD HIGH LOW
---- ------ ----- ----
1997 First Quarter. . . . . . . . . N/A N/A
Second Quarter . . . . . . . . N/A N/A
Third Quarter . . . . . . . . N/A N/A
Fourth Quarter . . . . . . . . N/A N/A
1998 First Quarter. . . . . . . . . N/A N/A
Second Quarter . . . . . . . . 1.625 1.000
Third Quarter . . . . . . . . 1.625 0.25
Fourth Quarter . . . . . . . . 0.600 0.1563
1999 First Quarter. . . . . . . . . 6.500 0.2813
Second Quarter . . . . . . . . 6.000 1.6250
Pursuant to NASD Eligibility Rule 6530 (the "Rule") issued on
January 4, 1999, issuers who do not make current filings pursuant to
Sections 13 and 15(d) of the Securities Act of 1934 are ineligible
for listing on the NASDAQ Over- the-Counter Bulletin Board.
Pursuant to the Rule, issuers who are not current with such filings
are subject to de-listing pursuant to a phase-in schedule depending
on each issuer's trading symbol as reported on January 4, 1999. As
previously discussed, the Company's trading symbol on January 4,
1999 was CBSC. Therefore, pursuant to the phase-in schedule, the
Company is subject to de-listing on October 7, 1999. The Company
will have its trading symbol appended with an "E" on September
13, 1999.
<PAGE>
The Company is not currently in compliance with the Rule, and in the
past, has not made filings pursuant to Sections 13 and 15(d) of the
Securities Act of 1934. The Company has filed this Registration
Statement on Form 10-SB in order to become a "reporting" company and
therefore comply with the Rule. However, the Company will remain
subject to de-listing on October 7, 1999 until such time as the
Securities and Exchange Commission has reviewed the Company's Form
10-SB and has stated that it has no further comments. Once the
Company has complied with the Rule, it will once again become
eligible for listing on the NASDAQ Over-the-Counter Bulletin Board
and will seek to be reinstated on the NASDAQ Over-the-Counter
Bulletin Board.
NUMBER OF SHAREHOLDERS
The number of beneficial holders of record of the Common Stock of
the Company as of the close of business on August 31, 1999 was
approximately 114. Many of the shares of the Company's Common Stock
are held in a "street name" and consequently reflect numerous
additional beneficial owners.
DIVIDEND POLICY
To date, the Company has declared no cash dividends on its Common
Stock, and does not expect to pay cash dividends in the next term.
The Company intends to retain future earnings, if any, to provide
funds for operation of its business.
ITEM 2 - LEGAL PROCEEDINGS
Currently, the Company is a named defendant in a dispute between two
of its shareholders regarding the contested ownership of certain
shares of the Company's Common Stock. Management does not believe
that the outcome of this action will have a material adverse effect
on the Company's financial condition or results of operations.
Additionally, the Company may from time to time be involved in
various claims, lawsuits, disputes with third parties, actions
involving allegations of discrimination, or breach of contract
actions incidental to the operation of its business. The Company is
not currently involved in any such litigation which it believes
could have a materially adverse effect on its financial condition or
results of operations.
ITEM 3 - CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
On July 29, 1999, John Semmens CPA was retained by the Company as
their principal accountant to audit the Company's financial
statements effective June 30, 1999. There have been no
disagreements between Mr. Semmens and Management of the type
required to be reported under this Item 3 since the date of Mr.
Semmens' engagement.
ITEM 4 - RECENT SALES OF UNREGISTERED SECURITIES
On March 15, 1999, the Company (which at the time was designated
Consolidated Builders Supply Corporation, a Colorado corporation
("Consolidated")) acquired all of the outstanding common stock of
Global Business Information Directory, a Delaware corporation
("Global-Delaware") in a business combination described as a
"reverse merger." For accounting purposes, the merger has been
treated as the merger of Consolidated (the Registrant) into
Global-Delaware. As part of Consolidated's reorganization with
Global-Delaware, Consolidated issued 4,824,500 shares of its Common
Stock to the shareholders of Global-Delaware 5,258,705 shares of
Global-Delaware Common Stock. This issuance was conducted under an
exemption under Section 4(2) of the Securities Act of 1933.
Simultaneously with the merger, the Company sold an aggregate of
3,000,000 shares of Common Stock to eight accredited investors,
under Rule 504 of Regulation D promulgated under the Securities Act
of 1933, resulting in net proceeds to the Company of $180,000.
ITEM 5 - INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation Laws of the State of Colorado and the Company's
Bylaws provide for indemnification of the Company's Directors for
liabilities and expenses that they may incur in such capacities. In
general, Directors and Officers are indemnified with respect to
actions taken in good faith in a manner reasonably believed to be
in, or not opposed to, the best interests of the Company, and with
respect to any criminal action or proceeding, actions that the
indemnities had no reasonable cause to believe were unlawful.
Furthermore, the personal liability of the Directors is limited as
provided in the Company's Articles of Incorporation.
<PAGE>
PART F/S
INDEX TO FINANCIAL STATEMENTS
The Financial Statements required by this Item are included at the
end of this report beginning on page F-1 as follows:
PART III
ITEM 1 - INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Reorganization dated
March 15, 1999 between Consolidated Builders
Supply Corporation and Global Business
Information Directory, Inc.
3.1 Articles of Incorporation
3.2 Amendment to Articles of Incorporation,
filed with the Colorado Secretary of State
on May 7, 1998
3.3 Amendment to Articles of Incorporation,
filed with the Colorado Secretary of State
on May 8, 1998
3.4 Amendment to Articles of Incorporation,
filed with the Colorado Secretary of State
on March 9, 1999
3.5 Articles of Merger dated March 15, 1999
3.6 Bylaws of the Company
10.1 Exodus Communications, Inc. - Internet Data
Center Services Agreement by and between
Exodus Communications, Inc. and Global
Business Information Directory dated
February 24, 1999
10.2 Data License Agreement between Acxiom
Corporation and Global Business Information
Directory dated March 1, 1999
10.3 Consulting Agreement by and between McKinley
Greenfield Capital Corp. or its assignees
and Global Business Information Directory
dated March 15, 1999
10.4 Customized E-Mail Service Agreement between
Arrow Communications Systems Inc. and Global
Business Information Directory dated March
22, 1999
10.5 Employment agreement by and between Global
Business Information Directory and Stephen
W. Carmichael, dated March 24, 1999
10.6 Consulting agreement by and between Global
Business Information Directory and Natalie
Prowse (Netfacet Computing Inc.) dated April
10, 1999
10.7 Lease Agreement between Insignia Corporate
Establishments (U.S.) Inc. and Global
Business Information Directory dated April
15, 1999
<PAGE>
10.8 Exodus Communications, Inc. - Equipment
Purchase Agreement by and between Exodus
Communications, Inc. and Global Business
Information Directory dated May 10, 1999
10.9 Employment agreement by and between Global
Business Information Directory and Daniel
McKenna, dated June 21, 1999
10.10 License Agreement by and between Global
Business Information Directory and Stephen
Wayne Carmichael, dated October 10, 1998
ITEM 2 - DESCRIPTION OF EXHIBITS
Not applicable
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of
1934, the registrant caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
GLOBAL BUSINESS INFORMATION DIRECTORY
Date: September 9, 1999 By: /s/ Steven W. Carmichael
----------------------------
Steven W. Carmichael
President & Chief Executive Officer
<PAGE>
GLOBAL BUSINESS INFORMATION DIRECTORY, INC.
(A Development Stage Company)
Financial Statements
and
Independent Auditor's Report
June 30, 1999 and October 31, 1998
John P. Semmens CPA
A Professional Corporation
F-1
<PAGE>
Global Business Information Directory, Inc.
(A Development Stage Company)
CONTENTS Page
Independent Auditors' Report F-3
Financial Statements:
Balance Sheet F-4-F-5
Statement of Operations F-6
Statement of Changes in
Stockholders' Equity F-7
Statement of Cash Flow F-8
Notes to Financial Statements F-9
<PAGE>
John P. Semmens CPA, A Professional Corporation
24501 Del Prado Suite A, Dana Point, CA 92629
(TEL) 949-496-8800 (FAX) 949-443-0642
Independent Auditors' Report
To The Board of Directors and Shareholders
Seattle, Washington
We have audited the accompanying consolidated balance sheet of Global
Business Information Directory, Inc. as of June 30, 1999 and October 31,
1998 and the related statements of operations, changes in stockholders'
equity and cash flows for the eight months and year then ended. These
financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used
and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audit
provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Global
Business Information Directory, Inc. as of June 30, 1999 and October 31,
1998, and the results of its operations and its cash flows for the eight
months and year then ended in conformity with generally accepted accounting
principles.
The accompanying financial statements have been prepared assuming that
the Company will continue as a going concern. As discussed in Note 1
to the consolidated financial statements, the ability of the company
to continue as a going concern depends on the Company's ability to
generate a positive cash flow from operations. The financial statements
do not include any adjustments that might result from the outcome of this
uncertainty.
John P. Semmens CPA
A Professional Corporation
Dana Point, California
September 6, 1999
F-3
<PAGE>
Global Business Information Directory Inc.
(A Development Stage Company)
BALANCE SHEET
As of June 30, 1999 and October 31, 1998
<TABLE>
<S> <C> <C>
June 30, 1999 October 31, 1998
ASSETS
- ------ ---------------- -----------------
Cash $ 97,553 $ 25,007
Prepaid expenses 3,507 657
---------------- -----------------
Total current assets 101,040 25,664
---------------- -----------------
Furniture and equipment
Furniture and equipment 41,359 -
Less: accumulated depreciation (7,218) -
---------------- -----------------
34,141 -
Other assets
Intangibles - net of amortization of
$279 and $179 5,521 5,621
---------------- -----------------
Total $ 140,702 $ 31,285
================ =================
</TABLE>
The acompanying notes are an integral part of these financial statements
F-4
<PAGE>
Global Business Information Directory Inc.
(A Development Stage Company)
BALANCE SHEET
As of June 30, 1999 and October 31, 1998
<TABLE>
<S> <C> <C>
June 30, 1999 October 31, 1998
LIABILITIES & STOCKHOLDERS' EQUITY --------------- -----------------
Liabilities
Accounts payable $ 124,975 $ 89,185
Note payable (Note 2) 240,000 -
--------------- -----------------
Total liabilities 364,975 89,185
--------------- -----------------
Stockholders' equity (deficit)
Common stock, no par value,
100,000,000 shares
authorized, 11,378,705 shares
issued & outstanding 11,379 1,522
Additional paid-in capital 265,496 51,753
Accumulated deficit (501,148) (111,175)
--------------- ------------------
Total stockholders' equity (224,273) (57,900)
Total $ 140,702 $ 31,285
=============== ==================
</TABLE>
The acompanying notes are an integral part of these financial statements
F-5
<PAGE>
Global Business Information Directory Inc.
(A Development Stage Company)
STATEMENT OF OPERATIONS
Eight months ended June 30, 1999 and Year Ended October 31, 1998
<TABLE>
<S> <C> <C>
June 30, 1999 October 31, 1998
------------- ----------------
Revenues (Note 2) $ - $ -
Total revenue ------------- ----------------
- -
Operating expenses
Professional fees 120,268 57,972
General and administrative 262,157 36,845
Depreciation and amortization 7,548
Total operating expenses -------------- ----------------
389,973 94,817
Income ( loss ) before
provision for taxes (389,973) (94,817)
Income tax - -
--------------- -----------------
Net income ( loss ) $ (389,973) $ (94,817)
=============== =================
Net ( loss ) per weighted-average share of
common stock outstanding $ (0.038) $ (0.011)
Weighted- average number of
shares of common stock outstanding 10,253,706 8,378,706
Net ( loss ) per fully diluted
share of common stock outstanding $ (0.037) $ (0.011)
Fully diluted shares assuming
conversion of note payable to
common stock 10,413,706 8,378,706
=============== =================
</TABLE>
The acompanying notes are an integral part of these financial statements
F-6
<PAGE>
Global Business Information Directory Inc.
(A Development Stage Company)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
Eight Months Ended June 30, 1999 and Year Ended October 31, 1998
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Common Stock Additional Total
Paid-In Subscription Accumulated Stockholder's
Shares Dollars Capital Receivable Deficit Equity
Global Business Information Directory Inc. ------ ------- --------- ------------ ----------- ------------
(Before Merger March 15, 1999)
Issuance of stock at $.001 per share 500,000 50 450 - 500
for cash
Issuance of stock at $.01 per share 1,000,000 100 9,900 (10,000) -
for cash
Issuance of stock to founders for
license at $.0004 per share 3,000,000 300 900 1,200
Issuance of stock at $.20 per sh 324,500 32 64,868 (26,600) 38,300
Offering costs (7,500) (7,500)
Net loss for the period
ended October 31, 1998 (2,521) (2,521)
Balance October 31, 1998 4,824,500 482 68,618 (36,600) (2,521) 29,979
Consolidated Builders Supply Corporation ---------- --------- -------- ------------ ------------ ------------
(FKA - Snowy Peak Financial, Inc.)
Issuance of stock from inception to
October 31, 1998 15,600,000 1,040 19,735 20,775
Accumulated deficit through
October 31, 1997 (16,358) (16,358)
Net loss for period end October 31, 1998 (92,296) (92,296)
---------- --------- -------- ----------- ------------ ------------
Balance October 31, 1998 20,424,500 1,522 88,353 (36,600) (111,175) (57,900)
Global Business Information Directory, Inc.
(After Merger March 15, 1999)
Conversion 1.09% to existing March 15, 1999
Global Business Directory, Inc.
Stockholders 434,205 -
Issue 504 stock 3,000,000 9,857 199,643 209,500
Offering costs (22,500) (22,500)
Payment of subscriptions receivable
March 15, 1999 36,600 36,600
Reverse Stock Split 1:5 to existing
shareholders' Snowy Peak
Financial, Inc. (15,600,000
originally issued shares) (12,480,000) -
Net loss for period June 30, 1999 (389,973) (389,973)
----------- ---------- --------- ----------- ------------ ------------
11,378,705 11,379 265,496 - (501,148) (224,273)
=========== ========== ========= =========== ============ ============
</TABLE>
The acompanying notes are an integral part of these financial statements
F-7
<PAGE>
Global Business Information Directory Inc.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
Eight Months Ended June 30, 1999 and Year Ended October 31, 1998
<TABLE>
<S> <C> <C>
June 30, 1999 October 31, 1998
OPERATING ACTIVITIES
Net income ( loss ) for the period $ (389,973) $ (94,817)
Add: depreciation and amortization 7,318 96
Change in assets and liabilities:
Prepaid expenses (2,850) (5,957)
Accounts payable and accrued expenses 35,790 89,185
--------------- -----------------
Net cash flows provided ( used )
by operating activities (349,715) (11,493)
INVESTING ACTIVITIES
Purchase of furniture and equipment (41,359) -
--------------- -----------------
Net Cash flows ( used ) in
investing activities (41,359) -
--------------- -----------------
FINANCING ACTIVITIES
Proceeds from the sale of common stock 223,600 36,500
Principle payments on notes payable 240,000
--------------- -----------------
Net cash flows provided (used) by financing 463,600 36,500
--------------- -----------------
Net change in cash and cash equivalents 72,526 25,007
Cash at beginning of period 25,007 -
--------------- -----------------
Cash at end of period $ 97,533 $ 25,007
=============== =================
</TABLE>
The acompanying notes are an integral part of these financial statements
F-8
<PAGE>
Global Business Information Directory Inc.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
Note 1 - Organization and Significant Accounting Policies
Global Business Information Directory, Inc. (The Company) is
an internet based business providing global business search directory
services, web page hosting, e-mail services, and other business
related internet services. The Company was organized as a
Colorado Corporation on March 13, 1997 and is currently based in
Seattle, Washington. The Company was originally incorporated
under the laws of the state of Colorado as Snowy Peak Financial,
Inc. Between 1997 to 1998, the Company was inactive. On May 7, 1998
the Company changed its name to Consolidated Builders Supply
Corporation (Consolidated). On March 15, 1999, the Company acquired \
all of the outstanding common stock of Global Business Information Directory,
a Delaware Corporation in a business combination described as a "reverse
merger". For accounting purposes, the merger has been treated as the merger
of \ Consolidated Builders Supply Corporation into Global Business
Information Directory, the Delaware Corporation. Immediately following the
merger, Consolidated changed its name to "Global Business Information
Directory, Inc." Consolidated had no significant operations prior to
the merger. For comparative purposes the attached financial statements
have been prepared on the basis that the merger had occurred during the
year ended October 31, 1998.
Development Stage Company
The Company is a development stage company engaged in the development
of a new computer software technology for use on the internet.
The software enables business users to utilize the internet for
business information gathering and marketing. In a development stage
company, management devotes most of its activities to establishing a
new business. Planned principle activities have not yet produced significant
revenue. The ability of the Company to emerge from development stage
with respect to its planned principle business activity is dependent
upon successful efforts to develop markets for its products.
Furniture and Equipment
Furniture and equipment are stated at cost. Depreciation is computed
using the straight-line method over the useful lives of the assets.
Estimated useful lives range from three to five years.
Other Assets
Intangible assets consists of a license agreement which grants the \
Company an exclusive right to market and develop the products.
On October 20, 1998 the predecessor Company, Global Business Information
Directory, the Delaware Corporation, entered into a license agreement
with Stephen Carmichael, one of the founders. In exchange,
Carmichael was issued 3,000,000 shares of common stock valued at $.0004
per share and $4,100 cash or a total of $5,300. The Company has
elected not to amortize this cost until revenues are produced.
Intangible assets also includes organization cost of $500 being amortized
over 5 years.
Income Taxes
The company recognizes deferred tax liabilities and assets based on
the difference between the financial statement and tax basis of
assets and liabilities using enacted tax rates in effect for the
year in which the differences are expected to reverse.
The measurement of deferred tax assets is reduced, if necessary, by
the amount of any tax benefits that, based on available, are not
expected to be realized. Since the Company is in development stage
and has no Income, no income tax expense is reported on the financial
statements.
The acompanying notes are an integral part of these financial statements
F-9
<PAGE>
Global Business Information Directory Inc.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
<Continued>
Offering Costs
Offering costs consists of expenditures incurred for the offering of
the shares of common stock. Such costs are recorded as a reduction
of additional paid-in capital.
Foreign Exchange
Most of the Company's transactions have been in U.S. currency.
Therefore the Company's exposure to foreign currency exchange
rates is currently immaterial.
Continued Existence
The ability of the Company to continue as a going concern is
dependent on generating positive cash flow from
operations.
Net Income (Loss) Per Share
The net income (loss) per share is calculated using the weighted
average number of shares outstanding. Fully diluted share calculations
assume the conversion of note payable at a the rate of $1.50 per share.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
Use of Predecessor's audit report
The attached financial statements were prepared by combining the two
companies, Global Business Information Directory and Consolidated
Builders Supply Corporation. Global Business Information Directory was
audited by the predecessor auditor through October 31, 1998. This auditors
reports were used to report on the combined operations of the new entity,
Global Business Information Directory, Inc.
Note 2 - Note Payable
The note payable at June 30, 1999 consist of a convertible debenture
payable to Lincolnshire Investments Inc., payable annually interest
only at 6.0 %; maturing June 1, 2001. This note is convertible at the
rate of $ 1.50per common share of common stock or 160,000 shares.
Management feels that this note will be converted and therefore fully
diluted earnings ( loss ) per share calculations assume complete conversion.
The acompanying notes are an integral part of these financial statements
F-10
AGREEMENT AND
PLAN OF REORGANIZATION
DATED MARCH 15, 1999
BETWEEN
CONSOLIDATED BUILDERS SUPPLY CORPORATION
AND
GLOBAL BUSINESS INFORMATION DIRECTORY, INC.
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement")
is entered into this 15th day of March, 1999 by and between
Consolidated Builders Supply Corporation, a Colorado corporation
("CBSC" or "Surviving Corporation") and Global Business Information
Directory, a Delaware corporation ("GBID").
RECITALS
A. Subject to and in accordance with the terms and conditions
of this Agreement and pursuant to the Articles of Merger
attached hereto as Exhibit A ("Articles of Merger"), the parties
intend that GBID will merge with and into CBSC (the "Merger"),
whereby at the Effective Time, all of the GBID Common Stock will be
converted into five million two hundred and fifty-nine thousand two
hundred and fifty (5,259,250)(1) shares of the common stock of CBSC
(the "CBSC Common Stock").
____________________
(1) All references to the number of shares of CBSC common stock
are adjusted to reflect a 1 to 5 reverse split effective March 15, 1999.
B. For federal income tax purposes, it is
intended that the Merger shall qualify as a tax free reorganization
within the meaning of Section368(a)(1)(A) of the Code.
C. The parties hereto desire to set forth certain representations,
warranties and covenants made by each to the otheras an inducement
to the consummation of the Merger.
AGREEMENT
NOW, THEREFORE, in reliance on the foregoing recitals and in and
for the consideration and mutual covenants set forth herein,
the parties agree as follows:
1. CERTAIN DEFINITIONS.
1.1 "AFFILIATE" shall have the meaning set forth in the rules
and regulations promulgated by the Commission pursuant
to the Securities Act.
1.2 "CLOSING" shall mean the closing of the
transactions contemplated by this Agreement.
1.3 "CLOSING DATE" shall mean the date of the
Closing.
1.4 "CODE" shall mean the United States Internal
Revenue Code of 1986, as amended.
1.5 "COMMISSION" shall mean the United States
Securities and Exchange Commission.
<PAGE>
1.6 "DISSENTING SHARES" shall mean those shares
held by holders who perfect their appraisal rights under the
applicable state laws.
1.7 "EFFECTIVE TIME" shall mean the date and time
of the effectiveness of the Merger under Colorado and Delaware law.
1.8 "GAAP" shall mean generally accepted
accounting principles.
1.9 "GBID COMMON STOCK" shall mean all of the
outstanding shares of Common Stock of GBID.
1.10 "MATERIAL ADVERSE EFFECT" shall mean a
material adverse effect on the operations, assets or financial
condition (financial or otherwise) of an entity considered as a whole.
1.11 "SECURITIES ACT" shall mean the Securities Act
of 1933, as amended, or any similar federal statute and the rules
and regulations thereunder, all as the same shall be in effect at
the time.
1.12 "TRANSACTION DOCUMENTS" shall mean all
documents or agreements attached as an exhibit or schedule hereto,
and set forth on the Table of Contents.
2. PLAN OF REORGANIZATION.
2.1 THE MERGER. Subject to the terms and
conditions of this Agreement and the Articles of Merger, GBID shall
be merged with and into CBSC in accordance with the applicable
provisions of the laws of the States of Colorado and Delaware, and
with the terms and conditions of this Agreement and the Articles of
Merger, so that:
(A) At the Effective Time (as defined in Section
2.5 (below)), GBID shall be merged with and into CBSC.
As a result of the Merger, the separate corporate existence of GBID
shall cease, and CBSC shall continue as the surviving corporation,
and shall succeed to and assume all of the rights and obligations of
GBID in accordance with the laws of Colorado.
(B) The Certificate of Incorporation and Bylaws of
CBSC in effect immediately prior to the Effective Time
shall be the Certificate of Incorporation and Bylaws, respectively,
of the Surviving Corporation after the Effective Time unless and
until further amended as provided by law.
(C) Subject to the terms of this Agreement,
at the Effective Time, the Board of Directors of CSBC
shall appoint Steve Carmichael to its board of directors. Mr.
Carmichael and the rest of CSBC's Board of Directors shall hold
their position until the election and qualification of their
respective successors or until their tenure is otherwise terminated
in accordance with the Bylaws of the Surviving Corporation.
2.2 CONVERSION OF SHARES. Each share of GBID Common
Stock,issued and outstanding immediately prior to the
Effective Time, will, by virtue of the Merger, and at the
<PAGE>
Effective Time, and without further action on the part of
any holder thereof, be converted into 1.09 shares of fully
paid and nonassessable shares of CBSC Common Stock.
2.3 FRACTIONAL SHARES. No fractional shares of
CBSC Common Stock will be issued in connection with the Merger.
2.4 THE CLOSING. Subject to termination of this
Agreement as provided in Section 5 (below), the Closing shall take
place at the offices of M. Richard Cutler, 610 Newport Center Drive,
Suite 800, Newport Beach, CA 92660, as soon as possible upon the
satisfaction or waiver of all conditions set forth in Section 3
hereof, or such other time and place as is mutually agreeable to the
parties.
2.5 EFFECTIVE TIME. Simultaneously with the
Closing, the Articles of Merger shall be filed in the office of the
Secretary of State of the State of Colorado. The Merger shall
become effective immediately upon the filing of the Articles of
Merger with such office.
2.6 TAX FREE REORGANIZATION. The parties intend
to adopt this Agreement as a tax-free plan of reorganization and to
consummate the Merger in accordance with the provisions of
Section368(a)(1)(A) of the Code. Each party agrees that it will not
take or assert any position on any tax return, report or otherwise
which is inconsistent with the qualification of the Merger as a
reorganization within the meaning of Section368(a) of the Code.
CBSC represents now, and as of the Closing Date, that it presently
intends to continue GBID's historic business or use a significant
portion of GBID's business assets in a business.
3. REPRESENTATIONS AND WARRANTIES OF GBID. GBID represents
and warrants to CBSC as set forth below. No fact or
circumstance disclosed shall constitute an exception to these
representations and warranties except as may mutually be agreed upon
in writing by the parties hereto.
3.1 ORGANIZATION. GBID is a corporation duly organized,
validly existing and in good standing under the laws of
the state of Delaware and has the corporate power and authority to
carry on its business as it is now being conducted. GBID is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or properties makes
such qualification or licensing necessary except where the failure
to be so qualified would not have a Material Adverse Effect on GBID.
3.2 CAPITALIZATION.
(A) The authorized capital of GBID
consists of 50,000,000 shares of Common Stock, par value $0.0001 per
share, of which 4,825,000 shares are issued and outstanding.
(B) GBID does not have outstanding any
preemptive rights, subscription rights, options, warrants, rights to
convert or exchange, capital stock equivalents, or other rights to
purchase or otherwise acquire any GBID capital stock or other
securities.
<PAGE>
(C) All of the issued and outstanding shares of GBID
capital stock have been duly authorized, validly
issued, are fully paid and nonassessable, and such capital stock has
been issued in full compliance with all applicable federal and state
securities laws. None of GBID's issued and outstanding shares of
capital stock are subject to repurchase or redemption rights.
(D) Except for any restrictions imposed by applicable
state and federal securities laws, there is no right
of first refusal, option, or other restriction on transfer
applicable to any shares of GBID's capital stock.
(E) GBID is not a party or subject to any agreement
or understanding (and, to GBID's actual knowledge,
there is no agreement or understanding between or among any persons)
that affects or relates to the voting or giving of written consent
with respect to any security.
3.3 POWER, AUTHORITY AND VALIDITY. GBID has the
corporate power to enter into this Agreement and the other
Transaction Documents to which it is a party and to carry out its
obligations hereunder and thereunder. The execution and delivery of
this Agreement and the Transaction Documents and the consummation of
the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of GBID and no other corporate
proceedings on the part of GBID are necessary to authorize this
Agreement, the other Transaction Documents and the transactions
contemplated herein and therein. GBID is not subject to, or
obligated under, any charter, bylaw or contract provision or any
license, franchise or permit, or subject to any order or decree,
which would be breached or violated by or in conflict with its
executing and carrying out this Agreement and the transactions
contemplated hereunder and under the Transaction Documents. Except
for (i) the filing of the Articles of Merger with the Secretary of
State of the State of Colorado and appropriate documents with the
relevant authorities of other states in which GBID is qualified to
do business, and (ii) filings under applicable securities laws, no
consent of any person who is a party to a contract which is material
to GBID's business, nor consent of any governmental authority, is
required to be obtained on the part of GBID to permit the
transactions contemplated herein and to permit GBID to continue the
business activities of GBID as previously conducted by GBID without
a Material Adverse Effect. This Agreement is, and the other
Transaction Documents when executed and delivered by GBID shall be,
the valid and binding obligations of GBID, enforceable in accordance
with their respective terms.
3.4 TAX-FREE REORGANIZATION.
(A) GBID has not taken or agreed to take any action
that would prevent the Merger from constituting a reorganization
qualifying under the provisions of Section368(a) of
the Code.
(B) GBID is not an investment company
as defined in SectionSection368(a)(2)(F)(iii)
and (iv) of the Code.
3.5 NO BROKERS. GBID is not obligated for the
payment of fees or expenses of any broker or finder in connection
with the origin, negotiation or execution of this Agreement or the
Articles of Merger or in connection with any transaction
contemplated hereby or thereby.
<PAGE>
4. REPRESENTATIONS AND WARRANTIES OF CBSC. CBSC
represents and warrants to GBID as set forth below. No fact or
circumstance disclosed to GBID shall constitute an exception to
these representations and warranties except as may mutually be
agreed upon in writing by GBID and CBSC.
4.1 ORGANIZATION. CBSC is a corporation duly
organized, validly existing and in good standing under the laws of
the state of Colorado and has the corporate power and authority to
carry on its business as it is now being conducted. CBSC is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of its businesses or properties
makes such qualification or licensing necessary except where the
failure to be so qualified would not have a Material Adverse Effect
on CBSC.
4.2 CAPITALIZATION.
(A) The authorized capital of CBSC consists of
100,000,000 shares of Common Stock, par value $0.001, of
which 3,120,000 (post-split) shares are issued and outstanding
(without giving effect to the shares issued to GBID hereunder), and
10,000,000 shares of preferred stock, par value $0.01, of which no
shares are issued and outstanding.
(B) All of the issued and outstanding shares of CBSC
capital stock have been duly authorized, validly
issued, are fully paid and nonassessable, and such capital stock has
been issued in full compliance with all applicable federal and state
securities laws. None of CBSC's issued and outstanding shares of
capital stock are subject to repurchase or redemption rights.
(C) Except for any restrictions imposed by applicable
state and federal securities laws, there is no right
of first refusal, option, or other restriction on transfer
applicable to any shares of CBSC capital stock.
(D) CBSC is not a party or subject to any agreement
or understanding (and, to CBSC's actual knowledge,
there is no agreement or understanding between or among any persons)
that affects or relates to the voting or giving of written consent
with respect to any security.
4.3 POWER, AUTHORITY AND VALIDITY. CBSC has the
corporate power to enter into this Agreement and the other
Transaction Documents to which they are parties and to carry out
their obligations hereunder and thereunder. The execution and
delivery of this Agreement and the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of CBSC and no
other corporate proceedings on the part of CBSC are necessary to
authorize this Agreement, the other Transaction Documents and the
transactions contemplated herein and therein. CBSC is not subject
to, or obligated under, any charter, bylaw or contract provision or
any license, franchise or permit, or subject to any order or decree,
which would be breached or violated by or in conflict with its
executing and carrying out this Agreement and the transactions
contemplated hereunder and under the Transaction Documents. Except
for (i) the filing of the Articles of Merger with the Secretary of
State of the State of Colorado and appropriate documents with the
relevant authorities of other states in which CBSC is qualified to
do business, and (ii) filings under applicable securities laws, no
consent of any person who is a party to a contract which is material
to CBSC's business, nor consent of any governmental authority,
<PAGE>
is required to be obtained on the part of CBSC to permit the
transactions contemplated herein and to permit CBSC to continue the
business activities of CBSC as previously conducted by CBSC without
a Material Adverse Effect. This Agreement is, and the other
Transaction Documents when executed and delivered by CBSC shall be,
the valid and binding obligations of CBSC, enforceable in accordance
with their respective terms.
4.4 TAX-FREE REORGANIZATION.
(A) CBSC has not taken or agreed to take any action
that would prevent the Merger from constituting a
reorganization qualifying under the provisions of Section368(a) of
the Code.
(B) CBSC is not an investment company as
defined in SectionSection368(a)(2)(F)(iii) and (iv) of the Code.
4.5 NO BROKERS. CBSC is not obligated for the
payment of fees or expenses of any broker or finder in connection
with the origin, negotiation or execution of this Agreement or the
Articles of Merger or in connection with any transaction
contemplated hereby or thereby.
5. PRECLOSING COVENANTS OF GBID.
5.1 NOTICES AND APPROVALS. GBID agrees: (a) to
give all notices to third parties which may be necessary or deemed
desirable by CBSC in connection with this Agreement and the
consummation of the transactions contemplated hereby; (b) to use its
best efforts to obtain all federal and state governmental regulatory
agency approvals, consents, permit, authorizations, and orders
necessary or deemed desirable by CBSC in connection with this
Agreement and the consummation of the transaction contemplated
hereby; and (c) to use its best efforts to obtain, and to cause GBID
to obtain, all consents and authorizations of any other third
parties necessary or deemed desirable by CBSC in connection with
this Agreement and the consummation of the transactions contemplated
hereby.
5.2 INFORMATION FOR CBSC S STATEMENTS AND
APPLICATIONS. GBID and its employees, accountants and attorneys
shall cooperate fully with CBSC in the preparation of any statements
or applications made by CBSC to any federal or state governmental
regulatory agency in connection with this Agreement and the
transactions contemplated hereby and to furnish CBSC with all
information concerning GBID necessary or deemed desirable by CBSC
for inclusion in such statements and applications, including,
without limitation, all requisite financial statements and schedules.
6. MUTUAL COVENANTS.
6.1 REGULATORY FILINGS; CONSENTS; REASONABLE EFFORTS.
Subject to the terms and conditions of this Agreement,
GBID and CBSC shall use their respective best efforts to (i) make
all necessary filings with respect to the Merger and this Agreement
under the Securities Act, and applicable blue sky or similar
securities laws and shall use all reasonable efforts to obtain
required approvals and clearances with respect thereto and shall
supply all additional internally prepared
<PAGE>
information requested in connection
therewith; (ii) make merger notification or other
appropriate filings with federal, state or local governmental bodies
or applicable foreign governmental agencies and shall use all
reasonable efforts to obtain required approvals and clearances with
respect thereto and shall supply all additional internally prepared
information requested in connection therewith; (iii) obtain all
consents, waivers, approvals, authorizations and orders required in
connection with the authorization, execution and delivery of this
Agreement and the consummation of the Merger; and (iv) take, or
cause to be taken, all appropriate action, and do, or cause to be
done, all things necessary, proper or advisable to consummate and
make effective as promptly as practicable the transactions
contemplated by this Agreement.
6.2 FURTHER ASSURANCES. Prior to and following
the Closing, each party agrees to cooperate fully with the other
parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be
reasonably requested by any other party to better evidence and
reflect the transactions described herein and contemplated hereby
and to carry into effect the intents and purposes of this Agreement.
7. CLOSING MATTERS.
7.1 FILING OF ARTICLES OF MERGER. On the date of
the Closing, but not prior to the Closing, the Articles of Merger
shall be filed with the offices of the Secretary of State of the
State of Colorado and the merger of GBID with and into CBSC shall be
consummated.
7.2 EXCHANGE OF CERTIFICATES. At or within 45
days of the Closing, CBSC shall deliver and issue to each
shareholder of GBID a certificate or certificates representing the
CBSC Common Stock issuable to such shareholder as consideration in
this Merger.
7.3 DELIVERY OF DOCUMENTS. On or before the
Closing, the parties shall deliver the documents, and shall perform
the acts specified herein, including delivery of the counterpart
signature pages of the Transaction Documents executed by GBID and/or
CBSC, as the case may be. All documents which GBID shall deliver or
cause to be delivered shall be in form and substance reasonably
satisfactory to CBSC. All documents which CBSC shall deliver or
cause to be delivered shall be in form and substance reasonably
satisfactory to GBID.
8. TERMINATION OF AGREEMENT.
8.1 TERMINATION. This Agreement may be terminated
at any time prior to the Closing by the mutual written consent of
each of the parties hereto. This Agreement may also be terminated
and abandoned by either GBID or CBSC, if the Merger is not effected
by March 20, 1999. Any termination of this Agreement under this
Section 5.1 shall be effected by the delivery of written notice of
the terminating party to the other parties hereto.
8.2 LIABILITY FOR TERMINATION. Any termination of
this Agreement pursuant to this Section 5 shall be without further
obligation or liability upon any party in favor of any other party
hereto; provided, that if such termination shall result from the
willful failure of a party to carry out its obligations under this
Agreement, then such party shall be liable for losses incurred by
the other parties as set forth in Section 5.5. The provisions of
this Section 5.2 shall survive termination.
<PAGE>
8.3 CERTAIN EFFECTS OF TERMINATION. In the event
of the termination of this Agreement as provided in Section 5.1
herein, each party, if so requested by the other party, will (i)
return promptly every document (other than documents publicly
available) furnished to it by the other party (or any subsidiary,
division, associate or affiliate of such other party) in connection
with the transactions contemplated hereby, whether so obtained
before or after the execution of this Agreement, and any copies
thereof which may have been made, and will cause its representatives
and any representatives of financial institutions and investors and
others to whom such documents were furnished promptly to return such
documents and any copies thereof any of them may have made; or (ii)
destroy such documents and cause its representatives and such other
representatives to destroy such documents, and such party shall
deliver a certificate executed by its president or vice president
stating to such effect; and
8.4 REMEDIES. No party shall be limited to the
termination right granted in Section 5.1 hereto by reason of the
nonfulfillment of any condition to such party's closing obligations
but may, in the alternative, elect to do one of the following:
(A) proceed to close despite the nonfulfillment
of any closing condition, it being understood that
consummation of the transactions contemplated hereby shall be deemed
a waiver of any misrepresentation or breach of warranty or covenant
and of any party's rights and remedies with respect thereto to the
extent that the other party shall have actual knowledge of such
misrepresentation or breach and the Closing shall nonetheless take
place; or
(B) decline to close, terminate this Agreement
as provided in Section 5.1 hereof, and thereafter seek
damages to the extent permitted in Section 5.5 hereof.
8.5 ARBITRATION. Any dispute arising out of this
Agreement, or its performance or breach, shall be resolved by
binding arbitration conducted by JAMS/Endispute under the
JAMS/Endispute Rules for Complex Arbitration (the "JAMS Rules").
This arbitration provision is expressly made pursuant to and shall
be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-14.
The parties hereto agree that pursuant to Section 9 of the Federal
Arbitration Act, a judgment of the United States District Courts for
the Southern District of California shall be entered upon the award
made pursuant to the arbitration. A single arbitrator, who shall
have the authority to allocate the costs of any arbitration
initiated under this paragraph, shall be selected according to the
JAMS Rules within ten (10) days of the submission to JAMS/Endispute
of the response to the statement of claim or the date on which any
such response is due, whichever is earlier. The arbitrator shall
conduct the arbitration in accordance with the Federal Rules of
Evidence. The arbitrator shall decide the amount and extent of
pre-hearing discovery which is appropriate. The arbitrator shall
have the power to enter any award of monetary and/or injunctive
relief (including the power to issue permanent injunctive relief and
also the power to reconsider any prior request for immediate
injunctive relief by either of the parties and any order as to
immediate injunctive relief previously granted or denied by a court
in response to a request therefor by either of the parties),
including the power to render an award as provided in Rule 43 of the
JAMS Rules; provided, however, that the arbitrator shall not have
the power to award punitive damages under any circumstances (whether
styled as punitive, exemplary, or treble damages, or any penalty or
punitive type of damages) regardless of whether such damages may be
available under applicable law, the parties hereby waiving CBSC
rights to recover any such damages. The arbitrator shall award the
prevailing party its costs
<PAGE>
and reasonable attorneys' fees, and the losing
party shall bear the entire cost of the arbitration,
including the arbitrator's fees. All arbitration shall be held in
Orange County, California. In addition to the above court, the
arbitration award may be enforced in any court having jurisdiction
over the parties and the subject matter of the arbitration.
Notwithstanding the foregoing, the parties irrevocably submit to the
nonexclusive jurisdiction of the state and federal courts situated
where the respondent is domiciled or resides as of the Effective
Date in any action to enforce an arbitration award. With respect to
any request for immediate injunctive relief, that state and federal
courts in Orange County, California shall have exclusive
jurisdiction and venue over any such disputes.
9. MISCELLANEOUS.
9.1 GOVERNING LAWS. It is the intention of the parties
hereto that the internal laws of the State of California
(irrespective of its choice of law principles) shall govern the
validity of this Agreement, the construction of its terms, and the
interpretation and enforcement of the rights and duties of the
parties hereto.
9.2 BINDING UPON SUCCESSORS AND ASSIGNS. Subject to,
and unless otherwise provided in, this Agreement, each and all
of the covenants, terms, provisions, and agreements contained herein
shall be binding upon, and inure to the benefit of, the permitted
successors, executors, heirs, representatives, administrators and
assigns of the parties hereto.
9.3 SEVERABILITY. If any provision of this Agreement,
or the application thereof, shall for any reason and to
any extent be invalid or unenforceable, the remainder of this
Agreement and application of such provision to other persons or
circumstances shall be interpreted so as best to reasonably effect
the intent of the parties hereto. The parties further agree to
replace such void or unenforceable provision of this Agreement with
a valid and enforceable provision which will achieve, to the extent
possible, the economic, business and other purposes of the void or
unenforceable provision.
9.4 ENTIRE AGREEMENT. This Agreement, the exhibits
hereto, the documents referenced herein, and the exhibits
thereto, constitute the entire understanding and agreement of the
parties hereto with respect to the subject matter hereof and thereof
and supersede all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto and
thereto. The express terms hereof control and supersede any course
of performance or usage of the trade inconsistent with any of the
terms hereof.
9.5 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original as
against any party whose signature appears thereon and all of which
together shall constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of
the parties reflected hereon as signatories.
9.6 EXPENSES. Except as provided to the contrary herein,
each party shall pay all of its own costs and expenses
incurred with respect to the negotiation, execution and delivery of
this Agreement, the exhibits hereto, and the other Transaction
Documents.
<PAGE>
9.7 AMENDMENT AND WAIVERS. Any term or provision of this
Agreement may be amended, and the observance of any term of
this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a
writing signed by the party to be bound thereby. The waiver by a
party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed
to constitute a waiver of any other default or any succeeding breach
or default.
9.8 SURVIVAL OF AGREEMENTS. All covenants,agreements,
representations and warranties made herein shall survive
the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby notwithstanding any
investigation of the parties hereto and shall terminate on the date
one year after the Closing Date.
9.9 NO WAIVER. The failure of any party to enforce
any of the provisions hereof shall not be construed to be a
waiver of the right of such party thereafter to enforce such
provisions.
9.10 ATTORNEYS' FEES. Should suit be brought to enforce
or interpret any part of this Agreement, the prevailing
party shall be entitled to recover, as an element of the costs of
suit and not as damages, reasonable attorneys' fees to be fixed by
the court (including without limitation, costs, expenses and fees on
any appeal). The prevailing party shall be the party entitled to
recover its costs of suit, regardless of whether such suit proceeds
to final judgment. A party not entitled to recover its costs shall
not be entitled to recover attorneys' fees. No sum for attorneys'
fees shall be counted in calculating the amount of a judgment for
purposes of determining if a party is entitled to recover costs or
attorneys' fees.
9.11 NOTICES. Any notice provided for or permitted under
this Agreement will be treated as having been given when (a)
delivered personally, (b) sent by confirmed telex or telecopy, (c)
sent by commercial overnight courier with written verification of
receipt, or (d) mailed postage prepaid by certified or registered
mail, return receipt requested, to the party to be notified, at the
address set forth below, or at such other place of which the other
party has been notified in accordance with the provisions of this
Section 6.11.
If to CBSC:
Consolidated Builders Supply Corporation
c/o The Law Offices of M. Richard Cutler
610 Newport Center Drive, Suite 800
Newport Beach, CA 92660
Attn: M. Richard Cutler, Esq.
Facsimile No.: (949) 719-1988
If to GBID:
Global Business Information Directory, Inc.
145 Tyee Drive, Suite 164
Point Roberts, WA 98281
Facsimile No.: (____) ________________
<PAGE>
Such notice shall be treated as effective when sent.
9.12 TIME. Time is of the essence of this Agreement.
9.13 CONSTRUCTION OF AGREEMENT. This Agreement has been
negotiated by the respective parties hereto and their attorneys
and the language hereof shall not be construed for or against any
party. The titles and headings herein are for reference purposes
only and shall not in any manner limit the construction of this
Agreement which shall be considered as a whole.
9.14 NO JOINT VENTURE. Nothing contained in this Agreement
shall be deemed or construed as creating a joint venture
or partnership between any of the parties hereto. No party is by
virtue of this Agreement authorized as an agent, employee or legal
representative of any other party. No party shall have the power to
control the activities and operations of any other and each party's
status is, and at all times, will continue to be, that of
independent contractors with respect to each other. No party shall
have any power or authority to bind or commit any other. No party
shall hold itself out as having any authority or relationship in
contravention of this Section 6.14.
9.15 PRONOUNS. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the person, persons,
entity or entities may require.
9.16 FURTHER ASSURANCES. Each party agrees to cooperate
fully with the other parties and to execute such further
instruments, documents and agreements and to give such further
written assurances, as may be reasonably requested by any other
party to better evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
9.17 ABSENCE OF THIRD-PARTY BENEFICIARY RIGHTS. No
provisions of this Agreement are intended, nor shall be interpreted,
to provide or create any third-party beneficiary rights or any other
rights of any kind in any client, customer, affiliate, stockholder,
partner of any party hereto or any other person or entity except
employees and stockholders of GBID specifically referred to herein,
and, except as so provided, all provisions hereof shall be personal
solely between the parties to this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
CONSOLIDATED BUILDERS GLOBAL BUSINESS INFORMATION
SUPPLY CORPORATION, DIRECTORY, INC.,
an Colorado corporation a Delaware corporation
By: /s/ Raymond R. Cottrell By: /s/ Stephen W. Carmichael
President President
ATTEST: ATTEST:
By: /s/ Kendall L. Dorsett By: /s/ Douglas E. Abrahams
Secretary Secretary
<PAGE>
GLOBAL BUSINESS INFORMATION DIRECTORY, Inc.
Secretary's Certificate
The undersigned, Douglas E. Abrahams, Secretary of GBID, Inc., a
Delaware corporation and one of the merging corporations mentioned
in the foregoing Agreement and Plan of Reorganization (the
"Agreement"), certifies that the Agreement has been adopted by the
written consent of the shareholders of the majority of the
outstanding stock of GBID, Inc. entitled to vote thereon in
accordance with the provisions of the General Corporation Law of the
State of Delaware.
Dated: March 15, 1999
By: /s/ Douglas E. Abrahams
Secretary of Global Business Information Directory, Inc.
<PAGE>
Consolidated Builders Supply Corporation
Secretary's Certificate
The undersigned, Kendall L. Dorsett, Secretary of Consolidated
Builders Supply Corporation a Colorado corporation and one of the
merging corporations mentioned in the foregoing Agreement and Plan
of Reorganization (the "Agreement"), certifies that the Agreement
has been adopted by the affirmative vote of the holders of a
majority of the outstanding Common Stock of Consolidated Builders
Supply Corporation entitled to vote thereon at a meeting held
pursuant to notice in accordance with the provisions of the Colorado
Business Corporation Law.
Dated: March 15, 1999
By: /s/ Kendall L. Dorsett
Secretary of Consolidated Builders Supply Corporation
<PAGE>
EXHIBIT "A"
ARTICLES OF MERGER
THIS IS TO CERTIFY:
1. PARTIES. Pursuant to the terms of that certain
definitive Agreement and Plan of Reorganization dated March
15, 1999 (the "Agreement"), Consolidated Business Supply Corporation
("CBSC"), a corporation formed pursuant to the laws of the State of
Colorado, has merged with Global Business Information Directory,
Inc., a corporation formed pursuant to the laws of the State of
Delaware, effective March 22, 1999 (the "Effective Date").
2. APPROVAL. The terms of the Agreement were approved
by the affirmative vote of the Boards of Directors and
Shareholders of both CBSC and GBID, on March 9, 1999, pursuant to
unanimous consents or meetings of the same held pursuant to proper
notice (or waiver thereof).
3. SHARE EXCHANGE. The Agreement provides that all of
the shareholders of GBID, representing 4,825,000 issued and
outstanding common shares, shall exchange their respective shares
for an aggregate of 5,259,250 of CBSC common stock, to be
distributed to each GBID shareholder pro rata to their respective
ownership in GBID at the Effective Date. Immediately prior to the
Effective Date, there were 3,120,000 common shares of CBSC issued
and outstanding.
4. SERVICE. For purposes herein, all notices and service
of process may be effectuated by tendering the same to M.
Richard Cutler, Esq., 610 Newport Center Drive, Suite 800, Newport
Beach, CA 92660, legal counsel to CBSC.
5. SURVIVING ENTITY. Pursuant to the terms of the
Agreement, CBSC shall be the surviving entity and, upon the
Effective Date and upon filing of these Articles of Merger with the
Colorado Secretary of State and issuance of an applicable
Certificate of Merger by the Secretary of State of Colorado, GBID
shall cease to exist as a bona fide Delaware corporation.
6. NAME CHANGE. Pursuant to the affirmative vote of the
shareholders of CBSC, the CBSC Articles of Incorporation
shall be amended to reflect a change in CBSC's name to "Global
Business Information Directory, Inc."
7. COUNTERPARTS. This Articles of Merger may be executed in
counterparts, each of which shall be deemed to be an
original document, but together shall be deemed to constitute only
one agreement.
Executed as of this 15th day of March, 1999
CONSOLIDATED BUILDERS GLOBAL BUSINESS
SUPPLY CORPORATION INFORMATION DIRECTORY, INC.
By:/s/Raymond R. Cottrell, President By:/s/Steve Carmichael, President
[19971039690 C
$ 50.00
SECRETARY OF STATE
03-13-97 14:51:24]
ARTICLES OF INCORPORATION
OF
SNOWY PEAK FINANCIAL, INC.
KNOW ALL MEN BY THESE PRESENTS:
That I, PATRICIA CUDD, desiring to establish a corporation under the name of
SNOWY PEAK FINANCIAL, INC., for the purpose of becoming a body corporate
under and by virtue of the laws of the State of Colorado and, in accordance
with the provisions of the laws of said State, do hereby make, execute and
acknowledge this certificate in writing of my intention to become a body
corporate, under and by virtue of said laws.
ARTICLE I
The name of the corporation shall be: SNOWY PEAK FINANCIAL, INC.
ARTICLE II
The nature of the business and the objects and purposes to be transacted,
promoted and carried on are to do any or all of the things herein mentioned
as fully and to the same extent as natural persons might or could do, and in
any part of the world, viz:
(a) To transact all lawful business for which corporations may be
incorporated pursuant to the Colorado Corporation Code.
(b) To manufacture, purchase or otherwise acquire and to hold, own, mortgage
or otherwise lien, pledge, lease, sell, assign, exchange, transfer or in any
manner dispose of, and to invest, deal and trade in and with goods, wares,
merchandise and personal property of any and every class and description,
within or without the State of Colorado.
(C) To acquire the goodwill, rights and property and to undertake the whole
or any part of the assets and liabilities of any person, firm, association
or corporation; to pay for the same in cash, the stock of the corporation,
bonds or otherwise; to hold or in any manner dispose of the whole or any
part of the property so purchased; to conduct in any lawful manner the whole
or any part of any business so acquired and to exercise all the powers
necessary or convenient in and about the conduct and management of such
business.
(d) To guarantee, purchase or otherwise acquire, hold, sell, assign,
transfer, mortgage, pledge or otherwise dispose of shares of the capital
stock, bonds or other evidences of indebtedness created by other
corporations and, while the holder of such stock, to exercise all the rights
and privileges of ownership, including the right to vote thereon, to the
same extent as natural persons might or could do.
<PAGE>
(e) To purchase or otherwise acquire, apply for, register, hold, use, sell
or in any manner dispose of and to grant licenses or other rights in and in
any manner deal with patents, inventions, improvements, processes, formulas,
trademarks, trade names, rights and licenses secured under letters patent,
copyright or otherwise.
(f) To enter into, make and perform contracts of every kind for any lawful
purpose, with any person, firm, association or corporation, town, city,
county, body politic, state, territory, government, colony or dependency
thereof.
(g) To borrow money for any of the purposes of the corporation and to draw,
make, accept, endorse, discount, execute, issue, sell, pledge or otherwise
dispose of promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other negotiable or non-negotiable, transferable or
nontransferable instruments and evidences of indebtedness, and to secure the
payment thereof and the interest thereon by mortgage or pledge, conveyance
or assignment in trust of the whole or any part of the property of the
corporation at the time owned or thereafter acquired.
(h) To lend money to, or guarantee the obligations of, or to otherwise
assist the directors of the corporation or of any other corporation the
majority of whose voting capital stock is owned by the corporation, upon the
affirmative vote of at least a majority of the outstanding shares entitled
to vote for directors.
(i) To purchase, take, own, hold, deal in, mortgage or otherwise pledge, and
to lease, sell, exchange, convey, transfer or in any manner whatever dispose
of real property, within or without the State of Colorado.
(j) To purchase, hold, sell and transfer the shares of its capital stock.
(k) To have one or more offices and to conduct any and all operations and
business and to promote its objects, within or without the State of
Colorado, without restrictions as to place or amount.
(1) To do any or all of the things herein set forth as
principal, agent, contractor, trustee, partner or otherwise, alone or in
company with others.
(m) The objects and purposes specified herein shall be regarded as
independent objects and purposes and, except where otherwise expressed,
shall be in no way limited or restricted by reference to or inference from
the terms of any other clauses or paragraph of these Articles of Incorporation.
(n) The foregoing shall be constructed both as objects and powers and the
enumeration thereof shall not be held to limit or restrict in any manner the
general powers conferred on this corporation by the laws of the State of
Colorado.
ARTICLE III
The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is 110,000,000 of which 10,000,000
shall be shares of preferred stock, $.01 par
<PAGE>
value per share, and 100,000,000 shall be shares of common stock, $.001 par
value per share, and the designations, preferences, limitations and relative
rights of the shares of each class shall be as follows:
(a) Shares of Preferred Stock. The corporation may divide and issue the
shares of preferred stock in series. Shares of preferred stock of each
series, when issued, shall be designated to distinguish them from the shares
of all other series. The Board of Directors is hereby vested with authority
to divide the class of shares of preferred stock into series and to fix and
determine the relative rights and preferences of the shares of any such
series so established to the full extent permitted by these Articles of
Incorporation and the Colorado Corporation Code in respect of the following:
(i) The number of shares to constitute such series, and the
distinctive designations thereof;
(ii) The rate and preference of dividends, if any, the time of payment of
dividends, whether dividends are cumulative and the date from which any
dividends shall accrue;
(iii) Whether shares may be redeemed and, if so, the
redemption price and the terms and conditions of redemption;
(iv) The amount payable upon shares in event of involuntary
liquidation;
(v) The amount payable upon shares in event of voluntary
liquidation;
(vi) Sinking fund or other provisions, if any, for the
redemption or purchase of shares;
(vii) The terms and conditions upon which shares may be converted, if the
shares of any series are issued with the privilege of conversion;
(viii) Voting powers, if any; and
(ix) Any other relative rights and preferences of shares of such series,
including, without limitation, any restriction on an increase in the number
of shares of any series theretofore authorized and any limitation or
restriction of rights or powers to which shares of any future series shall
be subject.
(b) Shares of Common Stock. The rights of holders of shares of common stock
to receive dividends or share in the distribution of assets in the event of
liquidation, dissolution or winding up of the affairs of the corporation
shall be subject to the preferences, limitations and relative rights of the
shares of preferred stock fixed in the resolution or resolutions which may
be adopted from time to time by the Board of Directors of the corporation
providing for the issuance of one or more series of shares of preferred stock.
<PAGE>
The capital stock, after the subscription price has been paid in, shall not
be subject to assessment to pay the debts of the corporation. Any stock of
the corporation may be issued for money, property, services rendered, labor
done, cash advances for the corporation or for any other assets of value in
accordance with the action of the Board of Directors, whose judgment as to
value received in return therefor shall be conclusive and said stock when
issued shall be fully-paid and nonassessable.
ARTICLE IV
THE corporation shall have perpetual existence.
ARTICLE V
The governing board of this corporation shall be known as the Board of
Directors, and the number of directors may from time to time be increased or
decreased in such manner as shall be provided by the Bylaws of this
corporation.
The name and post office address of the incorporator is as follows:
Patricia Cudd 50 South Steele Street, Suite #222
Denver, Colorado 80209
The name and post office address of the director comprising the original
Board of Directors of the corporation is as follows:
Roland W. Fink 506 Paula Avenue
Glendale, California 91201
Kendall L. Dorsett 506 Paula Avenue
Glendale, California 91201
In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors is expressly authorized:
(a) To manage and govern the corporation by majority vote of members present
at any regular or special meeting at which a quorum shall be present unless
the act of a greater number is required by the laws of the state of
incorporation, these Articles of Incorporation or the Bylaws of the
Corporation.
(b) To make, alter, or amend the Bylaws of the corporation at any
regular or special meeting.
(C) To fix the amount to be reserved as working capital over and
above its capital stock paid in.
(d) To authorize and cause to be executed mortgages and liens
upon the real and personal property of this corporation.
(e) To designate one or more committees, each committee to
consist of two or more of the directors of the corporation, which, to the
extent provided by
<PAGE>
resolution or in the Bylaws of the corporation, shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the corporation. Such committee or committees shall have such
name or names as may be stated in the Bylaws of the corporation or as may be
determined from time to time by resolution adopted by the Board of Directors.
The Board of Directors shall have power and authority to sell, lease,
exchange or otherwise dispose of all or substantially all of the property
and assets of the corporation, if in the usual and regular course of its
business, upon such terms and conditions as the Board of Directors may
determine without vote or consent of its shareholders.
The Board of Directors shall have power and authority to sell, lease,
exchange or otherwise dispose of all or substantially all the property or
assets of the corporation, including its goodwill, if not in the usual and
regular course of its business, upon such terms and conditions as the Board
of Directors may determine, provided that such sale shall be authorized or
ratified by the affirmative vote of the shareholders of at least a majority
of the shares entitled to vote thereon at a shareholders' meeting called for
that purpose, or when authorized or ratified by the written consent of all
the shareholders of the shares entitled to vote thereon.
The Board of Directors shall have the power and authority to merge or
consolidate the corporation upon such terms and conditions as the Board of
Directors may authorize, provided that such merger or consolidation is
approved or ratified by the affirmative vote of the shareholders of at least
a majority of the shares entitled to vote thereon at a shareholders meeting
called for that purpose, or when authorized or ratified by the written
consent of all the shareholders of the shares entitled to vote thereon.
The corporation shall be dissolved upon the affirmative vote of the
shareholders of at least a majority of the shares entitled to vote thereon
at a meeting called for that purpose, or when authorized or ratified by the
written consent of all the shareholders of the shares entitled to vote thereon.
The corporation shall revoke voluntary dissolution proceedings upon the
affirmative vote of the shareholders of at least a majority of the shares
entitled to vote at a meeting called for that purpose, or when authorized or
ratified by the written consent of all the shareholders of the shares
entitled to vote thereon.
ARTICLE VI
The following provisions are inserted for the management of the business and
for the conduct of the affairs of the corporation, and the same are in
furtherance of and not in limitation of the powers conferred by law.
No contract or other transactions of the corporation with any other person,
firm or corporation, or in which this corporation is interested, shall be
affected or invalidated by (a) the fact that any one or more of the
directors or officers of this corporation is interested in or is a director
or officer of such other firm or corporation; or (b) the fact that any
director or officer of this corporation, individually or jointly with
others, may be a party to or may be interested in any such contract or
transaction, so long as the contract or transaction is authorized, approved
or ratified at a meeting of the Board of Directors by sufficient vote
thereon by directors not interested
<PAGE>
therein, to whom such fact or relationship or interest has been disclosed,
or so long as the contract or transaction is fair and reasonable to the
corporation. Each person who may become a director or officer of the
corporation is hereby relieved from any liability that might otherwise arise
by reason of his contracting with the corporation for the benefit of himself
or any firm or corporation in which he may be in any way interested.
The officers, directors and other members of management of this corporation
shall be subject to the doctrine of corporate opportunities only insofar as
it applies to business opportunities in which this corporation has expressed
an interest as determined from time to time by the corporation's Board of
Directors as evidenced by resolutions appearing in the corporation's
minutes. When such areas of interest are delineated, all such business
opportunities within such areas of interest which come to the attention of
the officers, directors and other members of management of this corporation
shall be disclosed promptly to this corporation and made available to it.
The Board of Directors may reject any business opportunity presented to it
and thereafter any officer, director or other member of management may avail
himself of such opportunity. Until such time as this corporation, through
its Board of Directors, has designated an area of interest, the officers,
directors and other members of management of this corporation shall be free
to engage in such areas of interest on their own and the provisions hereof
shall not limit the rights of any officer, director or other member of
management of this corporation to continue a business existing prior to the
time that such area of interest is designated by this corporation. This
provision shall not be construed to release any employee of the corporation
(other than an officer, director or member of management) from any duties
which he may have to the corporation.
ARTICLE VII
Each director and officer of the corporation shall be indemnified by the
corporation as follows:
(a) The corporation shall indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not of itself create
a presumption that the person did not act in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed
action or suit by or in the right of the corporation, to procure a judgment
in its favor by
<PAGE>
reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorney's fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation, unless, and
only to the extent that, the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability, but in view of all circumstances of the case, such person is
fairly and reasonably entitled to indemnification for such expenses which
such court deems proper.
(C) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections (a) and (b) of this
Article, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under Section (a) or (b) of this Article (unless
ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the officer,
director and employee or agent is proper in the circumstances, because he
has met the applicable standard of conduct set forth in Section (a) or (b)
of this Article. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum, consisting of directors who were
not parties to such action, suit or proceeding, or (ii) if such quorum is
not obtainable or, even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the affirmative vote of the holders of a majority of the shares of
stock entitled to vote and represented at a meeting called for such purpose.
(e) Expenses (including attorneys' fees) incurred in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding, as
authorized in Section (d) of this Article, upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such
amount, unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation as authorized in this Article.
(f) The Board of Directors may exercise the corporation's power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this Article.
<PAGE>
(g) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under these Articles of Incorporation, the Bylaws, agreements, vote
of the shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of the
heirs and personal representatives of such a person.
ARTICLE VIII
The initial registered and principal office of said corporation shall be
located at 50 South Steele Street, Suite #222, Denver, Colorado 80209, and
the initial registered agent of the corporation at such address shall be
Patricia Cudd.
Part or all of the business of said corporation may be carried on in the
County of Denver, or any other place in the State of Colorado or beyond the
limits of the State of Colorado, in other states or territories of the
United States and in foreign countries.
ARTICLE IX
Whenever a compromise or arrangement is proposed by the corporation between
it and its creditors or any class of them, and/or between said corporation
and its shareholders or any class of them, any court of equitable
jurisdiction may, on the application in a summary way by said corporation,
or by a majority of its stock, or on the application of any receiver or
receivers appointed for said corporation, or on the application of trustees
in dissolution, order a meeting of the creditors or class of creditors
and/or of the shareholders or class of shareholders of said corporation, as
the case may be, to be notified in such manner as the said court decides. If
a majority in number, representing at least three-fourths in amount of the
creditors or class of creditors, and/or the holders of a majority of the
stock or class of stock of said corporation, as the case may be, agree to
any compromise or arrangement and/or to any reorganization of said
corporation, as a consequence of such compromise or arrangement, the said
compromise or arrangement and/or the said reorganization shall, if
sanctioned by the court to which the said application has been made, be
binding upon all the creditors or class of creditors, and/or on all the
shareholders or class of shareholders of said corporation, as the case may
be, and also on said corporation.
ARTICLE X
No shareholder in the corporation shall have the preemptive right to
subscribe to any or all additional issues of stock and/or other securities
of any or all classes of this corporation or securities convertible into
stock or carrying stock purchase warrants, options or privileges.
<PAGE>
ARTICLE XI
Meetings of shareholders may be held at any time and place as the Bylaws
shall provide. At all meetings of the shareholders, one-third of all shares
entitled to vote shall constitute a quorum.
ARTICLE XII
Cumulative voting shall not be allowed.
ARTICLE XIII
These Articles of Incorporation may be amended by resolution of the Board of
Directors if no shams have been issued, and if shares have been issued, by
affirmative vote of the shareholders of at least a majority of the shares
entitled to vote thereon at a meeting called for that purpose, or, when
authorized, when such action is ratified by the written consent of all the
shareholders of the shares entitled to vote thereon.
ARTICLE XIV
Any action for which the laws of the State of Colorado require the approval
of two-thirds of the shares of any class or series entitled to vote with
respect thereto, unless otherwise provided in the Articles of Incorporation,
shall require for approval the affirmative vote of a majority of the shares
of any class or series outstanding and entitled to vote thereon.
ARTICLE XV
No director shall be personally liable to the corporation or any shareholder
for monetary damages for breach of fiduciary duty as a director, except for
any matter in respect of which such director shall be liable under Section
7-5-114 of the Colorado Revised Statutes, or any amendment thereto or
successor provision thereto and except for any matter in respect of which
such director shall be liable by reason that he (i) has breached his duty of
loyalty to the corporation or its shareholders, - (ii) has not acted in good
faith or, in failing to act, has not acted in good faith, (iii) has acted in
a manner involving intentional misconduct or a knowing violation of law or,
in failing to act, has acted in a manner involving intentional misconduct or
a knowing violation of law, or (iv) has derived an improper personal
benefit. Neither the amendment nor repeal of this Article XV, nor the
adoption of any provision of the Articles of Incorporation inconsistent with
this Article XV, shall eliminate or reduce the effect of this Article XV in
respect of any matter occurring, or any cause of action, suite or claim
that, but for this Article XV would accrue or arise prior to such amendment,
repeal or adoption of an inconsistent provision.
<PAGE>
IN TESTIMONY WHEREOF, I have hereunto set my hand on this 13th day of March,
1997, and, by my signature below, I hereby further consent to my appointment
as the initial registered agent of the corporation.
/s/ Patricia Cudd
STATE OF COLORADO
ss.
COUNTY OF DENVER
I, Christina Addington, a Notary Public, in and for the said county and state,
hereby certify
that there personally appearedd before me, Patricia Cudd, who being first
duly sworn, declared that
he is the person who executed the foregoing document as the incorporator
and the initial registered
agent of the corporation, and that the statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 13th day
of March, 1997.
My commission expires: 12/17/97. /s/ Christina Addington
Notary Republic
[RECEIVED
1998 MAY -7 PM 1:16
SECRETARY OF STATE
STATE OF COLORADO]
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
SNOWY PEAK FINANCIAL, INC.
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the Corporation is Snowy Peak Financial, Inc.
SECOND: The following amendment to the Articles of Incorporation was adopted
on May 5, 1998, as prescribed by the Colorado Business Corporation Act, in
the manner marked with an X below:
___ No shares have been issued or Directors Elected - Action by Incorporators
___ No shares have been issued but Directors Elected - Action by Directors
___ Such amendment was adopted by the board of directors where shares have been
issued.
_X_ Such amendment was adopted by a vote of the shareholders. The
number of shares voted for the amendment was sufficient for approval.
Article I of the Articles of Incorporation shall be amended so that, as
amended, Article I reads in its entirety as follows:
ARTICLE I
Name
The name of the corporation is CONSOLIDATED BUILDERS SUPPLY CORPORATION.
THIRD: The manner, if not set forth in such amendment, in which any
exchange, reclassification, or cancellation of issued shares provided for in
the amendment shall be effected, is as follows: None.
If these amendments are to have a delayed effective-date, please list that
date: Not applicable.
(Not to exceed ninety (90) days from the date of filing)
SNOWY PEAK FINANCIAL, INC.
By: /s/Roland W. Fink, President
[RECEIVED
1998 MAY -8 PM 1:57
SECRETARY OF STATE
STATE OF COLORADO]
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
CONSOLIDATED BUILDERS SUPPLY CORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the Corporation is Consolidated Builders Supply
Corporation.
SECOND: The following amendment to the Articles of Incorporation was adopted
on May 5, 1998, as prescribed by the Colorado Business Corporation Act, in
the manner marked with an X below:
___ No shares have been issued or Directors Elected - Action by Incorporators
___ No shares have been issued but Directors Elected - Action by Directors
___ Such amendment was adopted by the board of directors where shares have been
issued.
_X_ Such amendment was adopted by a vote of the shareholders. The
number of shares voted for the amendment was sufficient for approval.
The first paragraph of Article III of the Corporation's Articles of
Incorporation shall be amended so that, as amended, the first paragraph of
Article III will read in its entirety as set forth below and, except as
amended in the manner provided below, the remainder of Article III of the
Articles of Incorporation win remain in full force and effect.
ARTICLE III
The total number of shares of all classes of capital stock which the
corporation shall have authority to issue is 110,000,000 of which 10,000,000
shall be shares of preferred stock, $.01 par value per share, and
100,000,000 shall be shares of common stock, $.001 par value per share, and
the designations, preferences, limitations and relative rights of the shares
of each class shall be as set forth in paragraphs (a) and (b) below.
(1) At the time this Amendment becomes effective, each one share of common
stock, $.001 par value per share, of the Corporation issued and outstanding
at such time shall be, and hereby is, changed and reclassified into fifteen
fully-paid and nonassessable shares of common stock, $.001 par value per
share, of the Corporation authorized by such Amendment, with the result that
the number of shares of common stock of the Corporation issued and
outstanding immediately prior to the taking of effect of this Amendment is
1,040,000 shares of common stock, $.001 par value per share, and the number
of shares of common stock of the Corporation issued and outstanding
immediately following the taking
<PAGE>
of effect of this Amendment is 15,600,000 shares of common stock, $.001 par
value per share. At any time after this Amendment becomes effective, each
certificate representing any shares of common stock, $.001 par value per
share, of the Corporation outstanding immediately prior to the taking of
effect of this Amendment (collectively, the "Old Certificates") shall be
exchangeable for a certificate representing shares of common stock, $.001
par value per share, of the Corporation authorized by such Amendment
(collectively, the "New Certificates"), in the ratio for such
reclassification stated above (i.e., 15: 1) through the surrender of such
Old Certificates by the holders of record thereof to the Secretary of this
Corporation at the principal office of the Corporation.
(2) Upon surrender for exchange by each shareholder of an Old Certificate,
the Corporation shall issue and deliver to each such shareholder a New
Certificate representing fifteen shares of common stock, $.001 par value per
share, of the Corporation for each one share of common stock, $.001 par
value per share, of the Corporation issued and outstanding immediately prior
to the taking of effect of this Amendment. The reclassification of issued
and outstanding shares of common stock, $.001 par value per share, of the
Corporation into shares of common stock, $.001 par value per share, of the
Corporation shall be deemed to occur when this Amendment becomes effective
and neither the surrender of the Old Certificates nor the issuance of the
New Certificates shall be a necessary condition for the effectiveness of
such reclassification. Each Old Certificate shall be canceled upon its
surrender and the issuance of a New Certificate evidencing such shares as so
reclassified. Consequently, the stated capital of this Corporation shall
remain unchanged following the taking of effect of this Amendment.
THIRD: The manner, if not set forth in such amendment, in which any
exchange, reclassification, or cancellation of issued shares provided for in
the amendment shall be effected, is as follows: None.
If these amendments are to, have a delayed effective date, please list that
date: Not applicable.
(Not to exceed ninety (90) days from the date of filing)
CONSOLIDATED BUILDERS SUPPLY
CORPORATION
By: /s/ Roland W. Fink, President
[Filed - Customer Copy]
[Victoria Buckley]
[Secretary of State]
[19991048441 M]
[$ 40.00]
[SECRETARY OF STATE]
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
CONSOLIDATED BUILDERS SUPPLY CORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act,
the undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
FIRST: The name of the Corporation is Consolidated
Builders Supply Corporation.
SECOND: The following amendment to the Articles of
Incorporation was adopted on March 9, 1999, as prescribed by the
Colorado Business Corporation Act, in the manner marked with an X
below:
____ No shares have been issued or Directors Elected-Action
by Incorporators
____ No shares have been issued but Directors
Elected -Action by Directors
____ Such amendment was adopted by the board of
directors where shares have been issued.
___X_ Such amendment was adopted by a vote of the
shareholders. The number of shares voted for the amendment
was sufficient for approval.
The first paragraph of Article III the Articles of
Incorporation shall be amended so that, as amended, the first
paragraph of Article III will read in its entirety as set forth
below, the remainder of Article III of the Articles of Incorporation
will remain in full force and effect:
ARTICLE III
"The total number of shares of all classes of capital stock which
the corporation shall have authority to issue is 110,000,000 of
which 10,000,000 shall be shares of preferred stock, $.01 par value
per share, and 100,000,000 shall be shares of common stock, $.001
par value per share, and the designations, preferences, limitations
and relative rights of the shares of each class shall be as set
forth in paragraphs (a) and (b) below. The outstanding shares of
common stock are subject to a 1 to 5 reverse stock split."
THIRD: The manner, if not set forth in such amendment, in
which any exchange, reclassification, or cancellation of issued
shares provided for in the amendment shall be effected is as follows:
(1) At the time this Amendment becomes effective, each
five shares of common stock, $.001 par value per share, of the
Corporation issued and outstanding at such time shall be, and hereby
is, changed and reclassified into one fully-paid and nonassessable
share of common stock, $.001 par value per share, of the Corporation
authorized by such Amendment, with the result that the number
<PAGE>
of shares of common stock of the Corporation issued and outstanding
immediately prior to the taking of effect of this Amendment is
15,600,000 shares of common stock, $.001 par value per share, and
the number of shares of common stock of the Corporation issued and
outstanding immediately following the taking of effect of this
Amendment is 3,120,000 shares of common stock, $.001 par value per
share. At any time after this Amendment becomes effective, each
certificate representing any shares of common stock, $.001 par value
per share, of the Corporation outstanding immediately prior to the
taking of effect of this Amendment (collectively, the "Old
Certificates") shall be exchangeable for a certificate representing
shares of common stock, $.001 par value per share, of the
Corporation authorized by such Amendment (collectively, the "New
Certificates"), in the ratio for such reclassification stated above
(i.e., 1:5) through the surrender of such Old Certificates by the
holders of record thereof to the Secretary of this Corporation at
the principal office of the Corporation.
(2) Upon surrender for exchange by each shareholder of
an Old Certificate, the Corporation shall issue and deliver to each
such shareholder a New Certificate representing one share of common
stock, $.001 par value per share, of the Corporation for each five
shares of common stock, $.001 par value per share, of the
Corporation issued and outstanding immediately prior to the taking
of effect of this Amendment. The reclassification of issued and
outstanding shares of common stock, $.001 par value per share, of
the Corporation into shares of common stock, $.001 par value per
share, of the Corporation shall be deemed to occur when this
Amendment becomes effective and neither the surrender of the Old
Certificates nor the issuance of the New Certificates shall be a
necessary condition for the effectiveness of such reclassification.
Each Old Certificate shall be canceled upon its surrender and the
issuance of a New Certificate evidencing such shares as so
reclassified. Consequently, the stated capital of this Corporation
shall remain unchanged following the taking of effect of this
Amendment.
If these amendments are to have a delayed effective date, please
list that date: Not applicable.
(Not to exceed ninety (90) days from the date of filing)
CONSOLIDATED BUILDERS SUPPLY CORPORATION
/s/Raymond Cottrell
By: Raymond Cottrell, President
ARTICLES OF MERGER
THIS IS TO CERTIFY:
1. PARTIES. Pursuant to the terms of that certain definitive
Agreement and Plan of Reorganization dated March 15, 1999 (the
"Agreement"), Consolidated Business Supply Corporation ("CBSC"), a
corporation formed pursuant to the laws of the State of Colorado,
has merged with Global Business Information Directory, Inc., a
corporation formed pursuant to the laws of the State of Delaware,
effective March 22, 1999 (the "Effective Date").
2. APPROVAL. The terms of the Agreement were approved by the
affirmative vote of the Boards of Directors and Shareholders of both
CBSC and GBID, on March 9, 1999, pursuant to unanimous consents or
meetings of the same held pursuant to proper notice (or waiver
thereof).
3. SHARE EXCHANGE. The Agreement provides that all of the
shareholders of GBID, representing 4,825,000 issued and outstanding
common shares, shall exchange their respective shares for an
aggregate of 5,259,250 of CBSC common stock, to be distributed to
each GBID shareholder pro rata to their respective ownership in GBID
at the Effective Date. Immediately prior to the Effective Date,
there were 3,120,000 common shares of CBSC issued and outstanding.
4. SERVICE. For purposes herein, all notices and service of
process may be effectuated by tendering the same to M. Richard
Cutler, Esq., 610 Newport Center Drive, Suite 800, Newport Beach, CA
92660, legal counsel to CBSC.
5. SURVIVING ENTITY. Pursuant to the terms of the Agreement,
CBSC shall be the surviving entity and, upon the Effective Date and
upon filing of these Articles of Merger with the Colorado Secretary
of State and issuance of an applicable Certificate of Merger by the
Secretary of State of Colorado, GBID shall cease to exist as a bona
fide Delaware corporation.
6. NAME CHANGE. Pursuant to the affirmative vote of the
shareholders of CBSC, the CBSC Articles of Incorporation shall be
amended to reflect a change in CBSC's name to "Global Business
Information Directory, Inc."
7. COUNTERPARTS. This Articles of Merger may be executed in
counterparts, each of which shall be deemed to be an original
document, but together shall be deemed to constitute only one
agreement.
Executed as of this 15th day of March, 1999
CONSOLIDATED BUILDERS GLOBAL BUSINESS
SUPPLY CORPORATION INFORMATION DIRECTORY
/s/Raymond R. Cottrell /s/Steve Carmichael
By: Raymond R. Cottrell, President By: Steve Carmichael, President
BYLAWS
OF
SNOWY PEAK FINANCIAL, INC.
ARTICLE I
OFFICES
The registered office of Snowy Peak Financial, Inc. (the "Corporation"),
shall be located in the State of Colorado. The Corporation may have its
principal office and such other offices either within or without the State
of Colorado as the Board of Directors of the Corporation (the "Board" may
designate or as the business of the Corporation may require.
The registered office of the Corporation in the Articles of Incorporation
(the "Articles") need not be identical with the principal office.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall be
held each year on a date and at a time and place to be determined by
resolution of the Board, for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. If the
election of directors shall not be held on the day designated for the annual
meeting of the shareholders, or at any adjournment thereof, the Board shall
cause the election to be held at a special meeting of the shareholders.
Section 2. Special Meetings. Special meetings of the shareholders for any
purpose, unless otherwise provided for by statute, may be called by the
president, the Board or by the president at the request of the holders of
not less than one-tenth of all the shares of the Corporation entitled to
vote at the meeting.
Section 3. Place of Meeting. The Board may designate any place, either
within or
without the State of Colorado, as the place of meeting for any annual or
special meeting. If no
designation is made, the place of meeting shall be the registered office of
the Corporation in the State of Colorado.
Section 4. Notice of Meeting. Written notice, stating the place, day and
hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered as the laws of
the State of Colorado shall provide.
Section 5. Fixing of Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or shareholders entitled to receive payment of
any dividend, or in order to make a determination of shareholders for any
other proper purpose, the Board may fix in advance a date (the "Record
Date") for any such determination of shareholders, which date shall be not
more than 50 days prior to the date on which the particular action requiring
such determination of shareholders is to be taken. If no Record Date is
fixed by the Board, the Record Date for any such purpose shall be ten days
before the date of such meeting or action. The Record Date determined for
the purpose of
<PAGE>
ascertaining the number of shareholders entitled to notice of or to vote at
a meeting may not be less than ten days prior to the meeting. When a Record
Date has been determined for the purpose of a meeting, the determination
shall apply to any adjournment thereof.
Section 6. Quorum If less than a quorum of the outstanding shares as
provided for in the Articles are represented at a meeting, such meeting may
be adjourned without further notice for a period which shall not exceed 60
days. At such adjourned meeting, at which a quorum shall be present, any
business may be transacted which might have been transacted at the original
meeting. Once a quorum is present at a duly organized meeting, the
shareholders present may continue to transact business until adjournment,
notwithstanding any departures of shareholders during the meeting which
leave less than a quorum.
Section 7. Voting of Shares Each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders.
Section 8. Proxies At all meetings of shareholders, a shareholder may vote
by proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. No proxy shall be valid
after 11 months from the date of its execution, unless otherwise provided in
the proxy. Proxies shall be in such form as shall be required by the Board
of Directors and as set forth in the notice of meeting and/or proxy or
information statement concerning such meeting.
Section 9. Voting of Shares by Certain Holders. Shares standing in the name
of another corporation may be voted by agent or proxy as the bylaws of such
corporation may prescribe or, in the absence of such provision, as the Board
of Directors of such corporation may determine as evidenced by a duly
certified copy of either the bylaws or corporate resolution.
Neither treasury shares nor shares held by another corporation, if the
majority of the shares entitled to vote for the election of directors of
such other corporation is held by the Corporation, shall be voted at any
meeting or counted in determining the total number of outstanding shares at
any given-time.
Shares held by an administrator, executor, guardian or conservator may be
voted by such fiduciary, either in person or by proxy, without a transfer of
such shares into the name of such fiduciary. Shares standing in the name of
a trustee may be voted by such trustee, either in person or by proxy, but no
trustee shall be entitled to vote shares held by a trustee without a
transfer of the shares into such trust.
Shares standing in the name of a receiver may be voted by such receiver and
shares held by or under the control of a receiver may be voted by such
receiver, without the transfer thereof into the name of such receiver if
authority so to do is contained in an appropriate order of the court by
which the receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred on the books of the Corporation into
the name of the pledgee, and thereafter the pledgee shall be entitled to
vote the shares so transferred.
Section 10. Action by Consent of all Shareholders Any action required to be
taken, or which may be taken at a meeting of the shareholders may be taken
without a meeting, if a consent in writing, setting forth the action so
taken, shall be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof. Such written consent or consents
shall be filed with
<PAGE>
the minutes of the Corporation. Such action by written consent of all
entitled to vote shall have the same force and effect as a unanimous vote of
such shareholders.
Section 11. Inspectors. The Board may, in advance of any meeting of
shareholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any
of them shall fail to appear or act, the chairman of the meeting may appoint
inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an OATH FAITHFULLY TO EXECUTE the duties of
inspector at such meeting with strict impartiality and according to the best
of his ability. The inspectors shall determine the number of shares
outstanding and the voting power of each, the number of shares represented
at the meeting, the existence of a quorum, the validity and effect of
proxies and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count
and tabulate all votes, ballots or consents, determine the result and do
such acts as are proper to conduct the election or vote with fairness to all
shareholders. On request of the chairman of the meeting or any shareholder
entitled to vote thereat, the inspectors shall make a report in writing of
any challenge, request or matter determined by them and shall execute a
certificate of any fact found by them.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The Board shall have the power to manage the
business and affairs of the Corporation in such manner as it sees fit. In
addition to the powers and authorities expressly conferred upon it, the
Board may do all lawful acts which are not directed to be done by the
shareholders by statute, by the Articles or by these Bylaws.
Section 2. Number, Tenure and Qualifications. The number of directors of the
Corporation shall not be less than one. Each director shall hold office
until the next annual meeting of shareholders and until a successor director
has been elected and qualified, or until the death, resignation or removal
of such director. Directors need not be residents of the State of Nevada or
shareholders of the Corporation.
Section 3. Regular Meetings. A regular meeting of the Board shall be held,
without other notice than this Bylaw, immediately after and at the same
place as the annual meeting of shareholders. The Board may provide, by
resolution, the time and place, either within or without the State of
Colorado, for the holding of additional regular meetings, without other
notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board may be called
by or at the
request of the Chairman of the Board, the Chief Executive Officer or any two
directors. The
person or persons authorized to call special meetings of the Board may fix
any place, either within
or without the State of Colorado, as the place for holding any special
meeting of the Board called
by them.
Section 5. Telephonic Meetings. Members of the Board and committees thereof
may participate and be deemed present at a meeting by means of conference
telephone or similar communications equipment by which all persons
participating in the meeting can hear each other at the same time.
<PAGE>
Section 6. Notice. Notice of any special meeting of the Board shall be given
by telephone, telegraph or written notice sent by mail. Notice shall be
delivered at least one day prior to the meeting (five days before the
meeting if the meeting is held outside the State of Colorado) if given by
telephone or telegram or if delivered personally. If notice is given by
telegram, such notice shall be deemed to be delivered when the telegram is
delivered by the telegraph company. Written notice may be delivered by mail
to each director at such director's business or home address and, if mailed,
shall be delivered at least five days prior to the meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States
mail so addressed with postage thereon prepaid. Any director may waive
notice of any meeting. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board need be specified in the notice or waiver of notice of
such meeting.
Section 7. Quorum. A majority of the total membership of the Board shall
constitute a quorum for the transaction of business at any meeting of the
Board, but if a quorum shall not be present at any meeting or adjournment
thereof, a majority of the directors present may adjourn the meeting without
further notice.
Section 8. Action by Consent of All Directors. Any action required to be
taken, or which may be taken at a meeting of the Board may be taken without
a meeting, if a consent in writing, setting forth the action so taken, shall
be signed by all of the directors entitled to vote with respect to the
subject matter thereof. Such written consent or consents shall be filed with
the minutes of the Corporation. Such action by written consent of all
entitled to vote shall have the same force and effect as a unanimous vote of
such directors at a meeting of directors at which a quorum is present.
Section 9. Manner of Acting. The act of a majority of the directors present
at a meeting at which a quorum is present shall be an act of the Board.
The order of business at any regular or special meeting of the Board shall be:
1. Record of those present.
2. Secretary's proof of notice of meeting, if notice is not
waived.
3. Reading and disposal of unapproved minutes, if any.
4. Reports of officers, if any.
5. Unfinished business, if any.
6. New business.
7. Adjournment.
Section 10. Vacancies. Any vacancy occurring in the Board by reason of an
increase in the number specified in these Bylaws, or for any other reason,
may be filled by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board may remain at the time
such meeting considering filling such vacancies is held.
Section 11. Compensation. By resolution of the Board, the directors may be
paid their expenses, if any, for attendance at each meeting of the Board and
may be paid a fixed sum for attendance at each meeting of the Board and a
stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving
<PAGE>
compensation therefor or from receiving compensation for any extraordinary
or unusual services as a director.
Section 12. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless the
dissent of such director shall be entered in the minutes of the meeting,
filed in writing with the person acting as the secretary of the meeting
before the adjournment thereof or forwarded by registered mail to the
Secretary of the Corporation immediately after the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 13. Executive or Other Committees. The Board, by resolution adopted
by a majority of the entire Board, may designate among its members an
executive committee and one or more other committees, each of which, to the
extent provided in the resolution, shall have all of the authority of the
Board, but no such committee shall have the authority of the Board in
reference to amending the Articles, adopting a plan of merger or
consolidation, recommending to the shareholders the sale, lease, exchange or
other disposition of all or substantially all of the property and assets of
the Corporation otherwise than in the usual and regular course of its
business, recommending to the shareholders a voluntary dissolution of the
Corporation or a revocation thereof, or amending the Bylaws. The designation
of such committees and the delegation thereto of authority shall not operate
to relieve the Board, or any member thereof, of any responsibility imposed
by law.
Any action required to be taken, or which may be taken at a meeting of a
committee designated in accordance with this Section of the Bylaws, may be
taken without a meeting, if a consent in writing setting forth the action so
taken shall be signed by all those entitled to vote with respect to the
subject matter thereof. Such written consent or consents shall be filed with
the minutes of the Corporation. Such action by written consent of all
entitled to vote shall have the same force and effect as a unanimous vote of
such persons.
Section 14. Resignation of Officers or Directors. Any director or officer
may resign at any time by submitting a resignation in writing. Such
resignation takes effect from the time of its receipt by the Corporation
unless a date or time is fixed in the resignation, in which case it will
take effect from that time. Acceptance of the resignation shall not be
required to make it effective.
Section 15. Notice Requirements for Director Nominations. Any nomination for
election to the Board of Directors by the stockholders otherwise than
pursuant to Board resolution must be submitted to the Corporation's
secretary no later than 25 days and no more than 60 days prior to the
meeting of stockholders at which such nominations are to be submitted. In
the event notice of the meeting at which such nomination is desired to be
submitted is not mailed or otherwise sent to the stockholders of the
Corporation at least 30 days prior to the meeting, the Corporation must
receive the notice of intent to nominate no later than seven days after
notice of the meeting is mailed or sent to the stockholders by the
Corporation. Notices to the Corporation's Secretary of intent to nominate a
candidate for election as a director must give the name, age, business
address and principal occupation of such nominee and the number of shares of
stock of the Corporation held by such nominee Within seven days after filing
of the notice, a signed and completed questionnaire relating to the proposed
nominee (which questionnaire will be supplied by the Corporation to the
person submitting the notice) must be filed with the Secretary of the
Corporation. Unless this notice procedure is followed, the chairman of a
stockholders' meeting may declare the nomination defective and it may be
disregarded.
<PAGE>
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be a president, a
secretary and a treasurer, all of whom shall be executive officers and each
of whom shall be elected by the Board, and such other officers as the Board
may designate from time to time. A Chairman of the Board, Vice Chairman of
the Board and one or more Vice Presidents shall be executive officers if the
Board so determines by resolution. Such other officers and assistant
officers, as may be deemed necessary, shall be designated administrative
assistant officers and may be appointed and removed as the Chief Executive
Officer decides. Any two or more offices may be held by the same person,
except the offices of President and Secretary.
Section 2. Election and Term of Office. The executive officers of the
Corporation, to be elected by the Board, shall be elected annually by the
Board at its first meeting held after each annual meeting of the
shareholders or at a convenient time soon thereafter. Each executive officer
shall hold office until the resignation of such officer or until a successor
shall be duly elected and qualified, until the death of such executive
officer, or until removal of such officer in the manner herein provided.
Section 3. Removal. Any officer or agent elected or appointed by the Board
may be removed by the Board whenever, in its judgment, the best interests of
the Corporation would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any executive office because of death,
resignation, removal, disqualification or otherwise may be filled by the
Board for the unexpired portion of the term.
Section 5. The Chairman of the Board. If a Chairman of the Board (the
"Chairman") shall be elected by the Board, the Chairman shall preside at all
meetings of the shareholders and of the Board. The Chairman may sign, with
the officers authorized by the Chief Executive Officer or the Board,
certificates for the shares of the Corporation and shall perform such other
duties as from time to time are assigned by the Chief Executive Officer or
the Board. The Chairman of the Board may be elected as the Chief Executive
Officer, in which case the Chairman shall perform the duties hereinafter set
forth in Article IV, Section 7, of these Bylaws.
Section 6. Tbe President. The President may sign, with the officers
authorized by the Chief Executive Officer or the Board, certificates for
shares of the Corporation and shall perform such other duties as from time
to time are assigned by the Chief Executive Officer or the Board. The
President may be elected as the Chief Executive Officer of the Corporation,
in which case, the President shall perform the duties hereinafter set forth
in Article IV, Section 7, of these Bylaws.
Section 7. The Chief Executive Office If no Chairman shall be elected by
the Board, the President shall be the Chief Executive Officer of the
Corporation. If a Chairman is elected by the Board, the Board shall
designate, as between the Chairman and the President, who shall be the Chief
Executive Officer. The Chief Executive Officer shall be, subject to the
control of the Board, in general charge of the affairs of the Corporation.
The Chief Executive Officer may sign, with the other officers of the
Corporation authorized by the Board, deeds, mortgages, bonds, contracts or
other instruments whose execution the Board has authorized, except in cases
where the signing and execution thereof shall be expressly delegated by the
Board or these Bylaws to some other officer or agent of the Corporation, or
shall be required by law to be otherwise signed or executed.
<PAGE>
Section 8. The Vice Chairman of the Board. If a Chairman shall be elected by
the Board, the Board bay also elect a Vice Chairman of the Board (the "Vice
Chairman"). In the absence of the Chairman or in the event of the death or
inability or refusal to act of the Chairman, the Vice Chairman shall perform
the duties of the Chairman and when so acting shall have all of the powers
of and be subject to all of the restrictions upon the Chairman. The Vice
Chairman may sign, with the other officers authorized by the Chief Executive
Officer or the Board, certificates for shares of the Corporation and shall
perform such other duties as from time to time may be assigned by the Chief
Executive Officer or the Board.
Section 9. The Vice President. In the absence of the President or in the
event of the death or inability or refusal to act of the President, the Vice
President shall perform the duties of the President, and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President. In the event there is more than one Vice President, the Vice
Presidents in the order designated at the time of their election, or in the
absence of any designation, then in the order of their election, shall
perform the duties of the President and, when so acting, shall have all the
powers of and shall be subject to all the restrictions upon the President.
Any Vice President may sign, with the other officers authorized by the Chief
Executive Officer or the Board, certificates for shares of the Corporation
and shall perform such other duties as from time to time may be assigned by
the Chief Executive Officer or the Board.
Section 10. The Secretary. Unless the Board otherwise directs, the Secretary
shall keep the minutes of the shareholders' and directors' meetings in one
or more books provided for that purpose. The Secretary shall also see that
all notices are duly given in accordance with the law and the provisions of
the Bylaws; be custodian of the corporate records and the seal of the
Corporation; affix the seal or direct its affixation to all documents, the
execution of which on behalf of the Corporation is duly authorized; keep a
list of the address of each shareholder; sign, with the other officers
authorized by the Chief Executive Officer or the Board, certificates for
shares of the Corporation; have charge of the stock transfer books of the
Corporation and perform all duties incident to the office of Secretary and
such other duties as may be assigned by the Chief Executive Officer or by
the Board.
Section 10. The Treasurer. If required by the Board, the Treasurer shall
give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the Board shall determine. He shall have charge
and custody of and be responsible for all funds and securities of the
Corporation, receive and give receipts for monies due and payable to the
Corporation from any source whatsoever and deposit all such monies in the
name of the Corporation in such banks, trust companies or other depositories
as shall be selected in accordance with the provisions of the Bylaws. The
Treasurer may sign, with the other officers authorized by the Chief
Executive Officer or the Board, certificates for shares of the Corporation
and shall perform all duties incident to the office of Treasurer and such
other duties as from time to time may be assigned by the Chief Executive
Officer or the Board.
Section 11. Assistant Officers. The Chief Executive Officer may appoint such
other officers and agents as may be necessary or desirable for the business
of the Corporation. Such other officers shall include one or more assistant
secretaries and treasurers who shall have the power and authority to act in
place of the officer for whom they are elected or appointed as an assistant
in the event of the officer's inability or unavailability to act in his
official capacity. The assistant secretary or secretaries or assistant
treasurer or treasurers, may sign, with the other officers authorized by the
Chief Executive Officer or the Board, certificates for shares of the
Corporation. The assistant treasurer or treasurers shall, if required by the
Board, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board shall determine. The
<PAGE>
assistant secretaries and assistant treasurers, in general, shall perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the Chief Executive Officer or the Board.
Section 12. Salaries. The salaries of the executive officers shall be fixed
by the Board and no officer shall be prevented from receiving such salary by
reason of the fact that such officer is also a director of the Corporation.
The salaries of the administrative assistant officers shall be fixed by the
Chief Executive Officer.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board may authorize any officer or officers, agent
or agents, to enter into any contract on behalf of the Corporation and such
authority may be general or confined to specific instances.
Section 2. Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money, notes or other evidence of indebtedness, issued in the
name of the Corporation, shall be signed by such officer or officers, agent
or agents, of the Corporation and in such manner as shall from time to time
be determined by resolution of the Board.
Section 3. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corpration in such
banks, trust companies or other depositories as the Board may select.
ARTICLE VI
CERTIFICATES FOR SECURITIES AND THEIR TRANSFER
Section 1. Certificates for Securities. Certificates representing securities
of the Corporation (the "Securities") shall be in such form as shall be
determined by the Board. To be effective, such certificates for Securities
(the "Certificates") shall be signed by (i) the Chairman or Vice Chairman or
by the President or a Vice President; and (ii) the Secretary or an assistant
Secretary or by the Treasurer or an assistant treasurer of the Corporation.
Any of all of the signatures may be facsimiles if the Certificate is either
countersigned by the transfer agent, or countersigned by the facsimile
signature of the transfer agent and registered by the written signature of
an officer of any company designated by the Board as registrar of transfers
so long as that officer is not an employee of the Corporation.
A Certificate signed or impressed with the facsimile signature of an
officer, who ceases by death, resignation or otherwise to be an officer of
the Corporation before the Certificate is delivered by the Corporation, is
valid though signed by a duly elected, qualified and authorized officer,
provided that such Certificate is countersigned by the signature of the
transfer agent or facsimile signature of the transfer agent of the
Corporation and registered as aforesaid.
All Certificates shall be consecutively numbered or otherwise identified.
Certificates shall state the jurisdiction in which the Corporation is
organized, the name of the person to whom the Securities are issued, the
designation of the series, if any, and the par value of each share
represented by the Certificate, or a statement that the shares are without
par value. The name and address of the person to whom the Securities
represented hereby are issued, the number of
<PAGE>
Securities, and date of issue, shall be entered on the Security transfer
books of the Corporation. All Certificates surrendered to the Corporation
for transfer shall be cancelled and no new Certificate shall be issued until
the former Certificate for a like number of shares shall have been
surrendered and cancelled, except that, in case of a lost, destroyed or
mutilated Certificate, a new one may be issued therefor upon such terms and
indemnity to the Corporation as the Board may prescribe.
Section 2. Transfer of Securities. Transfers of Securities shall be made
only on the security transfer books of the Corporation by the holder of
record thereof, by the legal representative of the holder who shall furnish
proper evidence of authority to transfer, or by an attorney authorized by a
power of attorney which was duly executed and filed with the Secretary of
the Corporation and a surrender for cancellation of the certificate for such
shares. The person in whose name Securities stand on the books of the
Corporation shall be deemed by the Corporation to be the owner thereof for
all purposes.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be determined by resolution of the
Board.
ARTICLE VIII
DIVIDENDS
The Board may declare, and the Corporation may pay in cash, stock or other
property, dividends on its outstanding shares in the manner and upon the
terms and conditions provided by law and its Articles.
ARTICLE IX
SEAL
The Board shall provide a corporate seal, circular in form, having inscribed
thereon the corporate name, the state of incorporation and the word "Seal."
The seal on Securities, any corporate obligation to pay money or any other
document may be facsimile, or engraved, embossed or printed.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required to be given to any shareholder or director
of the Corporation under the provisions of these Bylaws or under the
provisions of the Articles or under the provisions of the applicable laws of
the State of Colorado, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before, at or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
<PAGE>
ARTICLE XI
INDEMNIFICATION
The Corporation shall have the power to indemnify any director, officer,
employee or agent of the Corporation or any person serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise to the
fullest extent permitted by the laws of the State of Colorado.
ARTICLE XII
AMENDMENTS
These Bylaws may be altered, amended, repealed or replaced by new Bylaws by
the Board at any regular or special meeting of the Board.
ARTICLE XIII
UNIFORMITY OF INTERPRETATION AND SEVERABILITY
These Bylaws shall be so interpreted and construed as to conform to the
Articles and the statutes of the State of Colorado or of any other state in
which conformity may become necessary by reason of the qualification of the
Corporation to do business in such foreign state, and where conflict between
these Bylaws and the Articles or a statute has arisen or shall arise, the
Bylaws shall be considered to be modified to the extent, but only to the
extent, conformity shall require. If any Bylaw provision or its application
shall be deemed invalid by reason of the said nonconformity, the remainder
of the Bylaws shall remain operable in that the provisions set forth in the
Bylaws are severable.
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES AGREEMENT
This Internet Data Center Services Agreement (this "Agreement") is made
effective as of the Submission Date (February 24, 1999) indicated in the
initial Internet Data Center Services Order Form accepted by Exodus, by
and between Exodus Communications, Inc. ("Exodus") and the customer
identified below ("Customer").
PARTIES:
Customer Name: Global Business Information Directory (Inc.
Address: 145 Tyee Drive, Suite 164
Point Roberts, WA 98281
Phone: (604) 618-4109
Fax: (604) 683-8820
EXODUS COMMUNICATIONS, INC.
2650 San Tomas Expressway
Santa Clara, CA 95051
1. INTERNET DATA CENTER SERVICES.
Subject to the terms and conditions of this Agreement, during the term
of this Agreement, Exodus will provide to Customer the services
described in the Internet Data Center Services Order Form(s) ("IDC
Services Order Form(s)") accepted by Exodus, or substantially
similar services if such substantially similar services would
provide Customer with substantially similar benefits
("Internet Data Center Services"). All IDC Services Order
Forms accepted by Exodus are incorporated herein by this
reference, each as of the Submission Date indicated in such form.
2. FEES AND BILLING.
2.1 Fees. Customer will pay all fees due according to the IDC Services
Order Form(s).
2.2 Billing Commencement. Billing for Internet Data Center Services,
other than Setup Fees, indicated in the initial IDC Services Order Form
shall commence on the earlier to occur of (i) the "Installation Date"
indicated in the initial IDC Services Order Form, regardless of whether
Customer has commenced use of the Internet Data Center Services,
unless Customer is unable to install the Customer Equipment and/or
use the Internet Data Center Services by the Installation Date due to
the fault of Exodus, then billing will not begin until the date
Exodus has remedied such fault and (ii) the date the "Customer
Equipment" (Customer's computer hardware and other tangible equipment,
as identified in the Customer Equipment List which is incorporated
herein by this reference) is placed by Customer in the "Customer
Area" (the portion(s) of the Internet Data Centers, as defined in
Section 3.1 below, made available to Customer hereunder for the
placement of Customer Equipment) and is operational. All Setup Fees
will be billed upon receipt of a Customer signed IDC Services Order
Form. In the event that Customer orders additional Internet Data Center
Services, billing for such services shall commence on the date
Exodus first provides such additional Internet Data Center
Services to Customer or as otherwise agreed to by Customer and Exodus.
2.3 Billing and Payment Terms. Customer will be billed monthly in advance
of the provision of Internet Data Center Services, and payment of such
fees will be due within thirty (30) days of the date of each Exodus invoice.
All payments will be made in U.S. dollars. Late payments hereunder
will accrue interest at a rate of one and one-half percent (1-1/2%)
per month, or the highest rate allowed by applicable law, whichever is
lower. If in its judgment Exodus determines that Customer is not
creditworthy or is otherwise not financially secure, Exodus may, upon
written notice to Customer, modify the payment terms to require full
payment before the provision of Internet Data Center Services or other
assurances to secure Customer's payment obligations hereunder.
2.4 Taxes. All payments required by this Agreement are exclusive of
all national, state, municipal or other governmental excise, sales,
value-added, use, personal property, and occupational taxes, excises,
withholding taxes and obligations and other levies now in force or
enacted in the future, all of which Customer will be responsible for
and will pay in full, except for taxes based on Exodus' net income.
3. Customer's Obligations.
3.1 Compliance with Law and Rules and Regulations. Customer agrees that
Customer will comply at all times with all applicable laws and
regulations and Exodus' general rules and regulations relating to its
provision of Internet Data Center Services, as updated by Exodus from
time to time ("Rules and Regulations"). Customer acknowledges that
Exodus exercises no control whatsoever over the content of the
information passing through its sites containing the Customer Area
and equipment and facilities used by Exodus to provide Internet Data
Center Services ("Internet Data Centers"), and that it is the
sole responsibility of Customer to ensure that the information it
transmits and receives complies with all applicable laws and regulations.
3.2 Customer's Costs. Customer agrees that it will be solely responsible,
and at Exodus's request will reimburse Exodus, for all costs and expenses
(other than those included as part of the Internet Data Center Services
and except as otherwise expressly provided herein) it incurs in connection
with this Agreement.
3.3 Access and Security. Customer will be fully responsible for any
charges, costs, expenses (other than those included in the Internet
Data Center Services), and third party claims that may result from
its use of, or access to, the Internet Data Centers and/or the
Customer Area including but not limited to any unauthorized use of
any access devices provided by Exodus hereunder. Except with the
advanced written consent of Exodus, Customer's access to the
Internet Data Centers will be limited solely to the individuals
identified and authorized by Customer to have access to the
Internet Data Centers and the Customer Area in accordance with this
Agreement, as identified in the Customer Registration Form, as amended
from time to time, which is hereby incorporated by this
reference ("Representatives").
3.4 No Competitive Services. Customer may not at any time permit any
Internet ata Center Services to be utilized for the provision of any
services that compete with any Exodus services, without Exodus'
prior written consent.
3.5 Insurance.
(a) Minimum Levels. Customer will keep in full force and effect during
the term of this Agreement: (i) comprehensive general liability
insurance in an amount not less than $5 million per occurrence for bodily
injury and property damage; (ii) employer's liability insurance in an amount
not less than $1 million per occurrence; and (iii) workers' compensation
insurance in an amount not less than that required by applicable law.
Customer also agrees that it will, and will be solely responsible for
ensuring that its agents (including contractors and subcontractors)
maintain, other insurance at levels no less than those required by
applicable law and customary in Customer's and its agents' industries.
(b) Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, Customer will furnish Exodus with
certificates of insurance which evidence the minimum levels of
insurance set forth above.
(c) Naming Exodus as an Additional Insured. Customer agrees that prior
to the installation of any Customer Equipment, Customer will cause
its insurance provider(s) to name Exodus as an additional insured and
notify Exodus in writing of the effective date thereof.
4. Confidential Information.
4.1 Confidential Information. Each party acknowledges that it will
have access to certain confidential information of the other party
concerning the other party's business, plans, customers, technology, and
products, including the terms and conditions of this Agreement
("Confidential Information"). Confidential Information will include, but not
be limited to, each party's proprietary software and customer
information. Each party agrees that it will not use in any way, for its own
account or the account of any third party, except as expressly
permitted by this Agreement, nor disclose to any third party (except as
required by law or to that party's attorneys, accountants and other
advisors as reasonably necessary), any of the other party's Confidential
Information and will take reasonable precautions to protect the
confidentiality of such information.
4.2 Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving
party prior to receipt from the disclosing party directly or indirectly from
a source other than one having an obligation of confidentiality to
the disclosing party; (ii) becomes known (independently of disclosure by the
disclosing party) to the receiving party directly or indirectly from a
source other than one having an obligation of confidentiality to the
disclosing party; (iii) becomes publicly known or otherwise ceases to
be secret or confidential, except through a breach of this Agreement by
the receiving party; or (iv) is independently developed by the receiving
party.
5. Representations and Warranties.
5.1 Warranties by Customer.
(a) Customer Equipment. Customer represents and warrants that it
owns or has the legal right and authority, and will continue to own or
maintain the legal right and authority during the term of this Agreement,
to place and use the Customer Equipment as contemplated by this Agreement.
Customer further represents and warrants that its placement,
arrangement, and use of the Customer Equipment in the Internet Data
Centers complies with the Customer Equipment Manufacturer's environmental
and other specifications.
(b) Customer's Business. Customer represents and warrants that
Customer's services, products, materials, data, information and Customer
Equipment used by Customer in connection with this Agreement as well as
Customer's and its permitted customers' and users' use of the Internet
Data Center Services (collectively, "Customer's Business") does not as of
the Installation Date, and will not during the term of this Agreement
operate in any manner that would violate any applicable law or regulation.
(c) Rules and Regulations. Customer has read the Rules and
Regulations and represents and warrants that Customer and Customer's
Business are currently in full compliance with the Rules and Regulations,
and will remain so at all times during the term of this Agreement.
(d) Breach of Warranties. In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition
to any other remedies available at law or in equity, Exodus will have
the right immediately, in Exodus' sole discretion, to suspend any
related Internet Data Center Services if deemed reasonably
necessary by Exodus to prevent any harm to Exodus and its
business.
5.2 Warranties and Disclaimers by Exodus.
5.2(a) Service Level Warranty. In the event Customer experiences any
of the following and Exodus determines in its reasonable judgment
that such inability was caused by Exodus' failure to provide Internet Data
Center Services for reasons within Exodus' reasonable control and not
as a result of any actions or inactions of Customer or any third parties
(including Customer Equipment and third party equipment), Exodus will,
upon Customer's request in accordance with paragraph (iii) below, credit
Customer's account as described below:
(i) Inability to Access the Internet (Downtime). If Customer is unable
to transmit and receive information from Exodus' Internet Data
Centers (i.e., Exodus' LAN and WAN) to other portions of the Internet
because Exodus failed to provide the Internet Data Center Services
for more than fifteen (15) consecutive minutes, Exodus will credit
Customer's account the pro-rata connectivity charges (i.e., all
bandwidth related charges) for one (1) day of service, up to an
aggregate maximum credit of connectivity charges for seven (7)
days of service in any one calendar (1) month. Exodus' scheduled
maintenance of the Internet Data Centers and Internet Data Center
Services, as described in the Rules and Regulations, shall not be
deemed to be a failure of Exodus to provide Internet Data Center
Services. For purposes of the foregoing, "unable to transmit and
receive" shall mean sustained packet loss in excess of 50%
based on Exodus' measurements.
(ii) Packet Loss and Latency. Exodus does not proactively monitor the
packet loss or transmission latency of specific customers. Exodus
does, however, proactively monitor the aggregate packet loss and
transmission latency within its LAN and WAN. In the event that Exodus
discovers (either from its own efforts or after being notified by Customer)
that Customer is experiencing packet loss in excess of one percent
(1%) ("Excess Packet Loss") or transmission latency in excess of 120
milliseconds round trip time (based on Exodus' measurements) between
any two Internet Data Centers within Exodus' U.S. network (collectively,
"Excess Latency", and with Excess Packet Loss "Excess Packet
Loss/Latency"), and Customer notifies Exodus (or confirms that Exodus has
notified Customer), Exodus will take all actions necessary to determine
the source of the Excess Packet Loss/Latency.
(A) Time to Discover Source of Excess Packet Loss/Latency;
Notification of Customer. Within two (2) hours of discovering the
existence of Excess Packet Loss/Latency, Exodus will determine whether
the source of the Excess Packet Loss/Latency is limited to the
Customer Equipment and the Exodus equipment connecting the Customer
Equipment to Exodus' LAN ("Customer Specific Packet Loss/Latency").
If the Excess Packet Loss/Latency is not a Customer Specific Packet
Loss/Latency, Exodus will determine the source of the Excess Packet
Loss/Latency within two (2) hours after determining that it is not
a Customer Specific Packet Loss/Latency. In any event, Exodus will
notify Customer of the source of the Excess Packet Loss/Latency
within sixty (60) minutes after identifying the source.
(B) Remedy of Excess Packet Loss/Latency. If the Excess Packet
Loss/Latency remedy is within the sole control of Exodus, Exodus will
remedy the Excess Packet Loss/Latency within two (2) hours of determining
the source of the Excess Packet Loss/Latency. If the Excess Packet
Loss/Latency is caused from outside of the Exodus LAN or WAN, Exodus will
notify Customer and will use commercially reasonable efforts to notify
the party(ies) responsible for the source and cooperate with it(them) to
resolve the problem as soon as possible.
(C) Failure to Determine Source and/or Resolve Problem. In the
event that Exodus is unable to determine the source of and remedy the
Excess Packet Loss/Latency within the time periods described above (where
Exodus was solely in control of the source), Exodus will credit
Customer's account the pro-rata connectivity charges for one (1) day of
service for every two (2) hours after the time periods described above
that it takes Exodus to resolve the problem, up to an aggregate maximum
credit of connectivity charges for seven (7) days of service in any one
(1) month.
(iii) Customer Must Request Credit: To receive any of the credits described
in this section 5.2(a), Customer must notify Exodus within three (3)
business days from the time Customer becomes eligible to receive a credit.
Failure to comply with this requirement will forfeit Customer's
right to receive a credit.
(iv) Remedies Shall Not Be Cumulative; Maximum Credit: In the event that
Customer is entitled to multiple credits hereunder arising from the
same event, such credits shall not be cumulative and Customer shall be
entitled to receive only the maximum single credit available for such
event. In no event will Exodus be required to credit Customer in any one
(1) calendar month connectivity charges in excess of seven (7) days of
service. A credit shall be applied only to the month in which there was the
incident that resulted in the credit. Customer shall not be
eligible to receive any credits for periods in which Customer received any
Internet Data Center Services free of charge.
(v) Termination Option for Chronic Problems: If, in any single calendar
month, Customer would be able to receive credits totaling fifteen (15)
or more days (but for the limitation in paragraph (iv) above) resulting from
three (3) or more events during such calendar month or, if any
single event entitling customer to credits under paragraph 5.2(a)(i) exists
for a period of eight (8) consecutive hours, then, Customer may
terminate this Agreement for cause and without penalty by notifying Exodus
within five (5) days following the end of such calendar month. Such
termination will be effective thirty (30) days after receipt of such notice
by Exodus.
This warranty does not apply to any Internet data center services that
expressly exclude this warranty (as described in the specification sheets
for such products). This Section 5.2(a) states customer's sole and exclusive
remedy for any failure by Exodus to provide Internet Data Center
Services.
(b) No Other Warranty. Except for the express warranty set out in
subsection (a) above, the Internet Data Center Services are provided
on an "as is" basis, and Customer's use of the Internet Data Center Services
is at its own risk. Exodus does not make, and hereby disclaims, any
and all other Express and/or implied warranties, including, but not limited
to, warranties of merchantability, fitness for a particular
purpose, noninfringement and title, and any warranties arising from a course
of dealing, usage, or trade practice. Exodus does not warrant that
the Internet Data Center Services will be uninterrupted, error-free, or
completely secure.
(c) Disclaimer of Actions Caused by and/or Under the Control of Third Parties.
Exodus does not and cannot control the flow of data to or from
Exodus' Internet Centers and other portions of the Internet. Such flow depends
in large part on the performance internet services provided or controlled by
third parties. At times, actions or inactions caused by these third parties
can produce situations in which Exodus' customers' connections to the Internet
(or portions thereof) may be impaired or disrupted. Although Exodus will use
commercially reasonable efforts to take actions it deems appropriate to remedy
and avoid such events, exodus cannot guarantee that they will not occur.
Accordingly, Exodus disclaims any and all liability resulting from or related
to such events.
6. Limitations of Liability.
6.1 Personal Injury. Each Representative and any other persons visiting the
Internet Data Centers does so at its own risk and Exodus assumes no
liability whatsoever for any harm to such persons resulting from any cause
other than exodus' negligence or willful misconduct resulting in personal
injury to such persons during such a visit.
6.2 Damage to Customer Equipment or Business. Exodus assumes no liability for
any damage to, or loss relating to, Customer's Business resulting from any
cause whatsoever. Certain Customer Equipment, including but not limited to
Customer Equipment located on CyberRacks, may be directly accessible by
other customers. Exodus assumes no liability for any damage to, or loss
of, any Customer Equipment resulting from any cause other than exodus'
gross negligence or willful misconduct. To the extent Exodus is liable
for any damage to, or loss of, the Customer Equipment for any reason, such
liability will be limited solely to the then-current value of the Customer
Equipment.
6.3 Exclusions. Except as specified in Sections 6.1 and 6.2, in no event
will Exodus be liable to Customer, any Representative, or any third
party for any claims arising out of or related to this Agreement, Customer
Equipment, Customer's Business or otherwise, and any lost revenue,
lost profits, replacement goods, loss of technology, rights or
services, incidental, punitive, indirect or consequential damages,
loss of data, or interruption or loss of use of service or of any
Customer Equipment or Customer's Business, even if advised of the
possibility of such damages, whether under theory of contract, tort
(including negligence), strict liability or otherwise.
6.4 Maximum Liability. Notwithstanding anything to the contrary in this
Agreement, Exodus's maximum aggregate liability to Customer related
to or in connection with this Agreement will be limited to
the total amount paid by Customer to Exodus hereunder for the prior
Twelve (12) month period.
6.5 Customer's Insurance. Customer agrees that it will not pursue any
claims against Exodus for any liability Exodus may have under or
relating to this Agreement until Customer first makes claims against
Customer's insurance provider(s) and such insurance provider(s)
finally resolve(s) such claims.
6.6 Basis of the Bargain; Failure of Essential Purpose. Customer
acknowledges that Exodus has set its prices and entered into this
Agreement in reliance upon the limitations of liability and the
disclaimers of warranties and damages set forth herein, and that
the same form an essential basis of the bargain between the parties.
The parties agree that the limitations and exclusions of liability
and disclaimers specified in this Agreement will survive and apply
even if found to have failed of their essential purpose.
7. Indemnification.
7.1 Exodus' Indemnification of Customer. Exodus will indemnify, defend
and hold Customer harmless from and against any and all costs, liabilities,
losses, and expenses (including, but not limited to, reasonable attorneys'
fees) (collectively, "Losses") resulting from any claim, suit, action, or
proceeding (each, an "Action") brought against Customer alleging (i) the
infringement of any third party registered U.S. copyright or issued U.S.
patent resulting from the provision of Internet Data Center Services
pursuant to this Agreement (but excluding any infringement contributorily
caused by Customer's Business or Customer Equipment) and (ii) personal
injury to Customer's Representatives from Exodus's gross negligence or
willful misconduct.
7.2 Customer's Indemnification of Exodus. Customer will indemnify,
defend and hold Exodus, its affiliates and customers harmless from and
against any and all Losses resulting from or arising out of any Action
brought by or against Exodus, its affiliates or customers alleging:(a) with
respect to the Customer's Business: (i) infringement or misappropriation
<PAGE>
of any intellectual property rights; (ii) defamation, libel, slander,
obscenity, pornography, or violation of the rights of privacy or publicity;
or (iii) spamming, or any other offensive, harassing or illegal conduct or
violation of the Rules and Regulations; (b) any damage or destruction to the
Customer Area, the Internet Data Centers or the equipment of Exodus or any
other customer by Customer or Representative(s) or Customer's designees; or
(c) any other damage arising from the Customer Equipment or Customer's
Business.
7.3 Notice. Each party will provide the other party prompt written notice
upon of the existence of any such event of which it becomes aware, and an
opportunity to participate in the defense thereof.
8. Term and Termination.
8.1 Term. This Agreement will be effective for a period of (25) months
from the Installation Date, unless earlier terminated according to the
provisions of this Section 8. The Agreement will automatically renew for
additional terms of one (1) year each.
8.2 Termination.
(a) For Convenience.
(i) By Customer During First Thirty Days. Customer may terminate this
Agreement for convenience by providing written notice to Exodus at any time
during the thirty (30) day period beginning on the Installation Date.
(ii) By Either Party. Either party may terminate this Agreement for
convenience at any time effective after the (25th) twenty fifth month
following the Installation Date by providing ninety (90) days' prior written
notice to the other party at any time thereafter.
(b) For Cause. Either party will have the right to terminate this
Agreement if: (i) the other party breaches any material term or condition
of this Agreement and fails to cure such breach within thirty (30) days
after receipt of written notice of the same, except in the case of failure
to pay fees, which must be cured within five (5) days after receipt of
written notice from Exodus; (ii) the other party becomes the subject of a
voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors; or (iii) the other party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if
such petition or proceeding is not dismissed within sixty (60) days of
filing.
8.3 No Liability for Termination. Neither party will be liable to the
other for any termination or expiration of this Agreement in accordance with
its terms.
8.4 Effect of Termination. Upon the effective date of expiration or
termination of this Agreement: (a) Exodus will immediately cease providing
the Internet Data Center Services; (b) any and all payment obligations of
Customer under this Agreement will become due immediately; (c) within thirty
(30) days after such expiration or termination, each party will return all
Confidential Information of the other party in its possession at the time of
expiration or termination and will not make or retain any copies of such
Confidential Information except as required to comply with any applicable
legal or accounting record keeping requirement; and (d) Customer will remove
from the Internet Data Centers all Customer Equipment and any of its other
property within the Internet Data Centers within five (5) days of such
expiration or termination and return the Customer Area to Exodus in the same
condition as it was on the Installation Date, normal wear and tear excepted.
If Customer does not remove such property within such five-day period,
Exodus will have the option to (i) move any and all such property to secure
storage and charge Customer for the cost of such removal and storage, and/or
(ii) liquidate the property in any reasonable manner.
8.5 Customer Equipment as Security. In the event that Customer fails to
pay Exodus all amounts owed Exodus under this Agreement when due, Customer
Agrees that upon written notice, Exodus may take possession of any Customer
Equipment and store it, at Customer's expense, until taken in full or
partial satisfaction of any lien or judgment, all without being to
prosecution or for damages.
8.6 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8 and 9.
9. Miscellaneous Provisions.
9.1 Force Majeure. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under this
Agreement due to any cause beyond its reasonable control, including act of
war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage
or dispute, governmental act or failure of the Internet, provided that the
delayed party: (a) gives the other party prompt notice of such cause, and
(b) uses its reasonable commercial efforts to correct promptly such failure
or delay in performance.
9.2 No Lease. This Agreement is a services agreement and is not intended
to and will not constitute a lease of any real or personal property.
Customer acknowledges and agrees that (i) it has been granted only a license
to occupy the Customer Space and use the Internet Data Centers and any
equipment provided by Exodus in accordance with this Agreement, (ii)
Customer has not been granted any real property interest in the Customer
Space or Internet Data Centers, and (iii) Customer has no rights as a tenant
or otherwise under any real property or landlord/tenant laws, regulations,
or ordinances. For good cause, including the exercise of any rights under
Section 8.5 above, Exodus may suspend the right of any Representative or
other person to visit the Internet Data Centers.
9.3 Marketing. Customer agrees that Exodus may refer to Customer by trade
name and trademark, and may briefly describe Customer's Business, in Exodus'
marketing materials and web site. Customer hereby grants Exodus a license
to use any Customer trade names and trademarks solely in connection with the
rights granted to Exodus pursuant to this Section 9.3.
9.4 Government Regulations. Customer will not export, re-export,
transfer, or make available, whether directly or indirectly, any regulated
item or information to anyone outside the U.S. in connection with this
Agreement without first complying with all export control laws and
regulations which may be imposed by the U.S. Government and any country or
organization of nations within whose jurisdiction Customer operates or does
business.
9.5 Non-Solicitation. During the period beginning on the Installation
Date and ending on the first anniversary of the termination or expiration of
this Agreement in accordance with its terms, Customer agrees that it will
not, and will ensure that its affiliates do not, directly or indirectly,
solicit or attempt to solicit for employment any persons employed by Exodus
during such period.
9.6 Governing Law; Dispute Resolution, Severability; Waiver. This
Agreement is made under and will be governed by and construed in accordance
with the laws of the State of California (except that body of law
controlling conflicts of law) and specifically excluding from application to
this Agreement that law known as the United Nations Convention on the
International Sale of Goods. Any dispute relating to the terms,
interpretation or performance of this Agreement (other than claims for
preliminary injunctive relief or other pre-judgment remedies) will be
resolved at the request of either party through binding arbitration.
Arbitration will be conducted in Santa Clara County, California, under the
rules and procedures of the Judicial Arbitration and Mediation Society
("JAMS"). The parties will request that JAMS appoint a single arbitrator
possessing knowledge of online services agreements; however the arbitration
will proceed even if such a person is unavailable. In the event any
provision of this Agreement is held by a tribunal of competent jurisdiction
to be contrary to the law, the remaining provisions of this Agreement will
remain in full force and effect. The waiver of any breach or default of
this Agreement will not constitute a waiver of any subsequent breach or
default, and will not act to amend or negate the rights of the waiving
party.
9.7 Assignment; Notices. Customer may not assign its rights or delegate
its duties under this Agreement either in whole or in part without the prior
written consent of Exodus, except that Customer may assign this Agreement in
whole as part of a corporate reorganization, consolidation, merger, or sale
of substantially all of its assets. Any attempted assignment or delegation
without such consent will be void. Exodus may assign this Agreement in
whole or part. This Agreement will bind and inure to the benefit of each
party's successors and permitted assigns. Any notice or communication
required or permitted to be given hereunder may be delivered by hand,
deposited with an overnight courier, sent by confirmed facsimile, or mailed
by registered or certified mail, return receipt requested, postage prepaid,
in each case to the address of the receiving party indicated on the
signature page hereof, or at such other address as may hereafter be
furnished in writing by either party hereto to the other. Such will
be deemed to have been given as of the date it is delivered, mailed or sent,
whichever is earlier.
9.8 Relationship of Parties. Exodus and Customer are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between Exodus
and Customer. Neither Exodus nor Customer will have the power to bind the
other or incur obligations on the other's behalf without the other's prior
written consent, except as otherwise expressly provided herein.
9.9 Entire Agreement; Counterparts. This Agreement, including all
documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
Customer's and Exodus' authorized representatives have read the foregoing
and all documents incorporated therein and agree and accept such terms
effective as of the date first above written.
CUSTOMER EXODUS
EXODUS COMMUNICATIONS, INC
Signature:/s/Stephen Carmichael Signature:/s/Sue Irvine
Print Name:Stephen Carmichael Print Name: Sue Irvine
Title: President/CEO Title: Contracts Mgr
DATA LICENSE AGREEMENT
This Data License Agreement ("Agreement") is DATED as of the 1st day of
March, 1999 ("Effective Date") by AND BETWEEN ACXIOM CORPORATION ("ACXIOM"),
A DELAWARE CORPORATION, 301 Industrial Boulevard, Conway, Arkansas
72033-2000 and Global Business Information Directory ("Licensee"), a
Delaware corporation, Suite 502, 141-6200 McKay Ave., Burnaby, BC V5H 4M9.
WHEREAS, Acxiom procures, compiles and maintains a proprietary computerized
database composed, inter alia, of names, addresses and telephone numbers
derived from white page telephone directories and other sources of
information more particularly described in Exhibit A attached hereto and
made a part hereof ("Data"); and
WHEREAS, Licensee desires to license the Data upon the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the premises set forth above and the
mutual promises, agreements and conditions stated herein, the parties agree
as follows:
1. License. Acxiom hereby grants and Licensee hereby accepts a
non-transferable, nonexclusive license to use the Data in accordance with
the terms and conditions hereof.
2. Term. The initial term ("Initial Term") of the Agreement shall be
one year and shall commence on the Effective Date.
3. Renewal/Termination. (a) The Agreement shall be automatically renewed at
the end of the Initial Term for subsequent terms (the Initial Term and any
subsequent terms are collectively referred to herein as the "Term") of one
(1) year each and shall continue in effect thereafter until either party
shall give the other ninety (90) days prior written notice of termination.
Notwithstanding the foregoing, either party may terminate the Agreement
immediately in the event the other party is in default hereunder and fails
to cure such default within forty-five (45) days of written notice from the
other party specifying the nature of such default.
(b) Upon termination of this Agreement, the following shall occur:
(i) Acxiom shall cease to provide the Data to Licensee;
(ii) Licensee shall pay Acxiom for all sums, if any, due
hereunder within thirty (30)days of the effective date of termination;
and
(iii) Unless otherwise provided herein, Licensee shall promptly return
to Acxiom all tapes, copies, partial copies and any other documentation,
materials, or other information evidencing the Data, together with a
written certification that all of the Data has been returned or, in
the alternative, destroyed.
(C) In the event that legislation, governmental regulations or
judicial rulings require that Acxiom cease providing the Data, Acxiom may
terminate this Agreement upon the effective date of such legislation,
regulations or rulings.
4. Delivery of the Data. Acxiom shall deliver the Data to Licensee
on the type of media, in the format, on the delivery date and containing
those data elements specified in Exhibit A. In addition,
<PAGE>
Acxiom shall deliver to Licensee periodic updates ("Updates") to the Data in
accordance with the schedule set forth on Exhibit A.
5. Restrictions Upon Use of Data. Licensee hereby agrees that it
will hold and use the Data strictly in accordance with the following
conditions, unless otherwise agreed in writing:
(a) Except as otherwise provided in Exhibit A, the Data shall be
received, held and possessed by Licensee only at the address set forth
above, and at no other location.
(b) Licensee shall not use the Data as part of any CD-ROM product or
resell the Data or technology in any way except as provided in this Agreement.
(C) The Data is licensed only to Licensee, and neither Licensee nor
its customers may distribute the Data, or any subset thereof, other than as
provided in Exhibit A.
(d) Licensee will not knowingly allow its customers to use the Data as part
of any interactive on-line, CDROM, or other derivative product. Licensee
will establish reasonable precautions to prevent such unauthorized use;
provided, however, Licensee shall not be in breach of this Agreement if it
promptly notifies Acxiom in writing any unauthorized use of which it becomes
aware and reasonably cooperates with Acxiom to prevent any further
unauthorized use.
(e) If Licensee displays or sells the Data on the Internet, Licensee agrees
to include the following statement regarding copyright and unauthorized use,
which statement shall be prominently displayed on such Web site: "This
information is proprietary to Acxiom Corporation and is protected under U.S.
copyright law and international treaty provisions. This information is
licensed for your personal or professional use and may not be resold or
provided to others. You may not distribute, sell, rent, sublicense, or lease
such information, in whole or in part to any third party; and you will not
make such Acxiom information available in whole or in part to any other user
in any networked or time-sharing environment, or transfer the information in
whole or in part to any computer other than the PC used to access this
information."
6. Permitted Uses of Data. The Data shall only be used by Licensee
in the ways set forth in Exhibit A, unless otherwise agreed in writing.
7. License Fees. Licensee agrees to pay license fees ("License
Fees") to Acxiom for the use of the Data in accordance with the terms set
forth in Exhibit A.
8. Right to Audit. Licensee agrees that at all times it shall maintain
current, accurate and complete books and records relating to its usage of
the Data and any payments due Acxiom derived therefrom. Licensee agrees that
Acxiom, or any designee of Acxiom, shall have the right at any time
following the Effective Date of this Agreement to examine, inspect, audit,
review and copy or make extracts from all such books, records and any source
documents used in the preparation thereof during normal business hours upon
written notice to Licensee at least three (3) business days prior to the
commencement of any such examination, inspection, review or audit. Such
audit shall be strictly limited to those books and records which
specifically relate to information pertinent to the use of the Data.
9. Title to Data. The parties expressly acknowledge and agree that
title to the Data shall at all times remain exclusively in Acxiom.
<PAGE>
10. Confidential. The parties agree that the terms and conditions of this
Agreement, including all Exhibits hereto, and any policies, business
practices, plans and methods not in the public domain which may be known or
disclosed by either party to the other as a result of this Agreement will be
held in confidence and not disclosed to any third party for any reason.
11. Injunctive Relief. Licensee hereby acknowledges that the Data has been
developed and created at great time and expense and that Acxiom has a
proprietary interest therein. Licensee further acknowledges that Acxiom may
suffer great harm if Licensee misappropriates the Data. Accordingly,
Licensee agrees to take reasonable precautions to prevent the mis-use of the
Data. Licensee's obligations under this Section shall survive any
termination of this Agreement. Acxiom may seek injunctive or other equitable
relief against the breach or threatened breach of this Section in addition
to any other legal remedies which may be available.
12. Warranties. (a) Acxiom warrants that the Data will be as current,
accurate and complete as possible using the source data, compilation and
data processing methods normally employed by Acxiom in the ordinary course
of its business; provided, however, there is no warranty that the Data is
error-free. Acxiom further warrants that the compilation of and transmittal
of the Data to Licensee is not in violation of any law, statute or other
governmental regulation; and that Acxiom has full power and authority to
enter into this Agreement.
(b) Licensee represents and warrants to Acxiom that it has full power and
authority to enter into this Agreement; that the execution, delivery and
performance by Licensee of this Agreement will not violate any law, statute
or other governmental regulation; and that Licensee's use of the Data will
comply with all privacy, data protection, telemarketing and any other laws,
statutes and governmental regulations applicable to such use of the Data.
(C) EXCEPT AS STATED IN SUBSECTIONS (a) AND (b) ABOVE, THERE ARE NO OTHER
WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A, PARTICULAR PURPOSE.
13. Remedies. Acxiom's sole obligation and Licensee's sole remedy under the
limited warranty set forth in Section 12(a) above is strictly and
exclusively limited to the prompt correction of any errors in the Data which
are made known to Acxiom by written notice from Licensee describing such
errors in sufficient detail; provided, however, Licensee acknowledges that
some errors in the Data may be the result of errors contained in the source
data, in which case Acxiom shall not be obligated to correct such errors.
Notwithstanding the foregoing, Acxiom reserves the right to satisfy its
warranty obligations in full by refunding a pro rata portion of the fee paid
by Licensee for the particular data which is in error.
14. Third-Party Indemnify. (a) Licensee agrees to indemnify and hold Acxiom
harmless from and against all direct costs, losses, damages, liabilities and
expenses, including reasonable attorneys' fees (which may include the
allocable cost of in-house counsel), attributable to any claim made by a
third party arising out of Licensee's use of the Data and/or its performance
of its obligations under this Agreement, provided that (I) Acxiom gives
Licensee prompt written notice of any such claim of which Acxiom has
knowledge; and (ii) Licensee is given full control over the defense of such
claim and receives the full cooperation of Acxiom in the defense thereof.
(b) Acxiom agrees to indemnify and hold Licensee harmless from and
against all direct costs, losses, damages, liabilities and expenses,
including reasonable attorneys' fees, attributable to any
<PAGE>
claim made by a third party that the use of the Data infringes upon any
proprietary right of such third party, provided that (1) Licensee gives
Acxiom prompt written notice of any such claim of which Licensee has
knowledge; and (2) Acxiom is given full control over the defense of such
claim and receives the full cooperation of Licensee in the defense thereof.
Acxiom shall have no obligation under this Section to indemnify or defend
Licensee against a lawsuit or claim of infringement to the extent any such
lawsuit or claim results from (1) other material, including information,
data or software prepared by Licensee, which is combined with or
incorporated into the Data; or (2) any substantial changes or alterations to
the Data made by Licensee.
15. Limitation of Liabilitv. ACXIOM SHALL NOT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO,
LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER
THEORY. Any cause of action arising from or in connection with this
Agreement shall be asserted within one (1) year of the date upon which such
cause of action accrued, or the date upon which the complaining party should
have reasonably discovered the existence of such cause of action, whichever
is later.
16. Public. All media releases, public announcements and any form of
advertising or sales promotion by Licensee or its agents relating to this
Agreement or the use of the Data shall be subject to prior written approval
of Acxiom. Acxiom may include Licensee on its customer list in presentations
made to shareholders, customers and stock analysts, provided no
representation, express or implied, is or will be made as to Licensee's
opinion of Acxiom's services and/or products (including but not limited to
by way of predictions or projections of future business).
17. Applicable Law. The Agreement shall be governed and construed in
accordance with the laws of the State of Arkansas, without regard to
conflicts of law principles, and shall benefit and be binding upon the
parties hereto and their respective successors and assigns.
18. Entire Agreement. The Agreement, together with the Exhibit(s) attached
hereto, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes any and all written or oral prior
agreements and understandings between the parties.
19. Modification / Severance / Waiver. The Agreement, and any of the
Exhibit(s) attached hereto, may only be amended by a separate writing signed
by both parties. If any one or more of the provisions of the Agreement shall
for any reason be held to be invalid, illegal or unenforceable, the same
shall not affect any, of the other portions of the Agreement. Failure or
delay by either party in exercising any right hereunder shall not operate as
a waiver of such right.
20. Assignment. Licensee may not assign its rights and obligations
hereunder without the prior written consent of Acxiom.
21. Force Majeure/ Neither party shall be liable for any losses arising out
of the delay or interruption of its performance of obligations under the
Agreement due to any act of God, act of governmental authority, act of
public enemy, war, riot, flood, civil commotion, insurrection, severe
weather conditions, or any other cause beyond the reasonable control of the
party delayed.
22. Notices. Any notice or other communication required hereunder
shall be made in writing and addressed to the parties at their addresses set
forth above.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date
set forth above.
ACXIOM CORPORATION GLOBAL BUSINESS INFORMATION DIRECTORY
BY: /s/Anthony Santoro BY: /s/Stephen W. Carmichael
ANTHONY SANTORO, BUL STEPHEN W. CARMICHAEL, PRES./CEO
<PAGE>
EXHIBIT A
to the Data License Agreement
between Acxiom Corporation and
Licensee
A. DESCRIPTION OF DATA/DATA ELEMENTS:
To include approximately 18,000,000 U.S. and Canada business white and
yellow page listings (16 million U.S. and 2 million Canadian). Data includes
business name, address, city, state, providence, zip + 4, postal code, phone
number, yellow page heading code.
B. TYPE OF MEDIA, FORMAT AND DATE OF DELIVERY:
Media: CD-ROM
Format: ASCII comma delimited flat file
Delivery Date: Within fifteen (15) business days of execution of the Agreement
C. UPDATE DELIVERY SCHEDULE:
Quarterly
D. PERMITTED USES OF DATA:
The Data will be provided only as a component of Licensee's World Wide Web
Internet Site. Licensee will not use the Data for any CD-ROM product or any
other product or service.
Any other uses of the Data not specifically permitted by this Agreement must
be mutually agreed upon in writing by both parties.
E. LICENSE FEES:
Term: $100,000 (Annually)
Payment by Licensee of the License Fees due for the Term shall be due and
payable in full upon execution of the Agreement. Thereafter, payment by
Licensee of the annual License Fees due, as described above, for each
renewal Term of the Agreement shall be due and payable at each anniversary
of the Effective Date.
F. ADDITIONAL TERMS AND CONDITIONS:
Licensee will provide to Acxiom, free of charge, twenty-five percent (25%)
of all unsold advertising space on Licensee's World Wide Web Internet Site
when Acxiom Data is displayed. "Unsold advertising space" on a particular
day is defined as advertising space on such pages which has not been
committed to a third party for valuable consideration of any kind as of the
close of business on the previous day. Licensee will generate quarterly
reports showing the specific insertion information for this unsold
advertising space and the percentage of the total unsold space represented
by Acxiom insertions.
Each Licensee Web page containing Acxiom Data will display a logo as
demonstrated at www.databyacxiom.com/partner/partner2.html on the first or
initial screen of each results page. Licensee agrees that each logo will be
hyper-linked to the www.databyaraxiom.com page or another page within the
Acxiom Web site as determined by Acxiom.
Licensee agrees to include a statement regarding copyright and unauthorized
use prominently displayed on Licensee's World Wide Web Internet Site as
described in Section 5(e) of the Agreement.
CONSULTING AGREEMENT
This consulting agreement (the "Agreement") is entered into by
and between MCKINLEY GREENFIELD CAPTIAL CORP. OR ITS ASSIGNEES
(the "Consultant"), a British Columbia company with offices at
2250 - 650 West Georgia Street, Vancouver, British Columbia, V6B
4N7, and Global Business Information Directory, Inc. (the
"Client"), a Colorado company with offices at 3800-999 3rd
Avenue, Seattle, Washington, USA, 98104 to be effective the 15th
day of March,1999.
BACKGROUND AND OBJECTIVES
The Consultant is an investment banking firm which provides
services in the areas of business planning and due diligence,
financial structuring and public relations, corporate
restructuring, equity and debt financing, merger and acquisition
analysis and financing, and international corporate financing.
The Client desires and the Consultant agrees to "act as agent
and financial advisor to the Client as agreed and in accordance
with Schedule "A" attached hereto.
1. SCOPE OF WORK
1.1 "Consulting" shall mean the description of the work
performed by the Consultant. Specific duties are to be agreed
from time to time with the Client.
1.2 The term of this Agreement begins on March 15, 1999 and
continues through to March 15, 2000. The compensation shall
be paid in accordance with the terms set out in Schedule "A"
attached hereto. In addition, the Consultant shall be
reimbursed for all reasonable out-of-pocket expenses relating to
the work performed hereunder.
2. OWNERSHIP OF INFORMATION AND DISCLOSURE
2.1 All information, ideas, concepts, improvements,
discoveries, test results, data and inventions possessed,
acquired or developed by the Client or its subsidiaries or
affiliated corporations at any time, as well as all information
ideas, concepts, improvements, discoveries, test results, data,
and inventions conceived, made, developed or acquired by the
Consultant or disclosed or made known to the Consultant,
individually or in connection with others, as a result of the
position as a Consultant to the Client under this Agreement
shall be and remain the sole and exclusive property of the
Client or its subsidiary or affiliated corporation, as the case
may be.
2.3 The Consultant agrees to use his best effort and
exercise the utmost diligence to protect and safeguard the
information, ideas, concepts, improvements, discoveries and
inventions of the Client. Under this Agreement, the Consultant
<PAGE>
shall not, either during the term of this Agreement or
thereafter, directly or indirectly, use to his own benefit or
the benefit of another, or disclose to another, any such
information, ideas, concepts, improvement, discoveries and
inventions.
2.4 Upon termination of this Agreement, or at any other time
upon request, the Consultant shall immediately deliver to the
Client all documents in its possession embodying any of the
Company's information, ideas, concepts, improvements,
discoveries and inventions that were delivered to the Consultant
by the Company.
3. TERMINATION
3.1 Should a breach of any of the terms of this
Agreement occur, the offended party may give notice of the
breach in writing to the other party. If the breach is not
rectified within 30 days after such notice, the offended party
may, at its sole option, immediately terminate this Agreement by
providing written notice of such termination.
4. MISCELLANEOUS
4.1 Notices. Notices, invoices, communications and
payments shall be submitted to the offices identified below.
Contractual notices and communications hereunder shall be deemed
made as of the date of mailing if given by overnight courier
service or by registered or certified envelope, postage prepaid,
and addressed to the party to receive such notice of
communication at the address given below, or such other address
as may hereafter be designated by notice in writing.
If to the Consultant:
Mr. Raymond R. Cottrell
McKinley Greenfield Capital Corp.
2250 - 650 West Georgia Street
Vancouver, B.C. V6B 4N7
ph. (604) 688-7585
fx. (604) 683-8320
If to the Client:
Mr. Stephen Carmichael
Global Business Information Directory, Inc.
3800-999 3rd Avenue
Seattle, Washington
USA 98104
ph. (604) 618-4109
4.2 Relationship of parties. In the performance of
all services hereunder, the
<PAGE>
Consultant, its employees, agents
and contractors, shall be deemed to be and shall be independent
contractors and, as such, the Consultant, its employees, agents
and contractors, shall not be entitled to any benefits
applicable to employees of the Client. Neither party is
authorized or empowered to act for the other for any purpose and
shall not on behalf of the other enter into any contract,
warranty, and/or representation as to any matter. Neither shall
be bound by the acts or conduct of the other.
4.3 Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the
British Columbia.
4.4 Disputes. Should the parties to this Agreement
be unable to resolve between themselves any dispute arising from
any of the provisions within this Agreement, such party shall
have recourse under the law and at equity. In the event that
either party commences an action in law or equity to enforce any
provision of this Agreement, the losing party shall pay to the
prevailing party a reasonable attorney's fee as fixed by a court
of competent jurisdiction.
4.5 Agreement Modification. Any agreement to change
the terms of this Agreement in any way shall be valid only if
the change is made by mutual agreement and approved in writing
by an authorized official of each party.
4.6 Entire Agreement. This Agreement
represents the entire understanding between the parties with
respect to the subject matter hereof, and supersedes any prior
and/or contemporaneous discussions, representations, or
agreements, whether written or oral, of the parties regarding
this matter.
4.7 Severability. If any provision(s) of this Agreement
shall be held invalid, illegal, or unenforceable, the validity,
legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
4.8 Modification. This Agreement may be extended,
renewed, or otherwise amended at any time by the mutual written
consent of the parties.
IN WITNESS WHEREOF, the parties have caused these presents to
be executed in duplicate as of the day and year first above written.
MCKINLEY GREENFIELD CAPITAL CORP. GLOBAL BUSINESS
INFORMATION DIRECTORY, INC.
/s/ RAYMOND R. COTTRELL /s/ STEPHEN CARMICHAEL
<PAGE>
SCHEDULE "A" to the Consulting Agreement dated , 1999
Scope of Work:
Business Consulting The Consultant shall advise the Client in
the areas of corporate structuring, organization with consideration
to tax matters, public company requirements and responsibilities
initial financing, and other general business matters.
The Consultant will use its best efforts to raise
US$1,000,000 for the Company (the "initial financing").
Public Shell The Consultant shall provide the Client with a
shell company (the "Shell") suitable for public trading in the USA,
initially through the Over-The-Counter Bulletin Board system
(OTCBB). All costs pertaining to the acquisition and reorganization
of the Shell will be initially provided by the Consultant.
Investor Relations The Consultant will arrange a contract
between the Client and investor relations consulting groups (the "IR
Consultants") for a minimum of one year. The IR Consultants will
handle investor inquiries on behalf of the Client and generally take
on the responsibility of the market for the shares of the Client.
Investor interest will be generated by advertising in various
investor publications and other media. The Consultant will assist
in the acquisition of these services and will manage the
relationship between the Client and the IR Consultants during this 1
year period.
Remuneration
The Company agrees to pay the Consultant a monthly fee of
US$10,000.00 in advance to the Consultant beginning with the receipt
of the first proceeds of the initial financing.
CUSTOMIZED E-MAIL SERVICE AGREEMENT
THIS CUSTOM E-MAIL SERVICE AGREEMENT (the "Agreement") is entered into as of
March 22, 1999 (the "Effective Date') between Arrow Communication Systems
Inc. "'ACS"), a British Columbia corporation with offices at 300 - 34252
Marshall Road, Abbotsford, BC, and Global Business Information Directory
(the "Business Partner"), a COLORADO COMP offices at 999 3rd Avenue, Suite
3800, Seattle, Washington 98104.
A. ACS has developed a turnkey solution for web-based e-mail
products and services, which it can privately label and customize to the
Business Partner's own "look and feel" and other requirements.
B. ACS desires to deliver to the Business Partner a customized e-mail
service for the web site of the Business Partner located at
www.gbidtnail.com , or a successor site (the "Business Partner Web Site"),
on the terms and conditions provided in this Agreement.
In consideration of the promises and the mutual covenants contained herein,
the parties hereby agree as follows:
1. DEFINITIONS.
Terms used in this Agreement which are capitalized shall have the
definitions set forth below or elsewhere in this Agreement. References to
Sections or Exhibits refer to Sections of, or Exhibits to, this Agreement.
1.1 "Advertisement Inventory" means the amount of space in the user
interface of the Custom Email Service available for advertising multiplied
by the number of pages actually seen by End Users.
1.2 "Advertisements" means advertising banners, sponsorships and
other advertising displayed on Custom Email Service pages.
1.3 "Artwork" means the artwork, logos, text, graphics and other trademarks
of the Business Partner to be used by ACS in developing the Custom E-mail
Service.
1.4 "Custom E-mail Service" means ACS's web-based e-mail product as
customized for use by the Business Partner.
1.5 "End User" means an end user of the Custom E-mail Service who
has been registered with ACS as using the Custom E-mail Service accessed via
the Business Partner Web Site.
1.6 "House Advertisements" means advertising banners and other advertising
promoting the business of ACS and the Business Partner and/or their affiliates.
1.7 "Links" means hyper-text Internet Links from the Business Partner
Web Site to the Custom Email Service.
1.8 "Net Advertising Revenue" means gross revenue received by ACS for
Advertisements (including sponsorships) that are delivered through the
Custom E-mail Service or on the login page to the Custom E-mail Service,
less agency fees and third-party sales commissions, excluding House
Advertisements to the extent permitted by this Agreement.
<PAGE>
1.9 "Premium Services" means e-mail and other communication products or
services offered by ACS within the Custom E-mail Service.
1.10 "User Data" means the demographic information, names and e-mail
addresses of the End Users.
2. DESIGN AND DELIVERY OF E-MAIL SERVICE.
2.1 Artwork. At least 15 days prior to the agreed upon launch date,
the Business Partner shall deliver to ACS Artwork that conforms to ACS
technical specifications.
2.2 Launch. Both parties shall use co1e onable best efforts to
launch the Custom E-mail Service by March 22, 1999.
3. OPERATION AND PROMOTION OF THE CUSTOM E-MAIL SERVICE.
3.1 HOSTING OF CUSTOM E-MAIL SERVICE; SERVING OF ADVERTISEMENTS.
(a) ACS shall host the Custom E-mail Service and shall bear the
costs of hosting the Custom Email Service.
(b) ACS shall deliver or cause to be delivered all Advertisements to
or through the Custom Email Service, except where this right and obligation
is specifically conferred upon the Business Partner below.
3.2 LINKS. The Business Partner shall place and maintain during the
term of this Agreement Links to the Custom E-mail Service on prominent
places on the Business Partner Web Site's home page and at least four other
frequently visited sections of the Business Partner Web Site.
3.3 PROMOTION. The Business Partner shall, during the term of this
Agreement, actively promote the Custom E-mail Service on the Business
Partner Web Site and in other media in order to attract End-Users to
register for the Custom E-mail Service. The Business Partner shall mention
ApexMail and the Custom E-mail Service in any major advertising or
promotional campaigns with respect to the Business Partner, and in the
"boilerplate" credits in any press releases relating to the Business Partner
Web Site.
3.4 REPRESENTATIONS. The Business Partner shall not make any
representations or warranties concerning the Custom E-mail Service beyond
those expressly made IN WRITING by ACS, and shall not misrepresent the
Custom E-mail Service or the performance or functionality thereof.
3.5 DOMAIN NAMES; BUSINESS PARTNER WEB SITE. The Business Partner
shall provide to ACS the domain names and URLs for the web site that will be
used for the Custom E-mail Service. Business Partner shall bear the costs
and expenses related to the acquisition of the domain names and URLs for
such web site.
3.6 MAINTENANCE OF SYSTEMS. ACS shall use commercially reasonable
efforts to maintain or cause to be maintained the hardware, software and
systems required for the hosting and operation of the Custom E-mail Service.
3.7 CUSTOMER SUPPORT. ACS shall use commercially reasonable efforts
to provide customer support through e-mail to End Users on a daily basis.
4. REVENUES.
4.1 REVENUES FROM ADVERTISEMENT
<PAGE>
4.1.1 SALE OF ADVERTISING AND SPONSORSHIPS BY ACS. ACS shall, through
its network of advertising agencies, use commercially reasonable efforts to
sell Advertisements (including sponsorships) for the Custom E-mail Service.
4.1.2 ADVERTISING REVENUES GENERATED FROM THE CUSTOM E-MAIL SERVICE.
ACS shall pay to Business Partner, in the manner provided in Section 5.2,
twenty percent (20%) of Net Advertising Revenue generated by the Business
Partner Custom E-mail Service.
4.1.3 House Advertisements. During each calendar month of the term of this
Agreement, the Business Partner and ACS each shall be permitted to place
House Advertisements on the Custom E-mail Service at no cost, provided that
InHouse Advertisements placed by either party shall not exceed five percent
(5%) of the total E-mail Advertisement Inventory in any calendar month.
4.2 REVENUES FROM PREMIUM SERVICES
4.2.1 PREMIUM SERVICE REVENUES. ACS shall have the right to offer and
sell to End Users of the Custom E-mail Service the Premium Services listed
in Exhibit A. ACS will, with Business Partner's prior approval, also have
the right to offer to End Users other Premium Services not listed in Exhibit
A, such approval not to be unreasonably withheld.
4.2.2 REVENUES GENERATED FROM PREMIUM SERVICES. ACS shall retain for
its own use all of the Premium Service Revenue collected by ACS.
5. PAYMENTS; REPORTS.
5.1 REPORTS. Within thirty (30) days after the last day of each
calendar month during the term of this Agreement, ACS shall provide Business
Partner with a written report setting forth (I) the Custom E-mail Service
Net Advertising Revenue generated by ACS during such month, and (ii) the
Custom E-mail Service Gross Advertising Revenue generated by ACS during the
month.
5.2 Payments. Within seventy (70) days after the last day of each calendar
month during the term of this agreement, ACS shall provide Business Partner
with payment of Business Partner's portion of the Custom E-mail Service Net
Advertising Revenue as specified in section 4.1.
5.3 AUDIT OF REPORTS. Each party will maintain complete and accurate books
and records sufficient to prepare accurate reports as required by Section
5.1. ACS and the Business Partner each shall have the right to cause such
books and -records to be audited by an independent certified public
accountant in the U.S., or an independent chartered accountant in Canada,
selected by the requesting party. Any such audit shall be performed on seven
(7) days written notice, at the expense of the requesting party, during
normal business hours, no more frequently than once in a twelvemonth period,
and in such a manner as to avoid unreasonable interference with normal
business operations, provided, however, that if any such examination reveals
an underpayment to the requesting party of more than five percent (5%) of
the total payment due for any quarter, then the examined party shall pay the
costs of such examination.
5.4 Taxes. Amounts to be paid by either party shall be exclusive of, and the
party making such payments shall be responsible for, any sales, use, excise,
value-added or similar taxes (other than taxes on the net income of the
other party).
<PAGE>
6. OWNERSHIP OF INTELLECTUAL PROPERTY; LICENSES.
6.1 BUSINESS PARTNER OWNERSHIP. As between the parties, the
Business Partner shall own and retain all right, title and interest in and
to the Artwork, the Business Partner Web Site and the domain names and URLs
for the Domestic Custom E-mail Service. ACS and the Business Partner shall
co-own the User Data. The provisions of this Section 6.1 are subject to the
licenses granted to ACS under this Agreement.
6.2 ACS OWNERSHIP. As between the parties, ACS shall own and retain all
right, title and interest in and to the Custom E-mail Service and Premium
Services. The Business Partner and ACS will co-own the User Data. The
provisions of this Section 6.2 are sub ect to the rights of the Business
Partner j set forth in Section 6.1 and the licenses covering the Custom
E-mail Service granted to the Business Partner under this Agreement.
6.3 LICENSE TO THE BUSINESS PARTNER. Subject to all of the terms and
conditions of this Agreement, ACS hereby grants to the Business Partner a
nonexclusive, nontransferable, limited license to provide the End Users
with access to the Custom E-mail Set vice by, means of the Links.
Ile access of End Users to the Custom E-mail Service shall be
subject to the terms of an end user license provided by ACS. The Business,
Partner. SHALL not remove or alter any such end user license or. other
notices relating to ACS's limitation of its liability and waiver
of warranties that are generated during access or use of the Custom Email
Service.
6.4 License to ACS. The Business Partner hereby grants to ACS a
nonexclusive, nontransferable (except as provided in Section 3.1 (a))
worldwide license (a) to use the Artwork for the purpose of designing,
developing and operating the Custom E-mail Service, (b) to use the domain
names and URLs provided by the Business Partner to ACS pursuant to Section
3.5, (C) to use the User Data for the purpose of (i) the development of
Premium Services and promotion of goods and services to the End Users, and
(ii) otherwise in connection with the performance of its rights and duties
under this Agreement, and (d) to sublicense such right to a party to which
performance of ACS's obligations may be delegated under Section 3.1 (a). In
addition, the Business Partner hereby grants to ACS a nonexclusive,
nontransferable, worldwide license and right to use aggregate information
based upon User Data, without identifying any such User or the Business
Partner, solely in connection with the marketing of its services to
potential business partners of ACS.
6.5 Reservation of Rights. As between the parties, any rights to
the Custom E-mail Service and the Premium Services not expressly granted
hereunder to the Business Partner are reserved to ACS, and any rights to the
Artwork, the domain names and URLs and the User Data -not expressly granted
hereunder to ACS are reserved to the Business Partner.
7. CONFIDENTIALITY.
Each party shall be entitled to disclose the existence of this Agreement but
agrees that the financial terms of this Agreement shall be treated as
confidential and shall not be disclosed to any other party; provided,
however, that each party may disclose the financial terms of this Agreement
(a) as required by a court or other governmental body, or as otherwise
required by law, (b) in confidence, to its legal counsel, accountants,
banks, and current and prospective financing sources and their advisors, or
in connection with an actual or proposed merger or acquisition, or (C) in
connection with the enforcement of its rights under this Agreement.
8. REPRESENTATIONS AND WARRANTIES.
ACS and the Business Partner each represent and wan-ant to the other party
that:
(a) such party is an entity duty organized, validly existing
and in good standing in the, jurisdiction of its formation;
<PAGE>
(b) such party has full authority to enter into this Agreement,
to grant the rights granted herein, and to perform the obligations assumed
hereunder; and
(C) this Agreement, when executed by both parties, represents
such party's valid and binding obligation, enforceable against it in
accordance with its terms, subject to certain general legal enforceability
exceptions.
9. LIMITATIONS.
9.1 LIMITED WARRANTY BY ACS. Pursuant to the end-user license to be
distributed to EndUsers, ACS makes a limited warranty to the End-Users.
EXCEPT FOR THE FOREGOING WARRANTIES, ACS MAKES NO OTHER WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT, AND
ACS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS REGARDING ANY
SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
9.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS
AGREEMENT, WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. IN ANY CASE, ACS SHALL NOT BE LIABLE FOR ANY DAMAGES IN ANY
TWELVE-MONTH PERIOD IN EXCESS OF THE AMOUNTS PAID BY THE BUSINESS PARTNER TO
ACS UNDER SECTION 5.2 FOR SUCH TWELVE-MONTH PERIOD.
10. TERM AND TERMINATION.
10.1 TERM. The term of this Agreement shall commence on the Effective
Date and shall continue until the second anniversary of the Effective Date,
unless earlier terminated as provided in Section 10.3.
10.2 RIGHT OF FIRST REFUSAL. If Business Partner shall receive any
offer from any third party to provide any e-mail service to Business Partner
or to the End Users, it shall notify ACS of such offer and grant ACS the
exclusive right for 30 days from such notification to match the, terms and
conditions of such offer from said third party.
10.3 TERMINATION. This Agreement may be terminated:
(a) by either party upon a material breach by the other party of
any representation, covenant., warranty or term of this Agreement that is
not cured within thirty (30) days after written notice thereof by the
non-breaching party; provided that the cure period provided in this Section
10.3(a) shall be fifteen (15) days after written notice thereof by the
non-breaching party in the event of a breach of an obligation to make a
payment as and when required by this Agreement; or
(b) by either party in the event that (i) the other party files
a petition for bankruptcy or is adjudicated a bankrupt, (ii) a petition in
bankruptcy is filed against the other party, (iii) the other party becomes
insolvent or makes an assignment for the benefit of its creditors or an
arrangement for its creditors pursuant to any bankruptcy law, (iv) an action
is instituted by or against the other party seeking its dissolution or
liquidation of such party's assets or seeking the appointment of a trustee,
interim trustee, receiver or other custodian for such party's property or
business and such action is not dismissed within ninety (90) days after the
date upon which it was instituted; or (v) a receiver is appointed for the
other party or its business.
<PAGE>
10.4 EFFECT OF TERMINATION. Upon termination of this Agreement the
Business Partner shall remove the Links and otherwise discontinue use of the
Custom E-mail Service on the Business Partner Web Site. However, Business
Partner shall continue to be entitled to receive, and ACS shall continue to
pay to the Business Partner the amounts owing to the Business Partner up to
the date of termination pursuant to Section 4. 1. Termination of this
Agreement shall not act as a waiver of any breach of this Agreement or as a
release of either party from any liability for breach of such party's
obligations under this Agreement.
10.5 Survival. The provisions of Sections 1, 3.5, 4, 5, 6.1, 6.2,
6.5, 7, 8, 9, 10.3, 11 and 12 shall survive any expiration or termination of
this Agreement.
11. INDEMNIFICATION.
11.1 INDEMNIFICATION BY THE BUSINESS PARTNER. The Business Partner
will defend, indemnify and hold harmless ACS, its successors, assigns,
parent, subsidiaries, affiliates, and their respective officers, directors,
agents and employees, from and against any action, suit or claim (including
reasonable attorneys' fees) arising out of or in any way connected with (a)
the Artwork, including any claim that the Artwork-, or any part thereof,
infringes any intellectual property rights or other rights of any third
party, (b) the Advertisements or ad copy provided by the Business Partner,
(C) the domain names and URLs provided to ACS, and (d) any breach by the
Business Partner of the covenants, warranties, representations or agreements
of this Agreement. ACS will give the Business Partner prompt notice of any
such claim or threatened claim.
11.2 INDEMNIFICATION BY ACS. ACS will defend, indemnify and hold
harmless the Business Partner, its successors, assigns, parent,
subsidiaries, affiliates, and their respective officers, directors, agents
and employees, from and against any action, suit or claim (including
reasonable attorneys' fees) arising out of or in any way connected with (a)
any claim that the Custom E-mail Service, or any part thereof, infringes any
intellectual property rights or other rights of any third party, except to
the extent that such claim arises out of the inclusion in the Custom E-mail
Service of the Artwork, (b) the Advertisements or ad copy provided by ACS,
and (C) any breach by ACS of the covenants, warranties, representations or
agreements of this Agreement. The Business Partner will give ACS prompt
notice of any such claim or threatened claim.
11.3 PROCEDURE. The indemnified party will: (a) promptly notify the
indemnifying party of any claim, suit or proceeding for which defense or
indemnity is claimed; (b) cooperate reasonably with the indemnifying
party at the latter's expense; and (C) allow the indemnifying
party to control the defense or settlement thereof, provided, however, that
the indemnifying party may not consent to entry of any judgment or enter
into any settlement without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld or delayed),
unless such judgment or settlement provides solely for money damages or
other money payments which the party actually pays on behalf of the indemnified
party and includes as an unconditional term thereof a release of the
indemnified party from all liability in respect of the claim, suit or
proceeding giving rise to the claim for indemnification. The indemnified
party will have the right to participate in any defense of a claim and/or
to be represented by counsel of its own choosing at its own expense.
12. GENERAL PROVISIONS.
12.1 Governing Law. This Agreement shall be governed by and
construed under the laws of the Province of British Columbia and Canada
(excluding the U.N. Convention on Contracts for the International Sale of
Goods) without regard to conflict of laws principles. In any action or
proceeding to enforce rights under this Agreement the prevailing party shall
be entitled to recover costs and attorneys' fees.
12.2 Assignment. Except as otherwise expressly provided in this
Agreement neither party may transfer or assign its rights or its obligations
whether voluntariuly or by operation
<PAGE>
unreasonably, provided that each party shall have the right to transfer this
Agreement, and assign all of its rights and delegate all of its obligations
hereunder, to any affiliate, and to any successor by way of merger or
consolidation or in connection with the sale or transfer of substantially
all of its business and assets relating to this Agreement.
12.3 Notices. All notices under this Agreement shall be in writing
and delivered personally or by facsimile, commercial overnight courier, or
certified or registered mail, return receipt requested, to a party at its
respective address set forth herein.
12.4 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
herein and merges and supersedes all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of arty
rights under this Agreement, shall be effective unless in writing signed by
the party against whom it is to be enforced. Nothing express or implied in
this Agreement is intended to confer, -nor shall anything herein confer,
upon any person other than the parties and the respective successors or
permitted assigns of the parties, any rights, remedies, obligations or
liabilities whatsoever.
12.5 Severability. If the application of any provision or provisions
of this Agreement to any particular facts or circumstances shall be held to
be invalid or unenforceable by any court of competent jurisdiction, then:
(i) the validity and enforceability of such provision or provisions as
applied to any other particular facts or circumstances and the validity of
other provisions of this Agreement shall not in any way be affected or
impaired thereby; and (ii) such pro irision or provisions shall be reformed
without further action by the parties hereto and only to the extent
necessary to make such provision or provisions valid and enforceable when
applied to such particular facts and circumstances.
12.6 INDEPENDENT CONTRACTORS. The parties are independent
contractors, and nothing in this Agreement shall be construed to create a
joint venture or partnership.
12.7 FORCE MAJEURE. A party will not be deemed to have materially
breached this Agreement to the extent that performance of its obligations or
attempts to cure any breach are delayed or prevented by reason of an act of
God, fire, natural disaster, accident act of government, shortage of
equipment, materials or supplies beyond the reasonable control of such
party, or any other cause beyond the reasonable control of that party (a
"FORCE MAJEURE EVENT); provided that the party whose performance is delayed
or prevented promptly notifies the other party of the nature and duration of
the force majeure event.
12.8 COMPLIANCE WITH LAWS. Each party shall comply with all laws and
regulations applicable to it.
12.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed
an original, and such counterparts together shall constitute one and the
same instrument. For purposes hereof, a facsimile copy of this Agreement,
including the signature pages hereto, shall be deemed to be an original.
12.10 EXHIBITS. The following Exhibit is attached to this Agreement and
incorporated herein by reference.
Exhibit A Premium Services
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as
of the Effective Date by the undersigned duly authorized.
GLOBAL BUSINESS INFORMATION DIRECTORY ARROW COMMUNICATIONS SYSTEMS, INC.
By: /s/Stephen Carmichael By: /s/Gilles Lepace
Name: STEPHEN CARMICHAEL Name: GILLES LEPACE
Title: President/CEO Title: President/CEO
<PAGE>
EXHIBIT A
PREMIUM SERVICES
1. Off-line E-mail Client Interface
Permits web e-mail subscribers to read, compose and send e-mail messages
using the familiar user interface of their favorite off-line, PC-resident
e-mail client software-like Microsoft Outlook or Eudora. Off-line
clients minimize telephone connect time when subscribers are working
on lengthy e-mail correspondence.
1. Auto-responder Upgrade Four extra auto-respnders are made available that
can be configured by the member to reply with automatic messages to incoming
e-mail.
3. Filter Upgrade
Ten extra filters are made available that can be used to direct incoming
messages to specific folders, based on user-selected criteria.
4. Account Forwarding Upgrade
The member can forward e-mail to up to five (5) other accounts. The e-mail
message can be deleted at the current account at the same time.
5. Multiple Signatures
The member can choose, and use, up to three (3) extra signatures in his/her
e-mail correspondence.
6. No Banner Ads
No banner ads will be seen on the Web interface of the premium ("Platinum")
account.
7. No Text Ads
No text ads Will be seen in outbound e-mail.
GBID EMPLOYMENT AGREEMENT
This Employee Agreement is dated for reference the 24th day of March
1999.
BETWEEN:
GLOBAL BUSINESS INFORMATION DIRECTORY INC., a
company duly incorporated under the laws of
Colorado, and having a business office located at
999 3rd Avenue, Suite 3800, Seattle, Washington,
98104 (the "Company")
OF THE FIRST PART
AND:
STEPHEN W. CARMICHAEL
of 4064 W.. 29TH AVE.
VANCOUVER, BC V6S 1V5
(the "Employee")
OF THE SECOND PART
WHEREAS:
A. The Company is engaged in, inter
alia, the business of research, developing
and distribution of Internet business and
marketing tools, including without
limitation, search engines;
B. The Company is desirous of
establishing an excellent reputation in the
marketplace and has agreed to employ the
Employee to assist in achieving that goal on
the terms and conditions hereinafter set forth;
C. The Employee has agreed to be
contracted by the Company upon the terms and
conditions hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH that
in consideration of the premises and mutual
covenants and agreements herein contained,
the parties hereto covenant and agree each
with the other as follows:
1. EMPLOYMENT
The Company hereby contracts the
Employee as President and CEO and the
Employee hereby accepts such contract, to
perform the duties and render the services
set forth herein during the term of this
Agreement.
2. TERM
This Agreement will commence
immediately upon the execution of this
Agreement
<PAGE>
by both parties, and shall
continue in full force and effect until
terminated by either side.
3. COMPENSATION
As compensation for the services
of the Employee during the term of this
Agreement, the Company shall pay and the
Employee earn:
A. Salary would be equal to$6000.00 US per month
($72,000.00US per year), paid on the last of the month.
Salary increased to $8,000.00 US per month should the company
successfully complete a Form SB-2 registration offering
of its securities
B. Immediate implementation of 1,090,000,000 restricted trading
shares in the name of Stephen Carmichael.
C. GBID guarantees a 1-year contract with a buy out of the
balance of the year should GBID terminate the contract of
employment.
4. REIMBURSEMENT FOR EXPENSES
The Employee will be reimbursed for all reasonable
out-of-pocket expenses incurred by the Employee in or about the
execution of his employment, including, without limiting the
generality of the foregoing, all promotion related travel and
promotional expenses payable or incurred by the Employee in
connection with his duties under this Agreement.
5. DUTIES AND SERVICES
During the term of this Agreement, the Employee agrees
to:
(a) Do his/her utmost to enhance and develop the best interests and welfare of
the Company,
(b) Give his/her best efforts and skill to advancing and
promoting the growth and success of the Company; and
(c) Perform such duties or render such services as the Board of
Directors of the Company may from time to time reasonably
confer upon or impose on the Employee.
6. DEVOTION OF TIME
It is acknowledged and agreed by
the Employee that the work of the Employee
is and will be of such a nature that regular
hours may be impossible, and there may be
occasions in which the Employee will not be
required to work a full seven hours per day
and/or a full five days per week. It is
also anticipated that there will be certain
evenings, Saturdays, Sundays and holidays
during which the Employee will be required
to work.
7. TERMINATION OF AGREEMENT
Notwithstanding any other
provision herein, it is understood and
agreed by and between the parties hereto
that the Employee may resign his employment
hereunder by giving one
<PAGE>
(1) months written
notice of such intention to resign, and the
Company may terminate this Agreement in its
entirety without cause upon providing
fifteen (15) days written notice, or fifteen
(15) days full pay as a termination
allowance in lieu of notice, together with
any unpaid expenses, and the Employee does
hereby agree that such termination allowance
will be payment in full for any discharge by
the Company.
8. CONFIDENTIAL INFORMATION
The parties hereto acknowledge
and agree that the Employee will have access
to confidential and secret information and
therefore the Employee agrees that during
the term of this Agreement and on
termination or expiry of same, for any
reason whatsoever, the Employee will not
divulge or utilise for his own benefit or to
the detriment of the Company any of such
secret or confidential information for a
period not less than 5 years.
9. PERSONAL CONTRACT
This Agreement and all other
rights, benefits and privileges herein
confirmed will be personal, and accordingly
may not be assigned by the Employee.
10. NOTICES
All notices or other instruments
or communications provided for in this
Agreement shall be in writing and signed by
the party giving same and shall be deemed
properly given if sent by registered mail or
courier deliver addressed to such party at
the address set out above, or to such
facsimile number as each party to this
Agreement has provided to the other from
time to time. Each party may by notice to
the other party, specify any other address
or facsimile number for the receipt of such
notices, instruments or communications. Any
notice, instrument or communication sent by
facsimile transmission shall be deemed
properly given on the day sent. Any notice,
instrument or communication sent by
registered mail or couriered delivery shall
be deemed properly given on the day the
notice, instrument or communication arrives
at the address of destination.
11. GOVERNING LAW
This Agreement shall be governed
by the laws of the State of Colorado.
12. ENTIRE AGREEMENT
This Agreement represents the
entire agreement between the parties and
supersedes any and all prior agreements and
understandings, whether written or oral,
between the parties. The Employee
acknowledges that he was not induced to
enter into this Agreement by any
representation, warranty, promise or other
statement except as contained herein.
<PAGE>
13. AMENDMENT
This Agreement may not be
amended or otherwise modified except by an
instrument in writing signed by both parties.
14. HEADINGS
All headings and titles in this
Agreement are for reference only and are not
to be used in the interpretation of the
terms hereof.
15. GENDER
Wherever the singular or the
masculine is used herein, the same shall be
deemed to include the plural or the feminine
or the body politic or corporate where the
context or the parties so require.
16. COUNTERPART AND FACSIMILE
This Agreement may be signed in
counterpart, which counterparts taken
together shall constitute one and same
agreement and any facsimile signature shall
be taken as an original.
IN WITNESS WHEREOF the parties hereto have
executed this Agreement as of March 24th, 1999
GLOBAL BUSINESS INFORMATION DIRECTORY INC.
/s/ Derick Walker
DERICK WALKER - BOARD MEMBER
/s/ Stephen W. Carmichael
STEPHEN W. CARMICHAEL, GBID
CONSULTANCY & LICENSING AGREEMENT BETWEEN GLOBAL BUSINESS
INFORMATION DIRECTORY TD. & NETFACET COMPUTING INC.
THIS AGREEMENT (hereinafter "this Agreement") is made in duplicate,
Between
Global Business Information Directory Ltd., a Colorado
corporation, of 999 - 3rd Avenue, Suite 3800, Seattle,
Washington 98104, Tel:(604) 618-4109 and e-mail: [email protected]
(hereinafter "the Client")
And
Netfacet Computing Inc. of 492 Fraser Avenue, Ottawa,
Ont ario K2A 2R2, Tel: (613)724-4550 and e-mail:
[email protected] (hereinafter "the Consultant").
WHEREAS, the Client and the Consultant desire to have an
agreement regarding work on a project, and by which the Client
(a) engages the Consultant as a consultant to
(i) direct and coordinate activities concerned with research and
development of concepts, ideas, specifications and applications for
the Client's new products and
(ii) oversee product development, including quality control,
physical distribution, product and packaging design, new product
development and improvements on existing products
and
(b) will own the intellectual property resulting from that work and
license it to the Consultant;
THEREFORE, in consideration of the representations and promises contained
herein, the Client and the Consultant agree as follows:
Definitions
In this Agreement,
(a) "Background Intellectual Property" means Intellectual Property
that is not Foreground Intellectual Property;
(b) "Effective Date" means 1 April 1999;
(c) "Expenses" includes, but is not limited to, expenses for
travel, equipment and sub-contract labour;
(d) "Foreground Intellectual Property" means the Intellectual
Property arising out of or pursuant to this Agreement;
(e) "Intellectual Property" includes, but is not limited to,
interests in or as to know-how, show-how, trade secrecy,
confidentiality, copyright, moral rights, industrial design
registrations, patents,
<PAGE>
trade marks, trade names, misappropriation of personality, invasion
of privacy and defamation;
(f) "the Licensed Activities"
(i) includes, but is not limited to, the replication, modification,
improvement and use of the Licensed Products, and further includes
confidential disclosure of the source code thereof to the Consultant's
employees and agents but
(ii) does not include sublicense, or disclosure, of the source code
thereof to other than the employees or agents of the Consultant;
(g) "the Licensed Products" means Products that are subject to
Foreground Intellectual Property;
(h) "Products" means goods and services;
(i) "the Resources" includes, but is not limited to, information,
personnel, money, equipment and materials, provided by the
Client to the Consultant pursuant to this Agreement to assist the
Consultant to do the Work and in particular includes licenses of
Background Intellectual Property;
(j) "the Start-Work Date" means the following date: 1 April 1999; and
(k) "the Work" means endeavoring to deliver Deliverables to the
Client, in accordance with the Statement of Work attached to this
Agreement as Schedule A.
The Consultancy: The Resources, The Work & The Payments
1. From the Start-Work Date,
(a) the Client shall provide the Resources to the Consultant;
(b) the Consultant shall do the Work, and aside from no more
than five days per month at the Client's premises the Consultant may
do the Work, and have the Work done, anywhere; and
(c) the Consultant shall escrow all source code created by
the Consultantpursuant to this Agreement, on a weekly basis with an agreed
upon escrow agency.
2. The Client shall
(a) on 1 July 1999, 50,000 class A shares of the Client to the Consultan
in accordance with the notice provision of this Agreement;
<PAGE>
(b) pay the Consultant $8,000 U.S. per month in respect of
each calendar month or part thereof that this Agreement is in effect
(hereinafter, inrespect of each such month or part thereof, "the Consultancy
Fee") split between two payments per month, one being on the fifteenth
day of each month for invoices received on or before the fourteenth day
of the month and the other being on the last day of each month for
invoices received after the fourteenth day of the month; and
(c) reimburse the Consultant's Expenses in response to the
Consultant's invoices for such reimbursement.
3. The Consultancy Fees and reimbursement of the ConsultantAEs
Expenses shall
be paid by cheque in accordance with the notice provision of this
Agreement.
Intellectual Property: Ownership & Licensing
4. The Client grants and warrants that the Consultant's use of
the Resources pursuant to this Agreement shall not infringe any person's
legal interest whether contractual, tort-based, proprietary, or otherwise and
whether or not including Intellectual Property. The Client indemnifies the
Consultant against all liability for such infringement and against all
liability from allegations of such infringement.
5. As between the Client and the Consultant, the Client shall own each
Deliverable, and the Foreground Intellectual Property associated with that
Deliverable, once the Consultancy Fees and Consultant's Expenses in respect
thereof have been paid.
6(1). Upon conditions, the Client hereby grants, and agrees to grant, to the
Consultant an irrevocable license to engage in the Licensed Activities.
6(2). The conditions are that the Consultant shall during the existence of
Foreground Intellectual Property
(a) pay the Client 5% of net revenues from the Licensed
Activities (hereinafter, "the Foreground Intellectual Property Royalties");
(b) the Consultant shall pay all applicable GST on the
Foreground Intellectual Property Royalties;
(c) report, in accordance with the notice provision of this Agreement,
all Foreground Intellectual Property infringements of which the
Consultant becomes aware; and
<PAGE>
(d) but only so long as this Agreement is in effect, not resell, license
or transfer rights to the Licensed Activities to another person without
the expressed permission of the Client.
Relationship Between the Client and the Consultant
7. The relationship between the Client and the Consultant shall be that of
client and independent contractor and, without limiting the generality of the
foregoing, neither one of them shall
(a) be considered as an agent, principal, partner, or joint venturer of
the other or
(b) have any power to commit the other to any expenditure or other
obligation except as provided by this Agreement.
Insurance & Indemnification
8. The Client shall
(a) have the full responsibility for the purchase of all health and
medical, accident or other insurance of the Client which may
be necessary in respect to any loss, injury, damage or illness occurring
as a result of this Agreement;
(b) indemnify the Consultant for, and absolve the Consultant of, all
responsibility for all prejudice, loss or damage sustained as a result of
the non-observance of this Agreement and for any court action, claim or
charge of any kind, including but not limited to taxes, which may result
from a wrongful act of commission or omission perpetrated by the Client
pursuant to this Agreement; and
(c) bear all legal costs and other legitimate expenses incurred in connection
with any legal action in which the Consultant may be implicated as the result
of an offense committed by the Client.
Assignabilitv & Delegabilitv
9. The Consultant shall endeavour to retain the services of Natalie Prowse for
the duration of this Agreement. However, the Consultant, but not the Client,
may assign or delegate the Work, and this Agreement, in whole or in part.
Notices
10. All notices or deliveries under this Agreement shall be in writing, dated,
signed and delivered
(a) to a fax, or address, specified on the first page of this Agreement; or
<PAGE>
(b) to an amended fax, or amended address, specified by notice; or
(c) in person.
Entirety of this Document
11. This document is the entire evidence of the agreement between
the parties to this Agreement and supersedes all previous communications, and
agreements, between them.
Amending this Agreement
12. Except through section 10(b) of this Agreement, the
parties to this
Agreement may amend this Agreement only by written agreement dated
and signed
by, and delivered to, both of them.
Interpretation & Applicable Law
13(1). The headings in this document are included for reference convenience
only do not form part of this Agreement.
13(2). Every provision of this Agreement, and every part of those provisions,
shall be severable. If any such provision, or part of a provision, is
adjudicated as invalid or unenforceable then the balance shall survive.
13(3). This Agreement shall be interpreted, construed, and applied, in
accordance with the law of Ontario, Canada.
Dispute Resolution
14. In the event of a dispute between the parties to this Agreement, arising
out of, or relating to this Agreement, they shall
(a) make a good faith effort to settle it amicably; and
(b) if they do not settle it amicably, then the dispute shall be settled
by instituting
(i) through a notice in accordance with the notice provision of
this Agreement, arbitration by a sole arbitrator to be appointed by
mutual agreement; or
(ii) failing such appointment, arbitration by the President of the
International Court of Justice.
Commencement & Termination
15. This Agreement shall be in effect from the Effective Date.
<PAGE>
16. Unless terminated in accordance with section 17 of this
Agreement, this Agreement shall terminate at the end of the twenty-fourth
full calendar month following the Effective Date.
17. This Agreement may be terminated
(a) by either party to this Agreement by 30 days notice in
accordance with the notice provision of this Agreement; or
(b) at the option of the Consultant, upon any change in the
ownership or control of the Client.
ACCORDINGLY, the Client and the Consultant have dated, signed,
and delivered this document.
Name: Global Business Information Directory Ltd.
Date: April 10, 1999
Signature: /s/ Stephen Carmichael
Stephen Carmichael
President
Name: Netfacet Computing Inc.
Date: April 10, 1999
Signature: /s/ Natalie Prowse
Natalie Prowse
President
INSIGNIA CORPORATE ESTABLISHMENTS (U.S.) INC.
LEASE AGREEMENT
INSIGNIA CORPORATE ESTABLISHMENTS (U.S.) INC., a Washington corporation
("Landlord"), operates a suite of executive offices located at 999 Third
Avenue, Suite 3800, Seattle, Washington, 98104. GLOBAL BUSINESS INFORMATION
DIRECTORY, INC. ("Tenant") desires to lease a suite at Landlord's executive
offices. Landlord and Tenant enter this Lease Agreement ("Lease"),
containing the following terms and conditions, and agree that the Lease
constitutes a legally binding contract.
TERMS AND CONDITIONS
1. THE PREMISES
Landlord rents to Tenant the space identified in Schedule "A" to the Lease
("premises").
2. LEASE TERM
The lease term starts on April 15, 1999, and continues for six (6) months
until October 31, 1999. The Lease will automatically renew at the end of
this initial term unless either Tenant or Landlord delivers a written notice
of termination to the other party by August 31, 1999. Any renewed lease
shall contain the same terms and conditions as the present lease, except
that the base rent shall be the market rate charged by the Landlord at the
time of lease renewal.
3. BASE RENT
The monthly base rental rate ("base rent") shall be Seven Hundred Twenty
Five and No/100 Dollars ($725.00). Base rent includes the amenities and
services specified as "included" in Schedule "C" to the Lease. If requested
by Tenant, Landlord will provide any of the additional monthly services
identified in Schedule "C" at the current rates.
4. BUILDING OPERATING COSTS
Tenant agrees to pay their proportionate share of any increase in the
building operating costs over the base year 1999 as determined by the
building owners. The amount of any increase will be payable on a monthly
basis separate from the base rent.
<PAGE>
5. PAYMENT AND LATE CHARGES
Base rent, fixed charges, services and variable costs are due and payable on
or before the first day of each month ("monthly payments"). Tenant agrees to
pay a late charge equal to ten percent (10%) of the monthly payment if
Landlord does not receive the monthly payment on or before the fifth (5th)
day of the month in which it is due. Interest on overdue accounts will be
charged at the rate of 18% per annum. Tenant agrees to be liable as the
maker on all checks tendered on their behalf to Landlord. If any check
tendered on Tenant's behalf is returned for insufficient funds, uncollected
funds or stopped payment, Tenant agrees to pay a fifty dollar ($50.00)
service charge to Landlord, plus any accrued interest or late charges.
6. SECURITY DEPOSIT
Upon execution of the Lease, Tenant shall deposit with Landlord the amount
of One Thousand Four Hundred Fifty and No/100 DOLLARS ($1,450.00)("security
deposit"). This security deposit is not an advance payment of rent or a
measure of Landlord's damages if Tenant defaults on the Lease. During the
lease term, the Landlord can use the security deposit to make good any
arrears in rent or repair any damage Tenant causes to the premises,
excluding normal wear and tear. If Landlord uses any of the security deposit
for these purposes, Tenant shall, within ten (10) days after receiving
Landlord's written notice, restore the security deposit to its original
amount. If Tenant's account is in good standing and there are no offsetting
charges, Landlord will refund the security deposit to the Tenant within
thirty (30) days of the Lease's termination and vacant possession of the
leased premises (including the return of all keys, access and parking cards).
7. BUSINESS HOURS AND ACCESS
Landlord's hours of service are 8:00 a.m. to 5:00 p.m., Monday through
Friday, except for legal holidays. Tenant shall have access to the premises
twenty-four (24) hours a day, seven days a week, providing Tenant is not in
default of the Lease.
8. USE OF PREMISES
Tenant shall use the premises solely for general office purposes in a manner
consistent with a first class office building and in accordance with
applicable zoning regulations. Tenant is bound by the same rules and
regulations governing the conduct of the building's tenants as is Landlord.
Tenant may obtain a copy of the building's rules and regulations by submitting
a written request to the Landlord. Tenant shall not offer a service to
Landlord's other tenants which is part of the amenities and services Landlord
currently provides. Tenant will not \Without Landlord's prior written approval,
install or
<PAGE>
operate on the premises any equipment which requires a separate electrical
circuit, makes excessive noise, produces excessive heat or is a potential
fire hazard if not properly monitored.
9. MAINTENANCE OF PREMISES
Landlord will handle all contact with the building management regarding any
maintenance and/or service-related item. Tenant shall, at its sole cost and
expense, keep the premises in good repair and condition (reasonable wear and
tear excepted). Tenant shall not hang pictures or make any other
alterations, installations or improvements without the Landlord's consent,
such consent not to be unreasonably withheld. If Landlord has to perform any
special cleaning or repair any damage resulting from Tenant's occupancy of
the premises (excluding reasonable wear and tear), the costs of such
cleaning or repair will be deducted from the security deposit.
10. DAMAGE OR LOSS OF PROPERTY
Landlord is not responsible or liable for any damage to or loss of Tenant's
property or that of the Tenant's guests unless the loss is due to the
Landlord's gross negligence or willful misconduct. Each party shall be
responsible for carrying such insurance as it deems necessary to protect its
own interests.
11. HOLD HARMLESS
Landlord shall not be liable for damage or injury to Tenant, its employees
or guests unless caused by Landlord's gross negligence or willful
misconduct. Tenant shall hold Landlord harmless from any loss, damage,
liability, claim, attorneys' fee or expense resulting from the negligence or
misconduct of Tenant, its employees or guests.
12. TELEPHONE AND LONG DISTANCE CHARGES
Tenant is responsible for all telephone and long-distance charges to its
account. Landlord is not liable for any charges to Tenant's account, including
those caused by unauthorized access to telephone equipment or lines.
13. NUISANCE
Notwithstanding any other clause contained in the Lease, Landlord can
terminate this Lease if it determines, in its sole discretion, that the
conduct of the Tenant, its employees or guests unreasonably disrupts or
disturbs Landlord s other tenants, employees or staff.
<PAGE>
Tenant shall be responsible for assuring that its employees and guests
conduct themselves in an appropriate manner.
14. PROPERTY ON PREMISES
Any property Tenant leaves on the premises after the Lease is terminated or
the Lease term ends shall be deemed abandoned and become the Landlord's
property. To secure amounts due under the Lease, Landlord shall have a
contractual lien upon all property brought onto the premises. The Uniform
Commercial Code of Washington shall govern the scope and application of this
lien.
15. LANDLORD ACCESS TO PREMISES
Landlord and its agents may enter the premises at all reasonable times to
inspect, clean, repair, alter or improve the same. Landlord shall have
unlimited access to show the premises upon Tenant's written notification
that it does not intend to renew the Lease. When possible, Landlord will
provide Tenant with reasonable notice before entering the premises.
16. No ASSIGNMENT OR SUBLEASE
Tenant shall not assign or sublease the premises or any part thereof.
17. EMPLOYEE REPLACEMENT COSTS
Landlord spends a substantial amount of time, money and effort to train its
employees. Tenant, and all entities directly or indirectly associated with
Tenant, agrees that during the term of the Lease and for one (1) year
thereafter, it will not, without Landlord's written permission, hire or
attempt to hire, as either an employee or independent contractor, Landlord's
employees, temporary employees or independent contractors. Tenant further
agrees not to hire any of Landlord's former employees within six (6) months
from the date they leave Landlord's employment. Tenant agrees to pay
Landlord a procurement fee of Ten Thousand and No/100 Dollars ($10,000.00)
for each person Tenant hires in violation of this Paragraph.
18. DEFAULT BY TENANT
Landlord may, at its election, declare Tenant in default of the Lease if any
of the following events occur:
<PAGE>
(1) Tenant falls to make any monthly payment when due and such failure
continues for five (5) days after Tenant receives the Landlord's written
notice that the monthly payment is late,
(2) Tenant abandons a substantial portion of the premises.
(3) Within ten (10) days of receiving written notice from the Landlord,
Tenant fails to cure its breach of any provision of the Lease (other than
the requirement to timely pay tent).
(4) Tenant files a petition for bankruptcy or is adjudged insolvent.
(5) A lien is filed against the premises or the building because of an act
done by or on Tenant's behalf.
(6) Within ten (10) days of receiving Landlord's written request, Tenant is
unable to prove Its continuing ability to perform under the Lease.
19. REMEDIES FOR TENANT'S DEFAULT
If Tenant is In default of the Lease, Landlord may, Without prejudice to any
of the Landlord's legal remedies, pursue one or more of the following
contractual remedies:
(1) Landlord may terminate the Lease and require Tenant to immediately
surrender possession of the premises. Tenant agrees to pay on demand the
amount of Landlord's lose or damage if Tenant falls to immediately vacate
the premises after termination of the Lease. Landlord may terminate the
Lease only by mailing or delivering written notice of such termination to
the Tenant. No other act or omission of the Landlord shall be construed as a
termination of the Lease.
(2) Landlord may disconnect Tenant's telephone lines, mark mail and express
deliveries "return to sender" and limit Tenant's access to the promises.
(3) Landlord may enter upon, take possession of and relet the premises an
such terms as Landlord, in its sole discretion, determines to be appropriate.
(4) Landlord may accelerate and declare immediately due all sums that Tenant
is required to pay under the Lease.
20. INSPECTION
Tenant and Landlord have inspected the promises and agree they are in
acceptable condition.
<PAGE>
21. NOTICES
All notices by Landlord or Tenant to the other Must be in writing and either
delivered or mailed to the Landlord or Tenant at the respective addresses
set forth below:
Insignia Corp. Est. (U.S.)Inc. Global Business Information Directory, Inc.
999 Third Avenue, Street 3800 999 Third Avenue, Suite 3800
Seattle, WA 98104 Seattle, WA 98104
22. OFFICE SUPPORT SERVICES
Landlord shall only be liable for errors and omissions in the providing of
support services that result from gross negligence or willful misconduct of
Landlord or its employees. Tenant is responsible for the final proofreading
of all documents, verification of addresses and the like. Landlord is not
responsible for the conduct of Tenants business.
23. GOVERNING LAW
This Lease shall be interpreted according to the laws of the State of
Washington. Venue for any legal action necessary to enforce this Lease shall
be in King County, Washington. If legal action is necessary to enforce this
Lease, the prevailing party shall be allowed to recover its reasonable
costs, expenses and attorneys' fees. including those incurred prior to the
start of litigation.
24. ENTIRE AGREEMENT
Landlord and Tenant expressly agree, as a material consideration for the
execution of the Lease, that the written Lease and attached schedules
represent the entire agreement between the parties. Landlord and Tenant
further agree that there are and were no verbal representations, warranties,
understandings, stipulations, agreements or promises relating to the Lease that
have not been incorporated in writing into the Lease.
Any amendments to this Lease will be made in writing and signed by both the
Landlord and Tenant.
<PAGE>
UPON EXECUTION OF THIS LEASE, Tenant shall pay the total amount of Two
Thousand Four Hundred Twenty Six and 09/100 Dollars ($2,426.09) as detailed
on Schedule "B." By signing this Lease, Tenant acknowledges its
understanding and acceptance of the Lease's terms, conditions, policies and
charges.
IN WITNESS WHEREOF the parties hereto, through their authorized agents, have
signed their names this 6th day of April, 1999.
GLOBAL BUSINESS INFORMATION DIRECTORY, INC.
Signature: /s/Stephen Carmichael
By: Stephen Carmichael
Title: President
INSIGNIA CORPORATE ESTABLISHMENTS (U.S.) INC.
Signature: /s/Dean G. von Kallenbach
By: Dean G. von Kallenbach
Title: Vice President / Real Estate
<PAGE>
[DIAGRAM] SCHEDULE "A"
Thirty-Eighth Floor
Insignia Corporate Establishments
999 Third Avenue
<PAGE>
SCHEDULE "B"
SUMMARY OF CHARGES AND DEPOSITS
Rent (April 15-30, 1999) $362.50
Speakerphone with conference ability and telephone service
(2 lines, including direct dial number) 125.00
Modem line ($65 each) 65.00
Installation/programming of telephone and system 200.00
(One-time charge)
Furniture (1 set@ $175.00) 175.00
King County Local Sales and Use Tax (8.6%) 48.59
Security Deposit 1,450.00
Total Initial Charges $2,426.09
<PAGE>
SCHEDULE "C"
AMENITIES AND SERVICES PROVIDED
ITEMS INCLUDED IN THE BASIC RENT:
Leased Premises as designated on Schedule "A" . . . . . . .Included
Reasonable conference room privileges . . . . . . . . . . .Included
Use of guest office for out-of-town guests . . . . . . . .Included
Use of furnished reception area . . . . . . . . . . . . . .Included
Professional receptionist services . . . . . . . . . . . .Included
Personalized telephone answering services with
unlimited calls . . . . . . . . . . . . . . . . . . . . . Included
Integrated voice mail with paging capability
(1 voice mailbox per phone). . . . . . . . . . . . . . . . Included
Mail handling for daily incoming and outgoing mail . . . . Included
Notary services ............................. . . . . . . . Included
Coffee, tea and hot chocolate . . . . . . . . . . . . . . . Included
Full use of kitchen . . . . . . . . . . . . . . . . . . . . Included
Utilities and maintenance (per building standard) . . . . . Included
Janitorial SERVICE FIVE DAYS PER WEEK . . . . . . . . . . . Included
Full use of Denver, Vancouver and Calgary locations . . . . Included
Fixed Charges and Variable Costs not included in the Basic Rent:
Optional signage (suite entry, building lobby, elevator lobby)
.................................................$200/one-time fee
Optional furniture (1 desk, 1 credenza and 3 chairs per set)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . $175/set/mo.
Parking . . . . . . . . . . . . . . . . . . . . . . $220/mo./vehicle
Speaker telephone with conference calling and telephone
. . . . . . . . . . . . . . . . . . . . . . . . service $125/set/mo.
Dedicated telephone lines . . . . . . . . . . . . . . .$65*/line/mo.
Dedicated modem and fax lines . . . . . . . . . . . . .$65*/line/mo.
Toll free line . . . . . . . . . . . . . . . . . . .$15.00/fine/mo.
Direct dial number . . . . . . . . . . . . . . . . .$25.00/each/mo.
Initial telephone installation and programming . . $200/set or line
Telephone programming changes . . . . . . . . . . . . . . $25/change
Additional voice mail boxes . . . . . . . . . . . . . . . . .$25/box
Photocopies . . . . . . . . . . . . . . . . . . . . . . . .$.12/copy
Facsimile services (transmitting and receiving) . . . . . .$1 */page
Administrative support services . . . . . . . . . . . . . . $30/hour
Add itional/replacement keys . . . . . . . . . . . . . . . .$5/each
Replacement parking pass/building access cards . . . . . . $12/each
Postage, shipping and courier costs . . . . . . . . . . . . .As used
Office supplies . . . . . . . . . . . . . . . . . . . . . . .As used
Parking validations . . . . . . . . . . . . . . . . . . . . .As used
PRICES SUBJECT TO CHANGE -- WASHINGTON STATE SALES TAX MAY APPLY.
* DISCOUNTED LONG-DISTANCE CHARGES APPLY ON ALL LONG-DISTANCE CALLS.
EXODUS COMMUNICATIONS, INC.
EQUIPMENT PURCHASE AGREEMENT
This Equipment Purchase Agreement (the "Agreement") is
entered into between Exodus Communications, Inc.
("Exodus") and GBID(the "Customer") is entered into as of
May 10, 1999 (the "Effective Date").
N O W, T H E R E F O R E, in consideration of the premises and
mutual promises herein contained, Customer agrees to purchase
and Exodus agrees to deliver to Customer the equipment
(the "Equipment") set forth on Order Form attached hereto as
Exhibit A, as follows:
1. SHIPPING AND HANDLING. All Equipment is provided FOB Santa
Clara, California. Shipment will be made as specified by Customer and
Customer is solely responsible for all expenses in connection with the
delivery of the Equipment. The Equipment will be deemed accepted by
Customer upon receipt.
2. PURCHASE PRICE AND TAXES. Customer shall pay to Exodus the purchase
price as defined on Exhibit A hereto ("Purchase Price") for each item of
Equipment. Customer hereby grants and Exodus reserves a security
interest in the Equipment and the proceeds thereof as a security for its
obligations hereunder until payment of the full Purchase Price to Exodus.
The Purchase Price is due and payable prior to delivery of the Equipment.
Customer shall pay all taxes and other governmental charges assessed in
connection with the rental, use or possession of the Equipment including,
without limitation, any and all sales and/or use taxes and personal property
taxes (other than taxes on Exodus' net income).
3. TITLE. Customer shall acquire title to the Equipment upon full
payment of the purchase price(s) set forth herein. Notwithstanding the
foregoing, Exodus and any licensor of rights to Exodus shall retain title
to and rights in the intellectual property (whether or not subject to
patent or copyright) and content contained in the materials supplied
under the terms of this Agreement.
4. SELECTION OF EQUIPMENT; MANUFACTURER WARRANTY. Customer acknowledges
that is has selected the Equipment and disclaims any statements made by
Exodus. Customer acknowledges and agrees that use and possession of
the Equipment by Customer shall be subject to and controlled by the
terms of any manufacturer's or, if appropriate, supplier's warranty,
and Customer agrees to look solely to the manufacturer or, if appropriate,
supplier with respect to all mechanical, service and other claims,
and the right to enforce all warranties made by said manufacturer are
hereby, to the extent Exodus has the right, assigned to Customer.
THE FOREGOING WARRANTY IS THE EXCLUSIVE WARRANTY AND IS IN LIEU OF
ANY ORAL REPRESENTATION AND ALL OTHER WARRANTIES AND DAMAGES, WHETHER
EXPRESSED, IMPLIED OR STATUTORY. EXODUS HAS NOT MADE NOR DOES MAKE ANY OTHER
WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION
ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
OR OF NONINFRINGEMENT OF THIRD PARTY RIGHTS AND AS TO EXODUS AND ITS
ASSIGNEES, CUSTOMER PURCHASES THE EQUIPMENT "AS IS".
5. LIMITATION OF LIABILITY. Exodus' entire liability for any damages
which may arise hereunder, for any cause whatsoever, and regardless of the
form of action, whether in contract or in tort, including Exodus'
negligence, or otherwise, shall be limited to the Purchase Price paid
by Customer for the Equipment. IN NO EVENT WILL EXODUS BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS
OF BUSINESS OR PROSPECTIVE BUSINESS OPPORTUNITIES, PROFITS, SAVINGS,
INFORMATION, USE OR OTHER COMMERICAL OR ECONOMIC LOSS, EVEN IF EXODUS
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. GOVERNING LAW; DISPUTE RESOLUTION. This Agreement is made under and
will be governed by and construed in accordance with the laws of the
State of California (except that body of law controlling conflicts of law)
and specifically excluding from application to this Agreement that
law known as the United Nations Convention on the International Sale of
Goods. The parties will endeavor to settle amicably by mutual discussions
any disputes, differences, or claims whatsoever related to this
Agreement. Failing such amicable settlement, any controversy, claim,
or dispute arising under or relating to this Agreement, including the
existence, validity, interpretation, performance, termination or breach
thereof, the parties to this Agreement hereby consent to jurisdiction
and venue in the courts of the state of California and in the U.S. District
Courts in the City of San Francisco, California.
7. MISCELLANEOUS. The above terms and conditions are the only terms
and conditions upon which Exodus is willing to sell the Equipment and
supersedes all previous agreements, promises or representations, oral or
written. Any additional or different terms in any purchase order or other
response by Customer shall be deemed objected to by Exodus without need of
further notice of objection, and shall be of no effect or in any way
binding upon Exodus. No waiver of any breach or default by or failure to
require strict performance of Customer shall waive any other breach or
default. This Agreement may be executed in two or more counterparts, each
of which will be deemed an original, but all of which together shall
constitute one and the same instrument. Once signed, any reproduction of
this Agreement made by reliable means (e.g., photocopy, facsimile) is
considered an original. This Agreement may be changed only by a written
document signed by authorized representatives of Exodus and Customer.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
Effective Date first set out above.
EXODUS COMMUNICATIONS INC. GLOBAL BUSINESS INFORMATION DIRECTORY, INC.
By: By: /s/Stephen Carmichael
Name: Name: STEPHEN CARMICHAEL
Title: Title: PRESIDENT/CEO
<PAGE>
Customer Name: Global
Customer Name: Global Business Information Directory
Form Date: 1/15/99
Form No.: 0115-2c
Installation Site(s): Seattle IDC
Server Housing:
<TABLE>
<S> <C> <C> <C> <C> <C>
Internet Data Brief Description Qty Unit Extended Extended
Center Services (Detailed description Price Non- Monthly
attached) Recurring Fees
Fees
EXO-RACK-50 CyberRack (19" or 23" 1 $600 $940
Half Rack)
EXO-RACK-51SU CyberRack Setup 1 $600 $1,000
________ ______
Total: $1,000 $940
</TABLE>
Management Services:
<TABLE>
<S> <C> <C> <C> <C> <C>
Internet Data Brief Description Qty Unit Extended Extended
Center Services (Detailed description Price Non- Monthly
attached) Recurring Fees
Fees
EXO-SHMS-PRO SystemHealth Monitoring 4 $440 $1,760
Pro for NT
NT Systems (Per application
server)
EXO-BCMM Tape Media Management 1 $440 $ 440
EXO-BCMM-SU Setup-Tape Media Management 1 $440 $440
_________ _______
Total: $440 $2,200
</TABLE>
<PAGE>
INTERNET DATA CENTER SERVICES
ORDER FORM
Customer Name: Global
Customer Name: Global Business Information Directory
Form Date: 1/15/99
Form No.: 0115-2c
Installation Site(s): Seattle IDC
Type of Service(s): New
Ethernet (10 Mbps) Usage Based Bandwidth Service:
<TABLE>
<S> <C> <C> <C> <C> <C>
Internet Data Brief Description Qty Unit Extended Extended
Center Services (Detailed description Price Non- Monthly
attached) Recurring Fees
Fees
EXO-ETHER-UI 1 Mbps base Ethernet with 1 $1,100 $1,100
10 Mbps burstability
EXO-ETHER-SU Semp-Ethernet Network 1 $1,100 $1,100
________ ______
Total: $1,100 $1,100
</TABLE>
Variable Usage above 1 Mbps Base:
<TABLE>
<S> <C> <C> <C>
Internet Data Brief Description Qty Per Megabit
Center Services (Detailed description attached)
EXO-ETHER-UV Variable Usage Cost per Megabit 1 $1,430
Above Base Amount ($/megabit)
</TABLE>
<PAGE>
Customer Name: Global
Customer Name: Global Business Information Directory
Form Date: 1/15/99
Form No.: 0115-2d
Installation Site(s): Seattle IDC
Telco Provisioning:
<TABLE>
<S> <C> <C> <C> <C>
Product Number Description Qty NRC MRC
EXO-XCON-POTS POTS Cross Connection 1 $60
Total: $60
</TABLE>
Note:
"Lead time is normally 5 to 7 weeks. The exact installation time will
be determined by the specified local telecommunications company."
<PAGE>
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES ORDER FORM
SERVICES AND PRICES
Customer Name: Global Business Information Directory
Form Date: 1/15/99
Form No.: 0115-2
IMPORTANT INFORMATION:
(1) By submitting this Internet Data Center Services Order Form (Form)
to Exodus Communications, Inc. (Exodus), Customer hereby places an
order for the Internet Data Center Services described herein pursuant
to the terms and conditions of the Internet Data Center Services
Agreement between Customer and Exodus (IDC Agreement).
(2) Billing. With the exception of Setup Fees, will commence on the
earlier of the Installation Date indicated below or the date Customer
actually installs its equipment or Exodus begins providing Internet
Data Center Services. All Setup Fees will be billed upon receipt
of a Customer signed IDC Services Order Form.
(3) Exodus will provide the Internet Data Center Services pursuant to
the terms and conditions of the IDC Agreement, which incorporates
this Form. The terms of this Form supersede, and by accepting this
Form Exodus hereby rejects any conflicting or additional terms
provided by Customer in connection with Exodus' provision of
Internet Data Center Services. If there is a conflict between this
Form and any other Form provided by Customer and accepted by
Exodus, the Form with the latest date will control.
(4) Exodus will not be bound by or required to provide Internet Data
Center Services pursuant to this Form or the IDC Agreement until each
is signed by an authorized representative of Exodus.
Customer to complete:
CUSTOMER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER.
Installation Date: 4 days or install April 30, 1999
Submitted By: /s/Stephen Carmichael
Print Name: Stephen Carmichael
Title: President/CEO
Submission Date: 24/02/99
Exodus Communications, Inc. Acceptance
/s/Sue Irvine
Date: 4/10/99
GBID EMPLOYMENT AGREEMENT
This Employee Agreement is dated for reference the 21st day of June
1999.
BETWEEN:
GLOBAL BUSINESS INFORMATION DIRECTORY INC., a company duly incorporated
under the laws of Colorado, and having a business office located at
999 3rd Avenue, Suite 3800, Seattle, Washington, 98104
(the "Company")
OF THE FIRST PART
AND:
DANIEL MCKENNA
of 1982 E. 5th Avenue, Vancouver, BC V5N 1M2
(the "Employee")
OF THE SECOND PART
WHEREAS:
A. The Company is engaged in, inter
alia, the business of research, developing
and distribution of Internet business and
marketing tools, including without
limitation, search engines;
B. The Company is desirous of
establishing an excellent reputation in the
marketplace and has agreed to employ the
Employee to assist in achieving that goal on
the terms and conditions hereinafter set forth;
C. The Employee has agreed to be
contracted by the Company upon the terms and
conditions hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH that
in consideration of the premises and mutual
covenants and agreements herein contained,
the parties hereto covenant and agree each
with the other as follows:
1. EMPLOYMENT
The Company hereby contracts the
Employee as Sales and Marketing Manager of
the Company for North, Central and South
Americas and the Employee hereby accepts
such contract, to perform the duties and
render the services set forth herein during
the term of this Agreement.
<PAGE>
2. TERM
This Agreement will commence
immediately upon the execution of this
Agreement by both parties, and shall
continue in full force and effect until
terminated by either side.
3. COMPENSATION
As compensation for the services
of the Employee during the term of this
Agreement, the Company shall pay and the
Employee earn:
A. Salary would be equal to $5,500.00 US per month
($66,000.00US per year), paid on the 15th and 30th/31st of
the month.
B. Commission equal to 1.5% of total sales generated from
the sales of Web Sites, Web Site Construction, and any
other revenue generated from the efforts of the
Marketing and Promotions Group.
C. Immediate implementation of 25,000 restricted trading shares in the
name of Daniel McKenna.
D. Additional 25,000 restricted trading shares implemented October
1st, 1999 for a total of 50,000 shares. All shares will have a
one-year restriction as of March 31, 1999 or when GBID is sold
which ever comes first.
E. GBID guarantees a 1-year contract with a buy out of the balance of
the year should GBID terminate the contract of employment.
F. Issues such as expense account, moving allowance (relocation to the
Seattle area) etc. to be negotiated or implemented upon signing of
contract. The policy for expenses should be outlined in the
company policy book or directors policy outline.
4. REIMBURSEMENT FOR EXPENSES
The Employee will be reimbursed
for all reasonable out-of-pocket expenses
incurred by the Employee in or about the
execution of his employment, including,
without limiting the generality of the
foregoing, all promotion related travel and
promotional expenses payable or incurred by
the Employee in connection with his duties
under this Agreement. Reimbursement for expenses to be
repaid on a bi-weekly basis upon receiving expense sheet
from the employee.
<PAGE>
5. DUTIES AND SERVICES
During the term of this
Agreement, the Employee agrees to:
(a) Carry out the duties of Director of Marketing and
Sales as outlined in the letter to the employee dated
April 9, 1999.
(b) Do his/her utmost to enhance and develop
the best interests and welfare of the Company,
(c) Give his/her best efforts and skill to
advancing and promoting the growth and success of the
Company; and
(d) Perform such duties or render such services
as the Board of Directors of the Company may from time
to time reasonably confer upon or impose on the Employee.
6. DEVOTION OF TIME
It is acknowledged and agreed by
the Employee that the work of the Employee
is and will be of such a nature that regular
hours may be impossible, and there may be
occasions in which the Employee will not be
required to work a full seven hours per day
and/or a full five days per week. It is
also anticipated that there will be certain
evenings, Saturdays, Sundays and holidays
during which the Employee will be required
to work.
7. TERMINATION OF AGREEMENT
Notwithstanding any other
provision herein, it is understood and
agreed by and between the parties hereto
that the Employee may resign his employment
hereunder by giving one (1) months written
notice of such intention to resign, and the
Company may terminate this Agreement in its
entirety without cause upon providing
fifteen (15) days written notice, or fifteen
(15) days full pay as a termination
allowance in lieu of notice, together with
any unpaid expenses, and the Employee does
hereby agree that such termination allowance
will be payment in full for any discharge by
the Company.
8. CONFIDENTIAL INFORMATION
The parties hereto acknowledge
and agree that the Employee will have access
to confidential and secret information and
therefore the Employee agrees that during
the term of this Agreement and on
termination or expiry of same, for any
reason whatsoever, the Employee will not
divulge or utilise for his own benefit or to
the detriment of the Company any of such
secret or confidential information for a
period not less than 5 years.
<PAGE>
9. PERSONAL CONTRACT
This Agreement and all other
rights, benefits and privileges herein
confirmed will be personal, and accordingly
may not be assigned by the Employee.
10. NOTICES
All notices or other instruments
or communications provided for in this
Agreement shall be in writing and signed by
the party giving same and shall be deemed
properly given if sent by registered mail or
courier deliver addressed to such party at
the address set out above, or to such
facsimile number as each party to this
Agreement has provided to the other from
time to time. Each party may by notice to
the other party, specify any other address
or facsimile number for the receipt of such
notices, instruments or communications. Any
notice, instrument or communication sent by
facsimile transmission shall be deemed
properly given on the day sent. Any notice,
instrument or communication sent by
registered mail or couriered delivery shall
be deemed properly given on the day the
notice, instrument or communication arrives
at the address of destination.
11. GOVERNING LAW
This Agreement shall be governed
by the laws of the State of Colorado.
12. ENTIRE AGREEMENT
This Agreement represents the
entire agreement between the parties and
supersedes any and all prior agreements and
understandings, whether written or oral,
between the parties. The Employee
acknowledges that he was not induced to
enter into this Agreement by any
representation, warranty, promise or other
statement except as contained herein.
13. AMENDMENT
This Agreement may not be
amended or otherwise modified except by an
instrument in writing signed by both parties.
14. HEADINGS
All headings and titles in this
Agreement are for reference only and are not
to be used in the interpretation of the
terms hereof.
15. GENDER
Wherever the singular or the
masculine is used herein, the same shall be
deemed to include the plural or the feminine
or the body politic or corporate where the
context or the parties so require.
<PAGE>
16. COUNTERPART AND FACSIMILE
This Agreement may be signed in
counterpart, which counterparts taken
together shall constitute one and same
agreement and any facsimile signature shall
be taken as an original.
IN WITNESS WHEREOF the parties hereto have
executed this Agreement as of June 21st, 1999
GLOBAL BUSINESS INFORMATION DIRECTORY INC.
/s/ Stephen W. Carmichael
STEPHEN W. CARMICHAEL, GBID
/s/ Daniel McKenna
DANIEL MCKENNA, Employee
LICENSE AGREEMENT
October 10th, 1998
Between Global Business Information Directory, Inc. (the
"Company"), a Delaware company and Stephen Wayne Carmichael (the
"Supplier"), of 5575 Eleanor Street, Burnaby, BC, Canada, V5J 3E1
The agreement shall state the following
1. The Supplier shall supply the Company with the ideas,
technology direction, preliminary financing and
management in the creation of a business-to-business
Internet telephone directory (the "Directory") to be
further developed by the Company.
2. The Company will issue 3,000,000 shares (the
"Shares") to the Supplier.
3. The Company shall be the sole owner of the Directory
and its accompanying technology upon delivery of the
Shares.
4. Upon delivery of the Shares, the Supplier will hold
no further claim to the Directory and/or any associated
technology.
This agreement is dated October 10, 1998 in Vancouver, BC, Canada
Accepted and agreed by:
GLOBAL BUSINESS INFORMATION DIRECTORY, INC.
/s/Derick Walker
Derick Walker (Board Member)
/s/Stephen W. Carmichael
Stephen W. Carmichael
