Exhibit 2
ACQUISITION AGREEMENT
Agreement dated as of this ___ of June 2003 between Wolfstone Corporation, a
Nevada corporation ("Wolfstone/Buyer") on behalf of its shareholders, and Mobile
Nation, Inc. a Nevada corporation ("Mobile/Seller") on behalf of its
shareholders. The parties wish to provide for MOBILE's sale of all of its
outstanding shares (the "Shares") to WOLFSTONE and WOLFSTONE's purchase of the
Shares from MOBILE, under the terms and conditions of this Agreement. The
parties agree as follows:
1. The Acquisition.
1.1 Purchase and Sale. Subject to the Terms and Conditions of This
Agreement. at the Closing to be held as provided in Section 2,
MOBILE shall sell the Shares to WOLFSTONE, and WOLFSTONE shall
purchase the Shares from MOBILE, free and clear of all
Encumbrances.
1.2 Purchase Price. Buyer will exchange 4,000,000 newly issued shares
of its restricted common stock for each share representing all of
the outstanding capital stock or ownership interest of MOBILE. It
is anticipated that this transaction will be a nontaxable event
under section 368 of the IRS Code.
2. The Closing.
2.1 Place and Time. The closing of the sale and purchase of the
Shares (the "Closing") shall take place in Las Vegas, Nevada no
later than the close of business (PST) on or before June 27,
2003, or at such other place, date and time as the parties may
agree in writing.
2.2 Deliveries by MOBILE. At the Closing, MOBILE shall deliver the
following to WOLFSTONE:
(a) Certificates representing the Shares, duly endorsed for
transfer to WOLFSTONE and accompanied by any applicable
stock transfer tax stamps; MOBILE shall cause WOLFSTONE to
change those certificates for, and to deliver to WOLFSTONE
at the Closing, a certificate representing the Shares
registered in the name of WOLFSTONE (without any legend or
other reference to any Encumbrance).
(b) The documents contemplated by Section 3.
(c) All other documents, instruments and writings required by
this Agreement to be delivered by MOBILE at the Closing and
any other documents or records relating to MOBILE's business
reasonably requested by WOLFSTONE in connection with this
Agreement.
2.3 Deliveries by WOLFSTONE. At the Closing, WOLFSTONE shall deliver
the following to MOBILE:
(a) The shares as contemplated by section 1.
(b) The documents contemplated by Section 4.
(c) All other documents, instruments and writings required by
this Agreement to be delivered by WOLFSTONE at the Closing.
3. Conditions to WOLFSTONE's Obligations.
The obligations of WOLFSTONE to effect the Closing shall be subject to
the satisfaction at or prior to the Closing of the following
conditions, any one or more of which may be waived by WOLFSTONE:
3.1 Representations, Warranties and Agreements.
(a) The representations and warranties of MOBILE set forth in
this Agreement shall be true and complete in all material
respects as of the Closing Date as though made at such time,
and
(b) MOBILE shall have performed and complied in all material
respects with the agreements contained in this Agreement
required to be performed and complied with by it at or prior
to the Closing.
3.2 Resignations of Directors. All Directors of WOLFSTONE, and its
Subsidiaries whose resignations shall have been requested by
MOBILE before the Closing Date shall have submitted their
resignations or been removed effective as of the Closing Date.
4. Conditions to MOBILE 's Obligations.
The obligations of MOBILE to effect the Closing shall be subject to
the satisfaction at or prior to the Closing of the following
conditions, any one or more of which may be waived by MOBILE:
4.1 Representations, Warranties and Agreements.
(a) The representations and warranties of WOLFSTONE set forth in
this Agreement shall be true and complete in all material
respects as of the Closing Date as though made at such time,
and
(b) WOLFSTONE shall have performed and complied in all material
respects with the agreements contained in this Agreement
required to be performed and complied with by it prior to or
at the Closing.
5. Representations and Warranties of MOBILE.
MOBILE represents and warrants to WOLFSTONE that, to the knowledge of
MOBILE (which limitation shall not apply to Section 5.3), and except
as set forth in the Disclosure Letter:
5.1 Organization of MOBILE; Authorization. MOBILE is a corporation
duly organized, validly existing and in good standing under the
laws of Nevada with full corporate power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate
action of MOBILE and this Agreement constitutes a valid and
binding obligation of MOBILE, enforceable against it in
accordance with its terms.
5.2 Conflict as to MOBILE: Neither the execution nor delivery of this
Agreement nor the performance of WOLFSTONE's obligations
hereunder will
(a) Violate any provision of the certificate of
incorporation or by-laws of MOBILE or
(b) Violate any statute or law or any judgment, decree,
order, regulation or rule of any court or other
Governmental Body applicable to MOBILE.
5.3 Ownership of Shares. The delivery of certificates to WOLFSTONE
and the payment to MOBILE will result in WOLFSTONE's immediate
acquisition of record and beneficial ownership of the Shares,
free and clear of all Encumbrances. There are no outstanding
options, rights, conversion rights, agreements or commitments of
any kind relating to the issuance, sale or transfer of any Equity
Securities or other securities of MOBILE.
5.4 Title to Properties. Either MOBILE, or one of its Subsidiaries
owns all the material properties and assets that they purport to
own (real, personal and mixed, tangible and intangible),
including, without limitation, all the material properties and
assets reflected in the Balance Sheet (except for property sold
since the date of the Balance Sheet in the ordinary course of
business or leased under capitalized leases), and all the
material properties and assets purchased or otherwise acquired by
MOBILE or any of its Subsidiaries since the date of the Balance
Sheet.
5.5 Buildings, Plants and Equipment. The buildings, plants,
structures and material items of equipment and other personal
property owned or leased by MOBILE, or its Subsidiaries are, in
all respects material to the business or financial condition of
MOBILE and its Subsidiaries, taken as a whole, in good operating
condition and repair (ordinary wear and tear excepted) and are
adequate in all such respects for the purposes for which they are
being used.
5.6 Absence of Certain Changes. Since the date of the Balance Sheet,
neither MOBILE nor any of its Subsidiaries has:
(a) Suffered the damage or destruction of any of its properties
or assets (whether or not covered by insurance) which is
materially adverse to the business or financial condition of
MOBILE and its Subsidiaries, taken as a whole, or made any
disposition of any of its material properties or assets
other than in the ordinary course of business;
(b) Made any change or amendment in its certificate of
incorporation or by-laws, or other governing instruments;
(c) Issued or sold any Equity Securities or other securities,
acquired, directly or indirectly, by redemption or
otherwise, any such Equity Securities, reclassified,
split-up or otherwise changed any such Equity Security, or
granted or entered into any options, warrants, calls or
commitments of any kind with respect thereto;
(d) Paid, discharged or satisfied any material claim, liability
or obligation (absolute, accrued, contingent or otherwise),
other than in the ordinary course of business;
(e) Prepaid any material obligation having a maturity of more
than 90 days from the date such obligation was issued or
incurred;
(f) Cancelled any material debts or waived any material claims
or rights, except in the ordinary course of business;
5.7 No Material Adverse Change. Since the date of the Balance Sheet,
there has not been any material adverse change in the business or
financial condition of MOBILE and its Subsidiaries taken as a
whole, other than changes resulting from economic conditions
prevailing in the United States.
6. Representations and Warranties of WOLFSTONE.
WOLFSTONE represents and warrants to MOBILE as follows:
6.1 Organization of WOLFSTONE; Authorization. WOLFSTONE is a
corporation duly organized, validly existing and in good standing
under the laws of Nevada, with full corporate power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary
corporate action of WOLFSTONE and this Agreement constitutes a
valid and binding obligation of WOLFSTONE, enforceable against it
in accordance with its terms. The shareholder list provided by
WOLFSTONE shall be complete, current and valid.
6.2 Purchase for Investment. WOLFSTONE is purchasing the shares
solely for its own account for the purpose of investment and not
with a view to, or for sale in connection with, any distribution
of any portion thereof in violation of any applicable securities
law.
6.3 Conflict as to WOLFSTONE. Neither the execution and delivery of
this Agreement nor the performance of WOLFSTONE's obligations
hereunder will,
(a) Violate any provision of the certificate of incorporation or
by-laws of WOLFSTONE or
(b) Violate any statute or law or any judgment, decree, order,
regulation or rule of any court or other Governmental Body
applicable to WOLFSTONE.
6.4 WOLFSTONE is a publicly traded company, which trades on the Pink
Sheets. WOLFSTONE has properly filed all documentation with all
applicable bodies necessary to become and remain a publicly
traded company. WOLFSTONE will provide current audited financials
within 10 days of closing.
6.5 There are no pending or threatened legal or regulatory claims,
demands or liabilities of any kind or nature against WOLFSTONE or
it assets other than as disclosed.
6.6 WOLFSTONE has filed all federal, state and local income or other
tax returns as required by law, and has paid all taxes, which are
due, and has no tax delinquencies of any kind.
6.7 There are currently 71,324 shares issued and outstanding in
WOLFSTONE. The shares, when issued were properly distributed
under applicable securities laws, and WOLFSTONE has taken no
action to cause said stock to lose its current trading status.
There are no warrants, option agreements or pending subscription
agreements whereby WOLFSTONE is obligated to issue any additional
stock to any person.
6.8 Upon closing, MOBILE's shareholders will receive a controlling
interest in and complete management control over WOLFSTONE by
virtue of their stock ownership, and there are no shareholder
rights or agreements, or other legal impediments to the transfer
of management control of WOLFSTONE.
7. Access and Reporting; Filings with Governmental Authorities.
7.1 Access. Between the date of this Agreement and the Closing Date,
MOBILE shall,
(a) Give WOLFSTONE and its authorized representatives reasonable
access to all plants, offices, warehouse and other
facilities and properties of MOBILE and its Subsidiaries and
to the books and records of WOLFSTONE and its Subsidiaries,
(b) Permit WOLFSTONE to make inspections thereof, and
(c) Cause its Officers and its advisors to furnish WOLFSTONE
with such financial and operating data and other information
with respect to the business and properties of MOBILE and
its Subsidiaries and to discuss with WOLFSTONE and its
authorized representatives the affairs of MOBILE and its
Subsidiaries, all as WOLFSTONE may from time to time
reasonably request.
7.2 Exclusivity. From the date hereof until the earlier of the
Closing or the termination of this Agreement, MOBILE shall not
solicit or negotiate or enter into any agreement with any other
person with respect to or in furtherance of any proposal for a
merger or business combination involving, or acquisition of any
interest in, or (except in the ordinary course of business) sale
of assets by, MOBILE except for the acquisition of the Shares by
WOLFSTONE.
7.3 Publicity. Between the date of this Agreement and the Closing
Date, MOBILE and WOLFSTONE shall, and MOBILE and WOLFSTONE shall
cause WOLFSTONE to, discuss and coordinate with respect to any
public filing or announcement or any internal or private
announcement (including any general announcement to employees)
concerning the contemplated transaction.
7.4 Confidentiality. Prior to the Closing Date, (or at any time if
the Closing does not occur) WOLFSTONE shall keep confidential and
not disclose to any Person (other than its employees, attorneys,
accountants and advisors) or use (except in connection with the
transactions contemplated hereby) all non-public information
obtained by WOLFSTONE pursuant to Section 7.1. Following the
Closing, MOBILE shall keep confidential and not disclose to any
Person (other than its employees, attorneys, accountants and
advisors) or use (except in connection with preparing Tax Returns
and conducting procedures relating to Taxes) any nonpublic
information relating to WOLFSTONE and its Subsidiaries. This
Section 7.7 shall not be violated by disclosure pursuant to court
order or as otherwise required by law, on condition that notice
of the requirement for such disclosure is given the other party
prior to making any disclosure and the party subject to such
requirement cooperates as the other may reasonably request in
resisting it. If the Closing does not occur, WOLFSTONE shall
return to MOBILE, or destroy, all information it shall have
received from MOBILE or in connection with this Agreement and the
transactions contemplated hereby, together with any copies or
summaries thereof or extracts therefrom. MOBILE and WOLFSTONE
shall use their best efforts to cause their respective
representatives, employees, attorneys, accountants and advisors
to whom information is disclosed pursuant to Sections 7.1 and 7.6
to comply with the provisions of this Section 7.7.
8. Conduct of MOBILE's Business Prior to the Closing.
8.1 Operation in Ordinary Course. Between the date of this Agreement
and the Closing Date, MOBILE shall cause MOBILE and its
Subsidiaries to conduct their businesses in all material respects
in the ordinary course.
8.2 Business Organization. Between the date of this Agreement and the
Closing Date, MOBILE shall use its reasonable efforts, and shall
cause MOBILE and each of its Subsidiaries to use its respective
reasonable efforts, to
(a) Preserve substantially intact the business organization of
MOBILE and each of its Subsidiaries and keep available the
services of the present officers and employees of MOBILE and
each of its Subsidiaries, and
(b) Preserve in all material respects the present business
relationships and good will of MOBILE and each of its
Subsidiaries.
8.3 Corporate Organization. Between the date of this Agreement and
the Closing Date, neither WOLFSTONE or MOBILE shall not cause or
permit any amendment of the certificate of incorporation or
by-laws (or other governing instrument) of MOBILE or any of its
Subsidiaries, and shall cause MOBILE Inc. and each of its
Subsidiaries not to:
(a) Issue, sell or otherwise dispose of any of its Equity
Securities, or create, sell or otherwise dispose of any
options, rights, conversion rights or other agreements or
commitments of any kind relating to the issuance, sale or
disposition of any of its Equity Securities;
(b) Sell or otherwise dispose of any Equity Securities of MOBILE
or any of its Subsidiaries, or create or suffer to be
created any Encumbrance thereon, or create, sell or
otherwise dispose of any options, rights, conversion rights
or other agreements or commitments of any kind relating to
the sale or disposition of any Equity Securities of MOBILE
or any of its Subsidiaries;
(c) Reclassify, split up or otherwise change any of its Equity
Securities;
(d) Be party to any merger, consolidation or other business
combination;
(e) Sell, lease, license or otherwise dispose of any of its
properties or assets (including, but not limited to rights
with respect to patents and registered trademarks and
copyrights or other proprietary rights), in an amount which
is material to the business or financial condition of MOBILE
and its Subsidiaries, taken as a whole, except in the
ordinary course of business.
9. Survival of Representations and Warranties; Indemnification.
9.1 Survival. No representation or warranty contained in this
Agreement or in any certificate or document delivered pursuant
hereto shall survive the Closing, except for those contained in
Sections 5.1, 5.2 and 5.3 (only as to MOBILE), 6.1, 6.2, 6.3,
6.4, 6.5, 6.6, 6.7 and 6.8 (the "Surviving Representations and
Warranties ").
9.2 Indemnification by MOBILE. MOBILE shall indemnify and hold
harmless WOLFSTONE and WOLFSTONE and shall reimburse WOLFSTONE
for, any loss, liability, damage or expense (including reasonable
attorneys fees) (collectively, "Damages") arising from or in
connection with, (a) Any inaccuracy in any of the Surviving
Representations and Warranties of MOBILE in this Agreement or (b)
Any failure by MOBILE to perform or comply with any agreement in
this Agreement.
9.3 Indemnification by WOLFSTONE. WOLFSTONE shall indemnify and hold
harmless MOBILE, and shall reimburse MOBILE for, any loss,
liability, damage or expense (including reasonable attorneys
fees) (collectively, "Damages") arising from or in connection
with,
(a) Any inaccuracy in any of the Surviving Representations and
Warranties of WOLFSTONE in this Agreement,
(b) Any failure by WOLFSTONE to perform or comply with any
agreement in this Agreement, except that after the Closing
no claim shall be made with respect to the failure to
perform or comply with any agreement required to have been
performed or complied with prior to the Closing Date, and
(c) Any payments made by MOBILE after the Closing pursuant to
any guaranty by MOBILE of any obligation of WOLFSTONE or any
of its Subsidiaries (other than as contemplated by Section
2.4). WOLFSTONE shall use its best efforts to obtain
MOBILE's release from any such guaranties.
10. Termination.
Termination. This Agreement may be terminated before the Closing
occurs only as follows:
(a) By written agreement of MOBILE and WOLFSTONE at any time.
(b) By MOBILE, by notice to WOLFSTONE at any time, if one or
more of the conditions specified in Section 4 is not
satisfied at the time at which the Closing (as it may be
deferred pursuant to Section 2.1) would otherwise occur or
if satisfaction of such a condition is or becomes
impossible.
(c) By WOLFSTONE, by notice to MOBILE at any time, if one or
more of the conditions specified in Section 3 is not
satisfied at the time at which the Closing (as it may be
deferred pursuant to Section 2.1), would otherwise occur of
if satisfaction of such a condition is or becomes
impossible.
(d) By WOLFSTONE or MOBILE, by notice to the other at any time
prior to June 27, 2003. 10.1 Effect of Termination. If this
Agreement is terminated pursuant to Section 10(a), this
Agreement shall terminate without any liability or further
obligation of any party to another.
11. Notices.
All notices, consents, assignments and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given when
(a) Delivered by hand,
(b) Sent by telex or telecopy (with receipt confirmed), provided
that a copy is mailed by registered mail, return receipt
requested, or
(c) Received by the delivery service (receipt requested), in
each case to the appropriate addresses, telex numbers and
telecopy numbers set forth below (or to such other
addresses, telex numbers and telecopy numbers as a party may
designate as to itself by notice to the other parties).
If to MOBILE: If to WOLFSTONE:
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Mobile Nation, Inc. Wolfstone Corporation
0000 Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
12. Miscellaneous.
12.1 Expenses. Each party shall bear its own expenses incident to the
preparation, negotiation, execution and delivery of this
Agreement and the performance of its obligations hereunder.
12.2 Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the
interpretation of this agreement.
12.3 No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be
considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing.
12.4 Exclusive Agreement; Amendment. This Agreement supersedes all
prior agreements among the parties with respect to its subject
matter and is intended (with the documents referred to herein) as
a complete and exclusive statement of the terms of the agreement
among the parties with respect thereto and cannot be changed or
terminated orally.
12.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but
all of which together shall constitute the same instrument.
12.6 Governing Law. This Agreement and (unless otherwise provided) all
amendments hereof and waivers and consents hereunder shall be
governed by the internal law of the State of Nevada, without
regard to the conflicts of law principles thereof.
12.7 Binding Effect. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective
successors and assigns, provided that neither party may assign
its rights or obligations hereunder without the consent of the
other.
Wolfstone Corporation
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By: Xxxxxxx Xxxxx
President
Mobile Nation, Inc.
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By: Xxx Xxx
President
