EXHIBIT 1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into on December 5, 2003,
by and between XXXX X. XXXXX (the "Seller") and XXXXXXX XXXXXXXXXXX and XXXXXXX
XXXXXXX (collectively, the "Purchaser").
WHEREAS, the Seller is a shareholder of SPIDERBOY INTERNATIONAL, INC., a
Minnesota corporation (the "Company"); and
WHEREAS, the Company has 43,627,775 shares of its common stock, no par
value per share, issued and outstanding (the "Company Common Stock"); and
WHEREAS, the Company has no ongoing operations, no assets, and certain
minimum liabilities, which shall be reflected in an unaudited financial
statement which shall be provided by the Seller at the closing hereunder (the
"Closing"); and
WHEREAS, the Company has approximately 426 holders of record of the Company
Common Stock; and
WHEREAS, at the Closing, the Seller wishes to sell to the Purchaser
21,851,503 shares of the Company Common Stock, which shares constitute
approximately 50.09 percent of the issued and outstanding shares of the Company
Common Stock pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereafter set forth, the Purchaser and the Seller hereby agree as
follows:
1. Purchase and Sale of Stock. Subject to the terms and conditions
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hereof, on the Closing Date (as defined below) the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller 21,851,503
shares of the Company Common Stock in exchange for $250,000 (the "Purchase
Price"). The Purchase Price will be payable as follows:
(a) The sum of $90,000 will be payable at the Closing;
(b) The sum of $160,000 will be payable pursuant to the terms of
that certain promissory note in the form of Exhibit A, a copy of which is
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attached hereto and incorporated herein by reference for all purposes (the
"Note"). The Note will be secured by that certain Stock Pledge Agreement in the
form of Exhibit B, a copy of which is attached hereto and incorporated herein by
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reference for all purposes (the "Stock Pledge Agreement").
2. Further Terms of the Sale and Purchase. It is expressly agreed that
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the Company shall convey to the Seller before the Closing:
(a) Any and all of its tangible and intangible assets, including,
but not limited to, all intellectual rights owned by the Company and its
wholly-owned subsidiary, Xxxxxxxxx.xxx, Inc., a Florida corporation (the
"Subsidiary"), acquired on or before the Closing. As used herein, the term
"intellectual rights" include all trademarks or trademarks applied for by the
Company or the Subsidiary, such as but not limited to Spiderboy and Street
Confessions;
(b) Any films and film footage, movies, film releases signed by
people or celebrities or any other participant that may have agreed to appear in
any film;
(c) All other assets such as any and all computers and/or film
equipment in the possession of the Company or the Subsidiary before the Closing;
(d) The release of all employee agreements and employee contracts
signed on or before the Closing, and which agreements and contracts have been
assigned to the Seller; and
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(e) Any rights to all Internet addresses or urls such as
xxxxxxxxx.xxx, xxxxxxxxxxxxxxxxxx.xxx, xxxxxxxxxxxxxxxxxx.xxx,
wallstreetinformation, and xxxxxxxxxxxxxxxxx.xx, including all other Internet
addresses registered in the name of the Company or the Subsidiary.
3. Reverse Spilt of the Company Common Stock. The Purchaser agrees
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that if a reverse split of the Company Common Stock is ever necessary in the
future, the Purchaser agrees not to reverse split the shares of the Company
Common Stock more than one time over a period of 36 months and any such reverse
split shall not be in excess of ten to one.
4. The Closing. The Closing hereunder shall be held at the offices of
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the Seller located at 00000 Xxxxxxxx Xxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000 on
or before November ___, 2003 or at such other time and place as the Seller and
the Purchaser may mutually agree (the "Closing Date").
5. Representations and Warranties of the Seller. The Seller represents
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and warrants to the Purchaser that the following is true and correct to the best
of his knowledge as of the date hereof and shall be true and correct to the best
of his knowledge as of the Closing:
(a) Existence. The Company is a corporation duly organized and
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validly existing under the laws of Minnesota.
(b) Authorization; No Violation. The execution, delivery and
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performance by the Seller of this Agreement are within the Seller's powers, have
been duly authorized by all necessary action, and do not contravene in any
material respect any Requirement of Law or Contractual Obligation of the Seller.
As used herein, "Requirement of Law" shall mean, as to any Person, the
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, if applicable, and any law, treaty, rule or
regulation, or determination of an arbitrator or any court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject. As used
herein, "Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound. As used herein, "Person" shall mean an individual or any
corporation, association, partnership, joint venture, estate, trust or other
legal entity, including any Governmental Authority. As used herein,
"Governmental Authority" shall mean any nation or government, any state or other
political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
The transfer of the shares of the company Common Stock hereunder constitutes a
transfer of control of the Company, which has been approved by the shareholders
of the Company.
(c) Enforceable Obligations. This Agreement has been duly
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executed and delivered on behalf of the Seller and constitutes the legal, valid
and binding obligation of the Seller enforceable against the Seller in
accordance with its terms and conditions, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
(d) Liabilities. The Seller shall pay all of the liabilities of
the Company's described on the Company's latest filings with the Securities and
Exchange Commission existing as of the Closing which total $18,066.94 and are
set out in Exhibit C, attached hereto and incorporated herein by reference for
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all purposes. At the Closing, the Seller shall pay the liability owed to
Fidelity Transfer in the amount of $1,231.19 and the liability owed to Xxxxxxxx
Xxxxxxx and Associates in the amount of $5,075.00 out of the cash payment to be
made at the Closing. The remaining liabilities described in Exhibit C shall be
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paid by the Seller out of the first payment due on the Note. In the event that
the Seller fails to pay any such remainder of the liabilities described in
Exhibit C, then the Purchaser may at its option, pay any such liabilities and
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receive a credit upon the next maturing installments of principal due on the
Note to the extent of any such payment.
(e) No Litigation. No claim, action, suit, investigation or
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proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Seller, threatened by or against the Seller with respect
to the Company, this Agreement or any of the transactions contemplated hereby.
To the best of the Seller's knowledge, no judgment, order, writ, injunction,
decree or award issued by any Governmental Authority
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is applicable to the Seller, which affects any of the shares of the Company
Common Stock, the Company, this Agreement or any of the transactions
contemplated hereby.
(f) Ownership of the shares of the Company Common Stock. The
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Seller owns of record and beneficially 21,851,503 shares of the Company Common
Stock, which shares constitute approximately 50.09 percent of the issued and
outstanding shares of the Company Common Stock, all of which are free and clear
of any liens, claims and encumbrances (collectively, the "Encumbrances"). The
Seller has the right to transfer title to the shares of the Company Common Stock
to the Purchaser as contemplated hereunder. There are no commitments,
agreements or rights relating to the purchase, sale or other disposition of the
shares of the Company Common Stock to be sold by the Seller hereunder or any
interest therein (including, without limitation, any subscription agreement,
preemptive right or right of first refusal). None of the shares of the Company
Common Stock to be sold by the Seller hereunder are subject to any voting trust,
voting agreement, or other similar agreement or understanding with respect to
the voting or control thereof, nor is any proxy in existence with respect to any
of the shares. Upon the sale of the shares of the Company Common Stock to the
Purchaser pursuant to this Agreement, the Purchaser will own the shares free and
clear of all Encumbrances, except for the Purchaser's obligations under the
Stock Pledge Agreement, and those restrictions imposed by Rule 144 promulgated
under the Securities Act of1933, as amended (the "Securities Act").
(g) Disclosure. No representation made by the Seller in this
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Agreement and in any attachment hereto, to the best knowledge of the Seller,
contains any untrue statement of material fact or omits any material fact in
order to make the statements made and information contained therein as of the
date hereof not misleading.
(h) Organization, Standing and Qualification of the Company. The
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Company is a corporation duly organized, validly existing and in good standing
under the laws of Minnesota and has all necessary corporate power and authority
to engage in the business in which it is presently engaged. The Company has not
qualified to do business as a foreign corporation in any state other than
Minnesota. The Seller shall deliver to the Purchaser true, correct and complete
copies of the certificate of incorporation and bylaws of the Company, and all
amendments thereto.
(i) Capital Structure of the Company. The authorized capital
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stock of the Company consists of 50,000,000 shares of common stock of which
43,627,775 shares are issued and outstanding and 5,000,000 shares of preferred
stock of which none is issued or outstanding. No other class or series of
capital stock of the Company is or has been authorized, nor has the Company
authorized or issued, nor does it have outstanding, any other securities
(including, without limitation, options, warrants, conversion privileges or
other rights, contingent or otherwise, to purchase any capital stock or other
securities of the Company). All of the shares of the Company Common Stock are
duly authorized, validly issued, fully paid and non-assessable, and were issued
in compliance with all applicable Requirements of Law (including securities
laws) and in compliance with the certificate of incorporation and bylaws of the
Company. There are no outstanding subscriptions for any securities to be issued
by the Company
(j) Subsidiary. The Company has one subsidiary, Xxxxxxxxx.xxx,
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Inc., a Florida corporation.
(k) No Violation of Statute or Breach of Contract. To the best
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knowledge of the Seller, the Company is not in default under, or in violation of
(i) any material applicable Requirement of Law, or (ii) any material Contractual
Obligation. The Company has not received notice that any Person claims that the
Company has committed such a default or violation.
(l) Effect of this Agreement. The execution and delivery of this
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Agreement by the Seller, performance of the obligations of the Seller hereunder
and consummation of the transactions contemplated hereby will not (i) result in
a breach or violation of any Requirement of Law applicable to the Company; (ii)
result in the breach of, or be in conflict with, any term, covenant, condition
or provision of, any Contractual Obligation of the Company; or (iii) result in
the creation or imposition of any Encumbrance upon any assets of the Company.
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(m) Financial Statements. The audited balance sheet and income
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statement of the Company as of July 31, 2003 (the "Financial Statements") is
complete and accurate and fairly presents the assets and liabilities of the
Company as of the dates and for the periods therein specified.
(n) Assets and Business. The Company, at the Closing will have no
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assets or business.
(o) Tax Returns and Payments. All income tax returns, federal,
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state, local, foreign and other, including, without limitation, all federal
income tax returns and reports for each fiscal year of the Company through the
fiscal year ended December 31, 2002 required to be filed by and/or on behalf of
the Company in respect of any income taxes (including, without limitation, all
foreign, federal, state, county and local income taxes) have been filed, and the
Company has paid all income taxes shown thereon as owing except where the
failure to file or to pay income taxes would not have a material adverse affect
on the financial condition of the Company. There are no deficiency assessments
against the Company with respect to any foreign, federal, state, local or other
taxes. There are no outstanding agreements or waivers extending the period of
limitation applicable for assessment or collection for any federal, state, local
or foreign tax, or for the filing of any tax return, in respect of the Company
for any period. Neither the federal tax returns nor any state, county, local or
foreign tax returns of the Company have in the past been audited by the Internal
Revenue Service or any other taxing authority. The Seller has heretofore made
available to the Purchaser copies of all federal, state, local and foreign tax
returns or reports of the Company filed prior to the Closing. To the Seller's
best knowledge, all tax returns filed by or on behalf of the Company are
materially true, correct and complete. To the best knowledge of the Seller, all
taxes that the Company is or was required to withhold or collect (including,
without limitation, payroll taxes) have been duly withheld or collected and paid
to the proper Governmental Authority.
(p) Contracts. There are no written agreements and contracts to
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which the Company is a party or by which it is bound.
(q) Litigation. No claim, action, suit, or other proceeding
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against the Company is pending or, to the knowledge of the Seller, is threatened
before or by any court, administrative or regulatory body, or other Governmental
Authority. The Seller knows of no investigation of the Company by any
administrative agency of any federal, state or local government. No judgment,
order, writ, injunction, decree or award issued by any Governmental Authority is
applicable to the Company.
(r) Accounts, Powers of Attorney. There are no persons holding a
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power of attorney on behalf of the Company or otherwise holding the right to act
as an agent on behalf of the Company.
(s) Insurance. There are no insurance policies maintained by or
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on behalf of the Company.
(t) Minute Books. All stock books, stock ledgers and minute books
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of the Company shall be provided to Purchaser at the Closing.
6. Representations of the Purchaser. The Purchaser hereby represents
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and warrants to the Seller as follows:
(a) Authorization; No Violation. The execution, delivery and
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performance by the Purchaser of this Agreement are within the Purchaser's powers
and have been duly authorized by all necessary action, and do not contravene in
any material respect any Requirement of Law or Contractual Obligation of the
Purchaser.
(b) Government Authorization. No authorization or approval or
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other action by, and no notice to or filing with, any Governmental Authority is
required to be obtained or made by the Purchaser for the due execution, delivery
and performance by the Purchaser of this Agreement.
(c) Enforceable Obligations. This Agreement has been duly
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executed and delivered on behalf of the Purchaser and constitutes the legal,
valid and binding obligation of the Purchaser enforceable against the Purchaser
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
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(d) No Litigation. No claim, action, suit, investigation or other
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proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Purchaser, threatened by or against the Purchaser with
respect to this Agreement or any of the transactions contemplated hereby.
(e) Investment Intent. The Purchaser acknowledges that there is
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no existing public market for the shares of the Company Common Stock to be
purchased hereunder and that no registration statement relating to the shares of
the Company Common Stock to be purchased hereunder has been filed under the
Securities Act or any applicable state securities laws, and that the shares of
the Company Common Stock must be held by him for an indefinite period of time
unless the shares of the Company Common Stock are subsequently registered under
the Securities Act and state securities laws or unless an exemption from any
such applicable registration requirement is available, and the Purchaser
acknowledges that there is no assurance or obligation as to any such
registration or exemption.
(f) Acquisition. Within 90 days following the Closing, the
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Purchaser shall cause the Company to acquire a 51 percent interest in Big Vault,
Inc., a Delaware corporation ("Big Vault"). The Purchaser shall cause the
interest in Big Vault to be contributed to the Company as a contribution to the
capital of the Company at no charge to the Company.
7. Conditions to the Purchaser's Obligations. The obligation of the
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Purchaser to purchase the shares of the Company Common Stock at the Closing is
subject to the fulfillment on or prior to the Closing of the following
conditions:
(a) Representations Correct; Performance of Obligations. The
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representations made by the Seller herein shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects at the Closing with the same force and effect as if they had been made
on and as of the Closing Date. The Seller shall have performed in all material
respects all obligations and conditions herein required to be performed or
observed by him on or prior to the Closing.
(b) Dividends. The Company shall not have declared or paid any
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dividend or otherwise changed its capitalization between the date hereof and the
Closing.
(c) Audited Financial Statements. The Purchaser shall have
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received and approved the Financial Statements.
(d) Election of Officers and Directors. Before the Closing, the
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Seller shall have caused the election of Xxxxxxx Xxxxxxxxxxx, as president, and
Xxxxxxx Xxxxxxx, as chief financial officer, of the Company, and Xxxxxxx
Xxxxxxxxxxx, Xxxxxxx Xxxxxxx, Xxxx Xxxxxxxxx, and Xxxx Xxxxxx as directors of
the Company.
(e) Payments at the Closing. At the Closing, the Seller shall pay
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the liability owed to Fidelity Transfer in the amount of $1,231.19 and the
liability owed to Xxxxxxxx Xxxxxxx and Associates in the amount of $5,075.00 out
of the cash payment to be made at the Closing.
8. Conditions to Obligations of the Seller. The Seller's obligation to
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sell the shares of the Company Common Stock at the Closing is subject to the
fulfillment that on or prior to the Closing all of the representations of the
Purchaser herein shall be true and correct in all material respects when made,
and shall be true and correct in all material respects at the Closing with the
same force and effect as if they had been made on and as of the Closing Date,
and the Purchaser shall have performed in all material respects all obligations
and conditions herein required to be performed by him on or prior to the
Closing.
9. Indemnification by the Seller.
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(a) Subject to the provisions of this Paragraph 9, the Seller
shall indemnify and hold harmless the Company, the Purchaser and their
affiliates and the officers, partners, directors, employees, agents, owners,
successors and assigns thereof from any loss, damage, liability or expense,
including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses incurred in connection with any action,
suit or proceeding against any thereof ("Adverse Consequence") incurred or
suffered by such party and
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arising out of or resulting from any claim resulting from personally signed
agreements by the Seller excluding filings and also agreements to creditors
authorized in writing by the Seller during his term as officer of the Company
and the Seller does not warrant against any claim not mentioned in this
Paragraph 9(a). The Seller also agrees to provide to the Purchaser at the
Closing the previous indemnification letter from the previous president and
chief executive officer of the Company.
(b) Anything to the contrary contained herein notwithstanding, in
the event of liability of the Seller to the Purchaser under this Paragraph 9,
the Seller may discharge such liability by transferring to the Purchaser shares
of the Company Common Stock which shall be deemed to have a value per share
equal to the average public trading price of the Purchaser's shares of the
Company Common Stock during the 20 trading days prior to such transfer, but not
less than $1.00 per share.
10. Indemnification by the Purchaser. The Purchaser shall indemnify
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and hold the Seller and existing officers and directors harmless from any loss,
damage, liability or expense (including, without limitation, reasonable expenses
of investigation and reasonable attorneys' fees and expenses) in connection with
any action, suit or proceeding brought against the Seller, incurred or suffered
by the Seller and arising out of or resulting from (a) any breach of any
representation, warranty, or covenant made by the Purchaser hereunder, or (b)
any lawsuit or other proceeding or claim brought by a third party after the
Closing against the Seller and other officers and directors in office before the
Closing Date with respect to any acts or omissions of the Purchaser or the
Company after the Closing.
11. Duration of Indemnification. The indemnification obligations under
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this Agreement shall continue for the periods specified below and shall
terminate with the expiration of such respective periods:
(a) As to representations and warranties set forth in Paragraph
5(f), and Paragraphs 9 and 10, such representations and warranties shall survive
the Closing indefinitely;
(b) Any claim or demand against the Seller or the Purchaser of
which notice has been given pursuant to this Agreement at or prior to the
expiration of the related period shall continue to be subject to indemnification
hereunder notwithstanding the expiration of such period.
12. Notice Claim. The Purchaser, on the one hand, and the Seller, on
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the other hand, shall promptly notify the other of any claim, suit or demand of
which the notifying party has actual knowledge which entitles it to
indemnification hereunder, provided, however, that the delay or failure of any
party required to provide such notification shall not affect the liability of
the indemnifying party hereunder except to the extent the indemnifying party is
harmed by such delay or failure.
13. Defense. If the liability or claim for which indemnification under
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this Agreement is sought is asserted by a third party, the indemnifying party
shall have, at its election, the right to defend any such matter at its sole
cost and expense through counsel chosen by it and reasonably acceptable to the
indemnified party (provided that the indemnifying party shall have no such right
if it is contesting its liability hereunder). If the indemnifying party so
undertakes to defend, the indemnifying party shall promptly notify the
indemnified party hereto of its intention to do so. The indemnifying party
shall not, without the indemnified party's written consent, settle or compromise
any claim or consent to an entry of judgment which does not include as an
unconditional term thereof a release of the indemnified party.
14. Deliveries of the Seller at the Closing. At the Closing, in
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addition to any other documents or agreements required under this Agreement, the
Seller shall deliver or cause to be delivered to the Purchaser the following:
(a) A stock certificate representing 21,851,503 shares of the
Company Common Stock duly endorsed in the name of the Purchaser.
Notwithstanding anything herein contained to contrary, such stock certificate
shall be subject to the Stock Pledge Agreement.
(b) All records, documents and files of the Company including,
without limitation, all minute books, stock records and internal accounting
records.
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(c) Letters of resignations of Xxxx Xxxxxx Xxxxx, Xxxx Xxxxx, Xxx
Xxxxxx, Xxxxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxxxxx as the officers and directors
of the Company.
(d) The indemnification letter from the previous president and
chief executive officer of the Company as described in Paragraph 9 hereof.
(e) Such other documents, assignments, instruments of conveyance
and certificates as reasonably may be required by the Purchaser to consummate
this Agreement and the transactions contemplated hereby.
15. Deliveries of the Purchaser at the Closing. At the Closing, in
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addition to any other documents or agreements required under this Agreement, the
Purchaser shall deliver or cause to be delivered to the Seller the following:
(a) A bank wire transfer in the amount of $90,000 to an account to
be designated by the Seller before the Closing.
(b) The Note.
(c) The Stock Pledge Agreement.
(d) Such other documents, assignments, instruments of conveyance
and certificates as reasonably may be required by the Seller to consummate this
Agreement and the transactions contemplated hereby.
16. Cooperation and Conflicts. Each party agrees in all cases to
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cooperate with the indemnifying party and its counsel in the defense of any such
liabilities or claims. The indemnifying party and the indemnified party or
parties may be represented by the same counsel unless such representation would
be inappropriate due to conflicts of interest between them. In addition, the
indemnified party or parties shall at all times be entitled to monitor and
participate in such defense through the appointment of counsel of its or their
own choosing, at its or their own cost and expense.
17. Waiver. Any extension or waiver with respect to any agreement or
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condition contained herein or the breach thereof shall be valid only if set
forth in a separate instrument in writing signed by the party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver
of any subsequent breach or a subsequent waiver of the same term or condition,
or a waiver of any other term or condition, of this Agreement. The failure of
any party to assert any of its rights hereunder shall not constitute a waiver of
any such rights.
18. Further Assurances. The Seller agrees without further
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consideration, to execute and deliver following the Closing such other
instruments of transfer and take such other action as the Purchaser may
reasonably request in order to put the Purchaser in possession of, and to vest
in the Purchaser, good and valid title to the shares of the Company Common Stock
free and clear of any Encumbrances in accordance with this Agreement and to
otherwise consummate the transactions contemplated by this Agreement.
19. Entire Agreement; Amendment. This Agreement and the other
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documents delivered pursuant hereto constitute the full and entire understanding
and agreement among the parties hereto with regard to the subject matter hereof
and thereof and supersede all prior and contemporaneous agreements and
understandings, oral or written, among the parties hereto with respect to such
subject matter. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived only with the written consent of the
parties hereto.
20. Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any law, rule or regulation
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an
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acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
21. Notices. All notices and other communications required or
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permitted hereunder shall be in writing and shall be delivered personally,
mailed by first-class mail, postage prepaid, or sent by reputable overnight
courier service addressed (a) if to the Purchaser, at 0000 Xx Xxxxxx Xxxxx,
Xxxxx X, Xxxxx, Xxxxxxxxxx 00000, or at such other address as the Purchaser
shall have furnished to the Seller by 10 days' notice in writing, with a copy to
(b) if to the Seller, at 00000 Xxxxxxxx Xxxxx Xxxxx, Xxxx Xxxxx Xxxxxxx 00000,
or such other address as the Seller shall have furnished to the Purchaser by 10
days' notice in writing.
22. Expenses. All costs and expenses, including, without limitation,
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fees and disbursements of counsel, financial advisors and accountants, incurred
in connection with the negotiation, preparation, execution and delivery of this
Agreement and consummation of the transactions contemplated hereby shall be paid
by the party incurring such costs and expenses; however, the Purchaser shall pay
for the audit of the Company.
23. Governing Law; Jurisdiction. This Agreement shall be governed in
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all respects by the laws of the State of Minnesota without application of
principles of conflicts of laws. Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement may be
brought against any of the parties in any state or federal court located in the
State of Minnesota, and each of the parties consents to the jurisdiction of such
courts in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
24. Benefit of Agreement; Assignment. This Agreement will apply to, be
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binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties. This Agreement may not be assigned by
operation of law or otherwise by the Purchaser without the express written
consent of the Seller (which consent may be granted or withheld in the sole
discretion of the Seller). Notwithstanding the foregoing, this Agreement and
the rights hereunder may be (a) assigned as collateral security to any lender of
funds to the Company, and (b) assigned by the Purchaser after the Closing to the
beneficial owners of the Purchaser or to any subsequent purchaser or other
holder of all or a portion of the shares of the Company Common Stock, provided
that in no event shall the Purchaser be relieved from his obligations hereunder
in connection with any such assignment.
25. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES
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TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR AGAINST IT
ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT.
26. Titles and Subtitles. The titles of the paragraphs of this
----------------------
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
27. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
28. Representation Disclaimer. The Seller shall not be deemed to have
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made to the Purchaser any representation or warranty other than as expressly
made by the Seller herein. Without limiting the generality of the foregoing,
and notwithstanding any otherwise express representations and warranties made by
the Seller herein, the Seller makes no representation or warranty to Purchaser
with respect to:
(a) Any projections, estimates or budgets heretofore delivered to
or made available to the Purchaser of future revenues, expenses or expenditures
or future results of operations; or
(b) Except as expressly covered by a representation and warranty
contained herein, any other information or documents (financial or otherwise)
made available to the Purchaser or his counsel, accountants or advisers with
respect to the Company.
29. Purchaser's Due Diligence Investigation. The Purchaser shall have
----------------------------------------
until the Closing Date (such period, the "Purchaser's Due Diligence Period") in
which to conduct his confirmatory due diligence. During the
8
Purchaser's Due Diligence Period, the Purchaser and his accountants,
consultants, and advisers shall be permitted to review the premises, facilities,
books and records and contracts of the Company, and to conduct interviews with
the Company's senior management regarding the business, operations, financial
condition and results of operations of the Company, for the purpose of
confirming the accuracy of the representations and warranties of the Seller
contained herein. The Purchaser has the right, at any time during the
Purchaser's Due Diligence Period, at the Purchaser's sole discretion and without
any liability or obligation, to terminate all negotiations with the Seller.
30. The Seller's Due Diligence Investigation. The Seller shall have
-------------------------------------------
until the Closing Date (such period, the "Sellers' Due Diligence Period") in
which to conduct his confirmatory due diligence. During the Seller's Due
Diligence Period, the Seller and his accountants, consultants, and advisers
shall be permitted to review the premises, facilities, books and records and
contracts of Big Vault, and to conduct interviews with Big Vault's senior
management regarding the business, operations, financial condition and results
of operations of Big Vault, for the purpose of confirming the accuracy of the
representations and warranties of the Purchaser contained herein.
31. Press Releases and Public Announcements. No party shall issue any
----------------------------------------
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
Purchaser and the Seller; provided, however, that any party may make any public
disclosure it believes in good faith is required by applicable law or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing party will use its efforts to advise the other parties prior
to making the disclosure).
32. Entire Agreement. This instrument contains the entire Agreement of
----------------
the parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought. Specifically, this Agreement supercedes that certain agreement dated
October 15, 2003 with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the heading hereof.
/s/ Xxxx X. Xxxxx
----------------------------
XXXX X. XXXXX
/s/ Xxxxxxx Xxxxxxxxxxx
----------------------------
XXXXXXX XXXXXXXXXXX
/s/ Xxxxxxx Xxxxxxx
----------------------------
XXXXXXX XXXXXXX
Attachments:
-----------
Exhibit A - The Note
Exhibit B - The Stock Pledge Agreement
Exhibit C - Liabilities of the Company
9
EXHIBIT A
PROMISSORY NOTE
$160,000.00 December 5, 2003
After date, without grace, for value received, XXXXXXX XXXXXXXXXXX and
XXXXXXX XXXXXXX, residents of San Diego County, California, and SPIDERBOY
INTERNATIONAL, INC., a Minnesota corporation (collectively, the "Maker") hereby
promises to pay to the order of XXXX X. XXXXX, a resident of Xxx County, Florida
(the "Payee") the original principal amount of ONE HUNDRED SIXTY THOUSAND AND
NO/100 DOLLARS ($160,000.00). Except as may be otherwise provided herein, the
unpaid principal of this Note shall bear no interest. All payments of principal
and interest hereunder are payable in lawful money of the United States of
America at 00000 Xxxxxxxx Xxxxx Xxxxx, Xxxx Xxxxx Xxxxxxx 00000, or such other
place as the Payee may designate in writing to the Maker.
The principal of this Note shall be due and payable as follows:
1. The sum of $30,000.00 shall be due and payable on or before January
24, 2004.
2. Thereafter, this Note shall be due and payable in monthly
installments of $13,000.00 each, payable on the 24th day of each and every
calendar month, beginning on February 24, 2004, and continuing regularly
thereafter until the whole of said principal amount has been duly paid.
3. All payments hereunder shall be first applied to expenses and other
charges, then to any accrued interest, and the balance, if any to principal.
Any interest on this Note shall be computed for the actual number of days
elapsed and on the basis of a year consisting of 360 days, unless the maximum
legal interest rate would thereby be exceeded, in which event, to the extent
necessary to avoid exceeding such maximum rate, interest shall be computed on
the basis of the actual number of days elapsed in the applicable calendar year
in which it accrued. It is the intention of the Maker and the Payee to conform
strictly to applicable usury laws. It is therefore agreed that (i) the
aggregate of all interest and other charges constituting interest under
applicable law and contracted for, chargeable or receivable under this Note or
otherwise in connection with this loan transaction, shall never exceed the
maximum amount of interest, nor produce a rate in excess of the maximum contract
rate of interest the Payee may charge the Maker under applicable law and in
regard to which the Maker may not successfully assert the claim or defense of
usury, and (ii) if any excess interest is provided for, it shall be deemed a
mistake and the same shall be refunded to the Maker or credited on the unpaid
principal balance hereof and this Note shall be automatically deemed reformed so
as to permit only the collection of the maximum legal contract rate and amount
of interest.
If, for any reason whatever, the interest paid on this Note shall exceed
the maximum non-usurious amount permitted by law, the Payee shall refund to the
Maker such portion of said interest as may be necessary to cause the interest
paid on this Note to equal the maximum non-usurious amount permitted by law, and
no more. All sums paid or agreed to be paid to the Payee for the use,
forbearance or detention of the indebtedness evidenced hereby shall to the
extent permitted by applicable law be amortized, prorated, allocated and spread
throughout the full term of this Note until payment in full.
This Note may be prepaid in whole or in part at any time without premium or
penalty by the Maker. Prepayments shall be applied to installments of principal
in the inverse order of maturity so that they will pay the last maturing
principal installments first, and these payments will not reduce the amount or
time of payment of the remaining installments. Any interest on any prepaid
installment of principal shall immediately cease to accrue.
Except as provided herein, the Maker and each surety, endorser, and
guarantor waives all demands for payment, presentations for payment, notices of
intention to accelerate maturity, notices of acceleration of maturity, protests,
notices of protest, grace, and diligence in the collection of this Note, and in
filing suit hereon, and agrees
that its liability for the payment hereof shall not be affected or impaired by
any release or change in the security or by any extension or extensions of time
of payment.
Any check, draft, money order or other instrument given in payment of all
or any portion of this Note may be accepted by the Payee or any other holder
hereof and handled in collection in the customary manner, but the same shall not
constitute payment hereunder or diminish any rights of the Payee or any other
holder hereof, except to the extent that actual cash proceeds of such instrument
are unconditionally received by the Payee or any other holder hereof and applied
to the indebtedness as herein provided.
In the event of default in the payment of this Note or under any instrument
executed in connection with this Note, the Maker agrees to pay on demand all
costs incurred by the Payee (i) in the collection of any sums, including, but
not limited to, principal, interest, expenses, and reimbursements due and
payable on this Note, and (ii) in the enforcement of the other terms and
provisions of this Note or any instrument securing payment of this Note, whether
such collection or enforcement be accomplished by suit or otherwise, including
the Payee's reasonable attorney's fees.
It is agreed that time is of the essence of this Note, and upon the failure
of the Maker to cure an event of default in the payment of any fixed monthly
payment when due hereunder within 30 days after receipt of notice from the Payee
or other holder of such failure, or upon the failure of the Maker to cure any
event of default within 30 days after receipt of notice from the Payee or other
holder of such failure, the Payee may declare the whole sum of the principal of
this Note remaining at the time unpaid, together with the accrued interest,
charges, and, to the extent permitted under applicable law, costs and reasonable
attorney's fees incurred by the Payee in collecting or enforcing the payment
thereof, immediately due and payable without further notice, and failure to
exercise said option shall not constitute a waiver on the part of the Payee of
the right to exercise the same at any other time.
If this Note is not paid at maturity, however maturity may be brought
about, all principal and interest due on the date of such maturity shall bear
interest from the date of such maturity at the maximum contract rate of interest
which the Payee may charge the Maker under applicable law.
Except as otherwise provided for herein, each maker, surety, guarantor and
endorser of this Note expressly waives all notices, including, but not limited
to, all demands for payment, presentations for payment, notice of opportunity to
cure default, notice of intention to accelerate the maturity, notice of protest
and notice of acceleration of the maturity, notice of protest and notice of
acceleration of the maturity of this Note, and consents that this Note and the
security interest securing its payment may be renewed and the time of payment
extended without notice and without releasing any of the parties.
This Note is expressly subject to and governed by all of the terms and
conditions contained in that certain Stock Purchase Agreement executed by the
Payee and the Maker on November 24, 2003 (the "Stock Purchase Agreement").
Further, this Note is secured by that certain Stock Pledge Agreement of even
date herewith executed by the Maker, as the Debtor, in favor of the Payee, as
the Secured Party (the "Stock Pledge Agreement"). In the event of any conflict
between the terms of this Note, the Stock Purchase Agreement, or the Stock
Pledge Agreement, the terms of the Stock Purchase Agreement shall control.
Any check, draft, money order or other instrument given in payment of all
or any portion of this Note may be accepted by the Payee or any other holder
hereof and handled in collection in the customary manner, but the same shall not
constitute payment hereunder or diminish any rights of the Payee or any other
holder hereof, except to the extent that actual cash proceeds of such instrument
are unconditionally received by the Payee or any other holder hereof and applied
to the indebtedness as herein provided.
2
This Note shall be governed by and construed in accordance with the laws of
the State of Florida and applicable federal law.
/s/ Xxxxxxx Xxxxxxxxxxx
--------------------------------
XXXXXXX XXXXXXXXXXX
/s/ Xxxxxxx Xxxxxxx
--------------------------------
XXXXXXX XXXXXXX
SPIDERBOY INTERNATIONAL, INC.
By /s/ Xxxxxxx Xxxxxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxxxxx, President
3
EXHIBIT B
STOCK PLEDGE AGREEMENT
THIS AGREEMENT is made this 5th day of December, 2003, by and between XXXX
X. XXXXX (the "Secured Party") and XXXXXXX XXXXXXXXXXX and XXXXXXX XXXXXXX
(collectively, the "Debtor").
WHEREAS, the Secured Party, pursuant to that certain Company Common Stock
Purchase Agreement dated November 24, 2003 (the "Stock Purchase Agreement") has
sold to the Debtor 21,851,503 shares (the "Company Common Stock") of the issued
and outstanding common stock, no par value per share, in SPIDERBOY
INTERNATIONAL, INC., a Minnesota corporation (the "Company"); and
WHEREAS, pursuant to the Stock Purchase Agreement, the Debtor has executed
and delivered to the Secured Party that one certain promissory note of even date
herewith executed by the Debtor in the original principal amount of $160,000
payable to the order of the Secured Party (the "Note");
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto do hereby agree as follows:
1. Security Interest. The Debtor hereby grants to the Secured Party a
------------------
security interest and agrees and acknowledges that the Secured Party has and
shall continue to have a security interest in the SPIDERBOY INTERNATIONAL, INC.
Common Stock acquired by the Debtor from the Secured Party pursuant to the Stock
Purchase Agreement, together with all monies, income, proceeds, substitutions,
replacements, and benefits attributable or accruing to said property, including,
but not limited to, all stock rights, rights to subscribe, liquidating
dividends, stock dividends, dividends paid in stock, new securities or other
properties or benefits for which the Debtor is or may hereafter become entitled
to receive on account of said property, and in the event that the Debtor shall
receive any of such, the Debtor shall hold same as trustee for the Secured Party
and will immediately deliver same to the Secured Party to be held hereunder in
the same manner as the properties specifically described above are held
hereunder. All property of all kinds in which the Secured Party is herein
granted a security interest, including, but not limited to, the Company Common
Stock, shall hereinafter be referred to as the "Collateral."
The Debtor agrees to execute such stock powers, endorse such instruments,
or execute such additional pledge agreements or other documents as may be
required by the Secured Party in order to effectively grant to the Secured Party
the security interest in the Collateral. The security interest granted hereby
is to secure the payment of any and all indebtedness and liabilities whatsoever
of the Debtor to the Secured Party whether direct or whether now existing or
hereafter arising, and howsoever evidenced or acquired, and whether joint or
several, including, but not limited to, the Stock Purchase Agreement and the
Note, and all costs incurred by the Secured Party to enforce this Agreement or
any of the above described agreements and instruments, including but not limited
to attorney's fees and expenses (all of such obligations, indebtedness and
liabilities being hereinafter collectively referred to as the "Obligations").
2. Warranties and Covenants of the Debtor. The Debtor, for so long as
---------------------------------------
he has any duty with respect to the Obligations, hereby warrants and covenants
as follows:
(a) The security interest granted hereby will attach to the
Collateral on the date hereof.
(b) Except for the security interest granted hereby and for taxes
not yet due, the Debtor is the owner of the Collateral free of any adverse
claim, security interest or encumbrance, and the Debtor will defend the
Collateral against all claims and demands of all persons at any time claiming
the same or any interest therein.
(c) The Debtor authorizes the Secured Party to file, in the office
of the Secretary of State of Florida, a financing statement signed only by the
Secured Party covering the Collateral, and at the request of the Secured Party,
the Debtor will join the Secured Party in executing one or more financing
statements pursuant to the Uniform Commercial Code in effect in the State of
Florida on the date hereof in a form satisfactory to the Secured
Party, and the Secured Party will pay the cost of filing the same, or filing or
recording the financing statements in all public offices wherever filing or
recording is deemed by the Secured Party to be necessary or desirable. It being
further stipulated in this regard that the Secured Party may also at any time or
times sign a counterpart of this Agreement signed by the Debtor and file same as
a financing statement if the Secured Party shall elect to do so.
(d) The Debtor will not sell or offer to sell or otherwise
transfer or encumber the Collateral or any interest therein.
(e) The Debtor will keep the Collateral free from any adverse
lien, security interest, or encumbrance, except the security interest granted
hereby and for taxes not yet due.
(f) The Debtor will pay to the Secured Party all costs and
expenses, including reasonable attorney's fees, incurred or paid by the Secured
Party in exercising or protecting his interests, rights and remedies under this
Agreement in the event of default by the Debtor hereunder or under the Stock
Purchase Agreement or the Note.
(g) The Debtor will pay all expenses incurred by the Secured Party
in preserving, defending, and enforcing this security interest in the Collateral
and in collecting or enforcing the Obligations. Expenses for which the Debtor
is liable include, but are not limited to, taxes, assessments, reasonable
attorney's fees, and other legal expenses. These expenses will bear interest
from the dates of payment at the highest rate stated in the Obligations, and the
Debtor will pay the Secured Party this interest on demand at a time and place
reasonably specified by the Secured Party. These expenses and interest will be
part of the Obligations and will be recoverable as such in all respects.
(h) The Debtor will immediately notify the Secured Party of any
change in the Debtor's name, address, or location, change in any matter
warranted or represented in this Agreement, change that may affect this security
interest, and any Event of Default.
(i) The Debtor appoints the Secured Party as the Debtor's
attorney-in-fact, effective if an Event of Default as hereinafter defined is not
cured within 30 days after receipt by the Debtor from the Secured Party of
notice thereof, to do any act that the Debtor is obligated to do by this
Agreement, to exercise all rights of the Debtor in the Collateral, to make all
collections, to execute any papers and instruments, and to do all other things
necessary to preserve and protect the Collateral and to make collections and to
protect the Secured Party's security interest in the Collateral.
3. General Covenants. The security interest granted hereby shall in no
-----------------
way be affected by any indulgence or indulgences, extension or extensions,
change or changes in the form, evidence, maturity, rate of interest or otherwise
of the Obligations, or by want of presentment, notice, protest, suit, or
indulgence upon the Obligations, or shall any release of any security for any of
the parties liable for the payment of the Obligations in any manner affect or
impair this Agreement, and same shall continue in full force and effect in
accordance with their terms until the Obligations have been fully paid.
Any and all securities and other properties of the Debtor heretofore, now
or hereafter delivered to the Secured Party, or in the Secured Party's
possession, shall also secure the Obligations and shall be held and construed to
be a part of the Collateral hereunder to the same extent as fully described
herein.
4. Events of Default. The Debtor shall be in default under this
-------------------
Agreement upon the happening of any of the following events or conditions
(hereinafter severally referred to as an "Event of Default" and collectively
referred to as the "Events of Default"):
(a) Default by the Debtor with respect to any of the Obligations.
(b) The levy of any attachment, execution or other process against
the Debtor, the Company, or any of the Collateral that is not stayed or
dismissed within 30 days.
2
(c) Dissolution, termination of existence, insolvency or business
failure of the Debtor, the Company, or any endorser, guarantor or surety of the
Obligations, or commission of the act of bankruptcy by, or the appointment of a
receiver or other legal representative for any part of the property of,
assignment for the benefit of creditors by, or commencement of any proceedings
under any bankruptcy or insolvency law by or against, the Debtor, the Company or
any endorser, guarantor, or surety for the Obligations that are not stayed or
dismissed within 30 days of filing.
(d) Default in the performance of any covenant or agreement of the
Debtor or the Company to the Secured Party, whether under this Agreement or the
Note, or any other instrument executed in connection with said agreements or
otherwise.
(e) The occurrence of any event which under the terms of any
evidence of indebtedness, indenture, loan agreement, security agreement, or
similar instrument permits the acceleration of maturity of any indebtedness of
the Company or the Debtor to the Secured Party, or to persons other than the
Secured Party, or the Secured Party receives notification that another person
has or expects to acquire a security interest in the Collateral or any part
thereof.
(f) If any warranty, covenant, or representation made to the
Secured Party by or on behalf of the Debtor or the Company proves to have been
false in any material respect when made.
(g) If any lien attaches to any of the Collateral.
5. Remedies. Upon the failure of the Debtor or the Company to cure an
--------
Event of Default within 30 days after receipt of notice from the Secured Party
of such Event of Default and at any time thereafter, at the option of the holder
thereof, any or all of the Obligations shall become immediately due and payable
without presentment or demand or any further notice to the Debtor, the Company
or any other person obligated thereon and the Secured Party shall have and may
exercise with reference to the Collateral any and all of the rights and remedies
of a secured party under the Uniform Commercial Code as adopted in the State of
Florida, and as otherwise granted herein or under any other agreement executed
by the Debtor, including, without limitation, the right and power to sell at
public or private sale or sales, or otherwise dispose of or utilize the
Collateral and any part or parts thereof in any manner authorized or permitted
under this Agreement or under the Uniform Commercial Code as adopted in the
State of Florida after default by the Debtor or the Company and to apply the
proceeds thereof toward the payment of any costs and expenses and attorney's
fees thereby incurred by the Secured Party and toward payment of the
Obligations, in such order or manner as the Secured Party may elect, including,
without limiting the foregoing:
(a) The Secured Party is hereby granted the right, at his option,
upon the occurrence of an Event of Default hereunder, to transfer at any time to
himself or to his nominee securities or other property hereby pledged, or any
part thereof, and to thereafter exercise all voting rights with respect to such
security so transferred and to receive the proceeds, payments, monies, income or
benefits attributable or accruing thereto and to hold the same as security for
the Obligations hereby secured or at the Secured Party's election, to apply such
amounts to the Obligations, whether or not then due, in such order as the
Secured Party may elect, or, the Secured Party may, at his option, without
transferring such securities or properties to his nominee, exercise all voting
rights with respect to the securities pledged hereunder and vote all or any part
of such securities at any regular or special meeting of the stockholders of the
Company, and the Debtor does hereby name, constitute and appoint as a proxy of
the Debtor the Secured Party, in the Debtor's name, place and stead to vote any
and all such securities, as said proxy may elect for and in the name, place and
stead of the Debtor, such proxy to be irrevocable and deemed coupled with an
interest.
(b) Sell, lease, or otherwise dispose of any of the Collateral in
accordance with the rights, remedies, and duties of a secured party under
Chapters 2 and 9 of the Florida Uniform Commercial Code after giving notice as
required by those chapters; unless the Collateral threatens to decline speedily
in value, is perishable, or would typically be sold on a recognized market. The
Secured Party will give the Debtor reasonable notice of any public sale of the
Collateral or of a time after which it may be otherwise disposed of without
further notice of the Debtor. In such event, notice will be deemed reasonable
if it is mailed, postage prepaid, to the Debtor at the address specified in this
Agreement at least 30 days before any public sale or 30 days before the time
when the Collateral may be otherwise disposed of without further notice to the
Debtor.
3
(c) Apply any proceeds from disposition of the Collateral after
default in the manner specified in Chapter 9 of the Florida Uniform Commercial
Code, including payment of the Secured Party's reasonable attorney's fees and
court expenses.
(d) If, after disposition of the Collateral, the Obligations
remain unsatisfied, collect the deficiency from the Debtor.
6. Voting Rights. So long as no Event of Default has occurred and
--------------
remains uncured for the applicable grace period under the Stock Purchase
Agreement, the Note, or hereunder, the Debtor shall have the right to vote all
of the Debtor's shares of the Company Common Stock or items of the Collateral
subject to this Agreement, and the Secured Party shall on demand execute and
deliver an effective proxy or proxies in favor of the Debtor, whenever demand is
made upon the Secured Party for such proxy or proxies by the Debtor.
7. Payment of the Obligations. Simultaneously with the payment in full
--------------------------
of the Obligations, or the Obligations are otherwise deemed to have been paid in
full pursuant to the terms of the Stock Purchase Agreement and the Note, the
Secured Party shall execute and file at his own expense any and all instruments
necessary to terminate the security interest in the Collateral created by this
Agreement and also execute any and all other instruments deemed reasonably
necessary by the Debtor to vest in the Debtor title in the Company Common Stock
and any other item constituting the Collateral, free from any claim by the
Secured Party.
8. No Usury. It is the intention of the parties hereto to comply with
---------
the usury laws of the State of Florida. Accordingly, it is agreed that
notwithstanding any provision to the contrary in this Agreement or in any of the
documents evidencing the Obligations or otherwise relating thereto, no such
provision shall require the payment or permit the collection of interest in
excess of the maximum permitted by law. If any excess of interest in such
respect is provided for, or shall be adjudicated to be so provided for, in this
Agreement, or any of the documents evidencing the Obligations or otherwise
relating thereto, then in such event:
(a) The provisions of this paragraph shall govern and control;
(b) Neither the Debtor, the Company nor their successors or
assigns, or any other party liable for the payment of the Obligations, shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum amount permitted by law;
(c) Any such excess interest which may have been collected shall
be, at the option of the holder of the instrument evidencing the Obligations,
either applied as a credit against the unpaid principal amount thereof or
refunded to the maker thereof; and
(d) The effective rate of interest shall be automatically subject
to reduction to the maximum lawful contract rate allowed under the usury laws of
the State of Florida as now or hereafter construed by any court of competent
jurisdiction.
9. Attorney's Fees. In the event that it should become necessary for
----------------
any party entitled hereunder to bring suit against the other party to this
Agreement for enforcement of the covenants herein contained, the parties hereby
covenant and agree that the party who is found to be in violation of said
covenants shall also be liable for all reasonable attorney's fees and costs of
court incurred by the other party hereto.
10. Benefit. All the terms and provisions of this Agreement shall be
-------
binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
11. Notices. All notices, requests, demands, and other communications
-------
hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, if
to the Secured Party, addressed to Xx. Xxxx X. Xxxxx at 00000 Xxxxxxxx Xxxxx
Xxxxx, Xxxx Xxxxx Xxxxxxx 00000; and if to the Debtor, addressed to Xx. Xxxxxxx
Xxxxxxxxxxx at 0000 Xx Xxxxxx Xxxxx, Xxxxx X, Xxxxx, Xxxxxxxxxx 00000. Any
party hereto may change its address upon 10 days' written notice to any other
party hereto.
4
12. Construction. Words of any gender used in this Agreement shall be
------------
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
13. Waiver. No course of dealing on the part of any party hereto or
------
its agents, or any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
14. Cumulative Rights. The rights and remedies of any party under this
-----------------
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
15. Invalidity. In the event any one or more of the provisions
----------
contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
16. Time of the Essence. Time is of the essence of this Agreement.
----------------------
17. Headings. The headings used in this Agreement are for convenience
--------
and reference only and in no way define, limit, simplify or describe the scope
or intent of this Agreement, and in no way effect or constitute a part of this
Agreement.
18. Excusable Delay. None of the parties hereto shall be obligated to
----------------
perform and none shall be deemed to be in default hereunder, if the performance
of a non-monetary obligation is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, terrorists, wars or war-like action
(whether actual, impending or expected and whether de jure or de facto), arrest
or other restraint of governmental (civil or military) blockades, insurrections,
riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms,
floods, washouts, sink holes, civil disturbances, explosions, breakage or
accident to equipment or machinery, confiscation or seizure by any government of
public authority, nuclear reaction or radiation, radioactive contamination or
other causes, whether of the kind herein enumerated, or otherwise, that are not
reasonably within the control of the party claiming the right to delay
performance on account of such occurrence.
19. Multiple Counterparts. This Agreement may be executed in one or
----------------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Law Governing. This Agreement shall be construed and governed by
--------------
the laws of the State of Florida, and all obligations hereunder shall be deemed
performable in Xxx County, Florida.
21. Perfection of Title. The parties hereto shall do all other acts
---------------------
and things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent of
this Agreement.
22. Entire Agreement. This instrument contains the entire Agreement of
----------------
the parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
5
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
THE SECURED PARTY:
----------------------------
XXXX X. XXXXX
THE DEBTOR:
----------------------------
XXXXXXX XXXXXXXXXXX
----------------------------
XXXXXXX XXXXXXX
6
EXHIBIT C
LIABILITIES OF THE COMPANY
SPIDERBOY INTERNATIONAL, INC.
-----------------------------
American Financial Printing $ 585.75
Xxxxxxxx Xxxxxxx and Associates 5,075.00
Xxxxxxx Xxxxxxx 2,300.00
Fidelity Transfer 1,231.19
Xxxxxxx Xxxxxxx 6,000.00
XxxxxXxxx.xxx 425.00
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$15,616.94
==========
XXXXXXXXX.XXX, INC.
-------------------
Xxxx Lovely (Loan) $ 2,000.00
Interest 450.00
----------
$ 2,450.00
==========
