AGREEMENT AND
PLAN OF REORGANIZATION
DATED AUGUST 31, 1998
BETWEEN
BOBERNCO, INC.
AND
GENTEL COMMUNICATIONS, INC.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement")
is entered into this 31st day of August, 1998 by and between
BOBERNCO, INC., a Nevada corporation ("Bobernco" and "Surviving
Corporation") and GENTEL COMMUNICATIONS, INC., a California
corporation, ("GenTel").
RECITALS
A. Subject to and in accordance with the terms and
conditions of this Agreement and pursuant to the Certificate of
Merger attached hereto as Exhibit A ("Certificate of Merger"), the
parties intend that GenTel will merge with and into Bobernco (the
"Merger"), whereby at the Effective Time, all of the GenTel Common
Stock will be converted into eight million nine hundred eighty-six
thousand nine hundred fifty (8,986,950) shares of Bobernco Common
Stock.
B. For federal income tax purposes, it is intended that
the Merger shall qualify as a tax free reorganization within the
meaning of Section368(a)(1)(A) of the Code.
C. The parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other
as an inducement to the consummation of the Merger.
AGREEMENT
NOW, THEREFORE, in reliance on the foregoing recitals and in
and for the consideration and mutual covenants set forth herein, the
parties agree as follows:
1. Certain Definitions.
1.1 "Affiliate" shall have the meaning set forth in the
rules and regulations promulgated by the Commission pursuant to the
Securities Act.
1.2 "Closing" shall mean the closing of the transactions
contemplated by this Agreement.
1.3 "Closing Date" shall mean the date of the Closing.
1.4 "Code" shall mean the United States Internal Revenue
Code of 1986, as amended.
1.5 "Commission" shall mean the United States Securities
and Exchange Commission.
1.6 "Dissenting Shares" shall mean those shares held by
holders who perfect their appraisal rights under the applicable
state laws.
1.7 "Effective Time" shall mean the date and time of the
effectiveness of the Merger under Nevada and California law.
1.8 "GAAP" shall mean generally accepted accounting
principles.
1.9 "GenTel Common Stock" shall mean all of the
outstanding shares of Common Stock of GenTel.
1.10 "Material Adverse Effect" shall mean a material
adverse effect on the operations, assets or financial condition
(financial or otherwise) of an entity considered as a whole.
1.11 "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar federal statute and the rules and
regulations thereunder, all as the same shall be in effect at the time.
1.12 "Transaction Documents" shall mean all documents or
agreements attached as an exhibit or schedule hereto, and set forth
on the Table of Contents.
2. Plan of Reorganization.
2.1 The Merger. Subject to the terms and conditions of
this Agreement and the Certificate of Merger, GenTel shall be merged
with and into Bobernco in accordance with the applicable provisions
of the laws of the States of Nevada and California, and with the
terms and conditions of this Agreement and the Certificate of
Merger, so that:
(a) At the Effective Time (as defined in Section
2.5 (below)), GenTel shall be merged with and into Bobernco. As a
result of the Merger, the separate corporate existence of GenTel
shall cease, and Bobernco shall continue as the surviving
corporation, and shall succeed to and assume all of the rights and
obligations of GenTel in accordance with the laws of Nevada.
(b) The Certificate of Incorporation of the
Surviving Corporation shall be the Certificate of Incorporation of
Bobernco in effect immediately prior to the Effective Time. The
Bylaws of Bobernco prior to the Effective Time shall be the Bylaws
of the Surviving Corporation after the Effective Time unless and
until further amended as provided by law.
(c) Subject to the terms of this Agreement, the
directors and officers of GenTel immediately prior to the Effective
Time shall be the directors and officers of the Surviving
Corporation after the Effective Time. Such directors and officers
shall hold their position until the election and qualification of
their respective successors or until their tenure is otherwise
terminated in accordance with the Bylaws of the Surviving Corporation.
2.2 Conversion of Shares. Each share of GenTel Common
Stock, issued and outstanding immediately prior to the Effective
Time, will, by virtue of the Merger, and at the Effective Time, and
without further action on the part of any holder thereof, be
converted into one share of fully paid and nonassessable shares of
Bobernco Common Stock.
2.3 Fractional Shares. No fractional shares of Bobernco
Common Stock will be issued in connection with the Merger.
2.4 The Closing. Subject to termination of this
Agreement as provided in Section 10 (below), the Closing shall take
place at the offices of M. Xxxxxxx Xxxxxx, 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, as soon as possible upon the
satisfaction or waiver of all conditions set forth in Sections 8 and
9 hereof, or such other time and place as is mutually agreeable to
the parties.
2.5 Effective Time. Simultaneously with the Closing, the
Certificate of Merger shall be filed in the office of the Secretary
of State of the State of California and the Secretary of State of
the State of Nevada. The Merger shall become effective immediately
upon the filing of the Certificate of Merger with such offices.
2.6 Tax Free Reorganization. The parties intend to adopt
this Agreement as a tax-free plan of reorganization and to
consummate the Merger in accordance with the provisions of
Section368(a)(1)(A) of the Code. Each party agrees that it will not
take or assert any position on any tax return, report or otherwise
which is inconsistent with the qualification of the Merger as a
reorganization within the meaning of Section368(a) of the Code.
Bobernco represents now, and as of the Closing Date, that it
presently intends to continue GenTel's historic business or use a
significant portion of GenTel's business assets in a business.
3. Representations and Warranties of GenTel. GenTel
represents and warrants to Bobernco as set forth below. No fact or
circumstance disclosed shall constitute an exception to these
representations and warranties except as may mutually be agreed upon
in writing by the parties hereto.
3.1 Organization of GenTel; Authorization. GenTel is a
corporation duly organized, validly existing and in good
standing under the laws of California 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 GenTel and this
Agreement constitutes a valid and binding obligation of
GenTel, enforceable against it in accordance with its terms.
3.2 Capitalization.
(a) The authorized capital of GenTel consists of
100,000,000 shares of Common Stock, par value $.00001 per
share, of which 8,986,950 shares are issued and outstanding.
(b) GenTel does not have outstanding any
preemptive rights, subscription rights, options, warrants,
rights to convert or exchange, capital stock equivalents, or
other rights to purchase or otherwise acquire any GenTel
capital stock or other securities.
(c) All of the issued and outstanding shares of
GenTel capital stock have been duly authorized, validly
issued, are fully paid and nonassessable, and such capital
stock
has been issued in full compliance with all applicable
federal and state securities laws. None of GenTel's issued
and outstanding shares of capital stock are subject to
repurchase or redemption rights.
(d) Except for any restrictions imposed by
applicable state and federal securities laws, there is no
right of first refusal, option, or other restriction on
transfer applicable to any shares of GenTel's capital stock.
(e) GenTel is not a party or subject to any
agreement or understanding (and, to GenTel's actual
knowledge, there is no agreement or understanding between or
among any persons) that affects or relates to the voting or
giving of written consent with respect to any security.
3.3 No Conflict as to GenTel. Neither the execution and
delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (a) violate any
provision of the certificate of incorporation or by-laws of
GenTel or (b) violate, 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 any agreement to
which GenTel is a party or (c) violate any statute or law or
any judgment, decree, order, regulation or rule of any court
or other Governmental Body applicable to GenTel.
3.4 No Conflict as to GenTel and Subsidiaries. Neither
the execution and delivery of this Agreement nor the
consummation of the consummation of the transactions
contemplated hereby will (a) violate any provision of the
certificate of incorporation or by-laws (or other governing
instrument) of GenTel or any of its Subsidiaries or (b)
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 excuse
performance by any Person of any of its obligations under, or
cause the acceleration of the maturity of any debt or
obligation pursuant to, or result in the creation or
imposition of any Encumbrance upon any property or assets of
GenTel or any of its Subsidiaries under, any material
agreement or commitment to which GenTel or any of its
Subsidiaries is a party or by which any of their respective
property or assets is bound, or to which any of the property
or assets of GenTel or any of its Subsidiaries is subject,
or (c) violate any statute or law or any judgment, decree,
order, regulation or rule of any court or other Governmental
Body applicable to Gen Tel or any of its Subsidiaries
except, in the case of violations, conflicts, defaults,
terminations, accelerations or Encumbrances described in
clause (b) of this Section, for such matters which are not
likely to have a material adverse effect on the business or
financial condition of GenTel and its Subsidiaries, taken as
a whole.
3.5 Consents and Approvals of Governmental Authorities.
No consent, approval or authorization of, or declaration,
filing or registration with, any Governmental Body is
required to be made or obtained by GenTel or Bobernco or any
of their Subsidiaries in connection with the execution,
delivery and performance of this Agreement by GenTel or the
consummation of the transactions contemplated hereby.
3.6 Other Consents. No consent of any Person is required
to be obtained by GenTel or Bobernco or any of their
Subsidiaries to the execution, delivery and performance of
this Agreement or the consummation of transactions
contemplated hereunder, including, but not limited to,
consents from parties to leases or other agreements or
commitments, except for any consent which the failure to
obtain would not be likely to have a material adverse effect
on the business and financial condition of Bobernco and its
Subsidiaries, taken as a whole.
3.7 Financial Statements. Seller has delivered to Buyer:
consolidated balance sheets of GenTel and its Subsidiaries
as at December 31, 1998 and June 30, 1998 and statements of
income and changes in financial position for the one-year
period ended December 31, 1998 and the six-month period ended
June 30, 1998 (the "Financial Statements"). Such Financial
Statements fairly present the consolidated financial
condition and results of operations of GenTel and its
Subsidiaries as at the respective dates thereof and for the
periods therein referred to, all in accordance with generally
accepted United States accounting principles consistently
applied throughout the periods involved, except for audit
adjustments and the absence of footnotes.
3.8 Title to Properties; Either GenTel 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 Financial Statements
in the ordinary course of business or leased under
capitalized leases), and all the material properties and
assets purchased or otherwise acquired by GenTel or any of
its Subsidiaries since the date of the Financial Statements.
All properties and assets reflected in the Financial
Statements are free and clear of all material Encumbrances
and are not, in the case of real property, subject to any
material 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) mortgages or security interests shown in the
Financial Statements as securing specified liabilities or
obligations, with respect to which no default (or event
which, with notice or lapse of time or both, would constitute
a default) exists, (b) mortgages or security interests
incurred in connection with the purchase of property or
assets after the date of the Financial Statements (such
mortgages and security interests being limited to the
property or assets so acquired), with respect to which no
default (or event which, with notice or lapse of time or
both, would constitute a default) exists, (c) as to real
property, (i) imperfections of title, if any, none of which
materially detracts from the value or impairs the use of the
property subject thereto, or impairs the operations of
GenTel or any of its Subsidiaries and (ii) zoning laws that
do not impair the present or anticipated use of the property
subject thereto, and (d) liens for current taxes not yet due.
The properties and assets of GenTel and its Subsidiaries
include all rights, properties and other assets necessary to
permit GenTel and its Subsidiaries to conduct GenTel's
business in all material respects in the same manner as it is
conducted on the date of this Agreement.
3.9 Buildings, Plants and Equipment. The buildings,
plants, structures and material items of equipment and other
personal property owned or leased by GenTel or its
Subsidiaries are, in all respects material to the business or
financial condition of GenTel 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. GenTel has
not received notification that it or any of its Subsidiaries
is in violation of any applicable building, zoning,
anti-pollution, health, safety or other law, ordinance or
regulation in respect of its buildings, plants or structures
or their operations, which violation is likely to have a
material adverse effect on the business or financial
condition of GenTel and its Subsidiaries, taken as a whole
or which would require a payment by Bobernco or its
subsidiaries in excess of $2000 in the aggregate, and which
has not been cured.
3.10 No Condemnation or Expropriation. Neither the whole
nor any portion of the property or leaseholds owned or held
by GenTel or any of its Subsidiaries is subject to any
governmental decree or order to be sold or is being
condemned, expropriated or otherwise taken by any
Governmental Body or other Person with or without payment of
compensation therefor, which action is likely to have a
material adverse effect on the business or financial
condition of Bobernco and its Subsidiaries, taken as a whole.
3.11 Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing against or
involving GenTel or any of its Subsidiaries which is likely
to have a material adverse effect on the business or
financial condition of Bobernco and its Subsidiaries, taken
as whole, or which would require a payment by Bobernco or its
subsidiaries in excess of $2000 in the aggregate or which
questions or challenges the validity of this Agreement.
Neither GenTel nor any or its Subsidiaries is subject to any
judgment, order or decree that is likely to have a material
adverse effect on the business or financial condition of
Bobernco and its Subsidiaries, taken as a whole, or which
would require a payment by Bobernco or its subsidiaries in
excess of $2000 in the aggregate.
3.12 Absence of Certain Changes. Since the date of the
Financial Statements, neither GenTel 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 GenTel 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) organized any new Subsidiary or acquired any
Equity Securities of any Person or any equity or ownership
interest in any business;
(e) borrowed any funds or incurred, or assumed or
become subject to, whether directly or by way of guarantee or
otherwise, any obligation or liability with respect to any
such indebtedness for borrowed money;
(f) paid, discharged or satisfied any material
claim, liability or obligation (absolute, accrued, contingent
or otherwise), other than in the ordinary course of business;
(g) prepaid any material obligation having a
maturity of more than 90 days from the date such obligation
was issued or incurred;
(h) canceled any material debts or waived any
material claims or rights, except in the ordinary course of
business;
(i) disposed of or permitted to lapse any rights
to the use of any material patent or registered trademark or
copyright or other intellectual property owned or used by it;
(j) granted any general increase in the
compensation of officers or employees (including any such
increase pursuant to any employee benefit plan);
(k) purchased or entered into any contract or
commitment to purchase any material quantity of raw materials
or supplies, or sold or entered into any contract or
commitment to sell any material quantity of property or
assets, except (i) normal contracts or commitments for the
purchase of, and normal purchases of, raw materials or
supplies, made in the ordinary course business, (ii) normal
contracts or commitments for the sale of, and normal sales
of, inventory in the ordinary course of business, and (iii)
other contracts, commitments, purchases or sales in the
ordinary course of business;
(l) made any capital expenditures or additions to
property, plant or equipment or acquired any other property
or assets (other than raw materials and supplies) at a cost
in excess of $2000 in the aggregate;
(m) written off or been required to write off any
notes or accounts receivable in an aggregate amount in excess
of $2000;
(n) written down or been required to write down
any inventory in an aggregate amount in excess of $ 2000;
(o) entered into any collective bargaining or
union contract or agreement; or
(p) other than the ordinary course of business,
incurred any liability required by generally accepted
accounting principles to be reflected on a balance sheet and
material to the business or financial condition of GenTel
and its subsidiaries taken as a whole.
3.13 Material Adverse Change. Since the date of the
Financial Statements, there has not been any material adverse
change in the business or financial condition of GenTel and
its Subsidiaries taken as a whole, other than changes
resulting from economic conditions prevailing in the United
States communications industry.
3.14 Contracts and Commitments. Neither GenTel nor any of
its Subsidiaries is a party to any:
(a) Contract or agreement (other than purchase or
sales orders entered into in the ordinary course of business)
involving any liability on the part of GenTel or one of its
Subsidiaries of more than $2000 and not cancelable by GenTel
or the relevant Subsidiary (without liability to GenTel or
such Subsidiary) within 60 days;
(b) Lease of personal property involving annual
rental payments in excess of $2000 and not cancelable by
Bobernco or the relevant Subsidiary (without liability to
Bobernco or such Subsidiary) within 90 days;
(c) Employee bonus, stock option or stock
purchase, performance unit, profit-sharing, pension, savings,
retirement, health, deferred or incentive compensation,
insurance or other material employee benefit plan (as defined
in Section 2(3) of ERISA) or program for any of the
employees, former employees or retired employees of GenTel or
any of its Subsidiaries;
(d) Commitment, contract or agreement that is
currently expected by the management of GenTel to result in
any material loss upon completion or performance thereof;
(e) Contract, agreement or commitment that is
material to the business of GenTel and its Subsidiaries,
taken as a whole, with any officer, employee, agent,
consultant, advisor, salesman, sales representative, value
added reseller, distributor or dealer; or
(f) Employment agreement or other similar
agreement that contains any severance or termination pay,
liabilities or obligations.
All such contracts and agreements are in full force and
effect. Neither GenTel nor any or its Subsidiaries is in
breach of, in violation of or in default under, any
agreement, instrument, indenture, deed of trust, commitment,
contract or other obligation of any type to which GenTel or
any of its Subsidiaries is a party or is or may be bound that
relates to the business of GenTel or any of its Subsidiaries
or to which any of the assets or properties of GenTel or any
of its Subsidiaries is subject, the effect of which breach,
violation or default is likely to materially and adversely
affect the business or financial condition of GenTel and its
Subsidiaries, taken as a whole.
3.15 Labor Relations. Neither GenTel nor any of its
Subsidiaries is a party to any collective bargaining
agreement. Except for any matter which is not likely to have
a material adverse effect on the business or financial
condition of GenTel and its Subsidiaries, taken as a whole,
(a) GenTel and each of its Subsidiaries is in compliance with
all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and
hours, and is not engaged in any unfair labor practice, (b)
there is no unfair labor practice complaint against GenTel or
any of its Subsidiaries pending before the National Labor
Relations Board, (c) there is no labor strike, dispute,
slowdown or stoppage actually pending or threatened against
GenTel or any of its Subsidiaries, (d) no representation
question exists respecting the employees of GenTel or any of
its Subsidiaries, (e) neither GenTel nor any of its
Subsidiaries has experienced any strike, work stoppage or
other labor difficulty, and (f) no collective bargaining
agreement relating to employees of GenTel or any of its
Subsidiaries is currently being negotiated.
3.16 Employee Benefit Plans. No material employee pension
and welfare benefit plans covering employees of GenTel and
its Subsidiaries is (1) a multi-employer plan as defined in
Section 3(37) of ERISA, or (2) a defined benefit plan as
defined in Section 3(35) of ERISA, any listed individual
account pension plan is duly qualified as tax exempt under
the applicable sections of the Code, each listed benefit plan
and related funding arrangement, if any, has been maintained
in all material respects in compliance with its terms and the
provisions of ERISA and the Code.
3.17 Compliance with Law. The operations of GenTel and
its Subsidiaries have been conducted in accordance with all
applicable laws and regulations of all Governmental Bodies
having jurisdiction over them, except for violations thereof
which are not likely to have a material adverse effect on the
business or financial condition of GenTel and its
Subsidiaries, taken as a whole, or which would not require a
payment by GenTel or its Subsidiaries in excess of $2000 in
the aggregate, or which have been cured. Neither GenTel nor
any of its Subsidiaries has received any notification of any
asserted present or past failure by it to comply with any
such applicable laws or regulations. GenTel and its
Subsidiaries have all material licenses, permits, orders or
approvals from the Governmental Bodies required for the
conduct of their businesses, and are not in material
violation of any such licenses, permits, orders and
approvals. All such licenses, permits, orders and approvals
are in full force and effect, and no suspension or
cancellation of any thereof has been threatened.
3.18 Environmental Matters.
(a) At all times prior to the date hereof, GenTel
and its Subsidiaries have complied in all material respects
with applicable environmental laws, orders, regulations,
rules and ordinances relating to the Properties (as
hereinafter defined), the violation of which would have a
material adverse effect on the business or financial
condition of GenTel and its Subsidiaries, taken as a whole,
or which would require a payment by GenTel or its
Subsidiaries in excess of $2000 in the aggregate, and which
have been duly adopted, imposed or promulgated by any
legislative, executive, administrative or judicial body or
officer of any Governmental Body.
(b) The environmental licenses, permits and
authorizations that are material to the operations of GenTel
and its Subsidiaries, taken as a whole, are in full force and
effect.
(c) Neither GenTel nor any of its Subsidiaries
has released or caused to be released on or about the
properties currently owned or leased by GenTel or any of its
Subsidiaries (the "Properties") any (i) pollutants, (ii)
contaminants, (iii) "Hazardous Substances," as that term is
defined in Section 101(14) of the Comprehensive Environmental
Response Act, as amended or (iv) "Regulated Substances," as
that term in defined in Section
9001 of the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq., as amended, which would be required to be remediated by
any governmental agency with jurisdiction over the Properties
under the authority of laws, regulations and ordinances as in
effect and currently interpreted on the date hereof, which
remediation would have a material adverse effect on the
business or financial condition of GenTel and its
Subsidiaries, taken as a whole.
3.19 Brokers or Finders. GenTel has not employed any
broker or finder or incurred any liability for any brokerage
or finder's fees or commissions or similar payments in
connection with the transactions contemplated by this Agreement.
3.20 Absence of Certain Commercial Practices. Neither
GenTel nor any of its Subsidiaries has, directly or
indirectly, paid or delivered any fee, commission or other
sum of money or item of property, however characterized, to
any finder, agent, government official or other party, in the
United States or any other country, which is in any manner
related to the business or operations of GenTel or its
Subsidiaries, which Seller or GenTel or one of its
Subsidiaries knows or has reason to believe to have been
illegal under any federal, state or local laws of the United
States or any other country having jurisdiction; and neither
GenTel nor any of its Subsidiaries has participated, directly
or indirectly, in any boycotts or other similar practices
affecting any of its actual or potential customers in
violation of any applicable law or regulation.
3.21 Transactions with Directors and Officers. GenTel
and its Subsidiaries do not engage in business with any
Person (other than Seller) in which any of GenTel's directors
or officers has a material equity interest. No director or
officer of GenTel owns any property, asset or right which is
material to the business of GenTel and its Subsidiaries,
taken as a whole.
3.22 Borrowing and Guarantees. GenTel and its
Subsidiaries (a) do not have any indebtedness for borrowed
money, (b) are not lending or committed to lend any money
(except for advances to employees in the ordinary course of
business), and (c) are not guarantors or sureties with
respect to the obligations of any Person.
3.23 Tax-Free Reorganization.
(a) GenTel has not taken or agreed to take any
action that would prevent the Merger from constituting a
reorganization qualifying under the provisions of
Section368(a) of the Code.
(b) GenTel is not an investment company as defined
in SectionSection368(a)(2)(F)(iii) and (iv) of the Code.
4. Representations and Warranties of Bobernco. Bobernco
represents and warrants to GenTel as set forth below. No fact or
circumstance disclosed to GenTel shall constitute an exception to
these representations and warranties except as may mutually be
agreed upon in writing by GenTel and Bobernco.
4.1 Organization of Bobernco; Authorization. Bobernco 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 Bobernco and this
Agreement constitutes a valid and binding obligation of
Bobernco, enforceable against it in accordance with its
terms.
4.2 Capitalization.
(a) The authorized capital of Bobernco consists of
_________ shares of Common Stock, par value $____ per share,
of which 1,800,000 shares are issued and outstanding.
Bobernco has recently undertaken a 1 for 2 reverse stock
split and has had an aggregate of 1,200,000 shares of its
common stock canceled by certain shareholders.
(b) Bobernco does not have outstanding any
preemptive rights, subscription rights, options, warrants,
rights to convert or exchange, capital stock equivalents, or
other rights to purchase or otherwise acquire any Bobernco
capital stock or other securities.
(c) All of the issued and outstanding shares of
Bobernco capital stock have been duly authorized, validly
issued, are fully paid and nonassessable, and such capital
stock has been issued in full compliance with all applicable
federal and state securities laws. None of Bobernco's issued
and outstanding shares of capital stock are subject to
repurchase or redemption rights.
(d) Except for any restrictions imposed by
applicable state and federal securities laws, there is no
right of first refusal, option, or other restriction on
transfer applicable to any shares of Bobernco's capital stock.
(e) Bobernco is not a party or subject to any
agreement or understanding (and, to Bobernco's actual
knowledge, there is no agreement or understanding between or
among any persons) that affects or relates to the voting or
giving of written consent with respect to any security.
4.3 No Conflict as to Bobernco. Neither the execution
and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (a) violate any
provision of the certificate of incorporation or by-laws of
Bobernco or (b) violate, 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 any agreement to
which Bobernco is a party or (c) violate any statute or law
or any judgment, decree, order, regulation or rule of any
court or other Governmental Body applicable to Bobernco.
4.4 No Conflict as to Bobernco and Subsidiaries. Neither
the execution and delivery of this Agreement nor the
consummation of the consummation of the transactions
contemplated hereby will (a) violate any provision of the
certificate of incorporation or by-laws (or other governing
instrument) of Bobernco or any of its Subsidiaries or (b)
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 excuse
performance by any Person of any of its obligations under, or
cause the acceleration of the maturity of any debt or
obligation pursuant to, or result in the creation or
imposition of any Encumbrance upon any property or assets of
Bobernco or any of its Subsidiaries under, any material
agreement or commitment to which Bobernco or any of its
Subsidiaries is a party or by which any of their respective
property or assets is bound, or to which any of the property
or assets of Bobernco or any of its Subsidiaries is subject,
or (c) violate any statute or law or any judgment, decree,
order, regulation or rule of any court or other Governmental
Body applicable to Bobernco or any of its Subsidiaries
except, in the case of violations, conflicts, defaults,
terminations, accelerations or Encumbrances described in
clause (b) of this Section, for such matters which are not
likely to have a material adverse effect on the business or
financial condition of Bobernco and its Subsidiaries, taken
as a whole.
4.5 Consents and Approvals of Governmental Authorities.
No consent, approval or authorization of, or declaration,
filing or registration with, any Governmental Body is
required to be made or obtained by GenTel or Bobernco or any
of their Subsidiaries in connection with the execution,
delivery and performance of this Agreement by GenTel or the
consummation of the transactions contemplated hereby.
4.6 Other Consents. No consent of any Person is required
to be obtained by GenTel or Bobernco or any of their
Subsidiaries to the execution, delivery and performance of
this Agreement or the consummation of transactions
contemplated hereunder, including, but not limited to,
consents from parties to leases or other agreements or
commitments, except for any consent which the failure to
obtain would not be likely to have a material adverse effect
on the business and financial condition of GenTel and its
Subsidiaries, taken as a whole.
4.7 Financial Statements. Seller has delivered to Buyer:
consolidated balance sheets of Bobernco and its Subsidiaries
as at December 31, 1998 (the "Year End Financial Statements")
and June 30, 1998 (the "Interim Financial Statements", and,
together with the Year End Financial Statements, the
"Financial Statements") and statements of income and changes
in financial position for the one-year period ended December
31, 1998 and the six-month period ended June 30, 1998. The
Year End Financial Statements will have been reported upon by
Certified Public Accountants, retained by Bobernco, the
Interim Financial Statements will be internally prepared and
both of the Financial Statements will be true and complete
statement of the financial condition of Bobernco as of the
dates set forth therein. The Year End Financial Statements
will comply with the requirements of Regulation S-X of the
Securities and Exchange Commission and the provisions of the
Securities Act of 1933 (the "Securities Act") and will be
suitable for inclusion in any subsequent filing with any
state or federal regulatory agency under the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"). There will be no
substantial liabilities either fixed or contingent not
reflected in the Financial Statements other than contracts or
obligations in the usual and ordinary course of business; and
no such contracts in the usual and ordinary course of
business will be liens or other liabilities which, if
disclosed, would alter substantially the financial condition
of Bobernco as reflected in the Financial Statements; Such
Financial Statements fairly present
the consolidated
financial condition and results of operations of Bobernco and
its Subsidiaries as at the respective dates thereof and for
the periods therein referred to, all in accordance with
generally accepted United States accounting principles
consistently applied throughout the periods involved, except,
in the case of the Interim Financial Statements, for audit
adjustments and the absence of footnotes.
4.8 Title to Properties; Either Bobernco 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 Financial Statements
in the ordinary course of business or leased under
capitalized leases), and all the material properties and
assets purchased or otherwise acquired by Bobernco or any of
its Subsidiaries since the date of the Financial Statements.
All properties and assets reflected in the Financial
Statements are free and clear of all material Encumbrances
and are not, in the case of real property, subject to any
material 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) mortgages or security interests shown in the
Financial Statements as securing specified liabilities or
obligations, with respect to which no default (or event
which, with notice or lapse of time or both, would constitute
a default) exists, (b) mortgages or security interests
incurred in connection with the purchase of property or
assets after the date of the Financial Statements (such
mortgages and security interests being limited to the
property or assets so acquired), with respect to which no
default (or event which, with notice or lapse of time or
both, would constitute a default) exists, (c) as to real
property, (i) imperfections of title, if any, none of which
materially detracts from the value or impairs the use of the
property subject thereto, or impairs the operations of
Bobernco or any of its Subsidiaries and (ii) zoning laws that
do not impair the present or anticipated use of the property
subject thereto, and (d) liens for current taxes not yet due.
The properties and assets of Bobernco and its Subsidiaries
include all rights, properties and other assets necessary to
permit Bobernco and its Subsidiaries to conduct Bobernco's
business in all material respects in the same manner as it is
conducted on the date of this Agreement.
4.9 Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing against or
involving Bobernco or any of its Subsidiaries which is
likely to have a material adverse effect on the business or
financial condition of GenTel and its Subsidiaries, taken as
whole, or which would require a payment by GenTel or its
subsidiaries in excess of $2000 in the aggregate or which
questions or challenges the validity of this Agreement.
Neither Bobernco nor any or its Subsidiaries is subject to
any judgment, order or decree that is likely to have a
material adverse effect on the business or financial
condition of GenTel and its Subsidiaries, taken as a whole,
or which would require a payment by Gentel or its
subsidiaries in excess of $2000 in the aggregate.
4.10 Absence of Certain Changes. Since the date of the
Financial Statements, neither Bobernco 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 Bobernco 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) organized any new Subsidiary or acquired any
Equity Securities of any Person or any equity or ownership
interest in any business;
(e) borrowed any funds or incurred, or assumed or
become subject to, whether directly or by way of guarantee or
otherwise, any obligation or liability with respect to any
such indebtedness for borrowed money;
(f) paid, discharged or satisfied any material
claim, liability or obligation (absolute, accrued, contingent
or otherwise), other than in the ordinary course of business;
(g) prepaid any material obligation having a
maturity of more than 90 days from the date such obligation
was issued or incurred;
(h) canceled any material debts or waived any
material claims or rights, except in the ordinary course of
business;
(i) disposed of or permitted to lapse any rights
to the use of any material patent or registered trademark or
copyright or other intellectual property owned or used by it;
(j) granted any general increase in the
compensation of officers or employees (including any such
increase pursuant to any employee benefit plan);
(k) purchased or entered into any contract or
commitment to purchase any material quantity of raw materials
or supplies, or sold or entered into any contract or
commitment to sell any material quantity of property or
assets, except (i) normal contracts or commitments for the
purchase of, and normal purchases of, raw materials or
supplies, made in the ordinary course business, (ii) normal
contracts or commitments for the sale of, and normal sales
of, inventory in the ordinary course of business, and (iii)
other contracts, commitments, purchases or sales in the
ordinary course of business;
(l) made any capital expenditures or additions to
property, plant or equipment or acquired any other property
or assets (other than raw materials and supplies) at a cost
in excess of $2000 in the aggregate;
(m) written off or been required to write off any
notes or accounts receivable in an aggregate amount in excess
of $2000;
(n) written down or been required to write down
any inventory in an aggregate amount in excess of $ 2000;
(o) entered into any collective bargaining or
union contract or agreement; or
(p) other than the ordinary course of business,
incurred any liability required by generally accepted
accounting principles to be reflected on a balance sheet and
material to the business or financial condition of Bobernco
and its subsidiaries taken as a whole.
4.11 Material Adverse Change. Since the date of the
Financial Statements, there has not been any material adverse
change in the business or financial condition of Bobernco and
its Subsidiaries taken as a whole.
4.12 Contracts and Commitments. Neither Bobernco nor any
of its Subsidiaries is a party to any Contract or agreement
involving any liability on the part of Bobernco or one of its
Subsidiaries of more than $2000 and not cancelable by
Bobernco or the relevant Subsidiary (without liability to
Bobernco or such Subsidiary) within 60 days.
4.13 Compliance with Law. The operations of Bobernco and
its Subsidiaries have been conducted in accordance with all
applicable laws and regulations of all Governmental Bodies
having jurisdiction over them, except for violations thereof
which are not likely to have a material adverse effect on the
business or financial condition of Bobernco and its
Subsidiaries, taken as a whole, or which would not require a
payment by Bobernco or its Subsidiaries in excess of $2000 in
the aggregate, or which have been cured. Neither Bobernco nor
any of its Subsidiaries has received any notification of any
asserted present or past failure by it to comply with any
such applicable laws or regulations. Bobernco and its
Subsidiaries have all material licenses, permits, orders or
approvals from the Governmental Bodies required for the
conduct of their businesses, and are not in material
violation of any such licenses, permits, orders and
approvals. All such licenses, permits, orders and approvals
are in full force and effect, and no suspension or
cancellation of any thereof has been threatened.
4.14 Brokers or Finders. Bobernco has not employed any
broker or finder or incurred any liability for any brokerage
or finder's fees or commissions or similar payments in
connection with the transactions contemplated by this Agreement.
4.15 Borrowing and Guarantees. Bobernco and its
Subsidiaries (a) do not have any indebtedness for borrowed
money, (b) are not lending or committed to lend any money
(except for advances to employees in the ordinary course of
business), and (c) are not guarantors or sureties with
respect to the obligations of any Person.
4.16 Tax-Free Reorganization.
(a) Bobernco has not taken or agreed to take any
action that would prevent the Merger from constituting a
reorganization qualifying under the provisions of
Section368(a) of the Code.
(b) Bobernco is not an investment company as
defined in SectionSection368(a)(2)(F)(iii) and (iv) of the Code.
5. Preclosing Covenants of GenTel.
5.1 Notices and Approvals. GenTel agrees: (a) to give
all notices to third parties which may be necessary or deemed
desirable by Bobernco in connection with this Agreement and the
consummation of the transactions contemplated hereby; (b) to use its
best efforts to obtain all federal and state governmental regulatory
agency approvals, consents, permit, authorizations, and orders
necessary or deemed desirable by Bobernco in connection with this
Agreement and the consummation of the transaction contemplated
hereby; and (c) to use its best efforts to obtain, and to cause
GenTel to obtain, all consents and authorizations of any other third
parties necessary or deemed desirable by Bobernco in connection with
this Agreement and the consummation of the transactions contemplated
hereby.
5.2 Information for Bobernco s Statements and
Applications. GenTel and its employees, accountants and attorneys
shall cooperate fully with Bobernco in the preparation of any
statements or applications made by Bobernco to any federal or state
governmental regulatory agency in connection with this Agreement and
the transactions contemplated hereby and to furnish Bobernco with
all information concerning GenTel necessary or deemed desirable by
Bobernco for inclusion in such statements and applications,
including, without limitation, all requisite internally prepared
financial statements and schedules.
6. Mutual Covenants.
6.1 Regulatory Filings; Consents; Reasonable Efforts.
Subject to the terms and conditions of this Agreement, GenTel and
Bobernco shall use their respective best efforts to (i) make all
necessary filings with respect to the Merger and this Agreement
under the Securities Act, and applicable blue sky or similar
securities laws and shall use all reasonable efforts to obtain
required approvals and clearances with respect thereto and shall
supply all additional internally prepared information requested in
connection therewith; (ii) make merger notification or other
appropriate filings with federal, state or local governmental bodies
or applicable foreign governmental agencies and shall use all
reasonable efforts to obtain required approvals and clearances with
respect thereto and shall supply all additional internally prepared
information requested in connection therewith; (iii) obtain all
consents, waivers, approvals, authorizations and orders required in
connection with the authorization, execution and delivery of this
Agreement and the consummation of the Merger; and (iv) take, or
cause to be taken, all appropriate action, and do, or cause to be
done, all things necessary, proper or advisable to consummate and
make effective as promptly as practicable the transactions
contemplated by this Agreement.
6.2 Further Assurances. Prior to and following the
Closing, each party agrees to cooperate fully with the other parties
and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably
requested by any other party to better evidence and reflect the
transactions described herein and contemplated hereby and to carry
into effect the intents and purposes of this Agreement.
7. Closing Matters.
7.1 Filing of Certificate of Merger. On the date of the
Closing, but not prior to the Closing, the Certificate of Merger
shall be filed with the offices of the Secretary of State of the
State of Nevada and the offices of the Secretary of State of the
State of California and the merger of GenTel with and into Bobernco
shall be consummated.
7.2 Exchange of Certificates. At or within 30 days of
the Closing, Bobernco shall deliver and issue to each shareholder of
GenTel a certificate or certificates representing the Bobernco
Common Stock issuable to such shareholder as consideration in this
Merger.
7.3 Delivery of Documents. On or before the Closing, the
parties shall deliver the documents, and shall perform the acts,
which are set forth in Sections 8 and 9, as specified in such
Sections, including delivery of the counterpart signature pages of
the Transaction Documents executed by GenTel and/or Bobernco, as the
case may be. All documents which GenTel shall deliver or cause to
be delivered shall be in form and substance reasonably satisfactory
to Bobernco. All documents which Bobernco shall deliver or cause to
be delivered shall be in form and substance reasonably satisfactory
to GenTel.
8. Termination of Agreement.
8.1 Termination. This Agreement may be terminated at any
time prior to the Closing by the mutual written consent of each of
the parties hereto. This Agreement may also be terminated and
abandoned by either GenTel or Bobernco, if the Merger is not
effected by September 30, 1998. Any termination of this Agreement
under this Section 8.1 shall be effected by the delivery of written
notice of the terminating party to the other parties hereto.
8.2 Liability for Termination. Any termination of this
Agreement pursuant to this Section 8 shall be without further
obligation or liability upon any party in favor of any other party
hereto; provided, that if such termination shall result from the
willful failure of a party to carry out its obligations under this
Agreement, then such party shall be liable for losses incurred by
the other parties as set forth in Section 8.5. The provisions of
this Section 8.2 shall survive termination.
8.3 Certain Effects of Termination. In the event of the
termination of this Agreement as provided in Section 8.1 herein,
each party, if so requested by the other party, will (i) return
promptly every document (other than documents publicly available)
furnished to it by the other party (or any subsidiary, division,
associate or affiliate of such other party) in connection with the
transactions contemplated hereby, whether so obtained before or
after the execution of this Agreement, and any copies thereof which
may have been made, and will cause its representatives and any
representatives of financial institutions and investors and others
to whom such documents were furnished promptly to return such
documents and any copies thereof any of them may have made; or (ii)
destroy such documents and cause its representatives and such other
representatives to destroy such documents, and such party shall
deliver a certificate executed by its president or vice president
stating to such effect; and
8.4 Remedies. No party shall be limited to the
termination right granted in Section 8.1 hereto by reason of the
nonfulfillment of any condition to such party's closing obligations
but may, in the alternative, elect to do one of the following:
(a) proceed to close despite the nonfulfillment of
any closing condition, it being understood that consummation of the
transactions contemplated hereby shall be deemed a waiver of any
misrepresentation or breach of warranty or covenant and of any
party's rights and remedies with respect thereto to the extent that
the other party shall have actual knowledge of such
misrepresentation or breach and the Closing shall nonetheless take
place; or
(b) decline to close, terminate this Agreement as
provided in Section 8.1 hereof, and thereafter seek damages to the
extent permitted in Section 8.5 hereof.
8.5 Arbitration. Any dispute arising out of this
Agreement, or its performance or breach, shall be resolved by
binding arbitration conducted by JAMS/Endispute under the
JAMS/Endispute Rules for Complex Arbitration (the "JAMS Rules").
This arbitration provision is expressly made pursuant to and shall
be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-14.
The parties hereto agree that pursuant to Section 9 of the Federal
Arbitration Act, a judgment of the United States District Courts for
the Central District of California shall be entered upon the award
made pursuant to the arbitration. A single arbitrator, who shall
have the authority to allocate the costs of any arbitration
initiated under this paragraph, shall be selected according to
the JAMS Rules within ten (10) days of the submission to
JAMS/Endispute
of the response to the statement of claim or the date on which any
such response is due, whichever is earlier. The arbitrator shall
conduct the arbitration in accordance with the Federal Rules of
Evidence. The arbitrator shall decide the amount and extent of
pre-hearing discovery which is appropriate. The arbitrator shall
have the power to enter any award of monetary and/or injunctive
relief (including the power issue permanent injunctive relief and
also the power to reconsider any prior request for immediate
injunctive relief by either of the parties and any order as to
immediate injunctive relief previously granted or denied by a court
in response to a request therefor by either of the parties),
including the power to render an award as provided in Rule 43 of the
JAMS Rules; provided, however, that the arbitrator shall not have
the power to award punitive damages under any circumstances (whether
styled as punitive, exemplary, or treble damages, or any penalty or
punitive type of damages) regardless of whether such damages may be
available under applicable law, the parties hereby waiving their
rights to recover any such damages. The arbitrator shall award the
prevailing party its costs and reasonable attorneys' fees, and the
losing party shall bear the entire cost of the arbitration,
including the arbitrator's fees. All arbitration shall be held in
Orange County, California. In addition to the above court, the
arbitration award may be enforced in any court having jurisdiction
over the parties and the subject matter of the arbitration.
Notwithstanding the foregoing, the parties irrevocably submit to the
nonexclusive jurisdiction of the state and federal courts situated
where the respondent is domiciled or resides as of the Effective
Date in any action to enforce an arbitration award. With respect to
any request for immediate injunctive relief, that state and federal
courts in Orange County, California shall have exclusive
jurisdiction and venue over any such disputes.
9. Miscellaneous.
9.1 Governing Laws. It is the intention of the parties
hereto that the internal laws of the State of California
(irrespective of its choice of law principles) shall govern the
validity of this Agreement, the construction of its terms, and the
interpretation and enforcement of the rights and duties of the
parties hereto.
9.2 Binding upon Successors and Assigns. Subject to, and
unless otherwise provided in, this Agreement, each and all of the
covenants, terms, provisions, and agreements contained herein shall
be binding upon, and inure to the benefit of, the permitted
successors, executors, heirs, representatives, administrators and
assigns of the parties hereto.
9.3 Severability. If any provision of this Agreement, or
the application thereof, shall for any reason and to any extent be
invalid or unenforceable, the remainder of this Agreement and
application of such provision to other persons or circumstances
shall be interpreted so as best to reasonably effect the intent of
the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent possible,
the economic, business and other purposes of the void or
unenforceable provision.
9.4 Entire Agreement. This Agreement, the exhibits
hereto, the documents referenced herein, and the exhibits thereto,
constitute the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto and
thereto. The express terms hereof control
and supersede any course of performance or usage of the trade
inconsistent with any of the
terms hereof.
9.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original as
against any party whose signature appears thereon and all of which
together shall constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of
the parties reflected hereon as signatories.
9.6 Expenses. Except as provided to the contrary herein,
each party shall pay all of its own costs and expenses incurred with
respect to the negotiation, execution and delivery of this
Agreement, the exhibits hereto, and the other Transaction Documents.
9.7 Amendment and Waivers. Any term or provision of this
Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a
writing signed by the party to be bound thereby. The waiver by a
party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed
to constitute a waiver of any other default or any succeeding breach
or default.
9.8 Survival of Agreements. All covenants, agreements,
representations and warranties made herein shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby notwithstanding any investigation
of the parties hereto and shall terminate on the date one year after
the Closing Date.
9.9 No Waiver. The failure of any party to enforce any
of the provisions hereof shall not be construed to be a waiver of
the right of such party thereafter to enforce such provisions.
9.10 Attorneys' Fees. Should suit be brought to enforce
or interpret any part of this Agreement, the prevailing party shall
be entitled to recover, as an element of the costs of suit and not
as damages, reasonable attorneys' fees to be fixed by the court
(including without limitation, costs, expenses and fees on any
appeal). The prevailing party shall be the party entitled to
recover its costs of suit, regardless of whether such suit proceeds
to final judgment. A party not entitled to recover its costs shall
not be entitled to recover attorneys' fees. No sum for attorneys'
fees shall be counted in calculating the amount of a judgment for
purposes of determining if a party is entitled to recover costs or
attorneys' fees.
9.11 Notices. Any notice provided for or permitted under
this Agreement will be treated as having been given when (a)
delivered personally, (b) sent by confirmed telex or telecopy, (c)
sent by commercial overnight courier with written verification of
receipt, or (d) mailed postage prepaid by certified or registered
mail, return receipt requested, to the party to be notified, at the
address set forth below, or at such other place of which the other
party has been notified in accordance with the provisions of this
Section 9.11.
GenTel:
GenTel Communications, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxxxx X-0
Xxxxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn. Xxxx Xxxxxxx
With a copy to:
Law Offices of M. Xxxxxxx Xxxxxx, Esq.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Bobernco:
Bobernco, Inc.
c/o Xxxxx X. Xxxxxxx, Esq.
0000 X. Xxxxxx Xxx Xxxx, #000-X
Xxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Such notice will be treated as having been received upon actual
receipt.
9.12 Time. Time is of the essence of this Agreement.
9.13 Construction of Agreement. This Agreement has been
negotiated by the respective parties hereto and their attorneys and
the language hereof shall not be construed for or against any party.
The titles and headings herein are for reference purposes only and
shall not in any manner limit the construction of this Agreement
which shall be considered as a whole.
9.14 No Joint Venture. Nothing contained in this
Agreement shall be deemed or construed as creating a joint venture
or partnership between any of the parties hereto. No party is by
virtue of this Agreement authorized as an agent, employee or legal
representative of any other party. No party shall have the power to
control the activities and operations of any other and their status
is, and at all times, will continue to be, that of independent
contractors with respect to each other. No party shall have any
power or authority to bind or commit any other. No party shall hold
itself out as having any authority or relationship in contravention
of this Section 9.14.
9.15 Pronouns. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter,
singular or plural, as the identity of the person, persons, entity
or entities may require.
9.16 Further Assurances. Each party agrees to cooperate
fully with the other parties and to execute such further
instruments, documents and agreements and to give such further
written assurances, as may be reasonably requested by any other
party to better evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
9.17 Absence of Third-Party Beneficiary Rights. No
provisions of this Agreement are intended, nor shall be interpreted,
to provide or create any third-party beneficiary
rights or any other rights of any kind in any client, customer,
affiliate, stockholder,
partner of any party hereto or any other person or entity except
employees and stockholders of GenTel specifically referred to
herein, and, except as so provided, all provisions hereof shall be
personal solely between the parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
GENTEL COMMUNICATIONS, INC. BOBERNCO, INC.
By: /s/Xxxx Xxxxxx By: /s/Xxxxxx Xxxxxx
Name: Xxxx Xxxxxx Name: Xxxxxx Xxxxxx
Title: President & CEO Title: President
GenTel Communications, Inc.
Secretary's Certificate
The undersigned, Xxxx Xxxxxxx, Secretary of GenTel
Communications, Inc., a California corporation and one of the
merging corporations mentioned in the foregoing Agreement and Plan
of Reorganization (the "Agreement"), certifies that the Agreement
has been adopted by the written consent of a majority of the
shareholders of the outstanding stock of GenTel Communications, Inc.
entitled to vote thereon in accordance with the provisions of the
General Corporation Law of the State of California.
Dated: August 31, 1998
/s/Xxxx Xxxxxxx
Xxxx Xxxxxxx
Secretary of GenTel Communications, Inc.
Bobernco, Inc.
Secretary's Certificate
The undersigned, ______________, Secretary of Bobernco,
Inc., a Nevada corporation and one of the merging corporations
mentioned in the foregoing Agreement and Plan of Reorganization (the
"Agreement"), certifies that the Agreement has been adopted by the
affirmative vote of the holders of a majority of the outstanding
Common Stock of Bobernco, Inc. entitled to vote thereon at a meeting
held pursuant to notice in accordance with the provisions of the
Nevada Corporation Law.
Dated: August 31, 1998
/s/Xxxxx Xxxxx
Xxxxx Xxxxx
Secretary of Bobernco, Inc.
GenTel Additions:
3.24 Anti Dilution. Gen Tel and its officers and directors hereby agree that
for a period of 1 year the merged company shall not engage in any stock splits
or reverses nor may they change any other attributes of any of the company's
stock, nor may they issue any new series of stock without the initial Bobernco
shareholders approval. Gen Tel and its officers and directors also agree that
for a period of 1 year the percentage of stock ownership by the initial
shareholders or Bobernco shall be maintained. Thus any additional issuance of
stock (of any type or series, whether common or preferred) by the Company
post merger would require a proportional issuance to the initial shareholders
of Bobernco. This section 3.24 shall survive the closing of the merger.
The initial shareholders of Bobernco, through an agent of their selection,
shall hold 300,000 restricted shares in escrow. The surviving corpoiration
shall have the option for sixty days to buy back the three hundred thousand
(300,000) shares at a price of seventy five thousand ($75,000) dollars.
/s/Xxxxxxx Xxxxxx /s/Xxxx Xxxxxx
