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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated this
30th day of March, 1999 (the "Agreement") is by and among
20/20 Web Design, Inc. ("Web"), a wholly owned subsidiary of
Multi-Source Capital, Ltd. (AMSC@), a Colorado corporation,
with its principal place of business located at 00000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxxx XX 00000 (AMSC@), Xxxxx Oil
Corporation, a Nevada corporation (ATOC@), and the sole
Shareholder of Web, MSC.
RECITALS:
A. MSC owns, in the aggregate, 100,000 shares
of the $.001 par value Common Stock of Web (the "Web Shares"),
representing 100% of the issued and outstanding shares of Web;
and
B. The Board of Directors of TOC deems it
advisable and in the best interest of TOC to acquire the Web
Shares in exchange for the issuance by TOC of its Common
Shares in accordance with the applicable provisions of Nevada
law and the terms and conditions set forth herein.
In consideration of the mutual promises,
representations and conditions hereinafter set forth, the
parties hereto hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall
have the following meanings:
A. "Reorganization" shall mean the acquisition
by TOC of the Web Shares in exchange for the TOC Shares as
further defined herein.
B. "Closing Date" shall mean the date upon
which the reorganization shall have occurred in accordance
with the terms and conditions set forth herein.
C. "Web Shareholder" shall mean the sole
shareholder of Web which shareholder is offering all of its
shares of Web Common Stock for exchange hereunder.
D. "TOC Shares" shall mean the Common Shares
to be issued to the Web Shareholder.
ARTICLE II
Reorganization
2.01 Plan and Agreement of Reorganization. A plan of
reorganization is hereby adopted to as follows:
A. Subject to the terms and conditions
hereinafter set forth, on the Closing Date, and in the manner
hereinafter proved, (i) the Web Shareholder shall exchange the
Web Shares for the TOC Shares in the amounts set forth herein;
Web shall cease to exist and TOC shall be the surviving
corporation.
B. TOC and the Web Shareholder, respectively,
shall take, or cause to be taken, such action as may be
necessary or appropriate in order to effectuate the
transactions contemplated hereby. Such action shall include,
but not be limited to, the filing of Articles of Merger with
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the Colorado Secretary of State. In the event that after the
Closing Date, any further action is necessary or desirable to
carry out the purposes of this Agreement and to vest TOC or
the Web Shareholder with full title to the securities to be
exchanged hereby, the officers and directors of TOC or the Web
Shareholder, as the case may be, shall take all such necessary
action.
2.02 Effective Date of the Reorganization for
Accounting Purposes. The transactions contemplated by this
Agreement shall be effective as of April 1, 2000 for
accounting purposes and for all other purposes to the extent
permissible by law.
2.03 Consideration and Basis of Exchange of Shares.
The manner and basis of exchanging the Web Shares for the
Common Shares of TOC shall be as follows:
A. On the Closing Date, the Web Shareholder
shall deliver to TOC certificates aggregating 100,000 Web
Shares, or 100% of the issued and outstanding Web Shares, duly
endorsed in favor of TOC; the Web Shareholder shall be issued,
in exchange for the Web Shares held of record on the Closing
Date, 8,620,000 TOC Shares. The Web Shareholder and TOC agree
that the Web Shares and the TOC Shares exchanged hereby shall
be Arestricted securities@ as that term is defined in Rule 144
under the Securities Act of 1933, as amended (the A1933 Act@)
and all certificates issued under this Agreement shall bear an
appropriate legend to such effect.
B. Before the Closing Date, TOC shall approve
a ten-to-one reverse stock split such that the number of
shares of TOC issued and outstanding shall be reduced from
approximately twenty million shares to two million shares.
All the shares to be issued to the Web Shareholder shall be
post-split shares. Additionally, the name of TOC shall be
changed to A20/20 Web Design, Inc.,@ a Nevada corporation.
C. TOC shall raise approximately $200,000
before the Closing Date to fund the operations of Web upon the
consummation of this Agreement.
2.04 Closing. Closing of this Agreement shall be held
at a date to be mutually agreed upon by the parties at the
offices of Web, or such other place as the parties may
mutually agree. The parties shall exchange such other
documents and take such other actions as may be necessary or
appropriate for completing the transactions contemplated by
the Agreement.
ARTICLE III
Investment Representations
3.01 Representations of Web Shareholder. As a
condition to the issuance by TOC to the Web Shareholder of
certificates for the TOC Shares, the Web Shareholder hereby
represents to TOC as follows:
A. It is acquiring the TOC Shares hereunder
for its own account and for the purposes of investment, and
not with a view to, or for sale in connection with, any
distribution thereof.
B. It (i) has such knowledge and experience in
financial and business matters that it is capable of
evaluating the merits and risks of its proposed investment in
the TOC Shares, or (ii) it has been advised by attorneys,
accountants or other representatives having such knowledge and
experience. It acknowledges that its attorneys, accountants
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and other representatives had, prior to its action, the
opportunity to ask questions of, and to receive answers from
TOC concerning TOC, its affiliates and business and financial
condition.
C. It understands and acknowledges that all of
the TOC Shares to be delivered to it pursuant to the
provisions of this Agreement, will be "restricted securities"
within the meaning of the 1933 Act, and agrees that the
certificate shall bear the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
AACT@), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAW.
D. It understands and acknowledges that the TOC
Shares to be delivered pursuant to the provisions of this
Agreement will not be registered under the 1933 Act and,
accordingly, it recognizes that it will be required to bear
the economic risk of its investment until such securities are
registered, if at all. It agrees on behalf of itself, its
successors and assigns, that it will only sell, transfer,
pledge or hypothecate any of the TOC Shares to be acquired by
it pursuant to the provisions of this Agreement pursuant to an
effective Registration Statement under the 1933 Act or in a
transaction wherein registration of the securities is not
required. The Web Shareholder understands that TOC has no
obligation to register the TOC Shares under the 1933 Act.
E. It shall indemnify and hold harmless TOC,
each person who controls TOC within the meaning of the 1933
Act, and each officer and director of TOC, against losses,
claims, damages or liabilities, joint or several, to which
TOC, such controlling person, or any such officer or director
may become subject under the 1933 Act or otherwise, insofar as
such losses, claims damages or liabilities (or actions with
respect thereof) arise out of or are based upon any breach or
violation of its representations and warranties contained in
this Agreement and shall reimburse TOC, such controlling
persons and such officers and directors for any legal and any
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage or
liability or any action. The rights to indemnification
provided for in this Section 3.01 shall be in addition to and
not in substitution of any other rights or remedies to which
TOC, such controlling person or such officer or director may
be entitled under this Agreement or at law, in equity or
otherwise.
3.02 Disclosure Materials. TOC has distributed to the
Web Shareholder and the Web Shareholder hereby represents and
warrants to TOC that it has had the opportunity to review,
prior to its action in closing under this Agreement:
A. The most recent Audited Financial
Statements of TOC; and
B. Such other data in the possession of TOC
regarding the business and/or finances of TOC and its
affiliates as the Web Shareholder has reasonably requested.
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ARTICLE IV
General Representations
4.01 Representations of the Web Shareholder. The Web
Shareholder hereby represents and warrants as follows:
A. Each Web Share delivered to TOC for
exchange hereunder shall be delivered free and clear of any
lien, encumbrance or security interest thereon, and the
100,000 shares delivered hereunder by the Web Shareholder
constitute all the outstanding Web Shares as of the Closing
Date.
B. No Web Shares issued and delivered to TOC
for exchange hereunder shall be subject to any option, warrant
or other right to purchase such shares, or any voting trust or
other arrangement relating to the voting of such shares.
C. The Web Shares to be delivered to TOC for
exchange hereunder constitute 100% of the issued and
outstanding shares of Web.
D. There is no firm, corporation, agency or
other person that is entitled to a finder's fee or any type of
brokerage commission in relation to or in connection with the
transactions contemplated by this Agreement as a result of any
Agreement or understanding with such Web Shareholder or such
Web Shareholder's affiliates or Shareholder.
E. It has received or otherwise has knowledge
of any and all liabilities of TOC as of the date of closing
and hereby confirm its acceptance of same.
4.02 Representations of TOC. TOC hereby represents
and warrants to the Web Shareholder as follows:
A. Organization and Good Standing. TOC is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada. TOC has full
corporate power and authority to conduct its business as now
conducted and to own or lease and operate the assets and
property now owned or leased or operated by it. TOC is
qualified to transact business in those jurisdictions wherein
its business requires such action.
B. Disclosure Statement. TOC has made
available to the Web Shareholder true, accurate and complete
copies of its financial statements.
C. Absence of Certain Events. Except as
disclosed in the materials referred to herein, there has not
been any change in the financial condition or in the nature of
the business or operation of TOC which has had a materially
adverse affect on its business, operations, assets, properties
or prospects since December 31, 1998. Except as disclosed in
the materials referred to herein, TOC knows of no development,
except general economic conditions effecting business
generally, of a nature that is materially adverse to the
business, operations, assets, properties or prospects of TOC.
D. Authority and Compliance. TOC has full
corporate power and lawful authority to execute and deliver
this Agreement. The consummation and performance by TOC of
the transactions contemplated by this Agreement have been duly
and validly authorized by all necessary corporate and other
proceedings. This Agreement has been duly and validly
executed and delivered on behalf of TOC and constitutes a
valid obligation of TOC, enforceable in accordance with its
terms. No consent, authorization or approval of, exemption
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by, or filing with any domestic governmental or administrative
authority, or any court, is required to be obtained or made by
TOC in connection with the execution, delivery and performance
of this Agreement or the consummation of the transactions
contemplated hereby. The execution, delivery, consummation
and performance of this Agreement by TOC will not conflict
with or result in the breach or violation of any term or
provision of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, note or other material
agreement or instrument to which TOC is a party or by which it
is bound, or any law, order, writ, injunction, rule or
regulation or any court or governmental agency or body.
E. Shares of TOC. The TOC Shares to be issued
pursuant to this Agreement will be issued from the authorized
and previously unissued Common Shares of TOC and, upon
issuance and delivery to the Web Shareholder, will be duly
authorized and validly issued, fully paid and nonassessable.
F. Full Disclosure. No representation or
warranty by TOC in this Agreement or any document to be
delivered by TOC pursuant hereto, and no statement, list,
certificate or instrument furnished or to be furnished to the
Web Shareholder pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement
contains or will contain any untrue statement of material
fact or omits or will omit to state any fact necessary to make
any statement herein or therein not misleading or necessary to
complete and correct the presentation of all material aspects
of the business of TOC.
G. Finder. There is no firm, corporation,
agency or other person that is entitled to a finder's fee or
any type of brokerage commission in relation to or in
connection with the transactions contemplated by this
Agreement as a result of any agreement or understanding with
TOC or any of TOC's affiliates or Shareholder.
4.03 Representations of Web. Web hereby represents
and warrants to TOC as follows:
A. Organization and Good Standing. Web is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado. Web has
full corporate power and authority to conduct its business as
now conducted and to own or lease and operate the assets and
property now owned or leased or operated by it. Web is
qualified to transact business in those jurisdictions wherein
its business requires such action.
B. Absence of Certain Events. Except as
disclosed in the materials referred to herein, there has not
been any change in the financial condition or in the nature of
the business or operation of Web which has had a materially
adverse affect on its business, operations, assets, properties
or prospects since December, 1998. Except as disclosed in the
disclosure materials referred to herein, Web knows of no
development, except general economic conditions effecting
business generally, of a nature that is materially adverse to
the business, operations, assets, properties or prospects of
Web.
C. Authority and Compliance. Web has full
corporate power and lawful authority to execute and deliver
this Agreement. The consummation and performance by Web of
the transactions contemplated by this Agreement have been duly
and validly authorized by all necessary corporate and other
proceedings. This Agreement has been duly and validly
executed and delivered on behalf of Web and constitutes a
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valid obligation of Web, enforceable in accordance with its
terms. No consent, authorization or approval of, exemption
by, or filing with any domestic governmental or administrative
authority, or any court, is required to be obtained or made
by Web in connection with the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby. The execution, delivery,
consummation and performance of this Agreement by Web will not
conflict with or result in the breach or violation of any term
or provision of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, note or other material
agreement or instrument to which Web is a party or by which it
is bound, or any law, order, writ, injunction, rule or
regulation or any court or governmental agency or body.
D. Full Disclosure. No representation or
warranty by Web in this Agreement or any document to be
delivered by Web pursuant hereto, and no statement, list,
certificate or instrument furnished or to be furnished to the
Web Shareholder pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement
contains or will contain any untrue statement of material
fact or omits or will omit to state any fact necessary to make
any statement herein or therein not misleading or necessary to
complete and correct the presentation of all material aspects
of the business of Web.
E. Tender of All Shares. The Shares to be
tendered by the Web Shareholder for exchange hereunder
constitute 100% of the issued and outstanding shares of Web as
of the Closing Date.
F. Finder. There is no firm, corporation,
agency or other person that is entitled to a finder's fee or
any type of brokerage commission in relation to or in
connection with the transactions contemplated by this
Agreement as a result of any agreement or understanding with
Web or any of Web's affiliates or Shareholder.
ARTICLE V
Additional Agreements
TOC and the Web Shareholder hereby further agree as
follows:
5.01 Access and Information. TOC hereby agrees to
give Web and the Web Shareholder and their respective
accountants, attorneys and representatives, full access during
normal business hours through the period prior to the Closing
Date to all of its properties, books, contracts, commitments
and records, and TOC will furnish to Web and the Web
Shareholder during such period all such information concerning
its affairs that Web and the Web Shareholder may reasonably
request. The Web Shareholder hereby agree that each will give
to TOC and its accountants, attorneys and representatives full
access during normal business hours through the period prior
to the Closing Date to such information as may be reasonably
necessary in order to confirm the representations and
warranties of the Web Shareholder set forth herein. In the
event of the termination of this Agreement, each party will
return to the other all documents, work papers and other
materials obtained from the other relating to the transactions
contemplated hereby, whether so obtained before or after the
execution hereof, and will use best efforts to have any
information so obtained and not heretofore made public, kept
confidential.
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5.02 Expenses. Upon termination of this Agreement as
provided herein, each party will pay all costs and expenses of
its performance of and compliance with all agreements and
conditions contained herein to be performed or complied with,
including fees, expenses and disbursements of its accountants
and attorneys.
5.03 Meeting of Board of Directors. Immediately
following closing under this Agreement, the Board of Directors
of TOC shall duly convene a meeting at which the Board will be
increased from three to five and Xxxxxx X. Xxxxxxx and Xxxxx
Xxxxx shall be appointed to the Board of Directors of TOC.
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5.04 Further Assurances. If at any time, any party
to this Agreement shall consider or be advised that any
further action or assurance is necessary or desirable to vest
the title to any securities exchanged hereby, the officer and
directors of TOC, or the Web Shareholder, as the case may be,
shall deliver such documents or take such other action as may
be necessary or proper to perfect or confirm title to such
securities and otherwise carry out the purposes of this
Agreement.
ARTICLE VI
Conditions Precedent
6.01 Conditions Precedent to Obligations of Web
Shareholder. The obligations of the Web Shareholder to effect
the transaction contemplated herein shall be subject to the
following conditions (which may be waived in writing by the
Web Shareholder):
A. The representations and warranties of TOC
herein, shall be true and accurate as of and at the Closing
Date with the same effect as though made at such time; TOC
shall have performed all obligations and complied with all
covenants required by this Agreement to be performed or
complied with by it prior to the Closing Date; and
B. No material change in the corporate status,
business, operations or financial condition of TOC shall have
occurred since December 31, 1998 other than changes in the
ordinary course of business, none of which has been materially
adverse in relation to TOC, and no other event or condition of
any character shall have occurred or arisen since that date
which shall have materially or adversely effected the
corporate status, business, operations or financial condition
of TOC.
6.02 Conditions Precedent to the Obligations of Web.
The obligation of Web to effect the transaction contemplated
hereby shall be subject to the conditions (which may be waived
in writing by Web) that the representations and warranties of
TOC contained herein shall be true and accurate as of and at
the Closing Date with the same effect as though made at such
time; and that TOC shall have performed all obligations and
complied with all covenants required by this Agreement to be
performed or complied with by them prior to the Closing Date.
6.03 Conditions Precedent to Obligations of TOC. The
obligations of TOC to effect the transaction contemplated
herein shall be subject to the following conditions (which may
be waived in writing by TOC):
A. The representations and warranties of Web
and the Web Shareholder herein shall be true and accurate as
of and at the Closing Date with the same effect as though made
at such time; Web and the Web Shareholder shall have performed
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all obligations and complied with all covenants required by
this Agreement to be performed or complied with by it prior to
the Closing Date; and
B. No material change in the corporate status,
business, operations or financial condition of Web shall have
occurred since December 31, 1998, other than changes in the
ordinary course of business, none of which has been materially
adverse in relation to Web, and no other event or condition of
any character shall have occurred or arisen since that date
which shall have materially or adversely effected the
corporate status, business, operations or financial condition
of Web.
ARTICLE VII
Termination and Abandonment
Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and
abandoned at any time before or after the Closing Date under
any one or more of the following circumstances:
A. By the mutual consent of the Web
Shareholder and the Board of Directors of TOC;
B. By TOC, if prior to the Closing Date, the
conditions set forth in Section 6.03 have not been met;
C. By Web, if prior to the closing the
conditions set forth in Section 6.02 have not been met;
D. By the Web Shareholder, if prior to the
Closing Date, the conditions set forth in Section 6.01 have
not been made;
E. By any party, if any action or proceeding
before any court or governmental body or agency shall have
been instituted or threatened to restrain or prohibit the
transaction contemplated hereby and the Web Shareholder and
TOC deem it advisable not to proceed with the transaction.
Upon termination and abandonment, no party shall have
any liability or obligation to any other party to this
Agreement.
ARTICLE VIII
General Provisions
8.01 Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements
contained in this Agreement shall survive the Closing Date.
8.02 Assignability and Amendments. This Agreement
shall not be altered or otherwise amended except pursuant to
an instrument in writing signed by each of the parties. No
assignment of any of its obligations by any party shall
relieve such party from primary liability for any of its
obligations hereunder. This Agreement shall be binding upon,
and subject to the terms of the foregoing sentence, shall
inure to the benefit of the parties, their successors, legal
representatives and assigns.
8.03 Notices. Any notice, request, instruction or
other document to be given hereunder by any party to any of
the other parties shall be in writing and shall be deemed to
have been duly given when delivered personally or five days
after dispatch by registered or certified mail, postage
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prepaid, return receipt requested, to the party to whom the
same is given or made, at the addresses set forth herein, with
copies,
in the case of TOC, to:
Xxxxx Xxxxxx, President
Xxxxx Oil Corporation
0000-X Xxxxxxxx Xxxxx
Xxxxxxxxxx XX
and, in the case of Web and the Web Shareholder, to:
Xxxxxxxxxxx Xxxxxxx, President
Multi-Source Capital, Ltd.
00000 Xxxxxx Xxxxxx Xxxxx 000
Xxxxxxxx Xxxxx XX 00000
or at such other address as any party shall specify to the
others in writing.
8.04 Expenses. Whether or not the transactions
contemplated by this Agreement, each party hereto shall bear
the expenses incurred by it in connection with the
transactions contemplated hereby.
8.05 Entire Agreement. This Agreement, and other
writings and agreements specifically identified herein,
contain the entire agreement between the parties with respect
to the transactions contemplated herein and supersede all
previous written or oral negotiations, commitments or
understandings.
8.06 Waivers and Remedies. Any waiver must be in
writing. A waiver of any breach or failure to perform any of
the terms or conditions of this Agreement shall not in any way
effect, limit or waiver a party's right at any time to enforce
strict compliance thereafter with every other term or
condition of this Agreement. All remedies under this
Agreement shall be cumulative, but not alternative.
8.07 Counterparts and Headings. This Agreement may be
executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and
the same instrument. All headings (including, without
limitation, article headings and section titles), are inserted
for convenience of reference only and shall not effect the
meaning or interpretation of any terms of this Agreement.
References to masculine, feminine or neuter shall each include
the other, as the circumstances may require.
8.08 Severability. If to the extent that any court of
competent jurisdiction holds any provision (or any part
thereof) of this Agreement to be invalid or unenforceable,
such holdings shall in no way effect the validity of the
remainder of this Agreement.
8.09 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Colorado.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
20/20 WEB DESIGN, INC.
By:
Xxxxxxxxxxx Xxxxxxx, President
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XXXXX OIL CORPORATION
By:
Xxxxx Xxxxxx, President
WEB SHAREHOLDER:
MULTI-SOURCE CAPITAL, LTD.
By:
Xxxxxxxxxxx Xxxxxxx, President
