EX-2 ACQUISITION AGREEMENT
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT ("Agreement") is made as of January 20,
2004 by and between iBIZ Technology Corp., a Florida corporation
("iBIZ"), and the interestholders of Synosphere, LLC ("Shareholders"),
a Texas limited liability company ("Synosphere").
RECITALS
WHEREAS, the Shareholders are the owners of all the issued and
outstanding membership interests ("Interests") of equity of
Synosphere; and
WHEREAS, iBIZ desires to purchase from the Shareholders, and the
Shareholders desire to sell to iBIZ, all the Interests in accordance
with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the respective covenants contained
herein and intending to be legally bound hereby, the parties hereto
agree as follows:
AGREEMENTS
1. Purchase and Sale. Subject to the terms and conditions contained
in this Agreement, on the Closing (defined below), the Shareholders
shall sell, assign, transfer and deliver to iBIZ all of the Interests
representing in the aggregate Five Million (5,000,000) Interests.
iBIZ shall sell, assign, transfer and deliver to the Shareholders 6
shares (an aggregate of Thirty Million (30,000,000) shares) of common
stock ("Common Stock") for each Interest, collectively referred to
hereinafter as the "Purchase Price."
At the option of the Shareholders labeled "Investors" on the
spreadsheet set forth in Exhibit A to this Agreement can receive
either his pro rata share of Common Stock or receive a cash payout
option at Closing of his pro rata portion of the total of Ninety-Two
Thousand Dollars ($92,000) or a combination of Common Stock and cash
payout at their discretion (as set forth in Exhibit A). If an
Investor chooses the cash payout option at closing, then the Investor
shall receive the cash payout option in three equal payments that are
forty-five (45) days apart, beginning sixty (60) days following the
Closing of this transaction, as defined below.
The Shareholders labeled "Founders" on the spreadsheet set forth in
Exhibit B to this Agreement shall receive his portion of Common Stock
and distributed as set forth in the Registration Rights Agreement
(Exhibit C).
2. Closing. The closing (the "Closing") of the sale and purchase of
the Interests shall take place on January 20, 2004, or at such other
date, time or place as may be agreed upon in writing by the parties
hereto, but not later than January 20, 2004 ("Termination Date").
The date of the Closing is sometimes herein referred to as the "Closing."
2.1 Items to be Delivered Immediately Prior to or at Closing. At the
Closing:
(a) The Shareholders shall deliver to iBIZ a certificate or
certificates representing Five Million (5,000,000) Interests,
duly endorsed in blank or accompanied by stock powers duly
executed in blank, and the executed Registration Rights Agreement.
(b) iBIZ shall deliver to the Shareholders not accepting the
cash payout option, as discussed above, a certificate or
certificates representing an aggregate of Thirty Million
(30,000,000) shares of Common Stock, duly endorsed in blank or
accompanied by stock powers duly executed in blank, and the
executed Registration Rights Agreement.
3. Shareholder Representative. The Shareholders hereby irrevocably
constitute and appoint Bryan A. Scott, with full power of
substitution and re-substitution, as its and their true and lawful
agent, attorney-in-fact and representative (such person and his
appointed and designated successor or successors being herein
referred to as the "Shareholder Representative"), with full power to
act for and on behalf of the Shareholders, and each of them, for all
purposes under this Agreement and in connection with the transactions
contemplated hereby including, without limitation, for purposes of:
(i) determining the amount of damages suffered or incurred by the
Shareholders, (ii) receiving notices from iBIZ given under this
Agreement, of which the Shareholder Representative will give a copy
to the Investors and the Shareholders, (iv) approving and agreeing
with iBIZ as to additions, deletions, changes, modifications and
amendments to this Agreement and the Annexes hereto, except with
respect to any addition, deletion, change, modification or amendment
to a material financial term or condition of any of such documents
that would materially, financially and adversely affect the
Shareholders, and (v) settling finally and completely any disputes or
controversies among the parties hereto (other than solely among the
Shareholders) with respect to the interpretation or effect of or
damages or relief under this Agreement and any and all transactions
contemplated hereby. The Shareholder Representative shall be entitled
to reimbursement by the Shareholders from the consideration actually
payable to the Shareholders or otherwise for all reasonable costs and
expenses incurred by him in fulfilling his duties hereunder, and the
Investors and the Shareholders agree among themselves that such costs
and expenses shall be borne pro rata among them according to the
number of shares of Common Stock owned immediately after the Closing.
The Shareholders agree that the Shareholder Representative may make
reasonable requests for advances to cover such costs and expenses,
and the Shareholders shall promptly make such advances. In no event
shall iBIZ be liable for any costs or expenses of any nature incurred
by the Shareholder Representative in its capacity as such. THE
SHAREHOLDERS JOINTLY AND SEVERALLY, AGREE THAT THE SELLER
REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE SHAREHOLDERS FOR ACTION
TAKEN OR OMITTED IN GOOD FAITH IN EXERCISING THE AUTHORITY GRANTED
UNDER THIS SECTION. iBIZ shall not have any obligation or liability
to indemnify or defend the Shareholder Representative in respect of
any claim or liability asserted against the Shareholder
Representative by any of the Shareholders or his successors or
assigns. All determinations, decisions, actions and the like made by
the Shareholder Representative shall be final, conclusive and binding
upon all the Shareholders and all persons claiming under or through them.
4. Representations and Warranties of the Shareholders. The
Shareholders, individually as pertains to their particular shareholder
and not jointly, and the other Shareholders hereby represent and
warrant to iBIZ the representations and warranties, as follows:
4.1 Validity of Transaction. The Shareholders own the number of
Interests set forth opposite his name on Exhibit A to this Agreement.
The Shareholders have all requisite power and authority to execute,
deliver, and perform this Agreement and to sell to iBIZ the Interests
to be sold by the Shareholders pursuant hereto. All necessary
corporate proceedings or other similar actions by the Shareholders
have been duly taken to authorize the execution, delivery, and
performance of this Agreement and to authorize the sale of the
Interests by the Shareholders. This Agreement has been duly
authorized, executed, and delivered by the Shareholders, is the
legal, valid, and binding obligation of the Shareholders, and is
enforceable as to the Shareholders in accordance with its terms
except as may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally, and subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law). No consent,
authorization, approval, order, license, certificate, or permit of or
from, or declaration or filing with, any federal, state, local, or
other governmental authority or of any court or other tribunal is
required by the Shareholders for the execution, delivery, or
performance of this Agreement by the Shareholders, and except as
would not affect the ability of a Shareholder to perform any of his
material obligations under this Agreement. No consent of any party
to any contract, agreement, instrument, lease, license, arrangement,
or understanding to which a Shareholder is a party, or by which any
of its properties or assets is bound, shall be required for the
execution, delivery, or performance by a Shareholder of this
Agreement, except for such consents as have been obtained at or prior
to the date of this Agreement, and except as would not affect the
ability of a Shareholder to perform any of his material obligations
under this Agreement. The execution, delivery, and performance of
this Agreement by a Shareholder will not violate, result in a breach
of, conflict with, or (with or without the giving of notice or the
passage of time or both) entitle any party to terminate or call a
default under, any such contract, agreement, instrument, lease,
license, arrangement, or understanding, or violate or result in a
breach of any term of the certificate or articles of incorporation or
by-laws (or other organizational document) of Synosphere, or violate,
result in a breach of, or conflict with any law, rule, regulation,
order, judgment, or decree binding on a Shareholder or to which any
of his operations, business, properties, or assets is subject, except
as would not affect the ability of such Shareholder to perform any of
its material obligations under this Agreement. The Interests sold by
the Shareholders have been duly authorized and validly issued and are
fully paid and nonassessable and have not been issued in violation of
any preemptive right of stockholders or rights of first refusal.
Upon the transfer of the Interests, sold by the Shareholders to iBIZ
at the Closing, iBIZ shall acquire good and valid title to such
Interests free and clear of all claims, liens, security interests,
pledges, charges, encumbrances, stockholders' agreements, and voting
trusts (other than any created for and in favor of iBIZ).
4.2 Finder or Broker. No Shareholder has incurred any fee as a
result of any negotiation with any finder, broker, intermediary, or
similar person in connection with the transaction contemplated hereby
that will result in any liability to iBIZ.
4.3 Accredited Investor. Each Shareholder is a "sophisticated" or
"accredited" investor, as those terms are defined in Regulation D
promulgated under the Securities Act of 1933, as amended ("Securities
Act"). The Shareholders have received all requested documents from
iBIZ, including without limitation, and has had an opportunity to ask
questions of and receive answers from the officers of iBIZ with
respect to the business, results of operations, financial condition,
and prospects of iBIZ.
4.4 Investment Intent. The Shareholders are acquiring the Common
Stock for their own account for investment and not with a view to, or
for sale in connection with, any public distribution thereof in
violation of the Securities Act, it being understood that the
Shareholders the right to sell such shares in their sole discretion
in accordance with the terms of the Registration Rights Agreement, or
otherwise by the requirements of the minimum one year hold period
under Rule 144. The Shareholders understand that the Common Stock,
as of Closing, have not been registered for sale under the Securities
Act or qualified under applicable state securities laws and that the
Common Stock shall be delivered to the Shareholders pursuant to one
or more exemptions from the registration or qualification
requirements of such securities laws and that the representations and
warranties contained in this section are given with the intention
that iBIZ may rely thereon for purposes of claiming such exemptions.
The Shareholders understand that the Common Stock cannot be sold
unless registered under the Securities Act and qualified under state
securities laws, or unless an exemption from such registration and
qualification is available, except in connection with the rights
afforded the Shareholders under the Registration Rights Agreement.
4.5 Transfer of Common Stock. The Shareholders shall not sell or
otherwise dispose of any Common Stock unless (a) a registration
statement with respect thereto has become effective under the
Securities Act and such shares have been qualified under applicable
state securities laws or (b) such registration and qualification are
not required and, if iBIZ so requests, there is presented to iBIZ a
legal opinion reasonably satisfactory to iBIZ to such effect. The
Shareholders consent that the transfer agent for the Common Stock may
be instructed not to transfer any Common Stock acquired pursuant
hereto unless it receives satisfactory evidence of compliance with
the foregoing provisions, and that there may be endorsed upon any
certificate representing the Common Stock acquired pursuant hereto
(and any certificates issued in substitution therefor) the following
legend calling attention to the foregoing restrictions on
transferability and stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFICATION
UNDER THE BLUE SKY LAWS OF ANY JURISDICTION. SUCH
SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF, BENEFICIALLY OR ON THE RECORDS OF
THE CORPORATION, UNLESS THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
AND QUALIFIED UNDER APPLICABLE BLUE SKY LAWS, OR AN
EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION IS
AVAILABLE."
iBIZ shall, upon the request of any holder of a certificate bearing
the foregoing legend and the surrender of such certificate, issue a
new certificate without such legend if (i) the security evidenced by
such certificate has been effectively registered under the Securities
Act and qualified under any applicable state securities law and sold
by the holder thereof in accordance with such registration and
qualification or (ii) such holder shall have delivered to iBIZ a
legal opinion reasonably satisfactory to iBIZ to the effect that the
restrictions set forth herein are no longer required or necessary
under the Securities Act or any applicable state law.
4.6 Corporate Existence. Synosphere is a limited liability company
duly incorporated, validly existing and in good standing under the
laws of the State of Texas and has all corporate powers and all
governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now conducted.
Synosphere is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where such qualification
is necessary, except for those jurisdictions where failure to be so
qualified would not, individually or in the aggregate, be material to
the business of Synosphere. Synosphere is not in violation of any of
the provisions of its Articles of Organization, its Operating
Agreement, or any regulations governing them.
4.7 Capitalization.
(a) The authorized equity of Synosphere consists of Five
Million (5,000,000) Interests, all of which are issued and
outstanding.
(b) To the knowledge of the Shareholders, (i) all outstanding
Interests have been duly authorized and validly issued and are fully
paid and non-assessable and are not subject to preemptive rights
created under Texas law, its Articles of Organization, its Operating
Agreement, or any regulations governing them, or any agreement or
document to which Synosphere is a party or by which it or its assets
are bound, (ii) all outstanding Interests have been issued and
granted in compliance with all applicable securities law and other
legal requirements and all requirements set forth in applicable
agreements or instruments, and (iii) none of the outstanding
Interests is unvested or is subject to a repurchase option, risk of
forfeiture or other condition providing that such Interests may be
forfeited or repurchased by Synosphere or otherwise vest upon
termination of an interestholder's or grantee's employment,
directorship or other relationship with Synosphere under the terms of
any restricted stock agreement or other agreement with Synosphere.
(c) Other than the Interests there are no outstanding (i)
shares of equity or voting securities of Synosphere, (ii) securities
of Synosphere convertible into or exchangeable for shares of capital
stock or voting securities of Synosphere or (iii) options or other
rights to acquire from Synosphere, or other obligation of Synosphere
to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting
securities of Synosphere. There are no registration rights, other
than as set forth in this Agreement, and there is no voting trust,
proxy, rights plan, anti-takeover plan or other agreement or
understanding to which Synosphere is a party. There are no
outstanding obligations of Synosphere to repurchase, redeem or
otherwise acquire any Interests.
4.8 Financial Statements. The Shareholders acknowledges that its
books and records of Synosphere fairly and correctly set out and
disclose in all material respects, in accordance with generally
accepted accounting principles ("GAAP"), the financial position of
Synosphere as at the date hereof, and all material financial
transactions of the Synosphere have been accurately recorded in such
books and records. However, an audit of said books and records shall
be required within sixty (60) days from the date of closing of this
transaction.
4.9 No Undisclosed Material Liabilities. There are no liabilities
of Synosphere of any kind whatsoever, whether accrued, contingent,
absolute, determined or determinable, and no existing condition,
situation or set of circumstances which could reasonably result in
such a liability, other than:
(a) liabilities recorded in full or reserved for; and
(b) liabilities incurred in the ordinary course of the business
of Synosphere consistent with past practice, none of which has or may
reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the business, results of operations, or
financial condition of Synosphere.
4.10 Litigation. There is no action, suit, investigation or
proceeding (or to the Shareholders knowledge any basis therefor)
pending against, or to the knowledge of the Shareholders, threatened
against or affecting, the Shareholders, Synosphere or any of their
respective properties before any court or arbitrator or any
governmental body, agency or official which, individually or in the
aggregate, if determined or resolved adversely in accordance with the
plaintiff's demands, could reasonably be expected to have a material
adverse effect on the business, results of operations, or financial
condition of Synosphere or which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement.
4.11 Intellectual Property. Synosphere has good and valid title to
and ownership of all Intellectual Property (defined herein as trade
marks, trade names or copyrights, patents, domestic or foreign)
necessary for its business and operations. There are no outstanding
options, licenses or agreements of any kind to which Synosphere is a
party or by which it is bound relating to any Intellectual Property,
whether owned by Synosphere or another person. To the knowledge of
the Synosphere, the business of Synosphere as formerly and presently
conducted did not and does not conflict with or infringe upon any
Intellectual Property right, owned or claimed by another.
4.12 Compliance with Laws and Court Orders.
(a) Synosphere is not in violation of, and to the knowledge of
the Shareholders is not under investigation with respect to and has
not been threatened to be charged with or given notice of any
violation of, any applicable law, rule, regulation, judgment,
injunction, order or decree, except for violations that have not had
and could not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the business, results of
operations or financial condition of Synosphere.
(b) To the knowledge of the Shareholders, each executive
officer and director of Synosphere has complied with all applicable
laws in connection with or relating to actions within the scope of
Synosphere's business, except where the failure to comply would not
be material to Synosphere. No executive officer or director of
Synosphere is a party to or the subject of any pending or threatened
suit, action, proceeding or investigation by any governmental entity
that would have a material adverse effect on the business, results of
operations or financial condition of Synosphere.
4.13 Absence of Liens and Encumbrances; Title to Properties.
Synosphere has good, valid and marketable title to all properties and
assets used in the conduct of its business free of all liens,
mortgages, pledges, charges, security interests, encumbrances or
other adverse claims of any kind, except as set forth in its
financial statements.
4.14 Material Contracts. Synosphere is not a party to or bound by
any Contract (as defined below) that (a) is a material contract, or
(b) materially limits or otherwise materially restricts Synosphere or
that would, after the Closing, materially limit or otherwise
materially restrict iBIZ or any of its subsidiaries or any successor
thereto, from engaging or competing in any material line of business
in any geographic area or that contains most favored nation pricing
provisions or exclusivity or non-solicitation provisions with respect
to customers. As used herein, "Contract" shall mean any written or
oral agreement, contract, commitment, lease, license, contract, note,
bond, mortgage, indenture, arrangement or other instrument or
obligation. Synosphere is not in, or has received notice of, any
violation of or default under (or any condition which with the
passage of time or the giving of notice would cause such a violation
of or default under) any Contract or any other Contract to which it
is a party or by which it or any of its properties or assets is
bound, except for violations or defaults that would not have a
material adverse effect on the business, results of operations or
financial condition of Synosphere or, after giving effect to the
Closing, iBIZ or any of its subsidiaries.
4.15 Taxes.
(a) Synosphere has timely filed all tax returns required to be
filed on or before the Closing and all such tax returns are true,
correct and complete in all respects. Synosphere has paid in full on a
timely basis all taxes owed by it, whether or not shown on any tax
return, except where the failure to file such return or pay such taxes
would not have a material adverse effect. No claim has ever been made
by any authority in any jurisdiction where Synosphere does not file
tax returns that Synosphere may be subject to taxation in that
jurisdiction.
(b) There are no ongoing examinations or claims against
Synosphere for taxes, and no notice of any audit, examination or claim
for taxes, whether pending or threatened, has been received.
Synosphere has not waived or extended the statute of limitations with
respect to the collection or assessment of any tax.
4.16 Interested Party Transactions. No officer, director or
stockholder of Synosphere or any "affiliate" (as such term is defined
in Rule 405 under the Securities Act) of any such person or
Synosphere has or has had, either directly or indirectly, (a) an
interest in any person that (i) furnishes or sells services or
products that are furnished or sold or are proposed to be furnished
or sold by Synosphere other than Synosphere, or (ii) purchases from
or sells or furnishes to Synosphere any goods or services, or (b) a
beneficial interest in any contract or agreement to which Synosphere
is a party or by which it may be bound or affected (other than
routine compensation and expense reimbursement programs in the
ordinary course of business).
5. Representations and Warranties of iBIZ. iBIZ hereby represents and
warrants to Synosphere as follows:
5.1 Validity of Transaction. iBIZ has all requisite power and
authority to execute, deliver, and perform this Agreement and to
issue and sell to the Shareholders the Common Stock of iBIZ. All
necessary corporate proceedings of iBIZ have been duly taken to
authorize the execution, delivery, and performance of this Agreement,
and the issuance and sale to the Shareholders of the Common Stock.
This Agreement has been duly authorized, executed, and delivered by
iBIZ, is the legal, valid, and binding obligation of iBIZ, and is
enforceable as to iBIZ in accordance with its terms, except as may be
limited by bankruptcy, insolvency, moratorium, or other similar laws
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law). Subject to the compliance with
and completion of the registration requirements of the Securities Act
as contemplated in the Registration Rights Agreement, no consent,
authorization, approval, order, license, certificate, or permit of or
from, or declaration or filing with, any Federal, state, local, or
other governmental authority or of any court or other tribunal is
required by iBIZ for the execution, delivery, or performance of this
Agreement by iBIZ, except as would not affect the ability of iBIZ to
perform any of its material obligations under this Agreement. No
consent of any party to any contract, agreement, instrument, lease,
license, arrangement, or understanding to which iBIZ is a party, or
by which any of its properties or assets is bound, is required for
the execution, delivery, or performance by iBIZ of this Agreement,
except for such consents as have been obtained at or prior to the
date of this Agreement, and except as would not affect the ability of
iBIZ to perform any of its material obligations under this Agreement.
The execution, delivery, and performance of this Agreement by iBIZ
will not violate, result in a breach of, conflict with, or (with or
without the giving of notice or the passage of time or both) entitle
any party to terminate or call a default under any contract,
agreement, instrument, lease, license, arrangement, or understanding
to which iBIZ is a party, or violate or result in a breach of any
term of the Articles of Incorporation or By-laws of iBIZ, or violate,
result in a breach of, or conflict with any law, rule, regulation,
order, judgment, or decree binding on iBIZ or to which any of its
operations, business, properties, or assets is subject, except as
would not affect the ability of iBIZ to perform any of its material
obligations under this Agreement. The shares of iBIZ Common Stock
have been duly authorized and, upon receipt by the Shareholders from
iBIZ of the stock certificates representing the Common Stock being
sold pursuant to this Agreement, will be validly issued, fully paid,
and nonassessable, will not have been issued in violation of any
preemptive right of stockholders or rights of first refusal, and the
Shareholders will have good title to the Common Stock, free and clear
of all liens, security interests, pledges, charges, encumbrances,
stockholders agreements, and voting trusts (other than any created by
the Shareholders).
5.2 Finder or Broker. Neither iBIZ nor any person acting on behalf
of iBIZ has negotiated with any finder, broker, intermediary, or
similar person in connection with the transaction contemplated herein.
5.3 Accredited Investor. iBIZ is an "accredited investor," as that
term is defined in Rule 501 of Regulation D promulgated under the
Securities Act.
5.4 Investment Intent. iBIZ is acquiring the Shares of Synosphere
for its own account for investment and not with a view to, or for
sale in connection with, any public distribution thereof in violation
of the Securities Act. iBIZ understands that it must bear the
economic risk of its investment in Synosphere for an indefinite
period of time, and the Shares of Synosphere being purchased from the
Shareholders cannot be sold unless registered under the Securities
Act and qualified under state securities laws, unless an exemption
from such registration and qualification is available.
5.5 Full Disclosure. All documents filed by iBIZ pursuant to the
Securities Exchange Act of 1934, as amended, since December 31, 2002
("iBIZ Exchange Act Documents") (i) were prepared in accordance with
the requirements of the Exchange Act and the rules and regulations
thereunder, (ii) did not at the time they were filed contain any
untrue statement of a material fact, and (iii) did not at the time
they were filed omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The iBIZ Exchange Act Documents do not
omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, except insofar as any of such documents relate to
Synosphere, as to which iBIZ makes no representation. So far as iBIZ
is aware, from the date as of which information is given in the most
recent report filed by iBIZ under the Exchange Act to the date of
this Agreement, there has not been any material adverse change in, or
any adverse development which materially affects, the business,
results of operations, or financial condition of iBIZ and its
subsidiaries taken as a whole.
5.6 Other Stockholders. iBIZ has not entered into any agreement
with any holders of Synosphere Shares, other than this Agreement with
the Shareholders, with respect to the acquisition of Synosphere
Shares by iBIZ.
5.7 iBIZ's Corporate Existence. iBIZ is a corporation duly
incorporated, validly existing and in good standing under the laws of
Florida and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on
its business as now conducted. iBIZ is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where such qualification is necessary, except for those
jurisdictions where failure to be so qualified would not,
individually or in the aggregate, be materially adverse to the
business of iBIZ. iBIZ is not in violation of any of the provisions
of its Articles of Incorporation or its Bylaws.
5.8 Capitalization.
(a) As of the date of this Agreement, the authorized capital
stock of iBIZ consists of Five Billion (5,000,000,000) shares of iBIZ
common stock. As of the date of this Agreement, there are Two
Billion One Hundred and Twelve Million Nine Hundred and Fifty Six
Thousand Nine Hundred and Eighty Eight (2,112,956,988) shares of iBIZ
common stock, and no shares of preferred stock, issued and outstanding.
(b) All outstanding shares of capital stock of iBIZ have been
duly authorized and validly issued and are fully paid and non-
assessable and are not subject to preemptive rights created under
Florida law, the Articles of Incorporation or Bylaws of iBIZ or any
agreement or document to which iBIZ is a party or by which it or its
assets are bound. All outstanding shares of capital stock of iBIZ
have been issued and granted in compliance with all applicable
securities law and other legal requirements and all requirements set
forth in applicable agreements or instruments. None of the
outstanding iBIZ Securities (as defined below) is unvested or is
subject to a repurchase option, risk of forfeiture or other condition
providing that such iBIZ Securities may be forfeited or repurchased
by iBIZ or otherwise vest upon termination of stockholder's or
grantee's employment, directorship or other relationship with iBIZ or
a iBIZ Subsidiary (as defined below) under the terms of any
restricted stock agreement or other agreement with iBIZ. No iBIZ
debt has voting rights. As used herein, "iBIZ Subsidiary" shall mean
any entity of which securities or other ownership interests having
ordinary voting power to elect a majority of the board or directors
or other persons performing similar functions are at the time
directly or indirectly owned by iBIZ.
(c) Except as set forth in this Section, there are no
outstanding (i) shares of capital stock or voting securities of iBIZ,
(ii) securities of iBIZ convertible into or exchangeable for shares
of capital stock or voting securities of iBIZ or (iii) options or
other rights to acquire from iBIZ, or other obligation of iBIZ to
issue, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of iBIZ
(the items in clauses (i), (ii) and (iii) of this Section 3.08(c)
being referred to collectively as the "iBIZ Securities"). There are
no registration rights and there is no voting trust, proxy, rights
plan, anti-takeover plan or other agreement or understanding to which
iBIZ or any of iBIZ's Subsidiaries is a party or by which it is bound
with respect to any iBIZ Securities. There are no outstanding
obligations of iBIZ or any iBIZ Subsidiary to repurchase, redeem or
otherwise acquire any iBIZ Securities.
5.9 Litigation. There is no action, suit, investigation or
proceeding (or to iBIZ's knowledge any basis therefor) pending
against, or to the knowledge of iBIZ, threatened against or
affecting, iBIZ or any iBIZ Subsidiary or any of their respective
properties before any court or arbitrator or any governmental body,
agency or official which, individually or in the aggregate, if
determined or resolved adversely in accordance with the plaintiff's
demands, could reasonably be expected to have a material adverse
effect on the business, results of operations, or financial condition
of iBIZ and its subsidiaries taken as a whole or which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement.
5.10 Compliance with Laws and Court Orders.
(a) Neither iBIZ nor any iBIZ Subsidiary is in violation of,
and has not since January 1, 2003 violated, and to the knowledge of
iBIZ is not under investigation with respect to and has not been
threatened to be charged with or given notice of any violation of,
any applicable law, rule, regulation, judgment, injunction, order or
decree, except for violations that have not had and could not
reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the business, results of operations or
financial condition of iBIZ and its subsidiaries taken as a whole.
(b) iBIZ and each of its officers and directors have complied
in all material respects with the applicable provisions of Sarbanes-
Oxley. iBIZ has disclosed to the Shareholder Representative any of
the information required to be disclosed by iBIZ and certain of its
officers to iBIZ's Board of Directors or any committee thereof
pursuant to the certification requirements contained in Form 10-KSB
and Form 10-QSB under the Exchange Act. From the period beginning
January 1, 2002 through the enactment of Sarbanes-Oxley, neither iBIZ
nor any of its Affiliates made any loans to any executive officer or
director of iBIZ equal to or in excess of $60,000. Since the
enactment of Sarbanes-Oxley, neither iBIZ nor any of its Affiliates
has made any loans to any executive officer or director of iBIZ.
(c) Each executive officer and director of iBIZ has complied
with all applicable laws in connection with or relating to actions
within the scope of iBIZ's business, except where the failure to
comply would not be material to iBIZ. No executive officer or
director of iBIZ is a party to or the subject of any pending or
threatened suit, action, proceeding or investigation by any
governmental entity that would have a material adverse effect on the
business, results of operations or financial condition of iBIZ and
its subsidiaries taken as a whole, except as disclosed in iBIZ
Exchange Act Documents.
5.11 Financial Statements. The audited consolidated financial
statements and unaudited consolidated interim financial statements of
iBIZ included in iBIZ's filings under the Exchange Act (collectively,
"iBIZ Financial Statements") (a) were prepared in accordance with and
accurately reflect in all material respects, iBIZ's books and records
as of the times and for the periods referred to therein, (b) complied
in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto
in effect during the periods included and (c) fairly present in all
material respects, in conformity with United States generally
accepted accounting principles applied on a consistent basis during
the periods involved (except as may be indicated in the notes thereto
and except in the unaudited financial statements as may be permitted
by Form 10-Q), the consolidated financial position of iBIZ and its
consolidated subsidiaries as of the dates thereof and their
consolidated results of operations and cash flows for the periods
then ended (subject to normal year end adjustments in the case of any
unaudited interim financial statements which were not and are not
expected to be material to iBIZ).
5.12 No Undisclosed Material Liabilities. There are no liabilities
of iBIZ or any iBIZ Subsidiary of any kind whatsoever, whether
accrued, contingent, absolute, determined or determinable, and no
existing condition, situation or set of circumstances which could
reasonably result in such a liability, other than:
(a) liabilities recorded in full or reserved for in the
unaudited financial statements included in the iBIZ Exchange Act
Documents filed with respect to the fiscal period ended July 31, 2003
("iBIZ Balance Sheet Date"); and
(b) liabilities incurred in the ordinary course of the business
of iBIZ consistent with past practice since the iBIZ Balance Sheet
Date, none of which has or may reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
business, results of operations, or financial condition of iBIZ and
its subsidiaries taken as a whole.
6. Survival Of Representations and Warranties; Indemnification;
6.1 Nature and Survival. The covenants, representations and
warranties of the parties hereunder and all documents delivered
pursuant hereto shall survive the Closing for a period of twelve
months following the Closing and all inspections, examinations or
audits on behalf of the parties whether conducted before or after the
Closing.
6.2 Shareholders Indemnification.
(a) Subject to Section 6.3, each Shareholder agrees to
indemnify and hold harmless iBIZ against and in respect of its pro
rata share (determined on the basis of the percentage of the total
number of shares of iBIZ Common Stock that were issued to such
Shareholder) of any and all Damages. "Damages," as used herein,
shall include any claim, action, demand, loss, cost, expense,
liability (joint or several), penalty and other damage, including,
without limitation, reasonable counsel fees and other costs and
expenses reasonably incurred in investigation or in attempting to
avoid the same or oppose the imposition thereof or in enforcing this
indemnity, resulting to iBIZ from (i) any inaccurate representation
made by or on behalf of Synosphere or a Shareholder in this Agreement
or any certificate or other document referenced in, this Agreement
and delivered pursuant hereto, (ii) the breach of any of the
warranties or agreements made by or on behalf of Synosphere or a
Shareholder in this Agreement or any certificate or other document
referenced in this Agreement and delivered pursuant hereto, or (iii)
the breach or default in the performance by a Shareholder of any of
the obligations to be performed by any of them hereunder.
(b) If any claim shall be asserted against iBIZ by a third
party for which iBIZ intends to seek indemnification from the
Shareholders under this Section 6.2, iBIZ shall given written notice
to the Shareholder Representative of the nature of the claim asserted
within forty-five (45) days after any executive officer of iBIZ
learns of the assertion thereof and determines that iBIZ may have a
right of indemnification with respect thereto, but the failure to
give this notice will not relieve the Sellers of any liability
hereunder in respect of this claim. iBIZ shall have the exclusive
right to conduct, through counsel of its own choosing, which counsel
is approved by the Shareholder Representative (which approval may not
be unreasonably withheld), the defense of any such claim or action,
and may compromise or settle such claims or actions with the prior
consent of the Shareholder Representative (which shall not be
unreasonably withheld).
6.3 Satisfaction of Seller Indemnification.
(a) Any Damages incurred, paid or borne by iBIZ for which it is
entitled to indemnification from any Shareholder under this Section
shall be satisfied, in whole or in part, solely by such Shareholder
delivering to iBIZ for cancellation, shares of iBIZ Common Stock,
without further recourse to any Shareholder; provided, however, that
each Shareholder's indemnification obligation shall be unlimited (and
shall be satisfied by a cash payment to the extent that shares of
iBIZ Common Stock are insufficient) with respect to Damages arising
out of the intentional fraud of such Shareholder. In the event that
any Shareholder elects to return shares of iBIZ Common Stock to
satisfy any indemnification obligation, each such share of iBIZ
Common Stock shall be valued at its Current Market Value (as defined
below) as of the date such shares are tendered to iBIZ. Such Seller
shall also pay or reimburse iBIZ for the out-of-pocket expenses
(including without limitation any fees payable to the transfer agent
of the shares) of canceling such returned shares.
(b) "Current Market Value" of the iBIZ Common Stock as of a
particular date shall mean the average of the price of a share of
underlying iBIZ Common Stock into which such Preferred Stock can be
converted, determined on the basis of the last reported sales price
on the Over-the-Counter Bulletin Board for the ten (10) consecutive
trading days preceding such date ("Measurement Days"); or, if such
shares are not traded on the Over-the-Counter Bulletin Board, the
Current Market Value will be determined by an independent reputable
valuation and appraisal company mutually agreed upon by iBIZ and the
Shareholder Representative (which appraiser shall be instructed to
disregard any minority interest discount), and if no agreement can be
reached within a 30-day period, by the average of the two Current
Market Values as determined by independent reputable valuation and
appraisal companies retained by each of iBIZ and the Shareholder
Representative; provided, however, that the aggregate fees and
expenses of any such independent valuation and appraisal company or
companies shall be shared evenly between iBIZ, on the one hand, and
the applicable indemnifying Seller(s).
6.4 iBIZ Indemnification.
(a) Subject to subsection (b) below, iBIZ shall indemnify and
hold the Shareholders harmless against and in respect of all
Shareholders Damages. "Shareholders Damages" shall mean any claim,
action, demand, loss, cost, expense, liability (joint or several),
penalty and other damage, including, without limitation, reasonable
counsel fees, and other costs and expenses reasonably incurred in
investigating or in attempting to avoid the same or oppose the
imposition thereof or in enforcing this indemnity, resulting to a
Shareholder from (A) any inaccurate representation made by iBIZ in
this Agreement or any certificate or other document referenced in
this Agreement and delivered by it pursuant hereto, (B) breach of any
of the warranties or agreements made by iBIZ in this Agreement or any
certificate or other document referenced in this Agreement and
delivered by it pursuant hereto, or (C) breach or default in the
performance by iBIZ of any of the obligations to be performed by iBIZ
hereunder. iBIZ agrees to pay or reimburse the Shareholders for any
payment made or amount payable or loss suffered or incurred by the
Shareholders at any time from and after the Closing in respect of any
Shareholder Damages to which the foregoing indemnity relates.
(b) Any Shareholder Damages incurred, paid or borne by a
Shareholder for which it is entitled to indemnification from iBIZ
under this Section shall be satisfied, in whole or in part, solely by
iBIZ delivering to the applicable Seller, additional shares of iBIZ
Common Stock up to an aggregate maximum for all Shareholders of ten
percent (10%) of the amount of shares of iBIZ Common Stock delivered
on the Closing, without further recourse to iBIZ; provided, however,
that iBIZ's indemnification obligation shall be unlimited with
respect to Shareholder Damages arising out of the common-law fraud of
iBIZ. In the event that iBIZ elects to deliver shares of iBIZ Common
Stock to satisfy any indemnification obligation, each such share of
iBIZ Common Stock shall be valued at its Current Market Value as of
the date such shares are tendered by iBIZ.
7. Covenants of Shareholders.
7.1 Fulfillment of Closing Conditions. At and prior to the Closing,
the Shareholders shall cause Synosphere to use commercially reasonable
efforts to fulfill the conditions specified in this Agreement. In
connection with the foregoing, the Shareholders shall (a) refrain from
any actions that would cause any of their representations and
warranties to be inaccurate in any material respect as of the Closing,
(b) execute and deliver the applicable agreements and other documents
referred to herein, (c) comply in all material respects with all
applicable laws in connection with its execution, delivery and
performance of this Agreement and the transactions, (d) use
commercially reasonable efforts to obtain in a timely manner all
necessary waivers, consents and approvals required under any laws,
contracts or otherwise, and (e) use commercially reasonable efforts to
take, or cause to be taken, all other actions and to do, or cause to
be done, all other things reasonably necessary, proper or advisable to
consummate and make effective as promptly as practicable the transactions.
7.2 Access to Information. From the date of this Agreement to the
Closing, the Shareholders shall give to iBIZ and its officers,
employees, counsel, accountants and other representatives access to
and the right to inspect, during normal business hours, all of the
assets, records, contracts and other documents relating to Synosphere
as the other party may reasonably request. IBIZ shall not use such
information for purposes other than in connection with the
transactions contemplated by this Agreement.
7.3 No Solicitation. From and after the date hereof until the
earlier of the Termination Date or the date of termination of this
Agreement pursuant to Section 13, without the prior written consent of
the iBIZ, the Shareholders shall not, and shall not authorize or
permit their representatives to, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing information) or
take any other action to facilitate knowingly any inquiries or the
making of any proposal that constitutes or may reasonably be expected
to lead to an Acquisition Proposal (defined below) from any person, or
engage in any discussion or negotiations relating thereto or accept
any Acquisition Proposal. If the Shareholders receive any such
inquiries, offers or proposals, the Shareholders shall (a) notify iBIZ
orally and in writing of any such inquiries, offers or proposals
(including the terms and conditions of any such proposal and the
identity of the person making it), within forty-eight (48) hours of
the receipt thereof, (b) keep iBIZ informed of the status and details
of any such inquiry, offer or proposal, and (c) give iBIZ five days'
advance notice of any agreement to be entered into with, or any
information to be supplied to, any person making such inquiry, offer
or proposal. As used herein, "Acquisition Proposal" means a proposal
or offer (other than pursuant to this Agreement) for a tender or
exchange offer, merger, consolidation or other business combination
involving any or any proposal to acquire in any manner a substantial
equity interest in, or all or substantially all of the assets of
Synosphere. Notwithstanding the foregoing, the Shareholders shall
remain free to participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner, any effort or
attempt by any person to do or seek any of the foregoing to the extent
their fiduciary duties may require.
7.4 Confidentiality. The Shareholders agree that after receipt (a)
all information received by it pursuant to this Agreement and (b) any
other information that is disclosed by iBIZ to it shall be considered
confidential information until such time as such information otherwise
becomes publicly available. Each party further agrees that it shall
hold all such confidential information in confidence and shall not
disclose any such confidential information to any third party except
as required by law or regulation (including the listing rules);
provided that to the extent possible iBIZ shall have been provided
with reasonable notice and the opportunity to seek a protective order
to the extent possible prior to such disclosure, other than its
counsel or accountants nor shall it use such confidential information
for any purpose other than its investment in iBIZ; provided, however,
that the foregoing obligation to hold in confidence and not to
disclose confidential information shall not apply to any information
that (1) was known to the public prior to disclosure by iBIZ, (2)
becomes known to the public through no fault of Synosphere, (3) is
disclosed to Synosphere on a non-confidential basis by a third party
having a legal right to make such disclosure or (4) is independently
developed by Synosphere.
7.5 Transfer of Assets and Business. The Shareholders shall, and
shall cause Synosphere to, take such reasonable steps as may be
necessary or appropriate, in the judgment of iBIZ, so that iBIZ shall
be placed in actual possession and control of all of the assets and
the business of Synosphere, and Synosphere shall be owned and operated
as a wholly owned subsidiary of iBIZ.
7.6 Disclosure of Fundraising. The Shareholders shall disclose to
iBIZ any fund raising activities, which shall occur prior to the
Closing. Further, the Shareholders shall assure that all regulations,
rules and laws governing such fundraising are complied with and that
such funds will only be used in the furtherance of Synosphere's
corporate purpose and business plan. Prior written approval of iBIZ
is required to use funds for any other purposes.
8. Covenants of iBIZ.
8.1 Fulfillment of Closing Conditions. At and prior to the Closing,
iBIZ shall use commercially reasonable efforts to fulfill the
conditions specified in this Agreement to the extent that the
fulfillment of such conditions is within its control. In connection
with the foregoing, iBIZ shall (a) refrain from any actions that would
cause any of its representations and warranties to be inaccurate in
any material respect as of the Closing, (b) execute and deliver the
applicable agreements and other documents referred to herein, (c)
comply in all material respects with all applicable laws in connection
with its execution, delivery and performance of this Agreement and the
transactions, (d) use commercially reasonable efforts to obtain in a
timely manner all necessary waivers, consents and approvals required
under any laws, contracts or otherwise, and (e) use commercially
reasonable efforts to take, or cause to be taken, all other actions
and to do, or cause to be done, all other things reasonably necessary,
proper or advisable to consummate and make effective as promptly as
practicable the transactions.
8.2 Access to Information. From the date of this Agreement to the
Closing, iBIZ shall cause iBIZ to give to the Shareholders and their
employees, counsel, accountants and other representatives access to
and the right to inspect, during normal business hours, all of the
assets, records, contracts and other documents relating to iBIZ as the
other party may reasonably request. The Shareholders shall not use
such information for purposes other than in connection with the
transactions contemplated by this Agreement.
8.3 Confidentiality. iBIZ agrees that after receipt (a) all
information received by it pursuant to this Agreement and (b) any
other information that is disclosed by the Shareholders to it shall be
considered confidential information until such time as such
information otherwise becomes publicly available. Each party further
agrees that it shall hold all such confidential information in
confidence and shall not disclose any such confidential information to
any third party except as required by law or regulation (including the
listing rules); provided that to the extent possible the Shareholders
shall have been provided with reasonable notice and the opportunity to
seek a protective order to the extent possible prior to such
disclosure, other than its counsel or accountants nor shall it use
such confidential information for any purpose other than its
investment in Synosphere; provided, however, that the foregoing
obligation to hold in confidence and not to disclose confidential
information shall not apply to any information that (1) was known to
the public prior to disclosure by iBIZ, (2) becomes known to the
public through no fault iBIZ, (3) is disclosed to iBIZ on a non-
confidential basis by a third party having a legal right to make such
disclosure or (4) is independently developed by iBIZ.
8.4 Disclosure of Fundraising. iBIZ shall disclose to Synosphere
any fund raising activities, which shall occur prior to the Closing.
Further, iBIZ shall assure that all regulations, rules and laws
governing such fundraising are complied with and that such funds will
only be used in the furtherance of iBIZ's corporate purpose and
business plan. Prior written approval of the Shareholders shall be
required to use funds for any other purposes.
8.5 Registration Rights; Notice of Certain Events Affecting
Registration.
(a) The Shareholders shall be granted registration rights in the
form of the agreement included herein as Exhibit C to this
Agreement at Closing with respect to the Common Stock of iBIZ.
(b) iBIZ shall promptly notify the Shareholders upon the
occurrence of any of the following events in respect of a
registration statement or related prospectus covering the Common
Stock: (a) receipt of any request for additional information by
the Securities and Exchange Commission ("SEC") or any other
federal or state governmental authority during the period of
effectiveness of the registration statement for amendments or
supplements to the registration statement or related prospectus;
(b) the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the
effectiveness of any registration statement or the initiation of
any proceedings for that purpose; (c) receipt of any
notification with respect to the suspension of the qualification
or exemption from qualification of any of the common stock
underlying the Common Stock for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
d) the happening of any event that makes any statement made in
such registration statement or related prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the
making of any changes in the registration statement, related
prospectus or documents so that, in the case of a registration
statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that in the case of the related prospectus, it
will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(e) iBIZ's reasonable determination that a post-effective
amendment to the registration statement would be appropriate,
and iBIZ shall promptly make available to the Shareholders any
such supplement or amendment to the related prospectus.
8.6 Employment Contracts. iBIZ will enter into employee agreements
with Bryan A. Scott and Ramon Perales, two of the current
directors/officers of Synosphere, to employ them by Synosphere. The
term of these employee agreements shall be two (2) years following
the Closing and transferable in the event of a sale of Synosphere to
another entity or if Synosphere is spun-off. Mr. Scott shall receive
an annually base salary of $112,000 per year, with healthcare
benefits. Mr. Perales shall receive an annual base salary of
$102,000 per year with healthcare benefits. In addition, Mr. Scott
and Mr. Perales shall each receive a sign on bonus of Two Million and
Five Hundred Thousand (2,500,000) shares of Common Stock.
Furthermore, Mr. Scott and Mr. Perales, shall each receive an Earn
Out bonus of Common Stock in Eight (8) payments, each payment made
quarterly, in the amount of $62,500. A "golden parachute" clause
shall be put in place such that if either of the employee agreements
are terminated by iBIZ or any successor they are payable in full at
the date of their termination. Finally, iBIZ shall appoint Mr. Scott
to its Board of Directors. These employment agreements are contained
in Exhibit E to this Agreement and shall be effective upon Closing.
If the Employee's base salary is not paid according to the Employer's
normal payroll cycle, then the Employer shall issue shares of its
common stock, valued at the moving average of the share price over
the last 20 trading with a 25% discount, as an alternative payment to
the base salary. Such shares of common stock shall be issued under a
Stock Retainer Plan, registered under a Form S-8 filed and made
effective by the Employer. Such shares shall be issued and paid at
the end of each month during which the payment(s) was not made, until
such time that sufficient funds are available to make such payments.
9. Mutual Covenants.
9.1 Disclosure of Certain Matters. The Shareholders on the one hand,
and iBIZ, on the other hand, shall give iBIZ and the Shareholders,
respectively, prompt notice of any event or development that occurs
prior to the Closing that (a) had it existed or been known on the date
hereof would have been required to be disclosed by such party under
this Agreement, (b) would cause any of the representations and
warranties of such party contained herein to be inaccurate or
otherwise misleading, except as contemplated by the terms hereof, or
(c) gives any such party any reason to believe that any of the
conditions set forth in this Agreement will not be satisfied prior to
the Termination Date.
9.2 Public Announcements. The Shareholders and iBIZ shall consult
with each other before issuing any press release or making any public
statement with respect to this Agreement and the transactions and,
except as may be required by applicable law or regulation, a party
hereto shall not issue any such press release or make any such public
statement without the consent of the other party hereto.
9.3 Confidentiality. If the transactions are not consummated, each
party shall treat all information obtained in its investigation of
another party or any affiliate thereof, and not otherwise known to
them or already in the public domain, as confidential and shall not
use or otherwise disclose such information to any third party except
as required by law or regulation (including the listing rules), and
shall return to such other party or affiliate all copies made by it or
its representatives of confidential information provided by such other
party or affiliate.
10. Conditions Precedent to Obligations of Synosphere. All
obligations of Synosphere to consummate the Transactions are subject
to the satisfaction prior thereto of each of the following conditions:
10.1 Representations and Warranties. The representations and
warranties of iBIZ contained in this Agreement shall be true and
correct on the date hereof and (except to the extent such
representations and warranties speak as of an earlier date) shall also
be true and correct on and as of the Closing with the same force and
effect as if made on and as of the Closing.
10.2 Agreements, Conditions and Covenants. iBIZ shall have performed
or complied with all agreements, conditions and covenants required by
this Agreement to be performed or complied with by it on or before the
Closing.
10.3 Legality. No law or court order shall have been enacted,
entered, promulgated or enforced by any court or governmental
authority that is in effect and has the effect of making the purchase
and sale of the assets illegal or otherwise prohibiting the
consummation of such purchase and sale.
11. Conditions Precedent to Obligations of iBIZ. All obligations of
iBIZ to consummate the transactions are subject to the satisfaction
(or waiver) prior thereto of each of the following conditions:
11.1 Representations and Warranties. The representations and
warranties of the Shareholders contained in this Agreement shall be
true and correct on the date hereof and (except to the extent such
representations and warranties speak as of an earlier date) shall also
be true and correct on and as of the Closing, except for changes
contemplated by this Agreement, with the same force and effect as if
made on and as of the Closing.
11.2 Agreements, Conditions and Covenants. The Shareholders shall
have performed or complied in all material respects with all
agreements, conditions and covenants required by this Agreement to be
performed or complied with by them on or before the Closing.
11.3 Legality. No law or court order shall have been enacted,
entered, promulgated or enforced by any court or governmental
authority that is in effect and (a) has the effect of making the
purchase and sale of the assets illegal or otherwise prohibiting the
consummation of such purchase and sale or (b) has a reasonable
likelihood of causing a material adverse effect.
12. Post-Closing Obligations.
12.1 Audit. The Shareholders shall cause an audit of Synosphere to
be completed within sixty (60) days of the Closing to comply with
applicable provisions of Regulation S-X in connection with the
acquisition of one company by another.
13. Termination
13.1 Grounds for Termination. This Agreement may be terminated at any
time before the Closing:
(a) By mutual written consent of the Shareholders and iBIZ;
(b) By the Shareholders or iBIZ if the Closing shall not have
been consummated on or before the Termination Date; provided,
however, that the right to terminate this Agreement shall not be
available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before the Termination Date;
(c) By the Shareholders or iBIZ if a court of competent
jurisdiction or governmental, regulatory or administrative agency
or commission shall have issued a court order (which court order
the parties shall use commercially reasonable efforts to lift)
that permanently restrains, enjoins or otherwise prohibits the
transactions, and such court order shall have become final and
non-appealable;
(d) By iBIZ, if the Shareholders shall have breached, or failed
to comply with, any of its obligations under this Agreement or
any representation or warranty made by the Shareholders shall
have been incorrect when made, and such breach, failure or
misrepresentation is not cured within twenty (20) days after
notice thereof, including failure to keep the iBIZ current in its
filings and honor existing agreements; and
(e) By the Shareholders, if iBIZ shall have breached, or failed
to comply with any of its obligations under this Agreement or any
representation or warranty made by it shall have been incorrect
when made, and such breach, failure or misrepresentation is not
cured within twenty (20) days after notice thereof, and in either
case, any such breaches, failures or misrepresentations,
individually or in the aggregate, results or would reasonably be
expected to affect materially and adversely the benefits to be
received by the Shareholders hereunder.
13.2 Effect of Termination. If this Agreement is terminated pursuant
to Section 13.1, the agreements contained in Section 9.3 shall survive
the termination hereof and any party may pursue any legal or equitable
remedies that may be available if such termination is based on a
breach of another party.
14. General Matters.
14.1 Entire Agreement; Amendment This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject
matter hereof and thereof. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to
the subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or
referred to herein and therein. This Agreement may be amended,
modified or supplemented only by a written instrument duly executed by
each of the parties hereto.
14.2 Benefits; Successors. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs,
legal representatives, successors and permitted assigns of the
parties. Nothing in this Agreement shall confer any rights upon any
person other than the Shareholders and iBIZ and their respective
heirs, legal representatives, successors and permitted assigns.
14.3 Assignment; Waiver. No party hereto shall assign this
Agreement or any right, benefit or obligation hereunder. Any term or
provision of this Agreement may be waived at any time by the party
entitled to the benefit thereof by a written instrument duly executed
by such party. However, failure of any party to exercise any right
or remedy under this Agreement or otherwise, or delay by a party in
exercising such right or remedy, shall not operate as a waiver thereof.
14.4 Further Assurances. At and after the Closing, the Shareholders
and iBIZ shall execute and deliver any and all documents and take any
and all other actions that may be deemed reasonably necessary by their
respective counsel to complete the transactions.
14.5 Interpretation. Unless the context of this Agreement clearly
requires otherwise, (a) references to the plural include the singular,
the singular the plural, the part the whole, (b) references to any
gender include all genders, (c) "or" has the inclusive meaning
frequently identified with the phrase "and/or," (d) "including" has
the inclusive meaning frequently identified with the phrase "but not
limited to" and (e) references to "hereunder" or "herein" relate to
this Agreement. The section and other headings contained in this
Agreement are for reference purposes only and shall not control or
affect the construction of this Agreement or the interpretation
thereof in any respect. Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified. Each
accounting term used herein that is not specifically defined herein
shall have the meaning given to it under GAAP. Any reference to a
party's being satisfied with any particular item or to a party's
determination of a particular item presumes that such standard will
not be achieved unless such party shall be satisfied or shall have
made such determination in its sole or complete discretion.
14.6 Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other
jurisdiction.
14.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be binding as of the date first
written above, and all of which shall constitute one and the same
instrument. Each such copy shall be deemed an original.
14.8 Schedules. Any items listed or described on Schedules shall be
listed or described under a caption that identifies the Sections of
this Agreement to which the item relates.
14.9 Notices. All notices that are required or permitted hereunder
shall be in writing and shall be sufficient if personally delivered or
sent by mail, facsimile message or Federal Express or other delivery
service. Any notices shall be deemed given upon the earlier of the
date when received at, or the third day after the date when sent by
registered or certified mail or the day after the date when sent by
Federal Express to, the address or fax number set forth below, unless
such address or fax number is changed by notice to the other party hereto:
If to Synosphere:
Synosphere, LLC
2435 N. Central Expy Suite 1610
Richardson, Texas 75080
Attention: Bryan A. Scott
Facsimile: (646) 365-7488
With copies to:
Fish & Richardson P.C.
5000 Bank One Center
1717 Main Street
Dallas, Texas 75201
Attention: Steve Block, Esq.
Telephone: (214) 292-4050
Facsimile: (214) 747-2091
If to iBIZ:
2238 West Lone Cactus
Phoenix, Arizona 85027
Attention: Kenneth W. Schilling
Telephone: (623) 492-9200
Facsimile: (623) 492-9921
With copies to:
Brian F. Faulkner, A Professional Law Corporation
27127 Calle Arroyo, Suite 1923
San Juan Capistrano, California 92675
Attention: Brian F. Faulkner, Esq.
Telephone: (949) 240-1361
Facsimile: (949) 240-1362
14.10 Arbitration. Any and all disputes relating to this Agreement
or its breach shall be settled by arbitration, by a single
arbitrator, in Phoenix, Arizona, in accordance with the then-current
rules of JAMS/Endispute; the parties waive any right they may have
under any statute or law to cause such proceeding to be transferred
to any other venue. Judgment upon the award entered by the
arbitrator may be entered in any court having jurisdiction thereof.
Costs of arbitration, including reasonable attorneys' fees and costs
incurred, as determined by the arbitrator, together with reasonable
attorneys' fees and costs incurred by the prevailing party in court
enforcement of the arbitration award, must be paid to the prevailing
party by the party designated by the arbitrator or court. Service of
the Petition to Confirm Arbitration and written notice of the time
and place of the hearing thereon shall be in the same manner provided
in this Agreement.
Should one party either dismiss or abandon his claim or counterclaim
before hearing thereon, the other party shall be deemed the
"prevailing party" pursuant to this Agreement. Should both parties
receive judgment or award of their respective claims, the party in
whose favor the larger judgment or award is rendered shall be deemed
the "prevailing party" pursuant to this Agreement.
14.11 Governing Law. The laws of the State of Arizona shall govern
all issues concerning the relative rights of the Company and its
stockholders. All other questions shall be governed by and
interpreted in accordance with the laws of the State of Arizona
without regard to the principles of conflict of laws.
IN WITNESS WHEREOF, this Acquisition Agreement has been executed by
the parties hereto as of the day and year first written above.
iBIZ TECHNOLOGY CORP.
By: /s/ Kenneth W. Schilling
Kenneth W. Schilling, President
SHAREHOLDERS OF SYNOSPHERE
By: /s/ Bryan A. Scott
Bryan A. Scott
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated as of
January 20, 2004, is by and between iBIZ Technology Corp., a Florida
corporation ("Company"), and the undersigned interestholders of
Synosphere LLC, a Texas limited liability company ("Shareholders").
WHEREAS, upon the terms and subject to the conditions of the
Acquisition Agreement between, among others, the Shareholders and the
Company ("Acquisition Agreement"), the Company has agreed to issue to
the Shareholders common shares of the Company ("Common Stock"), of
the Company; and
WHEREAS, to induce the Shareholders to execute and deliver the
Acquisition Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar successor
statute (collectively, the "1933 Act"), and applicable state
securities laws, with respect to the shares of Common Stock issuable
pursuant to the Acquisition Agreement and Common Shares.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants contained hereinafter and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Shareholders hereby agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
a. "Closing" means the date that the Acquisition Agreement is
closed.
b. "Shareholders" means the Shareholders.
c. "Person" means a corporation, a limited liability
company, an association, a partnership, an organization, a business,
an individual, a governmental or political subdivision thereof or a
governmental agency.
d. "Principal Market" means either The American Stock
Exchange, Inc., The New York Stock Exchange, Inc., the Nasdaq
National Market, The Nasdaq Small Cap Market or the National
Association of Securities Dealer's, Inc. Over the Counter Bulletin
Board, whichever is the principal market on which the Common Stock is
listed.
e. "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing one or more
Registration Statements in compliance with the 1933 Act and pursuant
to Rule 415 under the 1933 Act or any successor rule providing for
offering securities on a continuous basis ("Rule 415"), and the
declaration or ordering of effectiveness of such Registration
Statement(s) by the United States Securities and Exchange Commission
("SEC").
f. "Registrable Securities" means the shares of Common Stock
issued and any shares of capital stock issued or issuable with
respect to the Common Stock as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise,
which have not been (x) included in a Registration Statement that has
been declared effective by the SEC or (y) sold under circumstances
meeting all of the applicable conditions of Rule 144 (or any similar
provision then in force) under the 1933 Act.
g. "Registration Statement" means a registration statement of
the Company filed under the 1933 Act.
All capitalized terms used in this Agreement and not otherwise
defined herein shall have the same meaning ascribed to them as in the
Acquisition Agreement.
2. REGISTRATION.
a. Mandatory Registration. The Company shall prepare, and, as
soon as practicable file with the SEC a Registration Statement or
Registration Statements (as is necessary) on Form SB-2 (or, if such
form is unavailable for such a registration, on such other form as is
available for such a registration), covering the resale of all of the
Registrable Securities, which Registration Statement(s) shall state
that, in accordance with Rule 416 promulgated under the 1933 Act,
such Registration Statement also covers such indeterminate number of
additional shares of Common Stock as may become issuable upon stock
splits, stock dividends or similar transactions. The Company shall
prepare and file with the SEC, as soon as possible after the Closing
and no later than thirty (30) days following the Closing, either a
Registration Statement or an amendment to an existing Registration
Statement, in either event registering for resale by the Shareholders
a sufficient number of shares of Common Stock for the Shareholders to
sell the Registrable Securities (or such lesser number as may be
required by the SEC). In the event the Company cannot register
sufficient shares of Common Stock, due to the remaining number of
authorized shares of Common Stock being insufficient, the Company
will use its best efforts to register the maximum number of shares it
can based on the remaining balance of authorized shares and will use
its best efforts to increase the number of its authorized shares as
soon as reasonably practicable.
b. The Company shall use its best efforts to have the
Registration Statement filed with the SEC within thirty (30) calendar
days after the Closing.
c. The Company shall use its best efforts to have the
Registration Statement declared effective by the SEC within ninety
(90) calendar days after the Closing.
d. The Company agrees not to include any other securities,
other than those for the Shareholders in this Registration Statement
without Shareholders prior written consent. Furthermore, the Company
agrees that it will not file any other Registration Statement for
other securities (other than those for the equity credit line
financing, existing option holders, strategic partners or in
connection with a merger or acquisition), until ninety (90) days
after the Registration Statement for the Registrable Securities is
declared effective.
e. Counsel. In connection with any offering pursuant to this
Section 2, the Shareholders shall have the right to select one legal
counsel to administer its interests in the Offering; provided,
however, that the expenses and fees of such legal counsel shall be
paid by the Shareholders. The Company shall reasonably cooperate
with any such counsel.
3. RELATED OBLIGATIONS.
At such time as the Company is obligated to prepare and file a
Registration Statement with the SEC pursuant to Section 2(a), the
Company will use its best efforts to effect the registration of the
Registrable Securities in accordance with the intended method of
disposition thereof and, with respect thereto, the Company shall have
the following obligations:
a. The Company shall use its best efforts to cause such
Registration Statement relating to the Registrable Securities to
become effective within ninety (90) days after the Closing and shall
keep such Registration Statement effective pursuant to Rule 415 until
the earlier of (i) the date as of which the Shareholders may sell all
of the Registrable Securities without restriction pursuant to Rule
144(k) promulgated under the 1933 Act (or successor thereto) or (ii)
the date on which (A) the Shareholders shall have sold all the
Registrable Securities and (B) the Shareholders has no right to sell
Common Stock under the Acquisition Agreement respectively
("Registration Period"), which Registration Statement (including any
amendments or supplements thereto and prospectuses contained therein)
shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading. The Company shall respond to all SEC
comments within seven (7) business days of receipt by the Company;
provided that the seven (7) business day period provided herein shall
be extended as may be required by delays caused by Shareholders'
counsel pursuant to paragraph 3g below, and, provided further, that
such seven (7) business day period shall be extended five (5)
business days for responses to SEC staff accounting comments. The
Company shall cause the Registration Statement relating to the
Registrable Securities to become effective no later than three (3)
business days after notice from the SEC that the Registration
Statement may be declared effective.
b. The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to a
Registration Statement and the prospectus used in connection with
such Registration Statement, which prospectus is to be filed pursuant
to Rule 424 promulgated under the 1933 Act, as may be necessary to
keep such Registration Statement effective during the Registration
Period, and, during such period, comply with the provisions of the
1933 Act with respect to the disposition of all Registrable
Securities of the Company covered by such Registration Statement
until such time as all of such Registrable Securities shall have been
disposed of in accordance with the intended methods of disposition by
the Shareholders thereof as set forth in such Registration Statement.
In the event the number of shares of Common Stock available under a
Registration Statement filed pursuant to this Agreement is at any
time insufficient to cover all of the Registrable Securities, the
Company shall amend such Registration Statement, or file a new
Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover all of the Registrable
Securities, in each case, as soon as practicable, but in any event
within thirty (30) calendar days after the necessity therefor arises
(based on the then Purchase Price of the Common Stock and other
relevant factors on which the Company reasonably elects to rely),
assuming the Company has sufficient authorized shares at that time,
and if it does not, within thirty (30) calendar days after such
shares are authorized. The Company shall use it best efforts to
cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof.
Prior to conversion of all the Common Stock, if at anytime the
conversion of all the Common Stock outstanding would result in an
insufficient number of authorized shares of Common Stock being
available to cover all the conversions, then in such event, the
Company will move to call and hold a shareholder's meeting within
thirty (30) days of such event for the sole purpose of authorizing
additional shares of Common Stock to facilitate the conversions. In
such an event the Company shall recommend to all shareholders and
management of the Company to vote their shares in favor of increasing
the authorized number of shares of Common Stock. The Company
represents and warrants that under no circumstances will it deny or
prevent the Shareholders' right to convert the Common Stock as
permitted under the terms of the Acquisition Agreement or this
Registration Rights Agreement.
c. The Company shall furnish to the Shareholders whose
Registrable Securities are included in any Registration Statement and
its legal counsel without charge (i) promptly after the same is
prepared and filed with the SEC at least one copy of such
Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated
therein by reference and all exhibits, the prospectus included in
such Registration Statement (including each preliminary prospectus)
and, with regards to such Registration Statement(s), any
correspondence by or on behalf of the Company to the SEC or the staff
of the SEC and any correspondence from the SEC or the staff of the
SEC to the Company or its representatives, (ii) upon the
effectiveness of any Registration Statement, ten (10) copies of the
prospectus included in such Registration Statement and all amendments
and supplements thereto (or such other number of copies as the
Shareholders may reasonably request) and (iii) such other documents,
including copies of any preliminary or final prospectus, as the
Shareholders may reasonably request from time to time in order to
facilitate the disposition of the Registrable Securities.
d. The Company shall use reasonable efforts to (i) register
and qualify the Registrable Securities covered by a Registration
Statement under such other securities or "blue sky" laws of such
states in the United States as any Shareholder reasonably requests,
(ii) prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such
other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period,
and (iv) take all other actions reasonably necessary or advisable to
qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (x) qualify to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d), (y) subject itself to general
taxation in any such jurisdiction, or (z) file a general consent to
service of process in any such jurisdiction. The Company shall
promptly notify each Shareholder who holds Registrable Securities of
the receipt by the Company of any notification with respect to the
suspension of the registration or qualification of any of the
Registrable Securities for sale under the securities or "blue sky"
laws of any jurisdiction in the United States or its receipt of
actual notice of the initiation or threatening of any proceeding for
such purpose.
e. As promptly as practicable after becoming aware of such
event, the Company shall notify each Shareholder in writing of the
happening of any event as a result of which the prospectus included
in a Registration Statement, as then in effect, includes an untrue
statement of a material fact or omission to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, ("Registration Default") and use all diligent efforts
to promptly prepare a supplement or amendment to such Registration
Statement and take any other necessary steps to cure the Registration
Default, (which, if such Registration Statement is on Form S-3, may
consist of a document to be filed by the Company with the SEC
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as
defined below) and to be incorporated by reference in the prospectus)
to correct such untrue statement or omission, and deliver ten (10)
copies of such supplement or amendment to each Shareholder (or such
other number of copies as such Shareholder may reasonably request).
The Company shall also promptly notify each Shareholder in writing
(i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and when a Registration Statement or any
post-effective amendment has become effective (notification of such
effectiveness shall be delivered to each Shareholder by facsimile or
e-mail on the same day of such effectiveness and by overnight mail),
(ii) of any request by the SEC for amendments or supplements to a
Registration Statement or related prospectus or related information,
(iii) of the Company's reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate, (iv) in
the event the Registration Statement is no longer effective or, (v)
the Registration Statement is stale for a period of more than five
(5) Trading Days as a result of the Company's failure to timely file
its financials.
f. The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any
of the Registrable Securities for sale in any jurisdiction and, if
such an order or suspension is issued, to obtain the withdrawal of
such order or suspension at the earliest possible moment and to
notify each Shareholder who holds Registrable Securities being sold
of the issuance of such order and the resolution thereof or its
receipt of actual notice of the initiation or threat of any
proceeding for such purpose.
g. The Company shall permit each Shareholder and a single firm
of counsel, designated as selling shareholders' counsel by the
Shareholders who hold a majority of the Registrable Securities being
sold, to review and comment upon a Registration Statement and all
amendments and supplements thereto at least three (3) business days
prior to their filing with the SEC, and not file any document in a
form to which such counsel reasonably objects. The Company shall not
submit to the SEC a request for acceleration of the effectiveness of
a Registration Statement or file with the SEC a Registration
Statement or any amendment or supplement thereto without the prior
approval of such counsel, which approval shall not be unreasonably withheld.
h. At the request of any Shareholder, the Company shall cause
to be furnished to such Shareholder, on the date of the effectiveness
of a Registration Statement, an opinion, dated as of such date, of
counsel representing the Company for purposes of such Registration
Statement, in the form of Exhibit D attached to the Acquisition Agreement.
i. The Company shall make available for inspection by (i) any
Shareholder and (ii) one firm of attorneys and one firm of
accountants or other agents retained by the Shareholders
(collectively, "Inspectors") all pertinent financial and other
records, and pertinent corporate documents and properties of the
Company (collectively, "Records"), as shall be reasonably deemed
necessary by each Inspector, and cause the Company's officers,
directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall
hold in strict confidence and shall not make any disclosure (except
to a Shareholder) or use of any Record or other information which the
Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (i) the
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in any Registration Statement or is
otherwise required under the 1933 Act, (ii) the release of such
Records is ordered pursuant to a final, non-appealable subpoena or
order from a court or government body of competent jurisdiction, or
(iii) the information in such Records has been made generally
available to the public other than by disclosure in violation of this
or any other agreement of which the Inspector has knowledge. Each
Shareholder agrees that it shall, upon learning that disclosure of
such Records is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to
the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential.
j. The Company shall hold in confidence and not make any
disclosure of information concerning a Shareholder provided to the
Company unless (i) disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or
omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other final, non-
appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally
available to the public other than by disclosure in violation of this
Agreement or any other agreement. The Company agrees that it shall,
upon learning that disclosure of such information concerning a
Shareholder is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt written
notice to such Shareholder and allow such Shareholder, at the
Shareholder's expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
k. The Company shall use its best efforts to secure
designation and quotation of all the Registrable Securities covered
by any Registration Statement on the Principal Market. If, despite
the Company's best efforts, the Company is unsuccessful in satisfying
the preceding sentence, it shall use its best efforts to cause all
the Registrable Securities covered by any Registration Statement to
be listed on each other national securities exchange and automated
quotation system, if any, on which securities of the same class or
series issued by the Company are then listed, if any, if the listing
of such Registrable Securities is then permitted under the rules of
such exchange or system. If, despite the Company's best efforts, the
Company is unsuccessful in satisfying the two preceding sentences, it
will use its best efforts to secure the inclusion for quotation on
the Nasdaq Small Cap Market for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at
least two market makers to register with the National Association of
Securities Dealers, Inc. as such with respect to such Registrable
Securities. The Company shall pay all fees and expenses in
connection with satisfying its obligation under this Section 3(k).
l. The Company shall cooperate with the Shareholders to
facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legend) representing the Registrable
Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts, as
the case may be, as the Shareholders may reasonably request and
registered in such names of the Persons who shall acquire such
Registrable Securities from the Shareholders, as the Shareholders may
request.
m. The Company shall provide a transfer agent for all the
Registrable Securities not later than the effective date of the first
Registration Statement filed pursuant hereto.
n. If requested by the Shareholders holding a majority of the
Registrable Securities, the Company shall (i) as soon as reasonably
practical incorporate in a prospectus supplement or post-effective
amendment such information as such Shareholders reasonably determine
should be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information
with respect to the offering of the Registrable Securities to be sold
in such offering; (ii) make all required filings of such prospectus
supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or post-
effective amendment; and (iii) supplement or make amendments to any
Registration Statement if reasonably requested by such Shareholders.
o. The Company shall use its best efforts to cause the
Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to
consummate the disposition of such Registrable Securities.
p. The Company shall otherwise use its best efforts to comply
with all applicable rules and regulations of the SEC in connection
with any registration hereunder.
q. Within one (1) business day after the Registration
Statement which includes Registrable Securities is declared effective
by the SEC, the Company shall deliver, and shall cause legal counsel
for the Company to deliver, to the transfer agent for such
Registrable Securities, with copies to the Shareholders, confirmation
that such Registration Statement has been declared effective by the SEC.
r. At such times as the Shareholders may reasonably request,
the Company shall cause to be delivered, letters from the Company's
independent certified public accountants (i) addressed to the
Shareholders that such accountants are independent public accountants
within the meaning of the 1933 Act and the applicable published rules
and regulations thereunder, and (ii) in customary form and covering
such financial and accounting matters as are customarily covered by
letters of independent certified public accountants delivered to
underwriters in connection with public offerings.
s. The Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Shareholders
of Registrable Securities pursuant to a Registration Statement.
4. OBLIGATIONS OF THE SHAREHOLDERS.
a. At least five (5) calendar days prior to the first
anticipated filing date of a Registration Statement, the Company
shall notify each Shareholder in writing of the information the
Company requires from each such Shareholder if such Shareholder
elects to have any of such Shareholder's Registrable Securities
included in such Registration Statement. It shall be a condition
precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Shareholder that such
Shareholder shall furnish in writing to the Company such information
regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by
it as shall reasonably be required to effect the registration of such
Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request. Each
Shareholder covenants and agrees that, in connection with any sale of
Registrable Securities by it pursuant to a Registration Statement, it
shall comply with the "Plan of Distribution" section of the current
prospectus relating to such Registration Statement.
b. Each Shareholder, by such Shareholder's acceptance of the
Registrable Securities, agrees to cooperate with the Company as
reasonably requested by the Company in connection with the
preparation and filing of any Registration Statement hereunder,
unless such Shareholder has notified the Company in writing of such
Shareholder's election to exclude all of such Shareholder's
Registrable Securities from such Registration Statement.
c. Each Shareholder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described
in Section 3(f) or the first sentence of 3(e), such Shareholder will
immediately discontinue disposition of Registrable Securities
pursuant to any Registration Statement(s) covering such Registrable
Securities until such Shareholder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(f) or
the first sentence of 3(e).
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than underwriting discounts and
commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees,
printing and accounting fees, and fees and disbursements of counsel
for the Company shall be paid by the Company.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
a. To the fullest extent permitted by law, the Company will,
and hereby does, indemnify, hold harmless and defend each Shareholder
who holds such Registrable Securities, the directors, officers,
partners, employees, agents, representatives of, and each Person, if
any, who controls, any Shareholder within the meaning of the 1933 Act
or the Securities Exchange Act of 1934, as amended (the "1934 Act"),
(each, an "Indemnified Person"), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, attorneys'
fees, amounts paid in settlement or expenses, joint or several
(collectively, "Claims"), incurred in investigating, preparing or
defending any action, claim, suit, inquiry, proceeding, investigation
or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or the
SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto ("Indemnified Damages"), to which
any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or
any post-effective amendment thereto or in any filing made in
connection with the qualification of the offering under the
securities or other "blue sky" laws of any jurisdiction in which
Registrable Securities are offered ("Blue Sky Filing"), or the
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which the statements therein were made,
not misleading, (ii) any untrue statement or alleged untrue statement
of a material fact contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or
supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the
statements therein were made, not misleading, or (iii) any violation
or alleged violation by the Company of the 1933 Act, the 1934 Act,
any other law, including, without limitation, any state securities
law, or any rule or regulation thereunder relating to the offer or
sale of the Registrable Securities pursuant to a Registration
Statement (the matters in the foregoing clauses (i) through (iii)
being, collectively, "Violations"). Subject to the restrictions set
forth in Section 6(c) with respect to the number of legal counsel,
the Company shall reimburse the Shareholders and each such
controlling person, promptly as such expenses are incurred and are
due and payable, for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this
Section 6(a): (i) shall not apply to a Claim arising out of or based
upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by any Indemnified
Person expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement
thereto, if such prospectus were timely made available by the Company
pursuant to Section 3(c); (ii) shall not be available to the extent
such Claim is based on (a) a failure of the Shareholder to deliver or
to cause to be delivered the prospectus made available by the Company
or (b) the Indemnified Person's use of an incorrect prospectus
despite being promptly advised in advance by the Company in writing
not to use such incorrect prospectus; and (iii) shall not apply to
amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. Such indemnity shall
remain in full force and effect regardless of any investigation made
by or on behalf of the Indemnified Person and shall survive the sale
of the Registrable Securities by the Shareholders pursuant to the
Registration Statement.
b. In connection with any Registration Statement in which a
Shareholder is participating, each such Shareholder agrees to
severally and not jointly indemnify, hold harmless and defend, to the
same extent and in the same manner as is set forth in Section 6(a),
the Company, each of its directors, each of its officers who signs
the Registration Statement, each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act
(collectively and together with an Indemnified Person, an
"Indemnified Party"), against any Claim or Indemnified Damages to
which any of them may become subject, under the 1933 Act, the 1934
Act or otherwise, insofar as such Claim or Indemnified Damages arise
out of or are based upon any Violation, in each case to the extent,
and only to the extent, that such Violation occurs in reliance upon
and in conformity with written information furnished to the Company
by such Shareholder expressly for use in connection with such
Registration Statement; and, subject to Section 6(c), such
Shareholder will reimburse any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such Claim; provided, however, that the indemnity agreement contained
in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 shall not apply to amounts paid in settlement
of any Claim if such settlement is effected without the prior written
consent of such Shareholder, which consent shall not be unreasonably
withheld; provided, further, however, that the Shareholder shall be
liable under this Section 6(b) for only that amount of a Claim or
Indemnified Damages as does not exceed the net proceeds to such
Shareholder as a result of the sale of Registrable Securities
pursuant to such Registration Statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or
on behalf of such Indemnified Party and shall survive the sale of the
Registrable Securities by the Shareholders pursuant to the
Registration Statement. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any preliminary prospectus shall not
inure to the benefit of any Indemnified Party if the untrue statement
or omission of material fact contained in the preliminary prospectus
were corrected on a timely basis in the prospectus, as then amended
or supplemented. This indemnification provision shall apply
separately to each Shareholders and liability hereunder shall be
several and not joint.
c. Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement
of any action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying
party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified
Party, as the case may be; provided, however, that an Indemnified
Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party
would be inappropriate due to actual or potential differing interests
between such Indemnified Person or Indemnified Party and any other
party represented by such counsel in such proceeding. The
indemnifying party shall pay for only one separate legal counsel for
the Indemnified Persons or the Indemnified Parties, as applicable,
and such counsel shall be selected by Shareholders holding a
majority-in-interest of the Registrable Securities included in the
Registration Statement to which the Claim relates, if the
Shareholders are entitled to indemnification hereunder, or the
Company, if the Company is entitled to indemnification hereunder, as
applicable. The Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party in connection with any
negotiation or defense of any such action or claim by the
indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Party or
Indemnified Person that relates to such action or claim. The
indemnifying party shall keep the Indemnified Party or Indemnified
Person fully appraised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlement of any action, claim or
proceeding effected without its written consent, provided, however,
that the indemnifying party shall not unreasonably withhold, delay or
condition its consent. No indemnifying party shall, without the
consent of the Indemnified Party or Indemnified Person, consent to
entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party or
Indemnified Person of a release from all liability in respect to such
Claim. Following indemnification as provided for hereunder, the
indemnifying party shall be surrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which
indemnification has been made. The failure to deliver written notice
to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party
under this Section 6, except to the extent that the indemnifying
party is prejudiced in its ability to defend such action.
d. The indemnification required by this Section 6 shall be
made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or
Indemnified Damages are incurred.
e. The indemnity agreements contained herein shall be in
addition to (i) any cause of action or similar right of the
Indemnified Party or Indemnified Person against the indemnifying
party or others, and (ii) any liabilities the indemnifying party may
be subject to pursuant to the law.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 6 to the fullest extent
permitted by law; provided, however, that: (i) no contribution shall
be made under circumstances where the maker would not have been
liable for indemnification under the fault standards set forth in
Section 6; (ii) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any seller of
Registrable Securities who was not guilty of fraudulent
misrepresentation; and (iii) contribution by any seller of
Registrable Securities shall be limited in amount to the net amount
of proceeds received by such seller from the sale of such Registrable
Securities.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Shareholders the benefits
of Rule 144 promulgated under the 1933 Act or any other similar rule
or regulation of the SEC that may at any time permit the Shareholders
to sell securities of the Company to the public without registration
("Rule 144"), the Company agrees to:
a. make and keep public information available, as those terms
are understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act
so long as the Company remains subject to such requirements (it being
understood that nothing herein shall limit the Company's obligations
under Section 4(c) of the Acquisition Agreement) and the filing of
such reports and other documents is required for the applicable
provisions of Rule 144; and
c. furnish to the Shareholders, promptly upon request, (i) a
written statement by the Company that it has complied with the
reporting requirements of Rule 144, the 1933 Act and the 1934 Act,
(ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably requested to
permit the Shareholders to sell such securities pursuant to Rule 144
without registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights under this Agreement shall not be assignable.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written
consent of the Company and Shareholders who hold two-thirds (2/3) of
the Registrable Securities. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon each
Shareholder and the Company. No such amendment shall be effective to
the extent that it applies to less than all of the Shareholders of
the Registrable Securities. No consideration shall be offered or
paid to any Person to amend or consent to a waiver or modification of
any provision of any of this Agreement unless the same consideration
also is offered to all of the parties to this Agreement.
11. MISCELLANEOUS.
a. The Shareholders hereby irrevocably constitute and appoint
Bryan A. Scott, with full power of substitution and re-substitution,
as its and their true and lawful agent, attorney-in-fact and
representative (such person and his appointed and designated
successor or successors being herein referred to as the "Shareholder
Representative"), with full power to act for and on behalf of the
Shareholders, and each of them, for all purposes under this Agreement
and in connection with the transactions contemplated hereby
including, without limitation, for purposes of: (i) determining the
amount of damages suffered or incurred by the Shareholders, (ii)
receiving notices from iBIZ given under this Agreement, of which the
Shareholder Representative will give a copy to the Investors and the
Shareholders, (iv) approving and agreeing with iBIZ as to additions,
deletions, changes, modifications and amendments to this Agreement
and the Annexes hereto, except with respect to any addition,
deletion, change, modification or amendment to a material financial
term or condition of any of such documents that would materially,
financially and adversely affect the Shareholders, and (v) settling
finally and completely any disputes or controversies among the
parties hereto (other than solely among the Shareholders) with
respect to the interpretation or effect of or damages or relief under
this Agreement and any and all transactions contemplated hereby. The
Shareholder Representative shall be entitled to reimbursement by the
Shareholders from the consideration actually payable to the
Shareholders or otherwise for all reasonable costs and expenses
incurred by him in fulfilling his duties hereunder, and the Investors
and the Shareholders agree among themselves that such costs and
expenses shall be borne pro rata among them according to the number
of shares of iBIZ Common Stock owned immediately prior to the
Closing. The Shareholders agree that the Shareholder Representative
may make reasonable requests for advances to cover such costs and
expenses, and the Shareholders shall promptly make such advances. In
no event shall iBIZ be liable for any costs or expenses of any nature
incurred by the Shareholder Representative in its capacity as such.
THE SHAREHOLDERS JOINTLY AND SEVERALLY, AGREE THAT THE SELLER
REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE SELLERS FOR ACTION
TAKEN OR OMITTED IN GOOD FAITH IN EXERCISING THE AUTHORITY GRANTED
UNDER THIS SECTION. iBIZ shall not have any obligation or liability
to indemnify or defend the Shareholder Representative in respect of
any claim or liability asserted against the Shareholder
Representative by any Seller or its successors or assigns. All
determinations, decisions, actions and the like made by the
Shareholder Representative shall be final, conclusive and binding
upon all the Shareholders and all persons claiming under or through them.
b. A Person is deemed to be a Shareholder of Registrable
Securities whenever such Person owns of record such Registrable
Securities. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner
of such Registrable Securities.
c. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement
must be in writing and will be deemed to have been delivered (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile (provided a confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or
(iii) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for
such communications shall be:
If to the Company:
2238 West Lone Cactus
Phoenix, Arizona 85027
Attention: Kenneth W. Schilling
Telephone: (623) 492-9200
Facsimile: (623) 492-9921
With a copies to:
Brian F. Faulkner, A Professional Law Corporation
27127 Calle Arroyo, Suite 1923
San Juan Capistrano, California 92675
Attention: Brian F. Faulkner, Esq.
Telephone: (949) 240-1361
Facsimile: (949) 240-1362
If to the Shareholders:
At the address listed in Exhibit B to the Acquisition Agreement.
With copies to:
Fish & Richardson P.C.
5000 Bank One Center
1717 Main Street
Dallas, Texas 75201
Attention: Steve Block, Esq.
Telephone: (214) 292-4050
Facsimile: (214) 747-2091
Each party shall provide five (5) business days prior notice to
the other party of any change in address, phone number or facsimile number.
d. The laws of the State of Arizona shall govern all issues
concerning the relative rights of the Company and its stockholders.
All other questions shall be governed by and interpreted in
accordance with the laws of the State of Arizona without regard to
the principles of conflict of laws.
e. Any dispute concerning the interpretation or execution of
this agreement, which cannot be settled amicably between the parties,
shall be referred, at the request of one of the parties, to an
arbitrator designated by mutual agreement between the said parties.
If the parties are unable to designate an arbitrator within thirty
days of receipt of the notification of a request for arbitration, the
arbitrator shall be appointed, at the request of one of the parties,
by the States. The place of arbitration shall be Phoenix, Arizona.
The arbitrator's decision shall be final and binding and no appeal to
a court or any other jurisdiction shall be allowed.
f. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and thereof.
This Agreement supersedes all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof
and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and
therein. This Agreement may be amended, modified or supplemented
only by a written instrument duly executed by each of the parties hereto.
g. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective heirs, legal
representatives, successors and permitted assigns of the parties.
Nothing in this Agreement shall confer any rights upon any person
other than the Shareholders and iBIZ and their respective heirs, legal
representatives, successors and permitted assigns.
h. No party hereto shall assign this Agreement or any right,
benefit or obligation hereunder. Any term or provision of this
Agreement may be waived at any time by the party entitled to the
benefit thereof by a written instrument duly executed by such party.
However, failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such
right or remedy, shall not operate as a waiver thereof.
i. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
j. This Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement. This Agreement,
once executed by a party, may be delivered to the other party hereto
by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
k. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of
this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.
l. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement
and the consummation of the transactions contemplated hereby.
m. All consents and other determinations to be made by the
Shareholders pursuant to this Agreement shall be made, unless
otherwise specified in this Agreement, by Shareholders holding a
majority of the Registrable Securities.
n. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent and
no rules of strict construction will be applied against any party.
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be duly executed as of the day and year first
above written.
iBIZ TECHNOLOGY CORP.
By: /s/ Kenneth W. Schilling
Kenneth W. Schilling, President
SHAREHOLDERS OF SYNOSPHERE
By: /s/ Bryan A. Scott
Bryan A. Scott, Shareholder
Representative
EXHIBIT D
OPINION OF COUNSEL
Brian F. Faulkner
A Professional Law Corporation
27127 Calle Arroyo, Suite 1923
San Juan Capistrano, California 92675
Telephone: 949.240.1361 ? Facsimile: 949.240.1362
E-mail: briffaulk@aol.com
January 20, 2004
Re: iBIZ Technology Corp.
Ladies and Gentlemen:
I have acted as counsel to iBIZ Technology Corp., a corporation
incorporated under the laws of the State of Florida ("Company"), in
connection with the proposed issuance and sale of common stock
("Securities") pursuant to the related Acquisition Agreement
(including all Exhibits and Appendices thereto) (collectively,
"Agreements").
In connection with rendering the opinions set forth herein, I
have examined drafts of the Agreement, the Company's Certificate of
Incorporation, and its Bylaws, as amended to date, the proceedings of
the Company's Board of Directors taken in connection with entering
into the Agreements, and such other documents, agreements and records
as I deemed necessary to render the opinions set forth below.
In conducting our examination, I have assumed the following:
(i) that each of the Agreements has been executed by each of the
parties thereto in the same form as the forms which I have examined,
(ii) the genuineness of all signatures, the legal capacity of natural
persons, the authenticity and accuracy of all documents submitted to
us as originals, and the conformity to originals of all documents
submitted to us as copies, (iii) that each of the Agreements has
been duly and validly authorized, executed and delivered by the party
or parties thereto other than the Company, and (iv) that each of the
Agreements constitutes the valid and binding agreement of the party
or parties thereto other than the Company, enforceable against such
party or parties in accordance with the Agreements' terms.
Based upon the subject to the foregoing, I am of the opinion
that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Florida, is duly qualified to do business as a foreign
corporation and is in good standing in all jurisdictions where the
Company owns or leases properties, maintains employees or conducts
business, except for jurisdictions in which the failure to so qualify
would not have a material adverse effect on the Company, and has all
requisite corporate power and authority to own its properties and
conduct its business.
2. The authorized capital stock of the Company consists of
Five Billion (5,000,000,000) shares of common stock, $0.001 par value
per share, ("Common Stock").
3. The Common Stock is registered pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended and the Company has
timely filed all the material required to be filed pursuant to
Sections 13(a) or 15(d) of such Act for a period of at least twelve
months preceding the date hereof.
4. When duly countersigned by the Company's transfer agent and
registrar, and delivered to you or upon your order against payment of
the agreed consideration therefor in accordance with the provisions
of the Agreements, the Securities as described in the Agreements
represented thereby will be duly authorized and validly issued, fully
paid and nonassessable.
5 The Company has the requisite corporate power and authority
to enter into the Acquisition Agreement and to sell and deliver the
Securities and the Common Stock to be issued upon the conversion of
the Securities as described in the Agreements; each of the Agreements
has been duly and validly authorized by all necessary corporate
action by the Company to our knowledge, no approval of any
governmental or other body is required for the execution and delivery
of each of the Agreements by the Company or the consummation of the
transactions contemplated thereby; each of the Agreements has been
duly and validly executed and delivered by and on behalf of the
Company, and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as enforceability
may be limited by general equitable principles, bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
other laws affecting creditors rights generally, and except as to
compliance with federal, state, and foreign securities laws, as to
which no opinion is expressed.
6. To the best of my knowledge, after due inquiry, the
execution, delivery and performance of the Subscription Agreement and
Securities by the Company and the performance of its obligations
thereunder do not and will not constitute a breach or violation of
any of the terms and provisions of, or constitute a default under or
conflict with or violate any provision of (i) the Company's
Certificate of Incorporation or By-Laws, (ii) any indenture,
mortgage, deed of trust, agreement or other instrument to which the
Company is party or by which it or any of its property is bound,
(iii) any applicable statute or regulation or as other, (iv) or any
judgment, decree or order of any court or governmental body having
jurisdiction over the Company or any of its property.
7. The issuance of Common Stock upon conversion of the
Securities in accordance with the terms and conditions of the
Securities and the Subscription Agreement, will not violate the
applicable listing agreement between the Company and any securities
exchange or market on which the Company's securities are listed.
8. To the best of my knowledge, after due inquiry, there is no
pending or threatened litigation, investigation or other proceedings
against the Company.
9. The Company complies with the eligibility requirements for
the use of Form SB-2, under the Securities Act of 1933, as amended.
This opinion is rendered only with regard to the matters set out
in the numbered paragraphs above. No other opinions are intended nor
should they be inferred. This opinion is based solely upon the laws
of the United States and the State of Florida and does not include an
interpretation or statement concerning the laws of any other state or
jurisdiction. Insofar as the enforceability of the Acquisition
Agreement and Securities may be governed by the laws of other states,
I have assumed that such laws are identical in all respects to the
laws of the State of Florida.
The opinions expressed herein are given to you solely for your
use in connection with the transaction contemplated by the
Acquisition Agreement and Securities and may not be relied upon by
any other person or entity or for any other purpose without our prior consent.
Very truly yours,
/s/ Brian F. Faulkner
Brian F. Faulkner
EXHIBIT E
EMPLOYMENT AGREEMENTS
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of
the 20th day of January, 2004, between iBIZ Technology Corp., a
Florida corporation ("Corporation" or "Company" or "Employer"), and
Bryan A. Scott ("Employee").
In consideration of the mutual covenants, agreements and
provisions contained in this Agreement, the parties agree as follows:
EMPLOYMENT
1.0 EMPLOYMENT. Employer employs Employee as President and
Chief Executive Officer of Synosphere, and Employee accepts
employment, upon the terms and conditions set forth herein.
2.0 TERM. This Agreement shall commence effective as of
January 21, 2004, and shall continue in effect for a period of two
(2) years ("Employment Period"); unless terminated earlier, by
Company or Employee, upon prior written notice. Further, if a change
of control (as defined herein) of the Company shall have occurred
during the Employment Period, this Agreement shall continue in effect
until January 21, 2005.
3.0 CHANGE OF CONTROL. The term "Change of Control of the
Company" shall mean a change in control of a nature that would be
required to be reported in response to Item 5(f) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934
("1934 Act) as in effect on the date of this Agreement or, if Item
5(f) is no longer in effect, any regulations issued by the Securities
and Exchange Commission ("SEC") pursuant to the 1934 Act which serve
similar purposes; provided that, without limitation, such change in
control shall be deemed to have occurred if and when (a) any "person"
(as such term is used in Sections 13(d) and 14(d)(2) of the 1934 Act)
is or becomes a beneficial owner, directly or indirectly, of
securities of the company representing twenty-five percent (25%) or
more of the combined voting power of the Company's then outstanding
securities or (b) individuals who were members of the Board of
Directors of the Company immediately prior to a meeting of the
shareholders of the Company involving a contest for the election of
directors shall not constitute a majority of the Board of Directors
following such election.
4.0 COMPENSATION. For all services to be rendered by the
Employee pursuant to his duties set forth in this Agreement, the
Employee shall be paid as compensation;
4.1. Base Salary and Considerations. A fixed salary in the
amount of One Hundred and Twelve Thousand Dollars ($112,000) per
year, payable in equal installments according to the Company's
regular payroll schedule. This salary shall be reviewed from time to
time during the term of this Agreement by the Corporation's Board of
Directors or Compensation and Benefits Committee of the Board.
If the Employee's base salary is not paid according to the
Employer's normal payroll cycle, then the Employer shall issue shares
of its common stock, valued at the moving average of the closing
share price over the last 20 trading days with a 25% discount, as an
alternative payment to the base salary. Such shares of common stock
shall be issued under a Stock Retainer Plan, registered under a Form
S-8 filed and made effective by the Employer. Such shares shall be
issued and paid at the end of each month during which the payment(s)
was not made, until such time that sufficient funds are available to
make such payments.
In addition, during the duration of the Employee's Term, the
Employer shall issue an Earn Out bonus of common stock in Eight (8)
payments, each payment made quarterly, in the amount of $62,500, the
("Earn Out"). Common stock shall be issued based on the moving
average of the closing share price over the last 20 trading days and
registered under Form S-8 and made effective by the Employer within
90 days of the payment date. In the event the Employer terminates
the Employee for Cause as detailed in section 10.0 Termination, the
Employee is not entitled to receive the Earn Out bonus portion that
has not been paid as of the termination date.
Furthermore, the Employer shall issue a Sign On bonus to the
Employee in the amount of Two Million and Five Hundred Thousand
(2,500,000) shares. The Sign On bonus shall be registered under Form
S-8 and made effective by the Employer within 90 days of January 20, 2004.
Lastly, during the Term, the Employer shall evaluate the
Employee's performance semi-annually and may further award a Bonus
based on performance. A performance review shall be conducted by the
Employer during the month of June and December.
4.2 Employee Benefit Plans. The Employee, his dependents
and beneficiaries, shall be entitled to participate in any pension,
profit sharing, medical reimbursement, insurance or other employee
payment or benefit plan of the Employer as may be in effect from time
to time, subject to the participation standards and other terms
thereof, to the same extent as other officers under the benefit
practices of the Company.
4.3 Cumulative Compensation. The compensation provided
for in paragraphs 4.1, and 4.2 above, together with the perquisites
set forth in section 6.0 below, are in addition to the benefits
provided for upon termination pursuant to Section 10.0 below.
4.4 Indemnification. The Corporation hereby agrees to
indemnify, and keep indemnified in accordance with, and to the
fullest extent authorized by, the Laws of the State of Florida as it
may be in effect from time to time, the Employee, from and against
any expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
Employee in connection with any threatened, pending or completed
action, suit or proceeding, whether or not such action is by or in
the right of the Corporation or such other enterprise with respect to
which the Employee serves or has served as a director, officer or
employee, by reason of the fact that the Employee is or was a
director, officer or employee, of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or
other enterprise. The indemnification rights granted to the Employee
under this Agreement shall not be deemed exclusive of, or in
limitation of, any rights to which Employee may be entitled under the
law of its state of incorporation, the Corporation's Certification of
Incorporation of By-Laws, any other agreement, vote of stockholders
or directors or otherwise.
5.0 EXPENSES. During the term hereof, the Corporation will
reimburse the Employee for any reasonable out-of-pocket expenses
incurred by the Employee in performance of service for the
Corporation under this Agreement (e.g., transportation, lodging and
food expenses incurred while traveling on Corporation business) and
any other expenses incurred by the Employee in furtherance of the
Corporation's business; provided, however, that the Employee renders
to the Corporation a complete and accurate accounting of all such expenses.
6.0 PERQUISITES. During the period of employment, Employee
shall be entitled to perquisites, including, without limitation, an
appropriate office, and fringe benefits accorded executives of equal rank.
7.0 VACATIONS. The Employee shall be entitled to a vacation
with full compensation equal to three (3) weeks each year; provided,
however, that the Employee's vacation will be scheduled at such time
as will least interfere with the business of the Employer.
Attendance at a business seminar is not to be deemed a vacation;
provided, whoever, that attendance at such meetings or seminars shall
be planned so as to least interfere with the business of the Employer.
8.0 EMPLOYMENT. The Company hereby agrees to continue the
Employee in its employ, and the Employee hereby agrees to remain in
the employ of the Company, for the Employment Period as specified in
Section 2.0, to exercise such authority and perform such duties as
are commensurate with the authority being exercised and duties being
performed by the Employee immediately prior to the effective date of
this Agreement, which services shall be performed at the location
where the Employee was employed immediately prior to the Effective
Date of this Agreement or at such other location as the Company may
reasonably require; provided that the Employee shall not be required
to accept a location which is unreasonable in the light of the
Employee's personal circumstances. The Employee agrees that during
the Employment Period he shall devote his business time to his
executive duties as described herein and perform such duties
faithfully and efficiently.
9.0 PERFORMANCE. It is contemplated that during the period of
employment the Employee shall serve as an executive of the Company
with the office and title of President and Chief Executive Officer
reporting directly to the Board of Directors during the period of
employment, the Employee shall hold a position of responsibility and
importance and a position of scope, with the functions, duties and
responsibilities attached thereto, at least equal to in
responsibility and importance and in scope to and commensurate with
his position described in general terms in this Section 9.0.
10.0 TERMINATION.
10.1 During the period of employment, Employee may
terminate this Agreement without cause or for cause. For the
purposes of this Section 10.1, the term "cause" shall include the
occurrence of any of the following:
10.1.1 The breach or violation by the Company of any
of the terms of this Agreement or of the Acquisition Agreement;
10.1.2. Any significant change in position, duties
and responsibilities of the Employee to which the Employee does not
consent;
10.1.3. In the event of a change in control as
defined in Section 2.0 hereof, any change in the
circumstances of employment which the Employee
determines, in good faith, results in his being unable
to carry out the duties and responsibilities attached
to the position and contemplated by the definition of
that position set forth in this Agreement.
10.2. In the event of an occurrence described in
subsection 10.1.1, 10.1.2, or 10.1.3 above, the Employee shall serve
written notice of such event upon the Company, setting forth in
detail the circumstances that the Employee has determined constitutes
"cause" within any of those definitions. In the event the Company
should remedy or otherwise cure the facts constituting the cause
relied upon by the Employee within thirty (30) days after such
written notice, such fact or circumstance shall not be deemed to
constitute "cause" for which employment can be terminated within the
meaning of Section 10.1 above.
10.3. During the period of employment, the Corporation may
terminate this Agreement for cause and upon thirty (30) days written
notice and opportunity to cure being given to Employee. For the
purpose of this Section 10.3, the term "cause" shall include the
occurrence of any of the following:
10.3.1. Employee breaches or violates any of the
terms of this Agreement;
10.3.2. Employee is convicted of any felony or is
shown to have engaged in any act of dishonesty or
fraud upon the Corporation, any of its affiliated
companies, or any of its customers or clients;
10.3.3. Employee has been grossly negligent in the
performance of his employment duties or
responsibilities.
10.4. During the period of employment, the Corporation may
not terminate this Agreement without cause.
10.5. This Agreement shall also terminate upon the
insolvency, dissolution, or liquidation of the Corporation or
cessation of business by the Corporation for at least thirty (30)
consecutive days.
11.0 TERMINATION PAYMENTS. In the event of a Termination and
subject to the provisions of Sections 10.1.1., 10.1.2., 10.1.3. 10.4,
or 10.5 of this Agreement, the Company shall pay to the Employee and
provide him with the following:
11.1. The Company shall pay the Employee thirty (30) days
following Termination, one lump sum payment of the Employee's base
salary rate for the remaining period of the Term. Any shares not yet
vested or shares not registered with the SEC shall vest and/or be
registered as soon as is practicable.
11.2. During the remainder of the Employment or payment
Period, the Employee shall continue to be treated as an employee
under the provisions of any incentive compensation described in
Section 4.2. In addition, the Employee shall continue to be
entitled to all benefits and service credit for benefits under
medical, insurance, split-dollar life insurance and other employee
benefit plans, programs and arrangements of the Company described or
referred to in Section 4.3 as if he were still employed during such
period under this Agreement.
11.3. If, despite the provisions of paragraph 11.2 above,
benefits or the right to accrue further benefits under any stock
option or other incentive compensation arrangement described in
Section 4.2 shall not be provided under any such arrangement to the
Employee or his dependents, beneficiaries or estate because he is no
longer an employee of the Company, the Company shall, to the extent
necessary, pay or provide for payment of such benefits to the
Employee or his dependents, beneficiaries or estate.
12.0 DISABILITY.
12.1. If the Employee is unable to perform the Employee's
services by reason of illness or incapacity, the Employee's regular
compensation shall be continued for a period of twelve (12) weeks
following the week in which such illness or incapacity commences, at
the end of which time no further compensation shall be due and
payable to the Employee until the Employee shall return and resume
the Employee's duties. In the event the Employee is eligible to
receive payments on account of the fringe benefit program covering
disability provided by the Corporation, then the Employee's base
salary, as defined as above, will be reduced to the extent of such
entitlement and receipt.
12.2. If, because of illness, physical or mental disability
or other incapacity, Employee shall fail, for a period of one hundred
twenty (120) work days during the term hereof, to render the services
provided for by this Agreement, or if Employee contracts an illness
or injury which will permanently prevent performance by him of the
services and duties provided for by this Agreement by notice to the
Employee effective thirty (30) days after the giving of such notice,
after which no additional compensation shall be due.
13.0 DEATH. In the event of the death of Employee during the
term of this Agreement, his employment hereunder shall terminate on
the date of his death. In the accounting between the Employer and
the Employee's personal representative, Employee's estate shall be
due compensation under this Agreement equal to one year of Employee's
salary. In addition, one hundred percent (100%) of the total amount
of shares to be granted to the Employee and or the total amount of
shares to be registered with the SEC to the Employee, shall vest and
or be registered as soon as is practicable.
13.1 In the event of death, the Employee sets forth that
the Employee's personal representative is the listed below and
shall be due compensation in accordance with the provisions set
forth in 13.0.
Employee's Personal Representative: Bonnie and Garland Scott
Relationship: Parents
Address: [omitted]
Phone: [omitted]
14.0 COMPETITION.
14.1. Employee covenants to and with the Employer, its
successors and assigns, that during the term of this Agreement and
for a period of twelve (12) months from the date of the termination
of this Agreement for any reason, he will not directly or indirectly,
enter into any agreement or arrangement with any other person, firm,
corporation or entity to conduct any research or development, nor
shall Employee directly or indirectly conduct such research or
development on his own behalf, related to the discovery of processes,
inventions, improvement, development or commercialization of any new
device, apparatus or product competitive with a product developed,
produced or reduced to practice solely by the Corporation, unless
Employee shall have first obtained the Corporation's expressed
written consent thereto.
14.2. In the event of a breach or threatened breach by
Employee of any provisions of this Section 14.0 the Corporation shall
be entitled to an injunction restraining it from the commission of
such breach. Nothing herein contained shall be construed as
prohibiting the Corporation from pursuing any other remedies
available to it for such breach or threatened breach, including the
recovery of money damages. The covenants contained in this Section
15.0 shall be construed as independent of any other provisions in
this Agreement; and the existence of any claim or cause of action of
Employee against the Corporation, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by the Corporation of said covenants.
14.3. The covenants contained in this Section 14.0 shall
terminate and, upon termination, shall be unenforceable and of no
further legal force and effect, in the event the Corporation, or any
successor to the Corporation, becomes insolvent, is liquidated or
ceases for any reason to conduct business operations for a continuous
period of at least thirty (30) days.
14.4. The Corporation shall have the right to assign the
aforesaid covenants; and Employee agrees to remain bound by the terms
of the covenants to any and all subsequent purchaser and assignees of
the assets and business of the Corporation.
15.0 NON-INTERFERENCE WITH EMPLOYEES.
15.1. Employee covenants with the Corporation that
employees of or consultants to the Corporation and employees of and
consultants to firms, corporations or entities affiliated with the
Corporation have, of necessity, been exposed to and have acquired
certain knowledge, understandings, and know-how concerning the
Corporation's business operations which is confidential information
and proprietary to the Corporation.
15.2. In order to protect the Corporation's confidential
information and to promote and insure the continuity of the
Corporation's contractual relations with its employees and
consultants, Employee covenants and agrees that for so long as
Employee holds any position or affiliation with the Corporation,
including service to the Corporation as an officer, director,
employee, consultant, agent or contractor, and for a period of twelve
(12) months from the date Employee ceases to hold any such position
or status with the Corporation or otherwise becomes disaffiliated
with the Corporation, he will not directly or indirectly, or permit
or encourage other to directly or indirectly (i) interfere in any
manner whatsoever with the Corporation's contractual or other
relations with any or all of its employees or consultants, or (ii)
induce or attempt to induce any employee or consultant to the
Corporation to cease performing services for or on behalf of the
Corporation, or (iii) solicit, offer to retain, or retain, or in any
other manner engage or employ the services of, any person or entity
who or which is retained or engaged by the Corporation, or any firm,
corporation or entity affiliated with the Corporation, as an
employee, consultant or agent.
15.3. In the Event any court of competent jurisdiction
determines or holds that all or any portion of the covenants
contained in this Section 15.0 are unlawful, invalid, or
unenforceable for any reasons, then the parties hereto agree to
modify the provisions of this Section 15.0 if and only to the extent
necessary to render the covenants herein contained enforceable and
otherwise in conformance with all legal requirements.
16.0 CLIENTS AND CUSTOMERS.
16.1. Employee covenants with the Corporation that the
clients and customers of the Corporation, both actual and
contemplated, constitute actual and prospective business
relationships, which are proprietary to the Corporation and comprise,
in part, the Corporation's confidential information and trade secrets.
16.2. In order to protect the Corporation's proprietary
rights and to promote and ensure the continuity of the Corporation's
contractual relations with its customers and clients, Employee
covenants and agrees that, notwithstanding the provisions of Section
16.1 hereof, and for so long as Employee holds any position or
affiliation with the Corporation, including service to the
Corporation as an officer, director, employee, consultant, agent or
contractor, and for a period of twelve (12) months from the date
Employee ceases to hold any such position or status with the
Corporation or otherwise becomes disaffiliated with the Corporation,
he will not directly or indirectly, or permit or encourage others to
directly or indirectly (i) interfere in any manner whatsoever with
the Corporation's contractual relations with any clients or
customers, or (ii) induce or attempt to induce any client or customer
of the Corporation to cease doing business with the Corporation.
16.3. In the event any court of competent jurisdiction
determines or holds that all or any portions of the covenants
contained in this Section 16.0 are unlawful, invalid or unenforceable
for any reason, then the parties hereto agree to modify the
provisions of this Section 16.0 if and only to the extent necessary
to render the covenants herein contained enforceable and otherwise in
conformance with all legal requirements.
17.0 COVENANT TO RETAIN CONFIDENCES.
17.1. Employee understands that all information learned,
known, made, devised or developed concerning any of the Company's
products and activities, including, without limitation, any
inventions, discoveries, improvements, processes, formulas, computer
programs (including their structure, sequence, organization,
coherence, look and feel), apparatus, equipment, customer and client
lists, marketing plans, mailing lists, art, graphics, display,
research, and the like used by the Corporation in connection with its
business constitutes the confidential information, proprietary
information and trade secrets of the Corporation. Employee covenants
and agrees that he will not (except as required in the course of his
position with the Corporation), during the term hereof or thereafter
for a period of twelve (12) months, communicate or divulge to, or use
for the benefit of himself or any other person, firm, association, or
corporation, without the consent of the Corporation, any confidential
information or trade secrets possessed, owned, or used by the
Corporation or its affiliates that may be communicated to, acquired
by, or learned of by the Employee in the course of or as a result of
his services with the Corporation. For the purposes of this Section
17.1, confidential information of the Corporation shall not include
(i) any information developed by the Employee independently of
services performed by the Employee for the Corporation pursuant to
this Agreement; (ii) any information rightfully obtained by the
Employee from a third party without restriction; (iii) any
information publicly available other than through the fault or
negligence of the Employee; (iv) any information disclosed by the
corporation to third parties without restriction; or (v) information
already known by the Employee prior to its disclosure by the Corporation.
17.2. Employee will not use in the course of Employee's
employment with the Corporation, or disclose or otherwise make
available to the Corporation, any information, documents or other
items which Employee may have received from any other person or
entity (including any prior employer), and which Employee is
prohibited from so using, disclosing or making available.
17.3. All records, files, memoranda, reports, price lists,
customer lists, drawings, plans, sketches, documents, prototypes,
testing data, equipment, electronically stored information on disk,
tape or any other medium or existing in computer memory transmitted
by any means, including, but not limited to, telephone or electronic
data transmission and the like, relating to the business of the
Corporation or its affiliates, which Employee shall use or prepare or
come into contact with, shall remain the sole property of the Corporation.
18.0 WORK PRODUCT.
18.1. All trade secrets, know-how, confidential
information, copyrightable material, inventions, discoveries, and
improvements, including computer programs (their structure, sequence,
organization, coherence, look and feel), whether patentable or
unpatentable, copyrightable or uncopyrightable, made, devised,
discovered or reduced to practice by the Employee, whether by himself
or jointly with others, from the time of becoming an employee of the
Corporation until the termination of that status, shall be deemed
work for hire and shall be promptly disclosed in writing to the
Corporation and are to redound to the benefit of the Corporation and
become and remain its sole and exclusive property. Should the
Corporation choose to not purse registered protection for any
disclosure provided by the employee within sixty (60) calendar days
from the date of the disclosure, the decision to not pursue
protection (on the sixty-first (61st) day) shall be deemed a decision
that the information in the disclosure is unrelated to the business
of the Corporation, and is a quitclaim to any rights related thereto.
18.2. By executing this Agreement, Employee hereby
transfers and assigns to the Corporation, or person, firms or
corporations designated by the Corporation, any or all of Employee's
rights, title and interest in and to any and all developments,
inventions, computer programs, discoveries, improvements, processes,
devices, copyrights, patents and patent applications therefore, and
to execute at any and all times any and all instruments and do any
and all acts necessary or which the Corporation may deem desirable in
connection with conveying, transferring and assigning Employee's
entire right, title and interest in and to any inventions,
discoveries, improvements, computer programs, processes devices,
copyrights, patent applications therefore or patents thereon in any
way related to the technology or trade secrets developed, discovered
or reduced to practice by Employee during the term of this Agreement,
it being the express understanding and agreement of the parties that
any and all future developments, inventions, and discoveries of
Employee during the term hereof shall be the property of the
Corporation, or its assigns.
19.0 PATENTS AND COPYRIGHTS.
19.1. Employer shall cause to be filed United States and
foreign patent and/or copyright applications on each invention deemed
to be patentable or copyrightable and embodied in any technology
developed and reduced to practice during the term hereof which inure
to the Corporation by virtue of the provisions of Section 18.0 hereof.
19.2. The Corporation shall forfeit patent rights or
copyrights to any patentable or copyrightable technology developed by
Employee during the term hereof in any jurisdiction in which it fails
to file patent or copyright applications six (6) months following a
request by the Employee. Employer shall provide to Employee a copy
of each application filed, and within six (6) months thereafter
Employee shall designated what, if any, foreign countries he desires
applications to be filed. Patent or copyright prosecution and
maintenance shall be done by an attorney to be selected by the
Corporation and approved by Employee, which approval shall not be
unreasonably withheld. All reasonable expense of filing, prosecution
and maintenance of domestic and foreign patents or copyrights and
patent or copyright applications shall be borne by Employer.
19.3. Employer and Employee agree to forebear from, and
not permit others to make or permit any public disclosure of any of
the patentable matter prior to the application for a United States
patent. All foreign patent applications shall be made no later than
one (1) year following the date of the U.S. patent application.
19.4. All patents shall be applied for in the name of
Employee, as inventor, and shall be assigned to the Corporation or
assignee. All copyrights shall be registered in the name of the
Corporation. The Employee shall, upon demand, execute and deliver to
the Corporation or its assigns such documents or assignments as may
be deemed necessary or advisable by counsel for the Corporation or
its assigns for filing in the appropriate patent offices to evidence
the assignment of the patent rights hereby granted.
20.0 REPRESENTATIONS OF EMPLOYEE. The Employee represents that,
to the best of his knowledge and belief, neither his affiliation with
the Corporation, nor his holding any position as officer, director,
Employee, or consultant with the Corporation, nor his ownership of
common stock in the Corporation, nor his performing any other
services for the Corporation violates any presently existing, valid
and enforceable contract, agreement, commitment or other legal
relationship between Employee and any other person or entity.
21.0 ATTORNEYS' FEES. In the event there is any litigation or
arbitration between the parties concerning this Agreement, the
successful party shall be awarded reasonable attorneys' fees and
litigation or arbitration costs, including the attorneys' fees and
costs incurred in the collection of any judgment.
22.0 NOTICES. All notices required or permitted hereunder shall
be sufficient if delivered personally or mailed to the parties at the
address set forth below or at such other address as either party may
designate in writing from time to time. Any notice by mailing shall
be effective forty-eight (48) hours after it has been deposited in
the United States certified mail, return receipt requested, duly
addressed and with postage prepaid.
23.0 PARTIAL INVALIDITY. If any provisions of this Agreement
are in violation of any statute or rule of law of any state or
district in which it may be sought to be enforced, then such
provisions shall be deemed null and void only to the extent that they
may be in violation thereof, but without invalidating the remaining
provisions.
24.0 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto, their heirs,
personal representatives, successors and assigns; provided, however,
that Employee may not assign his employment hereunder, and any
assignment by Employee in violation of this Agreement shall vest no
rights in the purported assignee.
25.0 WAIVER. No waiver of any breach of any one of the
agreements, terms, conditions or covenants of this Agreement by the
Employer or the Employee shall be deemed to imply or constitute a
waiver of any other agreement, term, condition or covenant of this
Agreement. The failure of either party to insist on strict
performance of any agreement, term, condition or covenant, herein set
forth, shall not constitute or be construed as a waiver of the rights
of either or the other thereafter to enforce any other default of
such agreement, term, condition or covenant; neither shall such
failure to insist upon strict performance be deemed sufficient
grounds to enable either party hereto to forego or subvert or
otherwise disregard any other agreement, term, condition or covenants
of this Agreement.
26.0 GOVERNING LAW. This Agreement and the rights and duties of
the parties shall be construed and enforced in accordance with the
laws of the State of Florida.
27.0 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter
thereof. There are no representations, warranties, conditions or
obligations except as herein specifically provided. Any amendment or
modification hereof must be in writing.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it on the day and year first above written.
EMPLOYER:
iBIZ Technology Corp.
By: /s/ Kenneth W. Schilling
Kenneth W. Schilling, President
EMPLOYEE:
Bryan A. Scott
/s/ Bryan A. Scott
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of
the 20th day of January, 2004, between iBIZ Technology Corp., a
Florida corporation ("Corporation" or "Company" or "Employer"), and
Ramon Perales ("Employee").
In consideration of the mutual covenants, agreements and
provisions contained in this Agreement, the parties agree as follows:
EMPLOYMENT
1.0 EMPLOYMENT. Employer employs Employee as Chief Marketing
Officer of Synosphere, and Employee accepts employment, upon the
terms and conditions set forth herein.
2.0 TERM. This Agreement shall commence effective as of
January 21, 2004, and shall continue in effect for a period of two
(2) years ("Employment Period"); unless terminated earlier, by
Company or Employee, upon prior written notice. Further, if a change
of control (as defined herein) of the Company shall have occurred
during the Employment Period, this Agreement shall continue in effect
until January 21, 2005.
3.0 CHANGE OF CONTROL. The term "Change of Control of the
Company" shall mean a change in control of a nature that would be
required to be reported in response to Item 5(f) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934
("1934 Act) as in effect on the date of this Agreement or, if Item
5(f) is no longer in effect, any regulations issued by the Securities
and Exchange Commission ("SEC") pursuant to the 1934 Act which serve
similar purposes; provided that, without limitation, such change in
control shall be deemed to have occurred if and when (a) any "person"
(as such term is used in Sections 13(d) and 14(d)(2) of the 1934 Act)
is or becomes a beneficial owner, directly or indirectly, of
securities of the company representing twenty-five percent (25%) or
more of the combined voting power of the Company's then outstanding
securities or (b) individuals who were members of the Board of
Directors of the Company immediately prior to a meeting of the
shareholders of the Company involving a contest for the election of
directors shall not constitute a majority of the Board of Directors
following such election.
4.0 COMPENSATION. For all services to be rendered by the
Employee pursuant to his duties set forth in this Agreement, the
Employee shall be paid as compensation;
4.1. Base Salary and Considerations. A fixed salary in the
amount of One Hundred and Twelve Thousand Dollars ($102,000) per
year, payable in equal installments according to the Company's
regular payroll schedule. This salary shall be reviewed from time to
time during the term of this Agreement by the Corporation's Board of
Directors or Compensation and Benefits Committee of the Board.
If the Employee's base salary is not paid according to the
Employer's normal payroll cycle, then the Employer shall issue shares
of its common stock, valued at the moving average of the closing
share price over the last 20 trading days with a 25% discount, as an
alternative payment to the base salary. Such shares of common stock
shall be issued under a Stock Retainer Plan, registered under a Form
S-8 filed and made effective by the Employer. Such shares shall be
issued and paid at the end of each month during which the payment(s)
was not made, until such time that sufficient funds are available to
make such payments.
In addition, during the duration of the Employee's Term, the
Employer shall issue an Earn Out bonus of common stock in Eight (8)
payments, each payment made quarterly, in the amount of $62,500, the
("Earn Out"). Common stock shall be issued based on the moving
average of the closing share price over the last 20 trading days and
registered under Form S-8 and made effective by the Employer within
90 days of the payment date. In the event the Employer terminates
the Employee for Cause as detailed in section 10.0 Termination, the
Employee is not entitled to receive the Earn Out bonus portion that
has not been paid as of the termination date.
Furthermore, the Employer shall issue a Sign On bonus to the
Employee in the amount of Two Million and Five Hundred Thousand
(2,500,000) shares. The Sign On bonus shall be registered under Form
S-8 and made effective by the Employer within 90 days of January 20, 2004.
Lastly, during the Term, the Employer shall evaluate the
Employee's performance semi-annually and may further award a Bonus
based on performance. A performance review shall be conducted by the
Employer during the month of June and December.
4.2 Employee Benefit Plans. The Employee, his dependents
and beneficiaries, shall be entitled to participate in any pension,
profit sharing, medical reimbursement, insurance or other employee
payment or benefit plan of the Employer as may be in effect from time
to time, subject to the participation standards and other terms
thereof, to the same extent as other officers under the benefit
practices of the Company.
4.3 Cumulative Compensation. The compensation provided
for in paragraphs 4.1, and 4.2 above, together with the perquisites
set forth in section 6.0 below, are in addition to the benefits
provided for upon termination pursuant to Section 10.0 below.
4.4 Indemnification. The Corporation hereby agrees to
indemnify, and keep indemnified in accordance with, and to the
fullest extent authorized by, the Laws of the State of Florida as it
may be in effect from time to time, the Employee, from and against
any expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
Employee in connection with any threatened, pending or completed
action, suit or proceeding, whether or not such action is by or in
the right of the Corporation or such other enterprise with respect to
which the Employee serves or has served as a director, officer or
employee, by reason of the fact that the Employee is or was a
director, officer or employee, of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or
other enterprise. The indemnification rights granted to the Employee
under this Agreement shall not be deemed exclusive of, or in
limitation of, any rights to which Employee may be entitled under the
law of its state of incorporation, the Corporation's Certification of
Incorporation of By-Laws, any other agreement, vote of stockholders
or directors or otherwise.
5.0 EXPENSES. During the term hereof, the Corporation will
reimburse the Employee for any reasonable out-of-pocket expenses
incurred by the Employee in performance of service for the
Corporation under this Agreement (e.g., transportation, lodging and
food expenses incurred while traveling on Corporation business) and
any other expenses incurred by the Employee in furtherance of the
Corporation's business; provided, however, that the Employee renders
to the Corporation a complete and accurate accounting of all such expenses.
6.0 PERQUISITES. During the period of employment, Employee
shall be entitled to perquisites, including, without limitation, an
appropriate office, and fringe benefits accorded executives of equal rank.
7.0 VACATIONS. The Employee shall be entitled to a vacation
with full compensation equal to three (3) weeks each year; provided,
however, that the Employee's vacation will be scheduled at such time
as will least interfere with the business of the Employer.
Attendance at a business seminar is not to be deemed a vacation;
provided, whoever, that attendance at such meetings or seminars shall
be planned so as to least interfere with the business of the Employer.
8.0 EMPLOYMENT. The Company hereby agrees to continue the
Employee in its employ, and the Employee hereby agrees to remain in
the employ of the Company, for the Employment Period as specified in
Section 2.0, to exercise such authority and perform such duties as
are commensurate with the authority being exercised and duties being
performed by the Employee immediately prior to the effective date of
this Agreement, which services shall be performed at the location
where the Employee was employed immediately prior to the Effective
Date of this Agreement or at such other location as the Company may
reasonably require; provided that the Employee shall not be required
to accept a location which is unreasonable in the light of the
Employee's personal circumstances. The Employee agrees that during
the Employment Period he shall devote his business time to his
executive duties as described herein and perform such duties
faithfully and efficiently.
9.0 PERFORMANCE. It is contemplated that during the period of
employment the Employee shall serve as an executive of the Company
with the office and title of President and Chief Executive Officer
reporting directly to the Board of Directors during the period of
employment, the Employee shall hold a position of responsibility and
importance and a position of scope, with the functions, duties and
responsibilities attached thereto, at least equal to in
responsibility and importance and in scope to and commensurate with
his position described in general terms in this Section 9.0.
10.0 TERMINATION.
10.1 During the period of employment, Employee may
terminate this Agreement without cause or for cause. For the
purposes of this Section 10.1, the term "cause" shall include the
occurrence of any of the following:
10.1.1 The breach or violation by the Company of any
of the terms of this Agreement or of the Acquisition Agreement;
10.1.2. Any significant change in position, duties
and responsibilities of the Employee to which the
Employee does not consent;
10.1.3. In the event of a change in control as
defined in Section 2.0 hereof, any change in the
circumstances of employment which the Employee
determines, in good faith, results in his being unable
to carry out the duties and responsibilities attached
to the position and contemplated by the definition of
that position set forth in this Agreement.
10.2. In the event of an occurrence described in
subsection 10.1.1, 10.1.2, or 10.1.3 above, the Employee shall serve
written notice of such event upon the Company, setting forth in
detail the circumstances that the Employee has determined constitutes
"cause" within any of those definitions. In the event the Company
should remedy or otherwise cure the facts constituting the cause
relied upon by the Employee within thirty (30) days after such
written notice, such fact or circumstance shall not be deemed to
constitute "cause" for which employment can be terminated within the
meaning of Section 10.1 above.
10.3. During the period of employment, the Corporation may
terminate this Agreement for cause and upon thirty (30) days written
notice and opportunity to cure being given to Employee. For the
purpose of this Section 10.3, the term "cause" shall include the
occurrence of any of the following:
10.3.1. Employee breaches or violates any of the
terms of this Agreement;
10.3.2. Employee is convicted of any felony or is
shown to have engaged in any act of dishonesty or
fraud upon the Corporation, any of its affiliated
companies, or any of its customers or clients;
10.3.3. Employee has been grossly negligent in the
performance of his employment duties or responsibilities.
10.4. During the period of employment, the Corporation may
not terminate this Agreement without cause.
10.5. This Agreement shall also terminate upon the
insolvency, dissolution, or liquidation of the Corporation or
cessation of business by the Corporation for at least thirty (30)
consecutive days.
11.0 TERMINATION PAYMENTS. In the event of a Termination and
subject to the provisions of Sections 10.1.1., 10.1.2., 10.1.3. 10.4,
or 10.5 of this Agreement, the Company shall pay to the Employee and
provide him with the following:
11.1. the Company shall pay the Employee thirty (30) days
following Termination, one lump sum payment of the Employee's base
salary rate for the remaining period of the Term. Any shares not yet
vested or shares not registered with the SEC shall vest and/or be
registered as soon as is practicable.
11.2. During the remainder of the Employment or payment
Period, the Employee shall continue to be treated as an employee
under the provisions of any incentive compensation described in
Section 4.2. In addition, the Employee shall continue to be
entitled to all benefits and service credit for benefits under
medical, insurance, split-dollar life insurance and other employee
benefit plans, programs and arrangements of the Company described or
referred to in Section 4.3 as if he were still employed during such
period under this Agreement.
11.3. If, despite the provisions of paragraph 11.2 above,
benefits or the right to accrue further benefits under any stock
option or other incentive compensation arrangement described in
Section 4.2 shall not be provided under any such arrangement to the
Employee or his dependents, beneficiaries or estate because he is no
longer an employee of the Company, the Company shall, to the extent
necessary, pay or provide for payment of such benefits to the
Employee or his dependents, beneficiaries or estate.
12.0 DISABILITY.
12.1. If the Employee is unable to perform the Employee's
services by reason of illness or incapacity, the Employee's regular
compensation shall be continued for a period of twelve (12) weeks
following the week in which such illness or incapacity commences, at
the end of which time no further compensation shall be due and
payable to the Employee until the Employee shall return and resume
the Employee's duties. In the event the Employee is eligible to
receive payments on account of the fringe benefit program covering
disability provided by the Corporation, then the Employee's base
salary, as defined as above, will be reduced to the extent of such
entitlement and receipt.
12.2. If, because of illness, physical or mental disability
or other incapacity, Employee shall fail, for a period of one hundred
twenty (120) work days during the term hereof, to render the services
provided for by this Agreement, or if Employee contracts an illness
or injury which will permanently prevent performance by him of the
services and duties provided for by this Agreement by notice to the
Employee effective thirty (30) days after the giving of such notice,
after which no additional compensation shall be due.
13.0 DEATH. In the event of the death of Employee during the
term of this Agreement, his employment hereunder shall terminate on
the date of his death. In the accounting between the Employer and
the Employee's personal representative, Employee's estate shall be
due compensation under this Agreement equal to one year of Employee's
salary. In addition, one hundred percent (100%) of the total amount
of shares to be granted to the Employee and or the total amount of
shares to be registered with the SEC to the Employee, shall vest and
or be registered as soon as is practicable.
13.1 In the event of death, the Employee sets forth that
the Employee's personal representative is the listed below and
shall be due compensation in accordance with the provisions set
forth in 13.0.
Employee's Personal Representative: Esmeralda Perales
Relationship: Spouse
Address: [omitted]
Phone: [omitted]
14.0 COMPETITION.
14.1. Employee covenants to and with the Employer, its
successors and assigns, that during the term of this Agreement and
for a period of twelve (12) months from the date of the termination
of this Agreement for any reason, he will not directly or indirectly,
enter into any agreement or arrangement with any other person, firm,
corporation or entity to conduct any research or development, nor
shall Employee directly or indirectly conduct such research or
development on his own behalf, related to the discovery of processes,
inventions, improvement, development or commercialization of any new
device, apparatus or product competitive with a product developed,
produced or reduced to practice solely by the Corporation, unless
Employee shall have first obtained the Corporation's expressed
written consent thereto.
14.2. In the event of a breach or threatened breach by
Employee of any provisions of this Section 14.0 the Corporation shall
be entitled to an injunction restraining it from the commission of
such breach. Nothing herein contained shall be construed as
prohibiting the Corporation from pursuing any other remedies
available to it for such breach or threatened breach, including the
recovery of money damages. The covenants contained in this Section
15.0 shall be construed as independent of any other provisions in
this Agreement; and the existence of any claim or cause of action of
Employee against the Corporation, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by the Corporation of said covenants.
14.3. The covenants contained in this Section 14.0 shall
terminate and, upon termination, shall be unenforceable and of no
further legal force and effect, in the event the Corporation, or any
successor to the Corporation, becomes insolvent, is liquidated or
ceases for any reason to conduct business operations for a continuous
period of at least thirty (30) days.
14.4. The Corporation shall have the right to assign the
aforesaid covenants; and Employee agrees to remain bound by the terms
of the covenants to any and all subsequent purchaser and assignees of
the assets and business of the Corporation.
15.0 NON-INTERFERENCE WITH EMPLOYEES.
15.1. Employee covenants with the Corporation that
employees of or consultants to the Corporation and employees of and
consultants to firms, corporations or entities affiliated with the
Corporation have, of necessity, been exposed to and have acquired
certain knowledge, understandings, and know-how concerning the
Corporation's business operations which is confidential information
and proprietary to the Corporation.
15.2. In order to protect the Corporation's confidential
information and to promote and insure the continuity of the
Corporation's contractual relations with its employees and
consultants, Employee covenants and agrees that for so long as
Employee holds any position or affiliation with the Corporation,
including service to the Corporation as an officer, director,
employee, consultant, agent or contractor, and for a period of twelve
(12) months from the date Employee ceases to hold any such position
or status with the Corporation or otherwise becomes disaffiliated
with the Corporation, he will not directly or indirectly, or permit
or encourage other to directly or indirectly (i) interfere in any
manner whatsoever with the Corporation's contractual or other
relations with any or all of its employees or consultants, or (ii)
induce or attempt to induce any employee or consultant to the
Corporation to cease performing services for or on behalf of the
Corporation, or (iii) solicit, offer to retain, or retain, or in any
other manner engage or employ the services of, any person or entity
who or which is retained or engaged by the Corporation, or any firm,
corporation or entity affiliated with the Corporation, as an
employee, consultant or agent.
15.3. In the Event any court of competent jurisdiction
determines or holds that all or any portion of the covenants
contained in this Section 15.0 are unlawful, invalid, or
unenforceable for any reasons, then the parties hereto agree to
modify the provisions of this Section 15.0 if and only to the extent
necessary to render the covenants herein contained enforceable and
otherwise in conformance with all legal requirements.
16.0 CLIENTS AND CUSTOMERS.
16.1. Employee covenants with the Corporation that the
clients and customers of the Corporation, both actual and
contemplated, constitute actual and prospective business
relationships, which are proprietary to the Corporation and comprise,
in part, the Corporation's confidential information and trade secrets.
16.2. In order to protect the Corporation's proprietary
rights and to promote and ensure the continuity of the Corporation's
contractual relations with its customers and clients, Employee
covenants and agrees that, notwithstanding the provisions of Section
16.1 hereof, and for so long as Employee holds any position or
affiliation with the Corporation, including service to the
Corporation as an officer, director, employee, consultant, agent or
contractor, and for a period of twelve (12) months from the date
Employee ceases to hold any such position or status with the
Corporation or otherwise becomes disaffiliated with the Corporation,
he will not directly or indirectly, or permit or encourage others to
directly or indirectly (i) interfere in any manner whatsoever with
the Corporation's contractual relations with any clients or
customers, or (ii) induce or attempt to induce any client or customer
of the Corporation to cease doing business with the Corporation.
16.3. In the event any court of competent jurisdiction
determines or holds that all or any portions of the covenants
contained in this Section 16.0 are unlawful, invalid or unenforceable
for any reason, then the parties hereto agree to modify the
provisions of this Section 16.0 if and only to the extent necessary
to render the covenants herein contained enforceable and otherwise in
conformance with all legal requirements.
17.0 COVENANT TO RETAIN CONFIDENCES.
17.1. Employee understands that all information learned,
known, made, devised or developed concerning any of the Company's
products and activities, including, without limitation, any
inventions, discoveries, improvements, processes, formulas, computer
programs (including their structure, sequence, organization,
coherence, look and feel), apparatus, equipment, customer and client
lists, marketing plans, mailing lists, art, graphics, display,
research, and the like used by the Corporation in connection with its
business constitutes the confidential information, proprietary
information and trade secrets of the Corporation. Employee covenants
and agrees that he will not (except as required in the course of his
position with the Corporation), during the term hereof or thereafter
for a period of twelve (12) months, communicate or divulge to, or use
for the benefit of himself or any other person, firm, association, or
corporation, without the consent of the Corporation, any confidential
information or trade secrets possessed, owned, or used by the
Corporation or its affiliates that may be communicated to, acquired
by, or learned of by the Employee in the course of or as a result of
his services with the Corporation. For the purposes of this Section
17.1, confidential information of the Corporation shall not include
(i) any information developed by the Employee independently of
services performed by the Employee for the Corporation pursuant to
this Agreement; (ii) any information rightfully obtained by the
Employee from a third party without restriction; (iii) any
information publicly available other than through the fault or
negligence of the Employee; (iv) any information disclosed by the
corporation to third parties without restriction; or (v) information
already known by the Employee prior to its disclosure by the Corporation.
17.2. Employee will not use in the course of Employee's
employment with the Corporation, or disclose or otherwise make
available to the Corporation, any information, documents or other
items which Employee may have received from any other person or
entity (including any prior employer), and which Employee is
prohibited from so using, disclosing or making available.
17.3. All records, files, memoranda, reports, price lists,
customer lists, drawings, plans, sketches, documents, prototypes,
testing data, equipment, electronically stored information on disk,
tape or any other medium or existing in computer memory transmitted
by any means, including, but not limited to, telephone or electronic
data transmission and the like, relating to the business of the
Corporation or its affiliates, which Employee shall use or prepare or
come into contact with, shall remain the sole property of the Corporation.
18.0 WORK PRODUCT.
18.1. All trade secrets, know-how, confidential
information, copyrightable material, inventions, discoveries, and
improvements, including computer programs (their structure, sequence,
organization, coherence, look and feel), whether patentable or
unpatentable, copyrightable or uncopyrightable, made, devised,
discovered or reduced to practice by the Employee, whether by himself
or jointly with others, from the time of becoming an employee of the
Corporation until the termination of that status, shall be deemed
work for hire and shall be promptly disclosed in writing to the
Corporation and are to redound to the benefit of the Corporation and
become and remain its sole and exclusive property. Should the
Corporation choose to not purse registered protection for any
disclosure provided by the employee within sixty (60) calendar days
from the date of the disclosure, the decision to not pursue
protection (on the sixty-first (61st) day) shall be deemed a decision
that the information in the disclosure is unrelated to the business
of the Corporation, and is a quitclaim to any rights related thereto.
18.2. By executing this Agreement, Employee hereby
transfers and assigns to the Corporation, or person, firms or
corporations designated by the Corporation, any or all of Employee's
rights, title and interest in and to any and all developments,
inventions, computer programs, discoveries, improvements, processes,
devices, copyrights, patents and patent applications therefore, and
to execute at any and all times any and all instruments and do any
and all acts necessary or which the Corporation may deem desirable in
connection with conveying, transferring and assigning Employee's
entire right, title and interest in and to any inventions,
discoveries, improvements, computer programs, processes devices,
copyrights, patent applications therefore or patents thereon in any
way related to the technology or trade secrets developed, discovered
or reduced to practice by Employee during the term of this Agreement,
it being the express understanding and agreement of the parties that
any and all future developments, inventions, and discoveries of
Employee during the term hereof shall be the property of the
Corporation, or its assigns.
19.0 PATENTS AND COPYRIGHTS.
19.1. Employer shall cause to be filed United States and
foreign patent and/or copyright applications on each invention deemed
to be patentable or copyrightable and embodied in any technology
developed and reduced to practice during the term hereof which inure
to the Corporation by virtue of the provisions of Section 18.0 hereof.
19.2. The Corporation shall forfeit patent rights or
copyrights to any patentable or copyrightable technology developed by
Employee during the term hereof in any jurisdiction in which it fails
to file patent or copyright applications six (6) months following a
request by the Employee. Employer shall provide to Employee a copy
of each application filed, and within six (6) months thereafter
Employee shall designated what, if any, foreign countries he desires
applications to be filed. Patent or copyright prosecution and
maintenance shall be done by an attorney to be selected by the
Corporation and approved by Employee, which approval shall not be
unreasonably withheld. All reasonable expense of filing, prosecution
and maintenance of domestic and foreign patents or copyrights and
patent or copyright applications shall be borne by Employer.
19.3. Employer and Employee agree to forebear from, and
not permit others to make or permit any public disclosure of any of
the patentable matter prior to the application for a United States
patent. All foreign patent applications shall be made no later than
one (1) year following the date of the U.S. patent application.
19.4. All patents shall be applied for in the name of
Employee, as inventor, and shall be assigned to the Corporation or
assignee. All copyrights shall be registered in the name of the
Corporation. The Employee shall, upon demand, execute and deliver to
the Corporation or its assigns such documents or assignments as may
be deemed necessary or advisable by counsel for the Corporation or
its assigns for filing in the appropriate patent offices to evidence
the assignment of the patent rights hereby granted.
20.0 REPRESENTATIONS OF EMPLOYEE. The Employee represents that,
to the best of his knowledge and belief, neither his affiliation with
the Corporation, nor his holding any position as officer, director,
Employee, or consultant with the Corporation, nor his ownership of
common stock in the Corporation, nor his performing any other
services for the Corporation violates any presently existing, valid
and enforceable contract, agreement, commitment or other legal
relationship between Employee and any other person or entity.
21.0 ATTORNEYS' FEES. In the event there is any litigation or
arbitration between the parties concerning this Agreement, the
successful party shall be awarded reasonable attorneys' fees and
litigation or arbitration costs, including the attorneys' fees and
costs incurred in the collection of any judgment.
22.0 NOTICES. All notices required or permitted hereunder shall
be sufficient if delivered personally or mailed to the parties at the
address set forth below or at such other address as either party may
designate in writing from time to time. Any notice by mailing shall
be effective forty-eight (48) hours after it has been deposited in
the United States certified mail, return receipt requested, duly
addressed and with postage prepaid.
23.0 PARTIAL INVALIDITY. If any provisions of this Agreement
are in violation of any statute or rule of law of any state or
district in which it may be sought to be enforced, then such
provisions shall be deemed null and void only to the extent that they
may be in violation thereof, but without invalidating the remaining
provisions.
24.0 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto, their heirs,
personal representatives, successors and assigns; provided, however,
that Employee may not assign his employment hereunder, and any
assignment by Employee in violation of this Agreement shall vest no
rights in the purported assignee.
25.0 WAIVER. No waiver of any breach of any one of the
agreements, terms, conditions or covenants of this Agreement by the
Employer or the Employee shall be deemed to imply or constitute a
waiver of any other agreement, term, condition or covenant of this
Agreement. The failure of either party to insist on strict
performance of any agreement, term, condition or covenant, herein set
forth, shall not constitute or be construed as a waiver of the rights
of either or the other thereafter to enforce any other default of
such agreement, term, condition or covenant; neither shall such
failure to insist upon strict performance be deemed sufficient
grounds to enable either party hereto to forego or subvert or
otherwise disregard any other agreement, term, condition or covenants
of this Agreement.
26.0 GOVERNING LAW. This Agreement and the rights and duties of
the parties shall be construed and enforced in accordance with the
laws of the State of Florida.
27.0 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter
thereof. There are no representations, warranties, conditions or
obligations except as herein specifically provided. Any amendment or
modification hereof must be in writing.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed it on the day and year first above written.
EMPLOYER:
iBIZ Technology Corp.
By: /s/ Kenneth W. Schilling
Kenneth W. Schilling, President
EMPLOYEE:
Ramon Perales
/s/ Ramon Perales