SHARE EXCHANGE AGREEMENT
Between
Zkid Network Company
and
EATware Corporation
Dated April 17, 2006
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (hereinafter referred to as this
"Agreement") is entered into as of this 17th day of April 2006 by and between
Zkid Network Company, a Nevada corporation (hereinafter referred to as "ZKID"),
and EATware Corporation, a Hong Kong corporation (hereinafter referred to as
"EATWARE") upon the following premises:
Premises
--------
WHEREAS, ZKID is a publicly held corporation organized under the laws
of the State of Nevada;
WHEREAS, EATWARE is a corporation organized under the laws of the Hong
Kong, China;
WHEREAS, management of the constituent corporations have determined
that it is in the best interest of the parties that ZKID acquire 100% of the
issued and outstanding securities of EATWARE in exchange for the issuance of
69,000,000 shares of ZKID to the Eatware Shareholders (the "Exchange") on the
terms described herein; and
WHEREAS, ZKID and the Shareholders desire to set forth the terms of the
Exchange, which is intended to constitute a tax-free reorganization pursuant to
the provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986,as
amended (the "code").
Agreement
---------
NOW THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF EATWARE CORPORATION
As an inducement to, and to obtain the reliance of ZKID, EATWARE
represents and warrants as follows:
Section 1.01 Organization. EATWARE is a corporation duly organized,
validly existing, and in good standing under the laws of the Hong Kong and has
the corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Complete and correct
Articles of Incorporation and Bylaws as in effect on the date hereof, have been
delivered to EATWARE. The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not, violate any
provision of EATWARE'S Articles of Incorporation or Bylaws. EATWARE has taken
all actions required by law, its Articles of Incorporation or Bylaws, or
otherwise to authorize the execution and delivery of this Agreement. EATWARE has
full power, authority, and legal right and has taken all action required by law,
its Articles of Incorporation and Bylaws and otherwise to consummate the
transactions herein contemplated.
Section 1.02 Capitalization. The authorized capitalization of EATWARE
consists of _____________ shares of common stock, of which ___________ shares
are currently issued and outstanding. All issued and outstanding shares are
legally issued, fully paid, and non-assessable and not issued in violation of
the preemptive or other rights of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. EATWARE does
not have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation.
Section 1.04 Financial Statements.
(a) All such financial statements have been prepared in
accordance with generally accepted accounting principles. The EATWARE
balance sheets present a true and fair view as of the dates of such
balance sheets of the financial condition of EATWARE. EATWARE did not
have, as of the dates of such balance sheets, except as and to the
extent reflected or reserved against therein, any liabilities or
obligations (absolute or contingent) which should be reflected in the
balance sheets or the notes thereto, prepared in accordance with
generally accepted accounting principles, and all assets reflected
therein are properly reported and present fairly the value of the
assets of EATWARE in accordance with generally accepted accounting
principles.
(b) EATWARE has no liabilities with respect to the payment of
any federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(c) EATWARE has filed all state, federal or local income
and/or franchise tax returns required to be filed by it from inception
to the date hereof. Each of such income tax returns reflects the taxes
due for the period covered thereby, except for amounts which, in the
aggregate, are immaterial.
(d) The books and records, financial and otherwise, of EATWARE
are in all material respects complete and correct and have been
maintained in accordance with good business and accounting practices.
(e) All of EATWARE 'S assets are reflected on its financial
statements, and, except as set forth in the EATWARE Schedules or the
financial statements of EATWARE or the notes thereto, EATWARE has no
material liabilities, direct or indirect, matured or unmatured,
contingent or otherwise.
Section 1.05 Information. The information concerning EATWARE set forth
in this Agreement is complete and accurate in all material respects and does not
contain any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading. In addition, EATWARE has fully disclosed in
writing to EATWARE all information relating to matters involving EATWARE or its
assets or its present or past operations or activities.
Section 1.06 Options or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
un-issued EATWARE common stock.
Section 1.07 Absence of Certain Changes or Events. Except as set forth
in this Agreement;
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of EATWARE or
(ii) any damage, destruction, or loss to EATWARE (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or condition of EATWARE;
(b) EATWARE has not (i) amended its Articles of Incorporation
or Bylaws; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are outside of the ordinary course of
business or material considering the business of EATWARE; (iv) made any
material change in its method of management, operation or accounting;
(v) entered into any other material transaction other than sales in the
ordinary course of its business; (vi) made any accrual or arrangement
for payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its
salaried employees whose monthly compensation exceeds $5,000; or (viii)
made any increase in any profit sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors,
or employees other than in the ordinary course of business;
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(c) EATWARE has not (i) borrowed or agreed to borrow any funds
or incurred, or become subject to, any material obligation or liability
(absolute or contingent) except as disclosed herein and except
liabilities incurred in the ordinary course of business; (ii) paid or
agreed to pay any material obligations or liability (absolute or
contingent) other than current liabilities reflected in or shown on the
most recent EATWARE balance sheet, and current liabilities incurred
since that date in the ordinary course of business and professional and
other fees and expenses in connection with the preparation of this
Agreement and the consummation of the transactions contemplated hereby;
(iii) sold or transferred, or agreed to sell or transfer, any of its
assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, in the aggregate have a value of
less than $10,000), or canceled, or agreed to cancel, any debts or
claims (except debts or claims which in the aggregate are of a value of
less than $10,000); (iv) made or permitted any amendment or termination
of any contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
EATWARE; or (v) issued, delivered, or agreed to issue or deliver any
stock, bonds or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock); and
(d) to the best knowledge of EATWARE, EATWARE has not become
subject to any law or regulation which materially and adversely
affects, or in the future may adversely affect the business,
operations, properties, assets, or condition of EATWARE.
Section 1.08 Title and Related Matters. EATWARE has good and marketable
title to all of its properties, inventory, interests in properties, and assets,
real and personal, which are reflected in the most recent EATWARE balance sheet
or acquired after that date (except properties, inventory, interests in
properties, and assets sold or otherwise disposed of since such date in the
ordinary course of business) free and clear of all liens, pledges, charges, or
encumbrances except (a) statutory liens or claims not yet delinquent and (b)
such imperfections of title and easements as do not and will not materially
detract from or interfere with the present or proposed use of the properties
subject thereto or affected thereby or otherwise materially impair present
business operations on such properties; EATWARE owns, free and clear of any
liens, claims, encumbrances, royalty interests, or other restrictions or
limitations of any nature whatsoever, any and all products it is currently
manufacturing, including the underlying technology and data, and all procedures,
techniques, marketing plans, business plans, methods of management, or other
information utilized in connection with EATWARE'S business; no third party has
any right to, and EATWARE has not received any notice of infringement of or
conflict with asserted rights of others with respect to any product, technology,
data, trade secrets, know-how, propriety techniques, trademarks, service marks,
trade names, or copyrights which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a materially
adverse effect on the business, operations, financial condition, income, or
business prospects of EATWARE or any material portion of its properties, assets,
or rights.
Section 1.09 Litigation and Proceedings. There are no actions, suits,
proceedings, or investigations pending or, to the knowledge of EATWARE after
reasonable investigation, threatened by or against EATWARE or affecting EATWARE
or its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of any
kind. EATWARE does not have any knowledge of any material default on its part
with respect to any judgment, order, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or instrumentality
or of any circumstances which, after reasonable investigation, would result in
the discovery of such a default.
Section 1.10 Contracts.
(a) There are no "material" contracts, agreements, franchises,
license agreements, debt instruments or other commitments to which
EATWARE is a party or by which it or any of its assets, products,
technology, or properties are bound other than those incurred in the
ordinary course of business (as used in this Agreement, a "material"
contract, agreement, franchise, license agreement, debt instrument or
commitment is one which (i) will remain in effect for more than six (6)
months after the date of this Agreement or (ii) involves aggregate
obligations of at least one-hundred thousand dollars ($100,000));
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(b) All material contracts, agreements, franchises, license
agreements, and other commitments to which EATWARE is a party or by
which its properties are bound and which are material to the operations
of EATWARE taken as a whole are valid and enforceable by EATWARE in all
respects, except as limited by bankruptcy and insolvency laws and by
other laws affecting the rights of creditors generally;
(c) EATWARE is not a party to or bound by, and the properties
of EATWARE are not subject to any material contract, agreement, other
commitment or instrument; any charter or other corporate restriction;
or any judgment, order, writ, injunction, decree, or award which
materially and adversely affects, the business operations, properties,
assets, or condition of EATWARE; and
(d) EATWARE is not a party to any oral or written (i) contract
for the employment of any officer or employee which is not terminable
on 30 days, or less notice; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension benefit or
retirement plan, (iii) material agreement, contract, or indenture
relating to the borrowing of money, (iv) guaranty of any obligation,
other than one on which EATWARE is a primary obligor, for the borrowing
of money or otherwise, excluding endorsements made for collection and
other guaranties of obligations which, in the aggregate do not exceed
more than one year or providing for payments in excess of $50,000 in
the aggregate; (vi) collective bargaining agreement; or (vii) agreement
with any present or former (on or after January 1, 2002) officer or
director of EATWARE.
Section 1.11 Material Contract Defaults. EATWARE is not in default in
any material respect under the terms of any outstanding material contract,
agreement, lease, or other commitment and there is no event of default in any
material respect under any such material contract, agreement, lease, or other
commitment in respect of which EATWARE has not taken adequate steps to prevent
such a default from occurring.
Section 1.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which EATWARE is a party or to which any of its
properties or operations are subject.
Section 1.13 Governmental Authorizations. EATWARE has all licenses,
franchises, permits, and other governmental authorizations that are legally
required to enable it to conduct its business in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities and corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, or registration, declaration, or filing with,
any court or other governmental body is required in connection with the
execution and delivery by EATWARE of this Agreement and the consummation by
EATWARE of the transactions contemplated hereby.
Section 1.14 Compliance With Laws and Regulations. To the best of its
knowledge EATWARE has complied with all applicable statutes and regulations of
any federal, state, or other governmental entity or agency thereof, except to
the extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets, or condition of EATWARE or except to
the extent that noncompliance would not result in the occurrence of any material
liability for EATWARE.
Section 1.15 Insurance. All of the properties of EATWARE are insured
for an amount deemed reasonable, if any.
Section 1.16 Approval of Agreement. The board of directors of EATWARE
have authorized the execution and delivery of this Agreement by EATWARE and has
approved this Agreement and the transactions contemplated hereby.
Section 1.17 Valid Obligation. This Agreement and all agreements and
other documents executed by EATWARE in connection herewith constitute the valid
and binding obligation of EATWARE, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefore may
be brought.
4
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ZKID
As an inducement to, and to obtain the reliance of EATWARE, except as
set forth in the ZKID Schedules (as hereinafter defined), ZKID represents and
warrants as follows:
Section 2.01 Organization. ZKID is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nevada and
has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets, to carry on its
business in all material respects as it is now being conducted, and except where
failure to be so qualified would not have a material adverse effect on its
business, there is no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, violate any provision of ZKID's certificate of incorporation or
bylaws. ZKID has taken all action required by law, its certificate of
incorporation, its bylaws, or otherwise to authorize the execution and delivery
of this Agreement, and ZKID has full power, authority, and legal right and has
taken all action required by law, its certificate of incorporation, bylaws, or
otherwise to consummate the transactions herein contemplated.
Section 2.02 Capitalization. ZKID's authorized capitalization consists
of 500,000,000 shares of common stock with $0.0001 par value of which 123,467
shares are issued and outstanding. There are 10,000,000 shares of preferred
stock at a par value of $0.001. No other shares of preferred stock or any other
claim of common stock are authorized. All issued and outstanding shares are
legally issued, fully paid, and non-assessable and not issued in violation of
the preemptive or other rights of any person.
Section 2.03 Subsidiaries and Predecessor Corporations. ZKID does not
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation.
Section 2.04 Securities Filings; Financial Statements.
(a) For at least the past twenty-four months ZKID has timely
filed all forms, reports and documents required to be filed with the
Securities and Exchange Commission, and has heretofore delivered to
EATWARE, in the form filed with the Commission, (i) all quarterly and
annual reports on Forms 10-QSB and 10-KSB filed since December 31, 2000
(ii) all other reports filed by ZKID with the Securities and Exchange
Commission since December 31, 2000, (collectively, the "SEC Reports")
and (iii) all comment letters from the Securities and Exchange
Commission with respect to the SEC Reports. The SEC Reports (i) were
prepared in accordance with the requirements of the Securities Exchange
Act of 1934 or the Securities Act of 1933, as appropriate, and (ii) did
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading as of the date hereof none of its
SEC Reports need to be amended to correct any prior disclosure in order
for prior SEC Reports to not contain any untrue statement of material
fact or omission to state any material fact. ZKID is current in all of
its obligations under federal securities laws.
(b) All such financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved. The ZKID balance sheets
present fairly as of their respective dates the financial condition of
ZKID. As of the date of such balance sheets, except as and to the
extent reflected or reserved against therein, ZKID had no liabilities
or obligations (absolute or contingent) which should be reflected in
the balance sheets or the notes thereto prepared in accordance with
generally accepted accounting principles, and all assets reflected
therein are properly reported and present fairly the value of the
assets of ZKID, in accordance with generally accepted accounting
principles. The statements of operations, stockholders' equity and cash
flows reflect fairly the information required to be set forth therein
by generally accepted accounting principles.
5
(c) ZKID has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(d) ZKID has timely filed all state, federal or local income
and/or franchise tax returns required to be filed by it from inception
to the date hereof. Each of such income tax returns reflects the taxes
due for the period covered thereby, except for amounts which, in the
aggregate, are immaterial.
(e) The books and records, financial and otherwise, of ZKID
are in all material aspects complete and correct and have been
maintained in accordance with good business and accounting practices.
(f) All of ZKID's assets are reflected on its financial
statements, and, except as set forth in the ZKID Schedules or the
financial statements of ZKID or the notes thereto, ZKID has no material
liabilities, direct or indirect, matured or unmatured, contingent or
otherwise.
Section 2.05 Information. The information concerning ZKID set forth in
this Agreement and the ZKID Schedules is complete and accurate in all material
respects and does not contain any untrue statements of a material fact or omit
to state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. In addition, ZKID has
fully disclosed in writing to EATWARE (through this Agreement or the ZKID
Schedules) all information relating to matters involving ZKID or its assets or
its present or past operations or activities which (i) indicated or may
indicate, in the aggregate, the existence of a greater than $5,000 liability of
ZKID.
Section 2.06 Options or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to any issued and
outstanding capital stock or to any authorized and unissued capital stock of
ZKID.
Section 2.07 Absence of Certain Changes or Events. Since the date of
the most recent ZKID balance sheet:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets or condition of ZKID or (ii)
any damage, destruction or loss to ZKID (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets or condition of ZKID;
(b) ZKID has not (i) amended its certificate of incorporation
or bylaws; (ii) declared or made, or agreed to declare or make any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are outside of the ordinary course of
business or material considering the business of ZKID; (iv) made any
material change in its method of management, operation, or accounting;
(v) entered into any transactions or agreements other than in the
ordinary course of business; (vi) made any accrual or arrangement for
or payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its
salaried employees whose monthly compensation exceed $1,000; or (viii)
6
made any increase in any profit sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement, made to, for or with its officers, directors,
or employees;
(c) ZKID has not (i) granted or agreed to grant any options,
warrants, or other rights for its stock, bonds, or other corporate
securities calling for the issuance thereof or with respect to
outstanding common stock; (ii) borrowed or agreed to borrow any funds
or incurred, or become subject to, any material obligation or liability
(absolute or contingent) except liabilities incurred in the ordinary
course of business; (iii) paid or agreed to pay any material
obligations or liabilities (absolute or contingent) other than current
liabilities reflected in or shown on the most recent ZKID balance sheet
and current liabilities incurred since that date in the ordinary course
of business and professional and other fees and expenses in connection
with the preparation of this Agreement and the consummation of the
transaction contemplated hereby; (iv) sold or transferred, or agreed to
sell or transfer, any of its assets, properties, or rights (except
assets, properties, or rights not used or useful in its business which,
in the aggregate have a value of less than $1000), or canceled, or
agreed to cancel, any debts or claims (except debts or claims which in
the aggregate are of a value less than $1000); (v) made or permitted
any amendment or termination of any contract, agreement, or license to
which it is a party if such amendment or termination is material,
considering the business of ZKID; or (vi) issued, delivered or agreed
to issue or deliver, any stock, bonds, or other corporate securities
including debentures (whether authorized and un-issued or held as
treasury stock), except in connection with this Agreement; and
(d) to the best knowledge of ZKID, it has not become subject
to any law or regulation which materially and adversely affects, or in
the future, may adversely affect, the business, operations, properties,
assets or condition of ZKID.
Section 2.08 Title and Related Matters. ZKID has good and marketable
title to all of its properties, inventory, interest in properties, and assets,
real and personal, which are reflected in the most recent ZKID balance sheet or
acquired after that date (except properties, inventory, interest in properties,
and assets sold or otherwise disposed of since such date in the ordinary course
of business), free and clear of all liens, pledges, charges, or encumbrances
except (a) statutory liens or claims not yet delinquent; (b) such imperfections
of title and easements as do not and will not materially detract from or
interfere with the present or proposed use of the properties subject thereto or
affected thereby or otherwise materially impair present business operations on
such properties; and (c) as described in the ZKID Schedules. Except as set forth
in the ZKID Schedules, ZKID owns, free and clear of any liens, claims,
encumbrances, royalty interests, or other restrictions or limitations of any
nature whatsoever, any and all products it is currently manufacturing, including
the underlying technology and data, and all procedures, techniques, marketing
plans, business plans, methods of management, or other information utilized in
connection with ZKID's business. Except as set forth in the ZKID Schedules, no
third party has any right to, and ZKID has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, propriety techniques,
trademarks, service marks, trade names, or copyrights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a materially adverse effect on the business, operations, financial
condition, income, or business prospects of ZKID or any material portion of its
properties, assets, or rights.
Section 2.09 Litigation and Proceedings. There are no actions, SEC
inquires (formal or informal), suits, proceedings or investigations pending or,
to the knowledge ZKID after reasonable investigation, threatened by or against
ZKID or affecting ZKID or its properties, at law or in equity, before any court
or other governmental agency or instrumentality, domestic or foreign, or before
any arbitrator of any kind. ZKID has no knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator, or governmental agency or instrumentality
or any circumstance which after reasonable investigation would result in the
discovery of such default.
Section 2.10 Contracts.
----------
(a) ZKID is not a party to, and its assets, products,
technology and properties are not bound by, any material contract,
franchise, license agreement, agreement, debt instrument or other
commitments whether such agreement is in writing or oral.
7
(b) All contracts, agreements, franchises, license agreements,
and other commitments to which ZKID is a party or by which its
properties are bound and which are material to the operations of ZKID
taken as a whole are valid and enforceable by ZKID in all respects,
except as limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally;
(c) ZKID is not a party to or bound by, and the properties of
ZKID are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of ZKID; and
(d) Except as included or described in the ZKID Schedules or
reflected in the most recent ZKID balance sheet, ZKID is not a party to
any oral or written (i) contract for the employment of any officer or
employee which is not terminable on 30 days, or less notice; (ii)
profit sharing, bonus, deferred compensation, stock option, severance
pay, pension benefit or retirement plan, (iii) agreement, contract, or
indenture relating to the borrowing of money, (iv) guaranty of any
obligation, other than one on which ZKID is a primary obligor, for the
borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations which, in the aggregate
do not exceed more than one year or providing for payments in excess of
$25,000 in the aggregate; (vi) collective bargaining agreement; or
(vii) agreement with any present or former officer or director of ZKID.
Section 2.11 Material Contract Defaults. ZKID is not in default in any
material respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations, properties,
assets or condition of ZKID and there is no event of default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which ZKID has not taken adequate steps to prevent such a default
from occurring.
Section 2.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which ZKID
is a party or to which any of its assets or operations are subject.
Section 2.13 Governmental Authorizations. ZKID has all licenses,
franchises, permits, and other governmental authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by ZKID of this Agreement and the consummation by ZKID of the
transactions contemplated hereby.
Section 2.14 Compliance With Laws and Regulations. To the best of its
knowledge, ZKID has complied with all applicable statutes and regulations of any
federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of ZKID or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities.
Section 2.15 Insurance. All of the properties of ZKID are fully insured
for their full replacement cost.
Section 2.16 Approval of Agreement. The board of directors of ZKID has
authorized the execution and delivery of this Agreement by ZKID and has approved
this Agreement and the transactions contemplated hereby and will recommend to
its shareholders that they approve this Agreement and the transactions
contemplated hereby.
Section 2.17 Continuity of Business Enterprises. ZKID has no commitment
or present intention to liquidate EATWARE or sell or otherwise dispose of a
material portion of EATWARE' business or assets following the consummation of
the transactions contemplated hereby.
8
Section 2.18 Material Transactions or Affiliations. Except as disclosed
herein and in the ZKID Schedules, there exists no contract, agreement or
arrangement between ZKID and any predecessor and any person who was at the time
of such contract, agreement or arrangement an officer, director, or person
owning of record or known by ZKID to own beneficially, 5% or more of the issued
and outstanding common stock of ZKID and which is to be performed in whole or in
part after the date hereof or was entered into not more than three years prior
to the date hereof. Neither any officer, director, nor 5% shareholder of ZKID
has, or has had since inception of ZKID, any known interest, direct or indirect,
in any such transaction with ZKID which was material to the business of ZKID.
ZKID has no commitment, whether written or oral, to lend any funds to, borrow
any money from, or enter into any other transaction with, any such affiliated
person.
Section 2.19 Bank Accounts; Power of Attorney. Set forth in Schedule
2.19 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by ZKID
within the past twelve (12) months, the account numbers thereof, and all persons
authorized to sign or act on behalf of ZKID, (b) all safe deposit boxes and
other similar custodial arrangements maintained by ZKID within the past twelve
(12) months, and (c) the names of all persons holding powers of attorney from
ZKID or who are otherwise authorized to act on behalf of ZKID with respect to
any matter, other than its officers and directors, and a summary of the terms of
such powers or authorizations.
Section 2.20 Valid Obligation. This Agreement and all agreements and
other documents executed by ZKID in connection herewith constitute the valid and
binding obligation of ZKID, enforceable in accordance with its or their terms,
except as may be limited by bankruptcy, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefor may be brought.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 3.03),
each EATWARE Shareholder who shall elect to accept the exchange offer described
herein (the "Accepting Shareholders"), shall assign, transfer and deliver, free
and clear of all liens, pledges, encumbrances, charges, restrictions or known
claims of any kind, nature, or description, the number of shares of common stock
of EATWARE in the aggregate constituting 100% of the issued and outstanding
shares of common stock of EATWARE held by each of such shareholders; the
objective of such Exchange being the acquisition by ZKID of 100% of the issued
and outstanding common stock of EATWARE. In exchange for the transfer of such
securities by the EATWARE Shareholders, ZKID shall issue to the EATWARE
Shareholders (I) an aggregate of approximately 69,000,000 shares of common stock
of ZKID (the "Initial Shares"). At the Closing, each EATWARE Shareholder shall,
on surrender of his certificate or certificates representing such EATWARE shares
to ZKID or its registrar or transfer agent, be entitled to receive a certificate
or certificates evidencing his proportionate interest in the Initial Shares.
Upon consummation of the transaction contemplated herein, assuming participation
by all of the EATWARE Shareholders, all of the shares of capital stock of
Affiliated Holdings shall be held by ZKID.
Section 3.02 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than June 30, 2006. Such
Closing shall take place at a mutually agreeable time and place.
Section 3.03 Closing Events. At the Closing, ZKID, EATWARE and each of
the Accepting Shareholders shall execute, acknowledge, and deliver (or shall
ensure to be executed, acknowledged, and delivered) any and all certificates,
opinions, financial statements, schedules, agreements, resolutions, rulings or
other instruments required by this Agreement to be so delivered at or prior to
the Closing, together with such other items as may be reasonably requested by
the parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby. Among other things, ZKID shall
provide an opinion of counsel acceptable to Applbaum & Zouvas LLP as to such
matters as Applbaum & Zouvas LLP may reasonably request
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Section 3.04 Termination.
(a) This Agreement may be terminated by the board of directors
of either ZKID or EATWARE at any time prior to the Closing Date if there shall
be any actual or threatened action or proceeding before any court or any
governmental body which shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in the judgment of such
board of directors, made in good faith and based upon the advice of its legal
counsel, makes it inadvisable to proceed with the Exchange.
In the event of termination pursuant to this paragraph (a) of Section
3.04, no obligation, right or liability shall arise hereunder, and each
party shall bear all of the expenses incurred by it in connection with
the negotiation, drafting, and execution of this Agreement
(b) This Agreement may be terminated by the board of directors
of ZKID at any time prior to the Closing Date if:
(i) the board of directors of ZKID determines in good
faith that one or more of ZKID's conditions to Closing has not
occurred, through no fault of ZKID.
(ii) EATWARE shall fail to comply in any material
respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties
of EATWARE contained herein shall be inaccurate in any
material respect, where such noncompliance or inaccuracy has
not been cured within ten (10) days after written notice
thereof.
(iii) EATWARE updates its Schedules or disclaimers
that ZKID finds unacceptable.
If this Agreement is terminated pursuant to this paragraph (b) of
Section 3.04, this Agreement shall be of no further force or effect,
and each party shall bear its own costs incurred in connection with the
negotiation, preparation, and execution of this Agreement.
(c) This Agreement may be terminated by the board of directors
of EATWARE at any time prior to the Closing Date if:
(i) the board of directors of EATWARE determines in
good faith that one or more of EATWARE' conditions to Closing
has not occurred, through no fault of EATWARE;
EATWARE (ii) ZKID shall fail to comply in any
material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations
or warranties of ZKID contained herein shall be inaccurate in
any material respect, where such noncompliance or inaccuracy
has not been cured within ten (10) days after written notice
thereof.
(iii) ZKID updates its disclosure or Schedule that
EATWARE finds unacceptable.
If this Agreement is terminated pursuant to this paragraph (c) of
Section 3.04, this Agreement shall be of no further force or effect,
and each party shall bear its own costs incurred in connection with the
negotiation, preparation and execution of this Agreement.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. ZKID and EATWARE will
each afford to the officers and authorized representatives of the other full
access to the properties, books and records of ZKID or EATWARE, as the case may
be, in order that each may have a full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of the other.
Section 4.02 Delivery of Books and Records. At the Closing, EATWARE
shall deliver to ZKID the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of EATWARE now in
the possession of EATWARE or its representatives.
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Section 4.03 Third Party Consents and Certificates. ZKID and EATWARE
agree to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein contemplated.
Section 4.04 Reserved.
Section 4.05 Reserved.
Section 4.06 Consent of EATWARE Shareholders. Michael Forster shall use
his best efforts to obtain the consent of all EATWARE Shareholders to
participate in the Exchange.
Section 4.07 Reserved.
Section 4.08 Exclusive Dealing Rights. Until 5:00 P.M. PST on June 30,
2006.
(a) In recognition of the substantial time and effort which
ZKID has spent and will continue to spend in investigating EATWARE and
its business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other
management activities, neither EATWARE, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than ZKID and its
directors, officers, employees, representatives and agents) concerning
any merger, sale of substantial assets, sale of shares of capital
stock, or similar transactions involving EATWARE (all such transactions
being referred to as "EATWARE Acquisition Transactions"). If EATWARE
receives any proposal with respect to a EATWARE Acquisition
Transaction, it will immediately communicate to ZKID the fact that it
has received such proposal and the principal terms thereof.
(b) In recognition of the substantial time and effort which
EATWARE has spent and will continue to spend in investigating ZKID and
its business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other
management activities, neither ZKID, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than EATWARE and
its directors, officers, employees, representatives and agents)
concerning any merger, sale of substantial assets, sale of shares of
capital stock, (including without limitation, any public or private
offering of the common stock of ZKID or similar transactions involving
ZKID (all such transactions being referred to as "ZKID Acquisition
Transactions"). If ZKID receives any proposal with respect to a ZKID
Acquisition Transaction, it will immediately communicate to EATWARE the
fact that it has received such proposal and the principal terms
thereof.
Section 4.09 Actions Prior to Closing.
(a) From and after the date of this Agreement until the
Closing Date and except as set forth in the ZKID Schedules or EATWARE
Schedules or as permitted or contemplated by this Agreement, ZKID
(subject to paragraph (d) below) and EATWARE respectively, will each:
(i) carry on its business in substantially the same
manner as it has heretofore;
(ii) maintain and keep its properties in states of
good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to
casualty;
(iii) maintain in full force and effect insurance
comparable in amount and in scope of coverage to that now
maintained by it;
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(iv) perform in all material respects all of its
obligations under material contracts, leases, and instruments
relating to or affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve its
business organization intact, to retain its key employees, and
to maintain its relationship with its material suppliers and
customers; and
(vi) fully comply with and perform in all material
respects all obligations and duties imposed on it by all
federal and state laws and all rules, regulations, and orders
imposed by federal or state governmental authorities.
(b) From and after the date of this Agreement until the
Closing Date, neither ZKID nor EATWARE will:
(i) make any changes in their articles or certificate
of incorporation or bylaws;
(ii) take any action described in Section 1.07 in the
case of EATWARE , or in Section 2.07, in the case of ZKID (all
except as permitted therein or as disclosed in the applicable
party's schedules);
(iii) enter into or amend any contract, agreement, or
other instrument of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary
course of business involving the sale of goods or services; or
(iv) sell any assets or discontinue any operations
(other than the Divestiture), sell any shares of capital stock
(other than as contemplated in Sections 4.07 and 4.08 hereof
and the sale of securities underlying existing warrants or
options of ZKID) or conduct any similar transactions other
than in the ordinary course of business.
(c) In light of the fact that EATWARE Shareholders will
control ZKID as a result of the Exchange, from and after the
date of this Agreement until the Closing Date, ZKID shall take
no action which is material to its business without the prior
written approval of EATWARE, which EATWARE may give or
withhold in its sole discretion after consultation with ZKID.
Section 4.10 Reserved.
Section 4.11 Indemnification.
(a) EATWARE hereby agrees to indemnify ZKID and each of the
officers, agents and directors of ZKID as of the date of execution of
this Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentations made under Article I of
this Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
(b) ZKID hereby agrees to indemnify EATWARE and each of the
officers, agents, and directors of EATWARE and each of the EATWARE
Shareholders as of the date of execution of this Agreement against any
loss, liability, claim, damage, or expense (including, but not limited
to, any and all expense whatsoever reasonably incurred in
investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they
may become subject arising out of or based on any inaccuracy appearing
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in or misrepresentation made under Article II of this Agreement. The
indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement.
Section 4.12 Indemnification of Subsequent Corporate Actions.
(a) No officer, director, controlling shareholder, agent
or representative of ZKID, or any other person
currently affiliated with ZKID, has offered or agreed
to assist in the promotion, market making,
development, enhancement, or support of ZKID's
business, capital raising, or securities market.
(b) ZKID hereby represents and warrants that it will
indemnify and hold harmless any officer, director,
controlling shareholder, agent or representative of
ZKID, or any other person affiliated with ZKID, from
any decisions, activities, or conduct of ZKID
contemporaneous with, or subsequent to this
Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF ZKID
The obligations of ZKID under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by EATWARE in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date (except for changes therein permitted by this Agreement). EATWARE shall
have performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by EATWARE prior to or at the
Closing. ZKID shall be furnished with a certificate, signed by a duly authorized
executive officer of EATWARE and dated the Closing Date, to the foregoing
effect.
Section 5.02 Officer's Certificate. ZKID shall have been furnished with
a certificate dated the Closing Date and signed by a duly authorized officer of
EATWARE to the effect that no litigation, proceeding, investigation, or inquiry
is pending, or to the best knowledge of EATWARE threatened, which might result
in an action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement, or, to the extent not disclosed in the EATWARE
Schedules, by or against EATWARE , which might result in any material adverse
change in any of the assets, properties, business, or operations of EATWARE .
Section 5.03 Good Standing. ZKID shall have received a certificate of
good standing from EATWARE , dated as of a date within ten days prior to the
Closing Date certifying that EATWARE is in good standing as a corporation in the
State of Nevada.
Section 5.04 Approval by EATWARE Shareholders. The Exchange shall have
been approved, and shares delivered in accordance with Section 3.01, by the
holders of not less than ninety percent (90%) of the outstanding common stock of
EATWARE, unless a lesser number is agreed to by ZKID.
Section 5.05 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.06 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of ZKID and EATWARE after the Closing Date on the basis as presently
operated shall have been obtained.
Section 5.07 Other Items. ZKID shall have received a list of EATWARE
Shareholders containing the name, address, and number of shares held by each
EATWARE Shareholder as of the date of Closing, certified by an executive officer
of EATWARE as being true, complete and accurate.
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ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF EATWARE
AND THE EATWARE SHAREHOLDERS
The obligations of EATWARE and the EATWARE Shareholders under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by ZKID in this Agreement were true when
made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Additionally, ZKID shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by ZKID
and shall have satisfied the conditions described below prior to or at the
Closing:
(a) Immediately prior to the Closing, ZKID shall have no more
than an aggregate of 123,467 shares of common stock issued and
outstanding or issuable pursuant to outstanding warrants and options,
excluding any shares issuable pursuant to the Exchange.
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(b) The shareholders of ZKID shall have approved the Exchange
and the related transactions described herein.
EATWARE shall have been furnished with certificates, signed by duly authorized
executive officers of ZKID and dated the Closing Date, to the foregoing effect.
Section 6.02 Officer's Certificate. EATWARE shall have been furnished
with certificates dated the Closing Date and signed by duly authorized executive
officers of ZKID, to the effect that no litigation, proceeding, investigation or
inquiry is pending, or to the best knowledge of ZKID threatened, which might
result in an action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement or, to the extent not disclosed in the ZKID
Schedules, by or against ZKID, which might result in any material adverse change
in any of the assets, properties or operations of ZKID.
Section 6.03 Good Standing. EATWARE shall have received a certificate
of good standing from the Secretary of State of the State of Nevada or other
appropriate office, dated as of a date within ten days prior to the Closing Date
certifying that ZKID is in good standing as a corporation in the State of Nevada
and has filed all tax returns required to have been filed by it to date and has
paid all taxes reported as due thereon.
Section 6.04 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.05 Other Items. EATWARE shall have received an acceptable
legal opinion as contemplated in Section 3.04.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Brokers. ZKID and EATWARE agree that, there were no
finders or brokers involved in bringing the parties together or who were
instrumental in the negotiation, execution or consummation of this Agreement.
ZKID and EATWARE each agree to indemnify the other against any claim by any
third person other than those described above for any commission, brokerage, or
finder's fee arising from the transactions contemplated hereby based on any
alleged agreement or understanding between the indemnifying party and such third
person, whether express or implied from the actions of the indemnifying party.
Section 7.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of Nevada without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States, (b) by execution and delivery of this Agreement, irrevocably submits to
and accepts, with respect to any such action or proceeding, generally and
unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives
any and all rights such party may now or hereafter have to object to such
jurisdiction.
Section 7.03 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to ZKID, to: ZKID NETWORK COMPANY
C/O Luke C. Zouvas
925 Hotel Circle South
San Diego, CA 92108
15
If to EATWARE , to: EATWARE CORPORATION
John Rempel, CFO
(ADDRESS)
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.04 Attorney's Fees. In the event that either party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be reimbursed by
the losing party for all costs, including reasonable attorney's fees, incurred
in connection therewith and in enforcing or collecting any judgment rendered
therein.
Section 7.05 Confidentiality. Each party hereto agrees with the other
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 7.06 Public Announcements and Filings. Unless required by
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (I) business day prior to the release thereof.
Section 7.07 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.08 Third Party Beneficiaries. This contract is strictly
between ZKID and EATWARE, and, except as specifically provided, no director,
officer, stockholder (other than the EATWARE Shareholders), employee, agent,
independent contractor or any other person or entity shall be deemed to be a
third party beneficiary of this Agreement.
Section 7.09 Expenses. Whether or not the Exchange is consummated, each
of ZKID and EATWARE will bear their own respective expenses, including legal,
accounting and professional fees, incurred in connection with the Exchange or
any of the other transactions contemplated hereby.
Section 7.10 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.11 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of one year.
16
Section 7.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.13 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.14 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first-above written.
ZKID NETWORK COMPANY
___________________________________
BY: Ricky Chiu
President
EATWARE CORPORATION
___________________________________
BY:
President
17
The undersigned shareholders of EATWARE CORPORATION hereby agree to
participate in the Exchange on the terms set forth above. Subject to Section
7.11 above, each of the undersigned hereby represents and affirms that he has
read each of the representations and warranties of EATWARE CORPORATION set out
in Article I hereof and that, to the best of his knowledge, all of such
representations and warranties are true and correct.
___________________________________
RICKY CHIU, individually
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