1
AGREEMENT & PLAN OF REORGANIZATION
THIS ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION (hereinafter the
Agreement) is made and entered into as of the 1st day of March, 2001 by and
between Westnet Communications Group, Inc., a Nevada corporation (hereinafter
WESTNET) and Merchantpark Communications, Inc., a Nevada corporation
(hereinafter MERCHANTPARK) are the parties to this Agreement and Plan of
Reorganization.
RECITALS
WHEREAS, WESTNET desired to acquire from MERCHANTPARK one hundred percent
(100%) of the capital stock of MERCHANTPARK outstanding in exchange for
authorized but not previously issued common stock of WESTNET, par value $.001
per shares.
WHEREAS, the parties hereto desire to reorganize the management and
operations of the consolidated company.
WHEREAS, the parties agree to reorganize WESTNET pursuant to the Internal
Revenue Rule 368 (a)(1)(B0 1986, as amended on a stock for stock basis. This
reverse merger will treat WESTNET as the legal entity and MERCHANTPARK the
accounting survivor.
NOW, THEREFORE, in consideration of the premises and mutual representation,
warranties, and covenants herein contained, the parties agree as follows:
ARTICLE 1
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.1 Acquisition. The parties hereto agree that this Agreement shall
replace and supersede the Letter of Intent executed by the parties on February
15, 2001. The parties hereby agree that WESTNET will acquire 100% of the common
stock outstanding in MERCHANTPARK. WESTNET agrees to issue one share of WESTNET
for each share of MERCHANTPARK for a total issue of 14,275,400 shares of WESTNET
in exchange for 14,275,400 shares of MERCHANTPARK. The shares of WESTNET will be
issued to each shareholder of MERCHANTPARK upon their delivery of their shares.
The parties hereto agree further that the business and management shall be
organized and that a renamed WESTNET shall hereinafter become engaged in the
business of E-Commerce.
SECTION 1.2 Issuance of Shares
(a) Upon the Closing of this Agreement, WESTNET shall cause to be issued
and delivered to MERCHANTPARK, stock certificates representing 14,275,400
WESTNET, par value $0.001 per share.
(b) The shares of WESTNET Common Stock to be issued hereunder shall be
authorized but previously unissued shares of WESTNET Common Stock and shall be
issued directly to and in the name of the shareholders of MERCHANTPARK
(c) All shares of WESTNET Common Stock to be issued hereunder are deemed
"restricted securities" as defined by Rule 144 of the Securities Act of 1933, as
amended ("the 1933 Act"), and MERCHANTPARK shall represent that they are
acquiring said shares for investment purposes only and without the intent to
make a further distribution of the shares until such time as appropriate
regulatory approval for any such distribution has been properly obtained. All
shares of WESTNET Common Stock to be issued under the terms of this Agreement
shall be issued pursuant to an exemption from the registration requirements of
the 1933 Act, under Section 4(2) of the 1933 Act and the rules and regulations
promulgated thereunder.
SECTION 1.3 Closing. The closing of this Agreement and the transactions
contemplated hereby (the "Closing") shall take place on or before March 31, 2001
(the "Closing Date"), at a time and place to be mutually agreed upon by the
parties hereto, and shall be subject to the provisions of ARTICLE X of this
Agreement. At the Closing:
(a) MERCHANTPARK shall cause to be delivered to WESTNET fully executed
instruments of conveyance which when executed and delivered to WESTNET, shall
immediately convey and transfer to WESTNET, all of the common stock of
MERCHANTPARK.
(b) WESTNET shall deliver to MERCHANTPARK certificates representing an
aggregate of 14,275,400 shares of WESTNET Common Stock and which certificates
shall bear a standard restrictive legend in the form customarily used with
restricted securities;
(c) WESTNET shall deliver an Officer's Certificate as described in Sections
9.1 and 9.2 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by WESTNET are true and
correct as of, or have been fully performed and complied with by the Closing
Date; and
(d) MERCHANTPARK shall deliver an Officer's Certificate as described in
Sections 8.1 and 8.2 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by MERCHANTPARK, are true
and correct as of, or have been fully performed and complied with by, the
Closing Date;
SECTION 1.4 MERCHANTPARK Special Meeting of Shareholders. In anticipation of
this Agreement, MERCHANTPARK, shall hold Special Meetings of Shareholders in
lieu of Annual Meeting of Shareholders on ___________, 2001 in order to transact
certain business related to the ratification of this Agreement, including, but
limited to (I) ratification of a proposal to amend the Articles of Incorporation
of WESTNET authorizing the recapitalization of the number of shares authorized
to not less than 50,000,000 at a par value of $.001 per share, (II) electing a
new Board of Directors.
SECTION 1.5 Consummation of Transaction. If, at the Closing, no condition exists
which would permit any of the parties to terminate this Agreement, or a
condition then exists and the party entitled to terminate because of that
condition elects not to do so, then the transactions herein contemplated shall
be consummated upon such date, and then and thereupon MERCHANTPARK will file the
necessary documents that may be required by the State of Nevada..
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF WESTNET
WESTNET hereby represents, warrants and agrees that:
SECTION 2.1 Organization of WESTNET. WESTNET is a Nevada corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, is duly qualified and in good standing as a foreign corporation in every
jurisdiction in which such qualification is necessary, and has the corporate
power and authority to own its properties and assets and to transact the
business in which it is engaged. There are corporations or other entities with
respect to which (i) WESTNET owns all of the outstanding stock or other
interest, or (ii) WESTNET may be deemed to be in control because of factors or
relationships other that the quantity of stock or other interest owned. WESTNET
has all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This Agreement
is the legal, valid and binding obligation of WESTNET, enforceable against
WESTNET in accordance with its respective terms except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally.
SECTION 2.2 Capitalization of WESTNET. The authorized capital stock of WESTNET
at closing will consist 50,000,000 shares of Common Stock, par value $.001 per
share, of which 3,500,000 shares are presently issued and outstanding. All
issued and outstanding shares of common stock of WESTNET have been duly
authorized and validly issued and are fully paid and non-assessable. There are
no options, warrants, rights, calls, commitments or agreements of any character
obligating WESTNET to issue any shares of its capital stock or any security
representing the right to purchase or otherwise receive any such stock. Shares
of WESTNET Common Stock to be issued pursuant to this Agreement, when so issued,
will be duly authorized, validly issued, fully paid and non-assessable.
SECTION 2.3 Charter Documents. Complete and correct copies of the Articles of
Incorporation and By-Laws of WESTNET and all amendments thereto, have been or
will be delivered to MERCHANTPARK prior to the Closing, and certified copies of
the MERCHANTPARK Articles of Incorporation and By-Laws are annexed hereto as
Exhibit 2.3 and by this reference made a part hereof.
SECTION 2.4 Financial Statements. WESTNET's certified financial statements for
the period ending December 31, 2000 and March 31, 2001 unaudited, a copy of
which is annexed hereto as Exhibit 2.4 and by this reference made a part hereof,
are true and complete in all material respects, having been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis for the periods covered by such statements, and fairly present, in
accordance with generally accepted accounting principles, the financial
condition of WESTNET, and results of its operations for the periods covered
thereby. Except as otherwise disclosed to MERCHANTPARK in writing and as set
forth herein, there has been no material adverse change in the business
operations, assets, properties, prospects or condition (financial or otherwise)
of WESTNET taken as a whole from that reflected in the financial statements
referred to in this Section 2.4, of which MERCHANTPARK based its decision to
enter into this Agreement.
SECTION 2.5 Absence of Certain Changes or Events. Since the date of the WESTNET
financial report for the period ending December 31, 2000, and except as
disclosed otherwise herein, WESTNET has not (i) issued or sold any promissory
note, stock, bond, option or other corporate security of which it was an issuer
or other obligor, (ii) discharged or satisfied any lien or encumbrance or paid
any obligation or liability, absolute or contingent, direct or indirect, (iii)
incurred or suffered to be incurred any liability or obligation whatsoever, (iv)
caused or permitted any lien, encumbrance or security interest to be created or
arise on or in any of its properties or assets, (v) declared or made any
dividend, payment or distribution to stock holders or purchased or redeemed or
agreed to purchase or redeem any shares of its capital stock, (vi) reclassified
its shares of capital stock, or (vii) entered into any agreement or transaction
except in connection with the execution and performance of this Agreement.
SECTION 2.6 Assets and Liabilities. WESTNET has good and marketable title to all
of its assets and property, free and clear of any and all liens, claims and
encumbrances, except as may be otherwise explicitly set forth herein. As of date
hereon, WESTNET does not have any debts, liabilities or obligations of any
nature, whether accrued, absolute, contingent, or otherwise, whether due or to
become due, that are not fully reflected in the WESTNET Balance Sheet dated
December 31, 2000 except as may be explicitly set forth herein.
SECTION 2.7. Tax Returns and Payments. All of WESTNET's tax returns (federal,
state, city, county or foreign) which are required by law to be filed on or
before the date of this Agreement, have been duly filed or extended with the
appropriate governmental authority. WESTNET has paid all taxes to be due on said
returns, any assessments made against WESTNET and all other taxes, fees and
similar charges imposed on WESTNET by any governmental authority (other than
those, the amount or validity of which is being contested in good faith by
appropriate proceedings). No tax liens have been filed and no claims are being
assessed with respect to any such taxes, fees or other similar charges.
SECTION 2.8 Required Authorizations. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by WESTNET or the
consummation by it of the transactions contemplated hereby.
SECTION 2.9 Compliance with Law and Government Regulations. WESTNET is in
compliance with and is not in violation of, applicable federal, state, local or
foreign statutes, laws and regulations (including without limitation, any
applicable building, zoning or other law, ordinance or regulation) affecting its
properties or the operation of its business.
SECTION 2.10 Litigation. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which WESTNET is a party or which may
result in any material change in the business or condition, financial or
otherwise, of WESTNET or in any of its properties or assets, or which might
result in any liability on the part of WESTNET or which questions the validity
of this Agreement or of any action taken or to be taken pursuant to or in
connection with the provisions of this Agreement, and to the best knowledge of
WESTNET, there is no basis for any such litigation, arbitration, proceeding or
investigation.
SECTION 2.11 Investigation of Financial Condition. In addition to making
available for review by MERCHANTPARK all financial statements, books and records
of WESTNET, and without in any manner reducing or otherwise mitigating the
representations contained herein, MERCHANTPARK shall have the opportunity to
meet with WESTNET's accountants and attorneys to discuss the financial condition
of WESTNET and to make whatever further independent investigation deemed
necessary and prudent.
SECTION 2.12 Governmental Consent. No consent, approval, authorization or order
of, or registration, qualification, designation, declaration or filing with, any
governmental authority on the part of WESTNET is required in connection with the
execution and delivery of this Agreement or the carrying out of any transactions
contemplated hereby.
SECTION 2.13 Authority. WESTNET and its Board of Directors shall have approved
this Agreement and the transactions contemplated hereby prior to the Closing and
duly authorized the execution and delivery hereof. WESTNET has full power,
authority and legal right to enter into this Agreement and to consummate the
transactions contemplated hereby, and all corporate action necessary to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby has been duly and validly taken.
SECTION 2.14 Full Disclosure. None of the representations and warranties made by
WESTNET herein, or in any exhibit, certificate or memorandum furnished or to be
furnished by WESTNET on its behalf pursuant hereto, contains or will contain any
untrue statement of material fact, or omits any material fact, the omission of
which would be misleading.
ARTICLE III
COVENANTS OF WESTNET
SECTION 3.1 Conduct Prior to the Closing. Between the date hereof and the
Closing:
(a) WESTNET will not enter into any agreement, contract or commitment,
whether written or oral, or engage in any transaction, without the knowledge and
prior written consent of MERCHANTPARK;
(b) WESTNET will not declare any dividends or distributions with respect to
its capital stock or amend its Articles of Incorporation or By-Laws, without the
prior written consent of MERCHANTPARK;
(c) WESTNET will not authorize, issue, sell, purchase or redeem any shares
of its capital stock without the prior written consent of MERCHANTPARK;
(d) WESTNET will comply with all requirements which federal or state law
may impose on it with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and furnish information to
MERCHANTPARK in connection with any such requirements imposed upon the parties
hereto in connection therewith;
(e) WESTNET will not incur any indebtedness for money borrowed, or issue or
sell any debt securities, incur or suffer to be incurred any liability or
obligation of any nature whatsoever, or cause or permit any lien, encumbrance or
security interest to be created or arise on or in any of its properties or
assets, acquire or dispose of fixed assets, change employment terms, enter into
any material or long-term contract, guarantee obligations of any third party,
settle or discharge any balance sheet receivable for less than its stated amount
or enter into any other transaction other than in the regular course of
business, except to comply with the terms of this Agreement, without the consent
of MERCHANTPARK;
(f) WESTNET shall grant to MERCHANTPARK and its counsel, accountants and
other representatives, full access during normal business hours during the
period prior to the Closing to all its respective properties, books, contracts,
commitments and records and, during such period, furnish promptly to
MERCHANTPARK and such representatives all information relating to WESTNET as
MERCHANTPARK, may reasonably request; and
(g) Except for the transactions contemplated by this Agreement, WESTNET
will conduct its business in the normal course, and shall not sell, pledge or
assign its assets without the prior written consent of MERCHANTPARK.
SECTION 3.2 Affirmative Covenants. Prior to Closing, WESTNET will do the
following:
(a) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all the conditions contained in this
Agreement;
(b) Call for and properly hold a meeting of its Board of Directors for the
purpose of conducting the business and ratifying those proposals as set forth in
Section 1.4 above.
(c) Promptly notify MERCHANTPARK in writing of any material adverse change
in the financial condition, business, operations or key personnel of WESTNET,
any breach of its representations or warranties contained herein, and any
material contract, agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this Agreement or in an
exhibit annexed hereto and made a part hereof; and
(d) Reserve, and promptly after the Closing, issue and deliver to
MERCHANTPARK or its designees the number of shares of WESTNET Common Stock
required hereunder; and
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MERCHANTPARK
MERCHANTPARK hereby represents, warrants and agrees that:
SECTION 4.1 Organization of MERCHANTPARK. MERCHANTPARK is a Nevada corporation
that wholly owns two subsidiary corporations (1) Merhcnatpark.Com, Inc., a
Delaware corporation, and (2) Caged Iron, Inc., a Nevada corporation. Each
corporation is duly organized, validly existing and in good standing in each
respective state, is duly qualified and in good standing in each jurisdiction.
SECTION 4.2 Charter Documents. Complete and correct copies of the Articles of
Incorporation and By-Laws of MERCHANTPARK and its affiliates and all amendments
thereto, have been or will be delivered to WESTNET prior to the Closing.
SECTION 4.3 Financial Statements/Assets and Liabilities. MERCHANTPARK has good
and marketable title to all of the assets to be transferred and delivered to
WESTNET hereunder, free and clear of any and all liens, claims and encumbrances,
except as may be otherwise set forth herein and in its financial statements and
further set forth in Exhibit 4.3 annexed hereto and by this reference made a
part hereof.
SECTION 4.4 Tax Returns and Payments. All of MERCHANTPARK tax returns (federal,
state, city, county or foreign) which are required by law to be filed on or
before the date of this Agreement, have been duly filed or extended with the
appropriate governmental authority. MERCHANTPARK has paid all taxes to be due on
said returns, any assessments made against MERCHANTPARK and all other taxes,
fees and similar charges imposed on MERCHANTPARK by any governmental authority
(other than those, the MERCHANTPARK amount or validity of which is being
contested in good faith by appropriate proceedings). No tax liens have been
filed and no claims are being assessed with respect to any such taxes, fees or
other similar charges.
SECTION 4.5 Required Authorizations. There have been or will be timely filed,
given, obtained or taken, all applications, notices, consents, approvals,
orders, registrations, qualifications waivers or other actions of any kind
required by virtue of execution and delivery of this Agreement by MERCHANTPARK
or the consummation by it of the transactions MERCHANTPARK contemplated hereby.
SECTION 4.6 Compliance with Law and Government Regulations. MERCHANTPARK
affiliates is in compliance with all applicable statutes, regulations, decrees,
orders, restrictions, guidelines and standards, whether mandatory or voluntary,
affecting its properties and operations, imposed by the United States of
America, and any state or foreign country or government to which MERCHANTPARK is
subject.
SECTION 4.7 Litigation. There is no litigation, arbitration, proceeding or
investigation pending or threatened to which MERCHANTPARK are a party or which
may result in any material change in the business or condition, financial or
otherwise, of MERCHANTPARK or in any of its properties or assets, or which might
result in any liability on the part of MERCHANTPARK or which questions the
validity of this Agreement or of any action taken or to be taken pursuant to or
in connection with the provisions of this Agreement, and to the best knowledge
of MERCHANTPARK there is no basis for any such litigation, arbitration,
proceeding or investigation.
SECTION 4.8 Investigation of Financial Condition. In addition to making
available for review by WESTNET all financial statements, books and records of
WESTNET, and without in any manner reducing or otherwise mitigating the
representations contained herein, WESTNET shall have the opportunity to meet
with MERCHANTPARK accountants and attorneys to discuss the financial condition
of MERCHANTPARK and to make whatever further independent investigation deemed
necessary and prudent.
SECTION 4.9 Governmental Consent. No consent, approval, authorization or order
of, or registration, qualification, designation, declaration or filing with, any
governmental authority on the part of MERCHANTPARK is required in connection
with the execution and delivery of this Agreement or the carrying out of any
transactions contemplated hereby.
SECTION 4.10 Authority. MERCHANTPARK and its shareholders shall have approved
this Agreement and the transactions contemplated hereby prior to the Closing and
duly authorized the execution and delivery hereof. MERCHANTPARK has full power,
authority and legal right to enter into this Agreement and to consummate the
transactions contemplated hereby, and all corporate action necessary to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby has been duly and validly taken. Those
persons executing this Agreement represent that they have received the authority
to act on behalf of and for the shareholders of MERCHANTPARK and that in the
event additional shareholder approvals are required, such approvals will be
obtained at the next scheduled annual meeting of MERCHANTPARK shareholders.
SECTION 4.11 Investment Purpose. MERCHANTPARK hereby represents that it is
acquiring the shares of WESTNET Common Stock to be issued hereunder for
investment purposes only and not with a view for further distribution or resale.
MERCHANTPARK, further represents and acknowledges that the WESTNET shares issued
hereunder are "restricted securities" and may not be sold, traded or otherwise
transferred without registration under the 1933 Act or exemption therefrom.
MERCHANTPARK further represents that in the event it decides to distribute to
its shareholders the WESTNET shares to be acquired hereby, either in part or in
whole, MERCHANTPARK will make all necessary and requisite filing with the
appropriate state and federal agencies to register such distribution under the
applicable securities laws.
SECTION 4.12 Full Disclosure. None of the representations and warranties made by
MERCHANTPARK herein, or in any exhibit, certificate or memorandum furnished or
to be furnished by WESTNET, on its behalf, contains or will contain any untrue
statement of material fact, or omit any material fact, the omission of which
would be misleading.
ARTICLE V
COVENANTS OF MERCHANTPARK
SECTION 5.1 Conduct Prior to Closing. Between the date hereof and the Closing:
(a) MERCHANTPARK will not enter into any material agreement, contract or
commitment, whether written or oral, or engage in any transaction, without the
prior written consent of WESTNET;
(b) MERCHANTPARK will not declare any dividends or distributions with
respect to its capital stock or amend its Articles of Incorporation or By-Laws,
without the prior written consent of WESTNET;
(c) Except within the regular course of business, MERCHANTPARK will not
incur any indebtedness for money borrowed or issue to sell any debt securities,
or incur or suffer to be incurred any liability or obligation of any nature
whatsoever, or cause or permit any lien, encumbrance or security interest to be
created or arise on or in any of its properties or assets, with the prior
written consent of WESTNET;
(d) MERCHANTPARK will comply with all requirements which federal or state
law may impose on it with respect to this Agreement and the transactions
contemplated hereby, and will promptly cooperate with and furnish information to
WESTNET in connection with any such requirements imposed upon the parties hereto
in connection therewith; and
(e) MERCHANTPARK shall grant to WESTNET and its counsel, accountants and
other representatives, full access during normal business hours during the
period prior to the Closing to all its respective properties, books, contracts,
commitments and records and, during such period, furnish promptly to WESTNET and
such representatives all information relating to MERCHANTPARK as WESTNET may
reasonably request.
SECTION 5.2 Affirmative Covenants. Prior to Closing, MERCHANTPARK will do the
following:
(a) Obtained the approval of its Board of Directors and shareholders to
proceed with this Agreement and obtain any further shareholder approvals, which
may be required, at the next scheduled annual meeting of MERCHANTPARK
shareholders;
(b) Use its best efforts to accomplish all actions necessary to consummate
this Agreement, including satisfaction of all the conditions contained in the
Agreement; and
(c) Promptly notify WESTNET in writing of any materially adverse change in
the financial condition, business, operations or key personnel of MERCHANTPARK
any breach of its representations or warranties contained herein, and any
material contract, agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions contemplated in this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense or as otherwise agreed to herein.
SECTION 6.2 Brokers and Finders. Each of the parties hereto represents, as to
itself, that with the exception of the consideration and additional shares of
WESTNET Common Stock to be paid and issued pursuant to the Letter of Intent ,
dated February 15, 2001 annexed hereto as Exhibit 6.2 and by this reference made
a part hereof, and to which WESTNET acknowledges and agrees fulfill the terms
thereof, no other agent, broker, investment banker or other firm or person is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee in connection with any of the transactions contemplated by this
Agreement.
SECTION 6.3 Necessary Actions. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper officers
and/or directors of WESTNET or MERCHANTPARK as the case may be, shall take all
such necessary action.
SECTION 6.4 Indemnification. Each party to this Agreement hereby agrees to
defend and hold the other party harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, and reasonable
attorney fees, that they shall incur or suffer, which arise out of, result from
or relate to any material breach of, or failure by the party to perform any of
its respective representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or to be furnished by
the party under this Agreement.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are subject to the
fulfillment and satisfaction of each of the following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction or other order
by any federal or state court which prevents the consummation of this Agreement
or any of the transactions contemplated by this Agreement shall have been issued
and remain in effect.
SECTION 7.2 Absence of Termination. The obligations to consummate the
transactions contemplated hereby shall not have been canceled pursuant to
Article X hereof.
SECTION 7.3 Required Approvals. WESTNET and MERCHANTPARK shall have received all
such approvals, consents, authorizations or modifications as may be required to
permit the performance by WESTNET and MERCHANTPARK of the respective obligations
under this Agreement, and the consummation of the transactions herein
contemplated, whether from governmental authorities or other persons and WESTNET
and MERCHANTPARK shall each have received any and all permits and approvals from
any regulatory authority having jurisdiction required for the lawful
consummation of this Agreement.
SECTION 7.4 Blue Sky Compliance. There shall have been obtained any and all
permits, approvals and consents of the Securities or "Blue-Sky" Commissions of
any jurisdictions, and of any other governmental body or agency, which
respective counsel for WESTNET and MERCHANTPARK may reasonably deem necessary or
appropriate so that consummation of the transactions contemplated by this
Agreement may be in compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF MERCHANTPARK
All obligations of WESTNET under this Agreement are subject to the
fulfillment and satisfaction by MERCHANTPARK prior to or at the time of the
Closing, of each of the following conditions, any one or more of which may be
waived by WESTNET.
SECTION 8.1 Representations and Warranties True at the Closing. All
representations and warranties of MERCHANTPARK contained in this Agreement will
be true and correct at and as of the time of the Closing, and MERCHANTPARK shall
have delivered to WESTNET a certificate, dated the date of the Closing, to such
effect and in the form and substance satisfactory to WESTNET, and signed, in the
case of MERCHANTPARK, by its president and secretary.
SECTION 8.2 Performance. The obligations of MERCHANTPARK to be performed on or
before the Closing pursuant to the terms of this Agreement shall have been duly
performed at such time, and MERCHANTPARK shall have delivered to WESTNET a
certificate, dated the date of the Closing, to such effect and in form and
substance satisfactory to WESTNET.
SECTION 8.3 Authority. All action required to be taken by, or on the part of
MERCHANTPARK and its shareholders, if required, to authorize the execution,
delivery and performance of this Agreement by MERCHANTPARK and the consummation
of the transactions contemplated hereby, shall have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not have occurred,
since the date hereof, any adverse change in the business, condition, (financial
or otherwise), assets or liabilities of MERCHANTPARK or any event or condition
of any character adversely affecting MERCHANTPARK, and it shall have delivered
to WESTNET, certificates, dated the date of the Closing, to such effect and in
form and substance satisfactory to WESTNET and signed, in the case of
MERCHANTPARK, by its president and secretary.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF WESTNET
All obligations of MERCHANTPARK under this Agreement are subject to the
fulfillment and satisfaction by WESTNET prior to or at the time of the Closing,
of each of the following conditions, any one or more of which may be waived by
MERCHANTPARK.
SECTION 9.1 Representations and Warranties True at the Closing. All
representations and warranties of WESTNET contained in this Agreement will be
true and correct at and as of the time of the Closing, and WESTNET shall have
delivered to MERCHANTPARK, a certificate, dated the date of the Closing, to such
effect and in the form and substance satisfactory to MERCHANTPARK, and signed,
in the case of WESTNET, by its president and secretary.
SECTION 9.2 Performance. Each of the obligations of WESTNET to be performed on
or before the Closing pursuant to the terms of this Agreement shall have been
duly performed at such time of Closing, and WESTNET shall have delivered to
MERCHANTPARK, a certificate, dated the date of the Closing, to such effect and
in form and substance satisfactory to MERCHANTPARK and signed, in the case of
WESTNET by its president and secretary.
SECTION 9.3 Authority. All action required to be taken by, or on the part of
WESTNET to authorize the execution, delivery and performance of this Agreement
by WESTNET and the consummation of the transactions contemplated hereby, shall
have been duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not have occurred,
since the date hereof, any adverse change in the business, condition, (financial
or otherwise), assets or liabilities of WESTNET or any event or condition of any
character adversely affecting WESTNET, and it shall have delivered to
MERCHANTPARK, certificates, dated the date of the Closing, to such effect and in
form and substance satisfactory to MERCHANTPARK and signed, in the case of
WESTNET, by its president and secretary.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or elsewhere to the
contrary, this Agreement may be terminated:
(a) By mutual agreement of the parties hereto at any time prior to Closing;
(b) By the board of directors of WESTNET at any time prior to the closing
in the event:
(i) a condition to performance by WESTNET under this Agreement or a
covenant of MERCHANTPARK contained herein shall not be fulfilled on or before
the time of the Closing or at such other time and date specified for the
fulfillment for such covenant or condition; or
(ii) a material default or breach of this Agreement shall be made by
MERCHANTPARK; or
(iii) the Closing shall not have taken place on or prior to __________,
2001.
(c) By the board of directors of MERCHANTPARK at any time prior to the
closing in the event:
(i) a condition to MERCHANTPARK performance under this Agreement or a
covenant of WESTNET contained in this Agreement shall not be fulfilled on or
before the Closing or at such other time and date specified for the fulfillment
of such covenant or conditions;
(ii) a material default or breach of this Agreement shall be made by
WESTNET; or
(iii) the Closing shall not have taken place on or prior to _________,
2001.
SECTION 10.2 Effect of Termination. If this Agreement is terminated, this
Agreement, except as to Sections 11.1, 11.2, shall no longer be of any force or
effect and there shall be no liability on the part of any party or its
respective directors, officers or stockholders; provided however, that in the
case of a Termination without cause by a party or a termination pursuant to
Sections 10.1(b) (i) or 10.1 (c) (i) hereof because of a prior material default
under or a material breach of this Agreement by another party, the damages which
the aggrieved party or parties may recover from the defaulting party or parties
shall in no event exceed the amount of out-of-pocket costs and expenses incurred
by such aggravated party or parties in connection with this Agreement.
SECTION 10.3 Recision. In the event that prior to _________, 2001, MERCHANTPARK
fails to obtain any and all consents and/or approvals that may be required from
the MERCHANTPARK shareholders or any regulatory authority for the approval and
ratification of this Agreement, then this Agreement shall be rescinded and
become null and void with the result that all shares of WESTNET Common Stock
issued to MERCHANTPARK hereunder are to be deemed canceled and no longer
outstanding on the transfer records of WESTNET and that those assets set forth
in Exhibit 1.1 hereto shall be returned to MERCHANTPARK.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cost and Expenses. All costs and expenses incurred in connection
with this Agreement will be paid by the party incurring such expenses. In the
event of any termination of this Agreement pursuant to Section 10.1 or 10.3,
subject to the provisions of Section 11.2, MERCHANTPARK and WESTNET will each
bear their own respective expenses.
SECTION 11.2 Extension of Time: Waivers. At any time prior to the Closing date:
(a) WESTNET may (i) extend the time for the performance of any of the
obligations or other acts of MERCHANTPARK (ii) waive any inaccuracies in the
representations and warranties of MERCHANTPARK, AMED, and FMED contained herein
or in any document delivered pursuant hereto by MERCHANTPARK and (iii) waive
compliance with any of the agreements or conditions contained herein to be
performed by MERCHANTPARK. Any agreement on the part of WESTNET to any such
extension or waiver shall be valid only if set forth in an instrument, in
writing, signed on behalf of WESTNET;
(b) MERCHANTPARK, may (i) extend the time for the performance of any of the
obligations or other acts of WESTNET, (ii) waive any inaccuracies in the
representations and warranties of WESTNET contained herein or in any document
delivered pursuant hereto by WESTNET and (iii) waive compliance with any of the
agreements or conditions contained herein to be performed by WESTNET. Any
agreement on the part of MERCHANTPARK to any such extension or waiver shall be
valid only if set forth in an instrument, in writing, signed on behalf of
MERCHANTPARK;
SECTION 11.3 Notices. Any notice to any party hereto pursuant to this Agreement
shall be given by Certified or Registered Mail, addressed as follows:
MERCHANTPARK COMMUNICATIONS, INC.
2921 N. Tenaya Way, Suite 208
Las Vegas, NV 89128
WESTNET, INC.
2921 N. Tenaya Way, Suite 208
Las Vegas, NV 89128
Additional notices are to be given to each party, at such other address
should be designated in writing comply as to delivery with the terms of this
Section 11.3. All such notices shall be effective when sent, addressed as
aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and the respective successors and
designees. Nothing in this Agreement is intended to confer, expressly or by
implication, upon any other person any rights or remedies under or by reason of
this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and together shall
constitute one document. The delivery by facsimile of an executed counterpart of
this Agreement shall be deemed to be an original and shall have the full force
and effect of an original executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm that none of the
provisions herein is dependent upon the validity of any other provision, and if
any part of this Agreement is deemed to be unenforceable, the remainder of the
Agreement shall remain in full force and effect.
SECTION 11.7 Headings. The Article and Section headings are provided herein for
convenience of reference only and do not constitute a part of this Agreement.
SECTION 11.8 Governing Law. This Agreement shall be governed by the laws of the
State of Nevada. Any action to enforce the provisions of this Agreement shall be
brought in a court of competent jurisdiction in the State of Nevada and in no
other place.
SECTION 11.9 Survival of Representations and Warranties. All terms, conditions,
representations and warranties set forth in this Agreement or in any instrument,
certificate, opinion, or other writing providing for in it, shall survive the
Closing and the delivery of the shares of WESTNET Common Stock transferred
hereunder at the Closing, regardless of any investigation made by or on behalf
of any of the parties hereto.
SECTION 11.10 Assignability. This Agreement shall not be assignable by any of
the parties hereto without the prior written consent of the other parties.
SECTION 11.11 Amendment. This Agreement may be amended with the approval of the
boards of directors of WESTNET and MERCHANTPARK at any time before or after
approval thereof by directors of WESTNET, if required, and MERCHANTPARK; but
after such approval by the WESTNET directors, no amendment shall be made which
substantially and adversely changes the terms hereof. This Agreement may not be
amended except by an instrument, in writing, signed on behalf of each of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Acquisition Agreement in a manner legally binding upon them as of the date first
above written.
WESTNET
WESTNET COMMUNICATIONS, INC. ATTEST:
By: /S/ Elizabeth Sanders
Its: President Secretary
MERCHANTPARK
MERCHANTPARK COMMUNICATIONS, INC. ATTEST
By: /S/ Shawn Balaghi /S/ Scott Thomasson
Its: President Secretary
CERTIFICATE
OF
MERCHANTPARK COMMUNICATIONS, INC.
The undersigned, _____________ and _______________ hereby certify that they
are the President and Secretary respectively, of MERCHANTPARK COMMUNICATIONS, a
Nevada corporation and further certify as follows:
1. That the representations and warranties of MERCHANTPARK COMMUNICATIONS
contained in the Acquisition Agreement (the "Agreement") by and between WESTNET,
a Nevada corporation, and MERCHANTPARK COMMUNICATIONS are true and correct at
and as of the date hereof.
2. The obligations and covenants of MERHCANTPARK COMMUNICATIONS to be
performed and observed on or before the Closing as defined in the Agreement have
been duly performed and observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of the Company or any event or condition of
any character adversely affecting the Company.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this day of , 2001.
MERCHANTPARK COMMUNICATIONS, INC.
By: _________________________
President
By: _________________________
Secretary
CERTIFICATE
OF
WESTNET COMMUNICAITONS, INC.
The undersigned, ___________ and ____________ hereby certify that they are
the President and Secretary respectively, of WESTNET COMMUNICATIONS, INC, a
Nevada corporation and further certify as follows:
1. That the representations and warranties of WESTNET COMMUNICATIONS
contained in the Acquisition Agreement (the "Agreement") by and between
MERCHANTPARK, a Nevada corporation, and WESTNET COMMUNICATIONS are true and
correct at and as of the date hereof.
2. The obligations and covenants of WESTNET COMMUNICATIONS to be performed
and observed on or before the Closing as defined in the Agreement have been duly
performed and observed.
3. Except as otherwise disclosed in the Agreement, there has not occurred
since the date thereof, any adverse change in the business, condition (financial
or otherwise), assets or liabilities of the Company or any event or condition of
any character adversely affecting the Company.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this day of , 2001.
WESTNET COMMUNICATIONS, INC.
By:__________________
President