AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of October 7, 1999, is
entered into by and between Sunwalker Development, Inc., a Nevada corporation,
with offices at 0000 Xxxxx Xxxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, XX 00000,
("Acquiror") and ECenter, Inc., a Utah corporation, having its principal offices
at 000 Xxxxx 000 Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000 (the "Company").
WITNESSETH
WHEREAS, the Company desires to merge with and into Acquiror, and
Acquiror desires to merge with the Company, so that Acquiror will be the
Surviving Corporation (as defined below), all upon the terms and subject to the
conditions of this Agreement and in accordance with the laws of the States of
Utah and Nevada; and
WHEREAS, the terms and conditions of the Merger (as defined below), the
mode of carrying the same into effect, the manner of converting the capital
stock of the Company into the right to receive common stock of the Acquiror and
such other terms and conditions as may be required or permitted to be stated in
this Agreement are set forth below; and
WHEREAS, for purposes of treatment under the laws and regulations
governing federal income tax, it is intended by the parties hereto that the
Merger shall qualify as a reorganization within the meaning of Sections
368(a)(1)(A) of the Internal Revenue Code, as amended (the "Code"), and that
this Agreement shall constitute a "Plan of Reorganization" for purposes of
Section 368 of the Code.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, agreements and conditions herein
contained, and subject only to the approval of their respective shareholders,
the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Date (as defined in Section 1.3), the
Company shall be merged with and into Acquiror and the separate corporate
existence of the Company shall thereupon cease (the "Merger"), and Acquiror
shall be the surviving corporation in the Merger (the "Surviving Corporation").
The name of the Surviving Corporation immediately following the Effective Date
shall be changed to "xXxxxxxx.xxx, Inc." The separate corporate existence of the
Surviving Corporation with all its rights, privileges, immunities and franchises
shall continue unaffected by the Merger.
1.2 Filing. Upon fulfillment or waiver of the conditions specified in
this Agreement, and provided that this Agreement has not been terminated in
accordance with the provisions hereof, Acquiror and the Company will cause a
Certificate of Merger in substantially the form of Exhibit A attached hereto
(the "Certificate of Merger") to be executed and filed with the office of the
Division of Corporations and Commercial Code as provided in Section 16-10a-1105
of the Utah Revised Business Corporation Act, and Sections 92A.200 and 92A.230
of the Nevada Revised Statutes, respectively, and a copy of the Certificate of
Merger, certified by the above-mentioned governmental authorities of Utah and
Nevada shall be properly recorded by the Surviving Corporation in accordance
with the applicable provisions of the laws of the States of Utah and Nevada.
1.3 Effective Date of the Merger. The Merger shall be effective at the
time of the later of the completion of filing of the Certificate of Merger with
the offices of the States of Utah and Nevada, referred to in Section 1.2, which
time is herein sometimes referred to as the "Effective Date." The filings of
such Certificate is conditional on final approval of the Plan of Merger by the
shareholders of both Acquiror and Company.
1.4 Effect of the Merger. The Merger shall have the effects set forth
in Sections 16-10a-1106 of the Utah Revised Business Corporation Act and Section
92A.250 of the Nevada Revised Statutes.
1.5 Further Assurances. If at any time after the Effective Date, the
Surviving Corporation shall consider or be advised that any further deeds,
assignments or assurances in law or in any other things are necessary, desirable
or proper to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, the title to any property or rights of the Company acquired or to
be acquired by reason of, or as a result of, the Merger, the parties hereto
agree that Acquiror, the Company and their proper officers shall execute and
deliver all such proper deeds, assignments and assurances in law and shall do
all things necessary, desirable or proper to vest, perfect or confirm title to
such property or rights in the Surviving Corporation and otherwise to carry out
the purpose of this Agreement, and that the proper officers and directors of
Acquiror and the Company are fully authorized in the name of Acquiror and the
Company otherwise to take any and all such actions.
1.6 Articles of Incorporation. At the Effective Date, the Articles of
Incorporation of Acquiror, as amended, shall be the Articles of Incorporation of
the Surviving Corporation, and may be amended from time to time after the
Effective Date as provided by law. From the Effective Date, the Articles of
Incorporation, as the same may be amended from time to time as provided by law,
separate and apart from this Agreement, shall be, and may be separately
certified as, the Articles of Incorporation of the Surviving Corporation.
1.7 Bylaws. The Bylaws of the Acquiror, as in effect immediately prior
to the Effective Date, shall continue unchanged as the Bylaws of the Surviving
Corporation, until the same shall thereafter be altered, amended or repealed in
accordance with Nevada law, the Articles of Incorporation of the Surviving
Corporation or its Bylaws.
1.8 Directors and Officers.
1.8.1 As at the Effective Date, the then-existing Board
member(s) of Acquiror shall submit his/their resignation(s) from all
positions with Acquiror. From and after said resignations, the current
members of the Board of Directors of the Company, as said Board is
constituted immediately prior to the Effective Date, shall be and shall
be appointed to, the Board of the Acquiror, as Surviving Corporation,
each of which member shall thereafter serve until the successor is
elected and qualified, or until his earlier death, resignation or
removal. If on or after the Effective Date a vacancy shall exist in the
Board of Directors of the Surviving Corporation, such vacancy may
thereafter be filled in the manner provided by law and the Bylaws of
the Surviving Corporation. The Boards of Directors of the Company's
wholly-owned subsidiaries, iShopper, Inc. and Outbound Enterprises,
Inc., f/k/a Outbound Acquisitions Corp., shall remain as constituted as
of the Closing Date, as hereafter identified, until their successors
are elected and qualified. A list of said directors is included in
Section 1.8.1 of the Company's Disclosure Statement.
1.8.2 As at the Effective Date, each officer of the Acquiror
shall resign from his/her respective positions with Acquiror and those
officers of the Company holding such positions immediately prior to the
Effective Date shall be and shall be appointed as an officers of the
Surviving Corporation in the same capacity or capacities, until
successors are elected and qualified or until earlier death,
resignation or removal. A list of officers of the Company and of its
subsidiaries is included in Section 1.8.1 of the Company's Disclosure
Statement.
1.9 Conversion.
1.9.1 At the Effective Date, each outstanding share of the
Company's voting common stock (the "Common Stock") (excluding any
treasury shares of the Company), shall be converted into and become the
right to receive twenty-five thousandths (.025) share of the voting
common stock of the Acquiror (the "Acquiror Common Stock"). Pursuant to
the Merger, Acquiror will issue an aggregate total of 125,000 shares of
Acquiror Common Stock to the shareholders of the Company in exchange
for all of their shares of stock of the Company. The shares of Acquiror
to be thus conveyed are post-split shares, after the anticipated and
authorized 1000-to-1 reverse stock split, approved by Acquiror's
shareholders, effective October 8, 1999.
1.9.2 Each treasury share of the Company's Common Stock, if
any, shall be canceled, and no payment shall be made in respect
thereof.
1.10 Surrender of Certificates. As soon as practicable after the
Effective Date, each holder of a certificate or certificates which prior thereto
represented validly issued and outstanding shares of Common Stock may surrender
such certificate or certificates to Acquiror or to its designated transfer
agent, and shall receive in exchange therefore a certificate representing the
number of shares of Acquiror Common Stock into which the shares of the Company's
Common Stock theretofore represented by the surrendered certificate or
certificates shall have been converted pursuant to Section 1.9 hereof. Until so
surrendered, each certificate that at the Effective Date represents issued and
outstanding shares of the Company's Common Stock shall be deemed for all
corporate purposes to evidence ownership of the number of shares of Acquiror
Common Stock into which the shares of Company Common Stock shall have been
converted.
1.11 Closing. The closing for the Merger pursuant to this Agreement
(the "Closing") shall be held at 10:00 a.m., mountain time, on October 7, 1999
(the "Closing Date"), or at such other date and time specified by Acquiror to
the Company on five days' notice, but in no event later than November 30, 1999.
The Closing shall occur at the offices of counsel for Company, Snow, Xxxxxxxxxxx
& Xxxxxxxxx, 00 Xxxxxxxx Xxxxx, Xxxxxxxx Floor, Salt Lake City, Utah, unless
each party hereto agrees in writing to another location.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents, warrants and covenants to Acquiror as
follows:
2.1 Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Utah and has full corporate power and authority to carry on its business as it
is now being conducted and to own the properties and assets it now owns;
including all subsidiaries. It is duly qualified and licensed to do business as
a corporation in good standing in the State of Utah. To date, it has not sought
qualification or license to do business as a foreign corporation in any other
state or jurisdiction. Copies of the Articles of Incorporation and the Bylaws of
the Company heretofore delivered to Acquiror are complete and correct copies of
such instruments as are presently in effect.
2.2 Capitalization of the Company. As of the date of this Agreement,
the authorized capital stock of the Company consists of 25,000,000 shares of
common stock, no par value per share, of which 5,000,000 shares are issued and
outstanding. The Company has authorized no preferred stock. All issued and
outstanding shares of capital stock of the Company are validly issued, fully
paid and nonassessable. Except as set forth in Section 2.2 of the Disclosure
Schedule attached hereto as Schedule A (the "Disclosure Schedule"), there are no
outstanding (a) securities convertible into or exchangeable for the Company
capital stock; (b) options, warrants or other rights to purchase or subscribe
for capital stock of the Company or securities convertible into or exchangeable
for capital stock of the Company; or (c) contracts, commitments, agreements,
understandings or arrangements of any kind relating to the issuance of any
capital stock of the Company, any such convertible or exchangeable securities or
any such options, warrants or rights.
2.3 Subsidiaries. The Company does not own, directly or indirectly, any
capital stock or other equity securities of any other corporation or have any
direct or indirect equity or ownership interest in any other business, except
its wholly-owned subsidiaries and other entities listed in Section 2.3 of the
Disclosure Schedule.
2.4 Authorization and Related Matters. The Company has full corporate
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby. The Board of Directors and stockholders of the
Company have taken all action required by law, the Company's Articles of
Incorporation, its Bylaws or otherwise to be taken by them to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and this Agreement is a valid and binding
agreement of the Company enforceable in accordance with its terms, except that
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights.
2.5 No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will violate any
provision of the Articles of Incorporation or Bylaws of the Company, or, except
as specified in Section 2.5 of the Disclosure Schedule, violate, or be in
conflict with, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
of, or accelerate the performance required by, or cause the acceleration of the
maturity of, any debt or obligation pursuant to, or result in the creation or
imposition of any security interest, lien or other encumbrance upon any property
or assets of the Company under, any agreement or commitment to which the Company
is a party or by which the Company is bound, or to which the property of the
Company is subject, or violate any statute or law or any judgment, decree,
order, regulation or rule of any court or governmental authority.
2.6 Financial Statements. The Company has heretofore delivered to
Acquiror consolidated financial statements of the Company and its subsidiaries
for the 8-month period ended August 31, 1999 (the "Financial Statement"). To the
extent that these statements have not been audited, audited statements will be
furnished to Acquiror within sixty days after the Closing Date. The Financial
Statement and the notes thereto are true, complete and accurate and fairly
present the assets, liabilities and financial condition of the Company as of the
date thereof, and such statement of income and the notes thereto are true,
complete and accurate and fairly present the results of operations for the
period therein referred to all in accordance with generally accepted accounting
principles consistently applied throughout the period involved.
2.7 Title to Properties; Encumbrances. The Company has good, valid and
marketable title to all the properties and assets which it purports to own
(real, personal and mixed, tangible and intangible), including, without
limitation, all the properties and assets reflected in the Financial Statement
and all the properties and assets purchased by the Company since the date of the
Financial Statement, which subsequently acquired properties and assets (other
than short-term investments and inventory) are listed in Section 2.7 of the
Disclosure Schedule. All such properties and assets are free and clear of all
title defects or objections, liens, claims, charges, security interests or other
encumbrances of any nature whatsoever, including, without limitation, leases,
chattel mortgages, conditional sales contracts, collateral security arrangements
and other title or interest retention arrangements, and are not, in the case of
real property, subject to any rights of way, building use restrictions,
exceptions, variances, reservations or limitations of any nature whatsoever
except, with respect to all such properties and assets, (a) liens shown on the
Financial Statement as securing specified liabilities or obligations and liens
incurred in connection with the purchase of property and/or assets, if such
purchase was effected after the date of the Financial Statement, with respect to
which no default exists; (b) minor imperfections of title, if any, none of which
is substantial in amount, materially detract from the value or impair the use of
the property subject thereto, or impair the operations of the Company and which
have arisen only in the ordinary course of business and consistent with past
practice since the date of the Financial Statement; and (c) liens for current
taxes not yet due.
2.8 Leases. Section 2.8 of the Disclosure Schedule contains an accurate
and complete description of the terms of all leases pursuant to which the
Company leases real or personal property. Except as set forth in Section 2.8 of
the Disclosure Schedule, all such leases are valid, binding and enforceable in
accordance with their terms, and are in full force and effect; there are no
existing defaults by the Company thereunder; no event of default has occurred
which (whether with or without notice, lapse of time or the happening or
occurrence of any other event) would constitute a default thereunder; and all
lessors under such leases have consented (where such consent is necessary) to
the consummation of the transactions contemplated by this Agreement without
requiring modification in the rights or obligations of the lessee under such
leases. Executed counterpart copies of all consents referred to in the preceding
sentence will be delivered to Acquiror at the Closing.
2.9 Bank Accounts. Section 2.9 of the Disclosure Schedule sets forth
the names and locations of all banks, trust companies, savings and loan
associations and other financial institutions at which the Company maintains
safe deposit boxes or accounts of any nature, together with the names of all
persons authorized to draw thereon, make withdrawals therefrom or have access
thereto. At the Closing, the Company will deliver to Acquiror copies of all
records, including all signature and authorization cards, pertaining to such
bank accounts.
2.10 Litigation. Except as set forth in Section 2.10 of the Disclosure
Schedule, there is no action, suit, inquiry, proceeding or investigation by or
before any court or governmental or other regulatory or administrative agency or
commission pending or, to the best knowledge of the Company, threatened against
or involving the Company, or which challenges the validity of this Agreement or
any action taken or to be taken by the Company pursuant to this Agreement or in
connection with the transactions contemplated hereby; and the Company does not
know or have any reason to know of any valid basis for any such action,
proceeding or investigation.
2.11 Consents and Approvals of Governmental Authorities. No consent,
approval or authorization of, or declaration, filing or registration with, any
governmental or regulatory authority is required to be obtained or made by the
Company in connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby.
2.12 Consents. Merger is conditional on the consent of the Company's
shareholders. No consent of any other person is necessary to the consummation of
the transactions contemplated hereby, including, without limitation, consents
from parties to contracts, leases or other agreements.
2.13 Brokers and Finders. Neither the Company nor any of its officers,
directors or employees has employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders' fees in connection
with the transactions contemplated by this Agreement.
2.14 Employment Agreements. The Company has employment agreements in
effect with each of the persons listed in Section 2.14 of the Disclosure
Schedule.
2.15 Securities Law. The Company has less than 35 non-accredited
investors as shareholders, as defined under the applicable provisions of the
Securities Act of 1933, as amended (the "Securities Act"), and the regulations
promulgated thereunder.
2.16 No Covenant as to Tax Consequences. It is expressly understood and
agreed, despite the statement of intent of the parties set forth above, that
neither the Company nor its officers or agents has made any warranty or
agreement, expressed or implied, as to the tax consequences of the transactions
contemplated by this Agreement or the tax consequences of any action pursuant to
or growing out of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
Acquiror hereby represents, warrants and covenants to the Company as
follows:
3.1 Corporate Organization. Acquiror is a corporation dully organized,
validly existing and in good standing under the laws of the State of Nevada and
has full corporate power and authority to carry on its business as it is now
being conducted and to own the properties and assets it now owns; including all
subsidiaries. It is duly qualified and licensed to do business as a corporation
in good standing in the State of Nevada. To date, it has not sought
qualification or license to do business as a foreign corporation in any other
state or jurisdiction. Copies of the Articles of Incorporation and the Bylaws of
the Acquiror heretofore delivered to the Company are complete and correct copies
of such instruments as are presently in effect.
3.2 Capitalization. As of the date of this Agreement, the authorized
capital stock of Acquiror consists of 100,000,000 shares of common stock, par
value $.001 per share, of which approximately 78,059,156 shares are issued and
outstanding as of October 6, 1999. All such issued and outstanding shares have
been duly authorized and validly issued and are fully paid and nonassessable.
The Acquiror has authorized no preferred stock. All issued and outstanding
shares of capital stock of the Acquiror are validly issued, fully paid and
nonassessable. Except as set forth in Section 3.2 of the Disclosure Schedule
attached hereto as Schedule A (the "Disclosure Schedule"), there are no
outstanding (a) securities convertible into or exchangeable for the Acquiror
capital stock; (b) options, warrants or other rights to purchase or subscribe
for capital stock of the Acquiror or securities convertible into or exchangeable
for capital stock of the Acquiror; or (c) contracts, commitments, agreements,
understandings or arrangements of any kind relating to the issuance of any
capital stock of the Acquiror, any such convertible or exchangeable securities
or any such options, warrants or rights. Notwithstanding the foregoing, Acquiror
has disclosed, and Company acknowledges, Acquiror's plans, by a proposed
amendment to its Articles of Incorporation, to effect a 1000-to-1 reverse stock
split. Shares committed and to be issued to Company's shareholders in
consideration of this merger are to be post-split shares.
3.3 Subsidiaries. The Acquiror does not own, directly or indirectly,
any capital stock or other equity securities of any other corporation or have
any direct or indirect equity or ownership interest in any other business,
except its wholly-owned subsidiaries and other entities listed in Section 3.3 of
the Acquiror's Disclosure Schedule.
3.4 Authorization and Related Matters. The Acquiror has full corporate
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby, subject only to shareholder approval. The
Board of Directors and stockholders of the Acquiror have taken all action
required by law, the Acquiror's Articles of Incorporation, its Bylaws or
otherwise to be taken by them to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, and this
Agreement is a valid and binding agreement of the Acquiror enforceable in
accordance with its terms, except that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights.
3.5 No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will violate any
provision of the Articles of Incorporation or Bylaws of the Acquiror, or, except
as specified in Section 3.5 of the Disclosure Schedule, violate, or be in
conflict with, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
of, or accelerate the performance required by, or cause the acceleration of the
maturity of, any debt or obligation pursuant to, or result in the creation or
imposition of any security interest, lien or other encumbrance upon any property
or assets of the Acquiror under, any agreement or commitment to which the
Acquiror is a party or by which the Acquiror is bound, or to which the property
of the Acquiror is subject, or violate any statute or law or any judgment,
decree, order, regulation or rule of any court or governmental authority.
3.6 Financial Statements. The Acquiror has heretofore delivered to the
Company an audited financial statement of the Acquiror and its subsidiaries for
the year ended December 31, 1998 (the "Financial Statement"). The Financial
Statement and the notes thereto are true, complete and accurate and fairly
present the assets, liabilities and financial condition of the Acquiror as of
the date thereof, and such statement of income and the notes thereto are true,
complete and accurate and fairly present the results of operations for the
period therein referred to all in accordance with generally accepted accounting
principles consistently applied throughout the period involved.
3.7 Title to Properties; Encumbrances. The Acquiror has good, valid and
marketable title to all the properties and assets which it purports to own
(real, personal and mixed, tangible and intangible), including, without
limitation, all the properties and assets reflected in the Financial Statement
and all the properties and assets purchased by the Acquiror since the date of
the Financial Statement, which subsequently acquired properties and assets
(other than short-term investments and inventory) are listed in Section 3.7 of
the Disclosure Schedule. All such properties and assets are free and clear of
all title defects or objections, liens, claims, charges, security interests or
other encumbrances of any nature whatsoever, including, without limitation,
leases, chattel mortgages, conditional sales contracts, collateral security
arrangements and other title or interest retention arrangements, and are not, in
the case of real property, subject to any rights of way, building use
restrictions, exceptions, variances, reservations or limitations of any nature
whatsoever except, with respect to all such properties and assets, (a) liens
shown on the Financial Statement as securing specified liabilities or
obligations and liens incurred in connection with the purchase of property
and/or assets, if such purchase was effected after the date of the Financial
Statement, with respect to which no default exists; (b) minor imperfections of
title, if any, none of which is substantial in amount, materially detract from
the value or impair the use of the property subject thereto, or impair the
operations of the Acquiror and which have arisen only in the ordinary course of
business and consistent with past practice since the date of the Financial
Statement; and (c) liens for current taxes not yet due.
3.8 Leases. Section 3.8 of the Disclosure Schedule contains an accurate
and complete description of the terms of all leases pursuant to which the
Acquiror leases real or personal property. Except as set forth in Section 3.8 of
the Disclosure Schedule, all such leases are valid, binding and enforceable in
accordance with their terms, and are in full force and effect; there are no
existing defaults by the Acquiror thereunder; no event of default has occurred
which (whether with or without notice, lapse of time or the happening or
occurrence of any other event) would constitute a default thereunder; and all
lessors under such leases have consented (where such consent is necessary) to
the consummation of the transactions contemplated by this Agreement without
requiring modification in the rights or obligations of the lessee under such
leases. Executed counterpart copies of all consents referred to in the preceding
sentence will be delivered to Acquiror at the Closing.
3.9 Bank Accounts. Section 3.9 of the Disclosure Schedule sets forth
the names and locations of all banks, trust companies, savings and loan
associations and other financial institutions at which the Acquiror maintains
safe deposit boxes or accounts of any nature, together with the names of all
persons authorized to draw thereon, make withdrawals therefrom or have access
thereto. At the Closing, the Acquiror will deliver to Acquiror copies of all
records, including all signature and authorization cards, pertaining to such
bank accounts.
3.10 No Undisclosed Liabilities. Acquiror does not have any liabilities
or obligations of any nature (absolute, accrued, contingent or otherwise) which
were not fully reflected or reserved against in the Acquiror Financial
Statement, except for liabilities and obligations incurred in the ordinary
course of business and consistent with past practice since the date thereof; and
the reserves reflected in the Acquiror Financial Statement are adequate,
appropriate and reasonable.
3.11 Litigation. Except as set forth in Section 3.11 of the Disclosure
Schedule, there is no action, suit, inquiry, proceeding or investigation by or
before any court or governmental or other regulatory or administrative agency or
commission pending or, to the best knowledge of the Acquiror, threatened against
or involving the Acquiror, or which challenges the validity of this Agreement or
any action taken or to be taken by the Acquiror pursuant to this Agreement or in
connection with the transactions contemplated hereby; and the Acquiror does not
know or have any reason to know of any valid basis for any such action,
proceeding or investigation.
3.12 Consents and Approvals of Governmental Authorities. No consent,
approval or authorization of, or declaration, filing or registration with, any
governmental or regulatory authority is required to be obtained or made by the
Acquiror in connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby.
3.13 Consents. Except for pending approval by Acquiror's shareholders,
no consent of any person is necessary to the consummation of the transactions
contemplated hereby, including, without limitation, consents from parties to
contracts, leases or other agreements.
3.14 Brokers and Finders. Neither the Acquiror nor any of its officers,
directors or employees has employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders' fees in connection
with the transactions contemplated by this Agreement.
3.14 Employment Agreements. The Acquiror has employment agreements in
effect with each of the persons listed in Section 3.14 of the Disclosure
Schedule.
3.15 Securities Law. Acquiror has complied with all of the applicable
provisions of the Securities Act and applicable state securities laws in
connection with its raising of funds for Acquiror and has no knowledge of any
violation thereof.
3.16 Legality of Shares to be Issued. The shares of common stock of
Acquiror to be delivered and exchanged for shares of common stock of the
Company, when so delivered, will have been duly and validly authorized and
issued by Acquiror and will be fully paid and nonassessable.
3.17 No Covenant as to Tax Consequences. It is expressly understood and
agreed, despite the statement of intent of the parties set forth above, that
neither Acquiror nor its officers or agents has made any warranty or agreement,
expressed or implied, as to the tax consequences of the transactions
contemplated by this Agreement or the tax consequences of any action pursuant to
or growing out of this Agreement.
ARTICLE IV
CONDITIONS TO THE COMPANY'S OBLIGATIONS
Each and every obligation of the Company under this Agreement to be
performed on or before the Closing shall be subject to the satisfaction, on or
before the Closing, of each of the following conditions, unless waived in
writing by the Company:
4.1 Representations and Warranties. The representations and warranties
of Acquiror contained in Article III hereof, the Disclosure Schedule and in all
certificates and other documents delivered and to be delivered by Acquiror to
the Company or its representatives pursuant hereto or in connection with the
transactions contemplated hereby shall be in all material respects true and
accurate as of the date when made and as and as of the Closing as though such
representations and warranties were made at and as of such date, except for
changes expressly permitted or contemplated by the terms of this Agreement.
4.2 Performance. Acquiror shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by it on or prior to the Closing.
4.3 Shareholder Approval. If and to the extent required to do so by
applicable and governing state law, the Company's and Acquiror's shareholders
shall have approved the transactions contemplated by this Agreement in the
manner required by applicable state law.
4.4 No Litigation or Governmental Proceeding. No suit, action,
investigation, inquiry or other proceeding before any court or by or before any
governmental body or other person or legal or administrative proceeding shall
have been commenced or threatened against Acquiror, its subsidiaries or
affiliates, or its shareholders, officers or directors, or any of them, seeking
to restrain, prevent or change the transactions contemplated hereby, or
questioning the validity or legality of any such transactions, or seeking
damages in connection with any of such transactions.
4.5 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by this Agreement by Acquiror and all documents
incident thereto shall be reasonably satisfactory to the Company and its counsel
and the Company shall have received a true, correct and complete copy of all
such documents and other evidence as the Company or its counsel may reasonably
request in order to establish the consummation of such transactions and the
taking of all proceedings in connection therewith.
4.6 Employment Agreements. Acquiror shall have assumed the employment
agreements between the Company and/or its subsidiaries, and each of those
employees identified in the Section 2.14 of the Company's Disclosure Statement.
4.7 Securities Laws. Acquiror shall prepare and distribute a
subscription agreement or private placement memorandum to all of the Company's
shareholders prior to the holding of the Closing of the transactions
contemplated by this Agreement in compliance with Regulation D issued pursuant
to the Securities Act of 1933, as amended.
4.8 Certificates. Acquiror shall have furnished the Company with such
certificates of their officers and others to evidence compliance with the
conditions set forth in this Article IV as may be reasonably requested by the
Company.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF ACQUIROR
Each and every obligation of Acquiror under this Agreement to be
performed on or before the Closing shall be subject to the satisfaction, on or
before the Closing, of each of thee following conditions, unless waived in
writing by Acquiror:
5.1 Representations and Warranties True. The representations and
warranties contained in Article II hereof, the Disclosure Schedule and in all
certificates and other documents delivered and to be delivered by the Company to
Acquiror or their representatives pursuant hereto or in connection with the
transactions contemplated hereby shall be in all material respects true,
complete and accurate as of the date when made and at and as of the Closing Date
as though such representations and warranties were made at and as of such date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
5.2 Performance. The Company shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by it on or prior to the Closing.
5.3 Shareholder Approval. The Company's and Acquiror's shareholders
shall have approved the transactions contemplated by this Agreement in the
manner required by applicable state law.
5.4 No Litigation or Governmental Proceeding. No suit, action,
investigation, inquiry or other proceeding before any court or by or before any
governmental body or other person or legal or administrative proceeding shall
have been commenced or threatened against the Company, its subsidiaries or
affiliates, or its shareholders, officers or directors, or any of them, seeking
to restrain, prevent or change the transactions contemplated hereby, or
questioning the validity or legality of any such transactions, or seeking
damages in connection with any of such transactions.
5.5 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by this Agreement by the Company and all documents
incident thereto shall be reasonably satisfactory to Acquiror and its counsel
and Acquiror shall have received a true, correct and complete copy of all such
documents and other evidence as Acquiror or its counsel may reasonably request
in order to establish the consummation of such transactions and the taking of
all proceedings in connection therewith.
5.6 Certificates. The Company shall have furnished Acquiror with such
certificates of their officers and others to evidence compliance with the
conditions set forth in this Article V as may reasonably be requested by
Acquiror.
ARTICLE VI
CONDUCT OF THE COMPANY'S BUSINESS PENDING THE EFFECTIVE DATE
Pending the Closing, and from and after the Closing, until the
Effective Date, and except as otherwise expressly consented to or approved by
Acquiror in writing:
6.1 Regular Course of Business. The Company will carry on its business
diligently and substantially in the same manner as heretofore conducted, and the
Company shall not incur any liabilities, except in the ordinary course of
business
6.2 Amendments. No change or amendment shall be made in the Articles of
Incorporation or Bylaws of the Company, except as such changes may be approved
by Acquiror.
6.3 Capital Changes; Dividends; Redemptions. The Company will not issue
or sell any shares of its capital stock or other securities, acquire directly or
indirectly, by redemption or otherwise, any such capital stock, reclassify or
split-up any such capital stock, declare or pay any dividends thereon in cash,
securities or other property or make any other distribution with respect
thereto, or grant or enter into any options, warrants, calls or commitments of
any kind with respect thereto.
6.4 Subsidiaries. The Company will not organize any new subsidiary,
acquire any capital stock or other equity securities of any corporation or
acquire any equity or ownership interest in any business, except to complete the
acquisition of Outbound Enterprises, Inc., to the extent not yet closed, under
terms disclosed to Acquiror and pursuant to that form of Agreement and Plan of
Merger attached hereto as Exhibit B.
6.5 Organization. The Company shall use its best efforts to preserve
its corporate existence and business organization intact, to keep its officers
and key employees available to Acquiror, and to preserve for Acquiror its
relationships with licensors, suppliers, distributors, customers and others
having business relations with it and/or with its subsidiaries.
ARTICLE VII
CONDUCT OF ACQUIROR'S BUSINESS PENDING THE EFFECTIVE DATE
Pending the Closing, and from and after the Closing, until the
Effective Date, and except as otherwise expressly consented to or approved by
the Company in writing:
7.1 Regular Course of Business. The Acquiror will carry on its business
diligently and substantially in the same manner as heretofore conducted, and the
Acquiror shall not incur any 1iabilities, except in the ordinary course of
business
7.2 Amendments. No change or amendment shall be made in the Articles of
Incorporation or Bylaws of the Acquiror.
7.3 Capital Changes; Dividends; Redemptions. The Acquiror will not
issue or sell any shares of its capital stock or other securities, acquire
directly or indirectly, by redemption or otherwise, any such capital stock,
reclassify or split-up any such capita1 stock, declare or pay any dividends
thereon in cash, securities or other property or make any other distribution
with respect thereto, or grant or enter into any options, warrants, calls or
commitments of any kind with respect thereto.
7.4 Subsidiaries. The Acquiror will not organize any new subsidiary,
acquire any capital stock or other equity securities of any corporation or
acquire any equity or ownership interest in any business, except to cooperate in
the Company's acquisition of Outbound Enterprises, Inc., to the extent not yet
closed, under terms disclosed to Acquiror and pursuant to that form of Agreement
and Plan of Merger between ECenter, Inc., Outbound Acquisitions Corp., and
Outbound Enterprises, Inc., attached hereto as Exhibit B.
7.5 Organization. The Acquiror shall use its best efforts to preserve
its corporate existence and business organization intact and to preserve its
existing relationships with licensors, suppliers, distributors, customers and
others having business relations with it or with its subsidiaries.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
8.1 Survival of Terms. All of the terms and conditions of this
Agreement, together with the warranties, representations and covenants herein
(including but not limited to those specifically set forth under Article IX
below), or in any instrument or document delivered or to be delivered pursuant
to this Agreement, shall survive the execution of this Agreement and the Closing
notwithstanding any investigation heretofore or hereafter made by or on behalf
of any party hereto, for a period of six (6) years; provided, however, that (a)
the agreements and covenants set forth in this Agreement shall survive and
continue until all obligations set forth therein shall have been performed and
satisfied; and (b) all representations and warranties shall survive and continue
for, and all claims with respect thereto shall be made prior to the end of
twenty-four (24) months from the Effective Date.
8.2 Indemnification by the Company. Subject to Section 8.1 hereof,
Acquiror and its respective officers, directors, employees, shareholders,
counsel, accountants and subsidiaries shall be indemnified and held harmless
unconditionally by the Company at all times after the date of this Agreement,
against and in respect of any and all damages, losses, claims, costs or expenses
resulting from, or in any respect of, any misrepresentation, breach of warranty,
or nonfulfillment of any obligation on the part of the Company under this
Agreement, any document relating hereto or thereto or contained in any Schedule
to this Agreement or from any misrepresentation in or omission from any
certificate, schedule, or other instrument furnished by the Company to Acquiror
hereunder; provided, however, that the Company shall not have any obligation to
indemnify the parties set forth in this Section unless such parties' damages,
losses, claims, costs or expenses covered by the indemnification hereunder
exceed $25,000 in the aggregate and Acquiror makes a claim for indemnification
in writing by reason thereof prior to the date one year from the Effective Date,
and the Company shall not have any liability hereunder in excess of a total of
$50,000.
8.3 Indemnification by Acquiror. Subject to Section 8.1 hereof, the
Company and its respective officers, directors, employees, shareholders,
counsel, accountants and subsidiaries shall be indemnified and held harmless
unconditionally by Acquiror at all times after the date of this Agreement,
against and in respect of any and all damages, losses, claims, costs or expenses
resulting from, or in any respect of, any misrepresentation, breach of warranty,
or nonfulfillment of any obligation on the part of Acquiror under this
Agreement, any document relating hereto or thereto or contained in any Schedule
to this Agreement or from any misrepresentation in or omission from any
certificate, schedule, or other instrument furnished by Acquiror to the Company
hereunder; provided, however, that Acquiror shall not have any obligation to
indemnify the parties set forth in this Section unless such parties' damages,
losses, claims, costs or expenses covered by the indemnification hereunder
exceed $25,000 in the aggregate and the Company makes a claim for
indemnification in writing by reason thereof prior to the date one year from the
Effective Date, and Acquiror shall not have any liability hereunder in excess of
a total of $50,000.
8.4 Third-Party Claims.
8.4.1 Except as otherwise provided in this Agreement, the
following procedures shall be applicable with respect to
indemnification for third-party claims. Promptly after receipt by the
party seeking indemnification hereunder (hereinafter referred to as the
"Indemnitee") of notice of the commencement of any action or the
assertion of any claim, liability or obligation by a third party
(whether by legal process or otherwise), against which claim, liability
or obligation the other party to this Agreement (hereinafter the
"Indemnitor") is, or may be, required under this Agreement to indemnify
such Indemnitee, the Indemnitee will, if a claim thereon is to be, or
may be, made against the Indemnitor, notify the Indemnitor in writing
of the commencement or assertion thereof and give the Indemnitor a copy
of such claim, process and all loyal pleadings. The Indemnitor shall
have the right to participate in the defense of such action with
counsel of reputable standing. The Indemnitor shall have the right to
assume the defense of such action unless such action (i) may result in
injunctions or other equitable remedies in respect of the Indemnitee or
its business; (ii) may result in liabilities which, taken with other
than existing claims under this Article VIII, would not be fully
indemnified hereunder; or (iii) may have an adverse impact on the
business or financial condition of the Indemnitee after the Effective
Date (including an effect on the tax liabilities, earnings or ongoing
business relationships of the Indemnitee). The Indemnitor and the
Indemnitee shall cooperate in the defense of such claims. In the case
that the Indemnitor shall assume or participate in the defense of such
proceeding as provided herein, the Indemnitee shall make available to
Indemnitor all relevant records and take such other action and sign
such documents as are necessary to defend such proceeding in a timely
manner. If the Indemnitee shall be required by judgment or a settlement
agreement to pay any amount in respect of any obligation or liability
against which the Indemnitor has agreed to indemnify the Indemnitee
under this Agreement, the Indemnitor will promptly reimburse the
Indemnitee in an amount equal to the amount of such payment plus all
reasonable expenses (including reasonable legal fees and expenses)
incurred by such Indemnitee in connection with such obligation or
liability subject to Article VIII hereof.
8.5 Prior to paying or settling any claim against which an Indemnitor
is, or may be, obligated under this Agreement to indemnify an Indemnitee, the
Indemnitee must first supply the Indemnitor with a copy of a final court
judgment or decree holding the Indemnitee liable on such claim or other
operative instrument, and must first receive the written approval of the terms
and conditions of such settlement from the Indemnitor. An Indemnitor or
Indemnitee shall have the right to settle any claim against it, subject to the
prior written approval of the other, which approval shall not be unreasonably
withheld or delayed.
8.6 The Indemnitee shall have the right to employ its own counsel in
any case, but the fees and expenses of such counsel shall be at the expense of
the Indemnitee unless (i) the employment of such counsel shall have been
authorized in writing by the Indemnitor in connection with the defense of such
action or claim, (ii) the Indemnitor shall not have employed counsel in the
defense of such action or claim, or (iii) such Indemnitee shall have reasonably
concluded that there may be defenses available to it which are contrary to, or
inconsistent with, those available to the Indemnitor, in any of which events
such fees and expenses of not more than one additional counsel for the
indemnified parties shall be borne by the Indemnitor.
ARTICLE IX
COVENANTS
9.1 Change of Name. If not earlier effected by Acquiror, upon the
Closing Date, or as soon thereafter as is reasonably possible, Acquiror will
cause its name to be changed to xXxxxxxx.xxx, Inc. The parties agree to take all
steps as are necessary or appropriate to effectuate such name change, including
the acquisition from Company or its subsidiaries written confirmation of the
royalty-free rights and license to use said name.
9.2. Limitations of Subsequent Corporate Actions. It is expressly
understood and agreed that Acquiror, and its affiliates, will take all steps
necessary to insure that, from the date hereof and prior to the date of Closing,
and for a period of eighteen months after the date of Closing, there shall be no
reverse split of Acquiror's stock and that the assets transferred to Acquiror as
a part of Acquiror's purchase of the Company, shall remain in place as part of
the business operations.
ARTICLE X
SECURITIES ACT PROVISIONS
10.1 Notice of Limitation Upon Disposition. Each party is aware that
neither the shares of the Company nor the shares of Acquiror, for which said
shares may be exchanged, upon and after Closing, will have been registered
pursuant to the Securities Act of 1933, as amended and, therefore, under current
interpretations and applicable rules, the shareholders will probably have to
retain such shares for a period of at least one year and at the expiration of
such one-year period, sales may be confined to brokerage transactions of limited
amounts requiring certain notification filings with the Securities and Exchange
Commission and such disposition may be available only if the Acquiror is current
in its filings with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, or other public disclosure requirements, and the other
limitations imposed thereby on the disposition of shares of the Acquiror.
Additionally, "affiliates," if any, owning shares will be subject to additional
restrictions limiting sales.
10.2 Limited Public Market for Shares. The Company and its shareholders
acknowledge that the common shares being issued pursuant to this Agreement
currently have a limited public market in which the shares may be liquidated and
there is no assurance that such public market will grow or develop.
ARTICLE XI
TERMINATION AND ABANDONMENT
This Agreement may be terminated and the transaction contemplated
hereby may be abandoned without liability on the part of any party to any other,
at any time before the closing date, or may be rescinded within thirty (30) days
after closing, as follows:
(1) By mutual consent of Acquiror and all of the Company's
Shareholders, as those Shareholders exist as of the date of Closing;
(2) By the Company if any of the conditions provided for in Article IV
of this Agreement have not been met and have not been waived in writing by the
Company.
(3) By Acquiror if any of the conditions provided for in Article V of
this Agreement have not been met and have not been waived in writing by
Acquiror.
In the event of termination and abandonment by any party as above
provided in this Article, or in the event of rescission as provided herein, the
party seeking such termination, abandonment or rescission shall provide written
notice thereof to the other party. In such an event, each party shall pay its
own expenses incidental to preparation for the consummation of this Agreement
and of the transactions contemplated hereunder.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Notices. All notices or other communications required or permitted
to be given pursuant to this Agreement shall be in writing and shall be
considered as, duly given on (a) the date of delivery, if delivered in person,
by nationally recognized overnight delivery service or by facsimile or (b) three
days after mailing if mailed from within the continental United States by
registered or certified mail, return receipt requested to the party entitled to
receive the same. Notices to the Company shall be addressed as follows:
12.1.1 If to the Company, to ECenter, Inc., 000 Xxxxx 000
Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000, attn: Xxxx Xxxxx,
President, with a copy to Xxxxx X. Xxxxxxxxx, Esq., Snow, Xxxxxxxxxxx &
Xxxxxxxxx, or to such other person and place as Company shall furnish
to Acquiror in writing..
12.1.2 If to Acquiror, to Sunwalker Development, Inc., 0000
Xxxxx Xxxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, XX 00000, with a copy to
Xxxxxx Xxxxx, Esq., 0000 Xxxxx Xxxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx,
XX 00000, or to such other person and place as Acquiror shall furnish
to Company in writing.
Notice of any new address shall be considered to be effective for
purposes of all notices thereafter as of the 10th day after the notice providing
said new address.
12.2 Announcements. Announcements, including press releases, by either
Acquiror or the Company, concerning the transaction provided for in this
Agreement, shall be subject to the approval of the other party in all essential
respects, except that neither party shall be required to seek the approval of
the other of statements or other information which each party may submit or make
available to its shareholders.
12.2 Governing Law and Venue. This Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with the laws
of the State of Utah, without regard to its conflicts of law principles. All
parties hereto (a) agree that any legal suit, action or proceeding arising out
of or relating to this Agreement shall be instituted only in a federal or state
court in Salt Lake County, Utah; (b) waive any objection which they may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding; and (c) irrevocably submit to the exclusive jurisdiction of such
federal or state court in Utah in any such suit, action or proceeding, but such
consent shall not constitute a general appearance or apply or be available to
any other person who is not a party to this Agreement. All parties hereto agree
that the mailing of any process in any suit, action or proceeding in accordance
with the notice provisions of this Agreement shall constitute personal service
thereof.
12.3 Entire Agreement: Waiver of Breach. This Agreement constitutes the
entire agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof. This
Agreement may not be modified or amended in any manner other than as provided
herein, and no waiver of any breach or condition of this Agreement shall be
deemed to have occurred unless such waiver is in writing, signed by the party
against whom enforcement is sought. No waiver shall be claimed to be a waiver of
any subsequent breach or condition of a like or different nature.
12.4 Binding Effect; Assignability. This Agreement and all the terms
and provisions hereof shall be binding upon and shall inure to the benefit of
the parties and their respective heirs, successors and permitted assigns. This
Agreement and the rights of the parties hereunder shall not be assigned except
with the written consent of all parties hereto.
12.5 Severability. If any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable provision
were not contained herein.
12.6 Restrictive Legend. Each certificate representing shares of
Acquiror Common Stock shall bear the following legend in addition to such other
restrictive legends as may be required by law or as mutually agreed by all
parties hereto:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws, and no sale or transfer thereof may be
effected without an effective registration statement or an opinion of
counsel for the holder, satisfactory to the company, that such
registration is not required under the act and any applicable state
securities laws.
12.7 Amendments. This Agreement may nor be amended except in a writing
signed by all of the parties hereto.
12.8 Captions. Captions contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit or extend the scope or
intent of this Agreement or any provision hereof.
12.9 Number and Gender. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in either the masculine, the
feminine or the neuter gender shall include the masculine, feminine and neuter.
12.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. In addition, this Agreement may contain
more than one counterpart of the signature page and this Agreement may be
executed by the affixing of such signature pages executed by the parties to one
copy of the Agreement; all of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
12.11 Termination of Agreement. All parties hereto agree to use their
best efforts to fulfill the requirements of Articles IV and V and all other
agreements contained herein as soon as practicable. If any condition to the
completion of the transactions contemplated in this Agreement is not fulfilled
or waived on or prior to November 30, 1990 (which date shall be automatically
extended for such additional time as is necessary for the Company to comply in
good faith with Section 4.3 hereof), this Agreement shall be null and void and
have no further effect and neither party shall have any further liability to the
other.
12.12 Expenses: Transfer Taxes, Etc. Whether or not the transaction
contemplated by this Agreement shall be consummated, the Company agrees that all
fees and expenses incurred by it in connection with this Agreement shall be
borne by it and Acquiror agrees that all fees and expenses incurred by it in
connection with this Agreement shall be borne by it, including, without
limitation, all fees and expenses of counsel and accountants.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SUNWALKER, Inc.
By:_______________________________________
Xxxxxx Xxxxx
Its President
ECenter, Inc.
By:_______________________________________
Xxxx Xxxxx
Its President
SCHEDULE A
DISCLOSURE SCHEDULE
1.8.1 The following are officers and directors of ECenter, Inc.:
Xxxx Xxxxx President, Chief Executive Officer, and Director
Xxxxxxx X. Xxxxxxx (Sr.) Chief Financial Officer
Xxx Xxxxx Chief Operating Officer/Secretary
Xxxxxx Xxxxxx Director
The following are officers and directors of Outbound Enterprises, Inc., a
wholly-owned subsidiary of ECenter, Inc.:
Xxxx Xxxxx President, Director
Xxxxx Xxxx CEO, Director
Xxxxx Xxxxxxxx V.P. Marketing, Director
The following are officers and directors of iShopper, Inc., a wholly-owned
subsidiary of Ecenter, Inc.:
Xxxx Xxxxx President, Director
Xxxxxx Xxxxxx Director
2.2 On the acquisition of Outbound Enterprises, Inc., the Company is
contractually bound to issue Incentive Shares to those who, immediately prior to
closing, were Shareholders of Outbound Enterprises, Inc., as and to the extent
that the conditions for the issuance of such shares are satisfied, as outlined
in Section 1.4 of the Agreement and Plan of Merger among ECenter, Inc., Outbound
Acquisitions Corp., Outbound Enterprises, Inc., and the shareholders of Outbound
Enterprises, Inc., furnished and attached as Exhibit B to this Agreement and
Plan of Merger.
2.3 As of the Date of Closing, the Company has no ownership interest in any
corporation or business entity other than the following, which are or, by the
Closing Date, will be wholly-owned subsidiaries: iShopper, Inc.; Outbound
Enterprises, Inc.
2.5 None
2.7 None
2.8
Office Lease - 400 East 000 Xxxxx, #000, Xxxx Xxxx Xxxx, Xxxx 00000
2.9 ECenter bank accounts:
Xxxxx Fargo Bank
Foothill Branch, Salt Lake City, Utah
Acct: 0760555151
First Security Bank (Outbound Sweep Account)
American Stores Branch, Salt Lake City, Utah
Acct: 2491004285
2.10 None
2.14 The Company, directly or through its subsidiaries, has agreements of
employment with the following:
Xxxx Xxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxxx
Xxx Xxxxx
DISCLOSURES OF SUNWALKER DEVELOPMENT, INC.
1.8 The following are officers and directors of Sunwalker Development, Inc.:
Xxxxxx Xxxxx, President and sole director
3.2 Pending stock rights, options, etc.
Sunwalker has granted options to various individuals and entities, including
consultants and professionals, of up to 2,750,000 shares, exercisable at a rate
of $.01 per share, post-reverse-split. There is currently no established market
or trading value for Sunwalker's stock. As of the closing date, none of those
options has been exercised.
3.3 As of the Date of Closing, the Company has no ownership interest in any
corporation or business entity other than the following, which are or, by the
Closing Date, will be wholly-owned subsidiaries:
3.5 None
3.7 None
3.8 None
3.9 None
3.10 None
3.14 The Company, directly or through its subsidiaries, has agreements of
employment with the following:
None
