AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") between
xXxx.xxx, Inc., a Nevada corporation ("eCom Nevada" or "Surviving
Corporation") and xXxx.xxx, Inc., a Colorado corporation ("eCom
Colorado"), the two corporations acting by their respective
boards of directors and sometimes collectively referred to as the
"Constituent Corporations," is entered into this 5th day of June,
2000 in Vancouver, British Columbia.
WHEREAS, eCom Nevada is a corporation organized and existing
under the laws of the State of Nevada, having been incorporated
on May 31, 2000, with its principal business office to be located
at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx X0X 0X0;
WHEREAS, the authorized capital stock of eCom Nevada is One
Hundred Ninety Million (190,000,000) shares of common stock, par
value of One Tenth of One Cent ($0.001) per share, none of which
have been issued, and Ten Million (10,000,000) shares of
preferred stock, par value of One Tenth of One Cent ($0.001) per
share, none of which has been issued;
WHEREAS, Nevada Revised Statutes 92A.190 confers upon eCom Nevada
the power to merge with a foreign corporation, and Nevada Revised
Statutes 92A.250 confers upon eCom Nevada the right to issue its
own shares in exchange for shares of any corporation to be merged
into eCom Nevada;
WHEREAS, eCom Colorado is a corporation organized and existing
under the laws of the State of Colorado, having been originally
incorporated on October 3, 1978 as Caribou Energy, Inc. (on
October 1, 1994, the Articles of Incorporation were amended to
change the name of the corporation to E.T. Capital, Inc.; on
October 15, 1999, the Articles of Incorporation were amended to
change the name of the corporation to xXxx.xxx, Inc.);
WHEREAS, the authorized capital stock of eCom Colorado consists
of Ten Billion (10,000,000,000) shares of common stock, par value
of One Cent ($0.01) per share, of which Twenty-Four Million Five
Hundred Ninety-Five Thousand Seven Hundred Thirty Nine
(24,595,739) shares are presently issued and outstanding.
Section 0-000-000 of the Colorado Revised Statutes provides that
a foreign corporation and a domestic corporation may be merged
and the foreign corporation can be the surviving entity.
WHEREAS, the respective boards of directors of eCom Nevada and
eCom Colorado deem it desirable and in the best interests of the
corporations and their stockholders that the corporations enter
into this Agreement and merge pursuant to the terms and
conditions contained herein and for the sole purpose of
redomiciling the corporation into the State of Nevada; and
WHEREAS, in order to consummate this merger and in consideration
of the mutual benefits to be derived and the mutual agreements
contained herein, eCom Nevada and eCom Colorado approve and adopt
this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
agreements, provisions and covenants herein contained, it is
agreed by and between the parties that, in accordance with the
provisions of the laws of the State of Nevada, eCom Nevada and
eCom Colorado shall be, and they are, as of the merger date (as
defined in Article I, Section 2 hereafter) merged into a single
surviving corporation, which shall be and is eCom Nevada, one of
the Constituent Corporations, which shall continue its corporate
existence and remain a Nevada corporation governed by the laws of
that state, all on the terms and conditions set forth as follows:
ARTICLE I
MERGER
1. Shareholder Approval.
At the annual meeting of the shareholders held on October
29, 1998, the shareholders of eCom Colorado approved and adopted,
pursuant to and in accordance with the applicable provisions of
the laws of the State of Nevada and the State of Colorado, the
redomicile of eCom Colorado to the State of Nevada pursuant to an
agreement and plan of merger.
2. Filings After Shareholder Approval.
Under Section 0-000-000 of the Colorado Revised Statutes,
eCom Colorado will cease to exist and eCom Nevada will possesses
all the powers and property formerly possessed by eCom Colorado
upon filing of the following (with the agency noted):
(a) Colorado Secretary of State: Executed Articles of Merger
setting forth the following: (a) the plan of merger; (b) a
statement as to the number of votes cast for the merger; (c) an
agreement that eCom Colorado will promptly pay to the dissenting
shareholders of eCom Colorado the amount, if any, to which they
shall be entitled under provisions of the Colorado Revised
Statutes with respect to the rights of dissenting shareholders;
and (d) an agreement that eCom Colorado may be served with
process in Colorado, and an irrevocable appointment of the
Colorado Secretary of State as its agent to accept service of
process, in any proceeding based upon any cause of action against
eCom Colorado arising in Colorado prior to the issuance of the
Certificate of Merger by the Colorado Secretary of State, and in
any proceeding for the enforcement of the rights of a dissenting
shareholder of eCom Colorado against the Surviving Corporation.
(b) Nevada Secretary of State: Executed Articles of Merger, as
required by Nevada Revised Statutes 92A.200, and take such other
and future actions as may be required by Nevada law to make the
merger effective.
The merger of eCom Colorado into eCom Nevada shall become
effective upon the filing of the Articles of Merger with the
Nevada Secretary of State ("Merger Date").
3. Effect of Merger.
eCom Nevada shall succeed to, without other transfer, and
shall possess and enjoy all rights, privileges, powers and
franchises as well of a public as of a private nature, and be
subject to all restrictions, disabilities and duties of each of
two Constituent Corporations, and all and singular, the rights,
privileges, powers and franchises of each of corporations, and
all property, real, personal and mixed, and all debts to either
of Constituent Corporations on whatever account, as well for
stock subscriptions as all other things in action or belonging to
each of the corporations shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be as
effectually property of the Surviving Corporation as they were of
Constituent Corporations, provided, that all rights of creditors
and all liens on any property of each of Constituent Corporations
shall be preserved unimpaired, limited to property affected by
the liens at time of merger, and all debts, liabilities and
duties of Constituent Corporations shall attach to the Surviving
Corporation, and may be enforced against it to the same extent as
if debts, liabilities and duties had been incurred or contracted
by it. If at any time the Surviving Corporation shall deem or be
advised that any further assignments or assurances in law or
things are necessary or desirable to vest, or to perfect or
confirm, of record or otherwise, in the Surviving Corporation the
title to any property acquired or to be acquired by reason of or
as a result of merger provided for by this agreement, proper
officers and directors of each of Constituent Corporations shall
execute and deliver all proper deeds, assignments and assurances
in law and do all things necessary or proper to vest, perfect or
confirm title to property in the Surviving Corporation and
otherwise to carry out the purpose of this Agreement.
ARTICLE II
NAME AND CONTINUED CORPORATE EXISTENCE
OF SURVIVING CORPORATION
The corporate name of eCom Nevada, the Constituent Corporation
whose corporate existence is to survive this merger and continue
thereafter as the Surviving Corporation, and its identity,
existence, purposes, powers, objects, franchises, rights and
immunities shall continue unaffected and unimpaired by the
merger, and the corporate identity, existence, purposes, powers,
objects, franchises, rights and immunities of eCom Colorado shall
be wholly merged into eCom Nevada. Accordingly, on the Merger
Date the separate existence of eCom Colorado, except insofar as
continued by statute, shall cease.
ARTICLE III
GOVERNING LAW
CERTIFICATE OF INCORPORATION
As stated, the laws of State of Nevada shall govern the Surviving
Corporation. From and after the Merger Date, the certificate of
incorporation of eCom Nevada attached as Appendix A (which
Appendix A represents the certificate of incorporation of eCom
Nevada filed in the office of the Secretary of State of the State
of Nevada on May 31, 2000) shall be and become the certificate of
incorporation of the Surviving Corporation. In addition to the
powers conferred upon it by law, the Surviving Corporation shall
have the powers set forth in Appendix A and be governed by those
provisions. From and after the Merger Date, and until further
amended as provided by law, Appendix A may be certified, separate
and apart from this agreement, as the certificate of
incorporation of the Surviving Corporation.
ARTICLE IV
BYLAWS OF SURVIVING CORPORATION
From and after the Merger Date the present bylaws of eCom Nevada
shall be and become the bylaws of the Surviving Corporation until
they shall be altered, amended or repealed, or until new bylaws
shall be adopted, in accordance with the provisions of law, the
bylaws and the certificate of incorporation of the Surviving
Corporation.
ARTICLE V
DIRECTORS AND OFFICERS
1. Directors.
The number of directors of the Surviving Corporation, who
shall hold office until their successors have been duly elected
and shall have qualified, or as otherwise provided in the
certificate of incorporation of eCom Nevada or its Bylaws, shall
be four (4) until changed by action of the Board of Directors of
the Surviving Corporation pursuant to its bylaws; and the
respective names of the first directors of the Surviving
Corporation are as follows:
Xxxxxx X. Xxxxxx
Xxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
If, on or after the Merger Date, a vacancy shall for any reason
exist in the Board of Directors of the Surviving Corporation, or
in any of the offices, the vacancy shall be filled in the manner
provided in the certificate of incorporation of eCom Nevada or in
its bylaws.
2. Annual Meeting.
The first annual meeting of the shareholders of the
Surviving Corporation after the Merger Date shall be the annual
meeting provided by the bylaws of eCom Nevada for the year 2000.
3. Officers.
The first officers of the Surviving Corporation, who shall
hold office until their successors have been elected or appointed
and shall have qualified, or as otherwise provided in its bylaws,
are as follows:
Xxxxxx X. Xxxxxx, President
Xxxx Xxxxxxxx, Vice President
Xxxxxxx X. Xxxxxxx, Secretary/Treasurer
ARTICLE VI
CAPITAL STOCK OF SURVIVING CORPORATION
The capitalization of the Surviving Corporation upon the Merger
Date shall be as set forth in the certificate of incorporation of
eCom Nevada.
ARTICLE VII
CONVERSION OF SHARES ON MERGER
Each of the shares of common stock, par value of One Cent ($0.01)
per share, of eCom Colorado outstanding on the Merger Date ("eCom
Colorado Stock"), and all rights shall upon the Merger Date be
converted into one share of common stock, par value One Tenth of
One Cent ($0.001) per share of eCom Nevada ("eCom Nevada Stock").
At any time and from time to time after the Merger Date, each
holder of an outstanding certificate or certificates representing
shares of eCom Colorado Stock shall be entitled, upon the
surrender of the certificate or certificates at the office of an
transfer agent of eCom Nevada to be designated by the Board of
Directors of eCom Nevada to receive in exchange a certificate or
certificates representing the number of shares of eCom Nevada
Stock into which the shares of eCom Colorado Stock represented by
the certificate or certificates surrendered shall have been
converted. No dividend shall be paid by eCom Nevada to the
holders of outstanding certificates expressed to represent shares
of eCom Colorado Stock, but, upon surrender and exchange as
provided, there shall be paid to the record holder of the
certificate or certificates for eCom Nevada Stock issued in
exchange therefor an amount with respect to each such share of
eCom Nevada Stock equal to all dividends which shall have been
paid or become payable to holders of record of eCom Nevada Stock
between the Merger Date and the date of exchange.
ARTICLE VIII
ASSETS AND LIABILITIES
On the Merger Date, all property, real, personal and mixed, and
all debts due to either of the Constituent Corporations on
whatever account, as well for stock subscriptions as all other
choses in action, and all and every other interest of or
belonging to either of Constituent Corporations shall be taken by
and deemed to be transferred to and vested in the Surviving
Corporation without further act or deed; and all property and
every other interest shall be as effectually the property of the
Surviving Corporation as it was of the respective Constituent
Corporations, and the title to any real estate or any interest,
whether vested by deed or otherwise, in either of the Constituent
Corporations shall not revert or be in any way impaired by reason
of the merger; provided, however, that all rights of creditors
and all liens upon the property of either of the Constituent
Corporations shall be preserved unimpaired, and all debts,
liabilities, obligations and duties of the respective Constituent
Corporations shall attach to the Surviving Corporation, and may
be enforced against it to the same extent as if the debts,
liabilities, obligations and duties had been incurred or
contracted by it. Any action or proceeding pending by or against
either of the Constituent Corporations may be prosecuted to
judgment as if the merger had not taken place, or the Surviving
Corporation may be submitted in place of either of the
Constituent Corporations. The parties respectively agree that
from time to time, when requested by the Surviving Corporation or
by its successors or assigns, they will execute and deliver or
cause to be executed and delivered all deeds and instruments, and
will take or cause to be taken all further or other action, as
the Surviving Corporation may deem necessary or desirable in
order to vest in and confirm to the Surviving Corporation or its
successors or assigns title to and possession of all the property
and rights and otherwise carry out the intent and purposes of
this Agreement.
ARTICLE IX
CONDUCT OF BUSINESS BY CONSTITUENT CORPORATIONS
Prior to the Merger Date, eCom Colorado shall conduct its
business in its usual and ordinary manner, and shall not enter
into any transaction other than in the usual and ordinary course
of such business except as provided. Without limiting the
generality of the above, eCom Colorado shall not, except as
otherwise consented to in writing by eCom Nevada or as otherwise
provided in this agreement:
1. Issue or sell any shares of its capital stock in addition to
those outstanding on this date, except shares issued pursuant to
rights or options outstanding at that date;
2. Issue rights to subscribe to or options to purchase any
shares of its stock in addition to those outstanding on this
date;
3. Amend its certificate of incorporation or its bylaws;
4. Issue or contract to issue funded debt;
5. Declare or pay any dividend or make any other distribution
upon or with respect to its capital stock.
6. Repurchase any of its outstanding stock or by any other
means transfer any of its funds to its shareholders either
selectively or rateably, in return for value or otherwise, except
as salary or other compensation in the ordinary or normal course
of business;
7. Undertake or incur any obligations or liabilities except
current obligations or liabilities in the ordinary course of
business and except for liabilities for fees and expenses in
connection with the negotiation and consummation of the merger in
amounts to be determined after the Merger Date;
8. Mortgage, pledge, subject to lien or otherwise encumber any
realty or any tangible or intangible personal property;
9. Sell, assign or otherwise transfer any tangible assets of
whatever kind, or cancel any claims, except in the ordinary
course of business;
10. Sell, assign, or otherwise transfer any trademark, trade
name, patent or other intangible asset;
11. Default in performance of any material provision of any
material contract or other obligation;
12. Waive any right of any substantial value; or
13. Purchase or otherwise acquire any equity or debt security of
another corporation except to realize on an otherwise worthless
debt.
ARTICLE X
WARRANTIES OF THE CONSTITUENT CORPORATIONS
1. Representations and Warranties of eCom Colorado.
eCom Colorado covenants, represents and warrants to eCom Nevada
that:
a. It is on the date of this Agreement, and will be on the
Merger Date, (a) a corporation duly organized and existing and in
good standing under the laws of the jurisdiction of the State of
Colorado, (b) duly authorized under its articles, and under
applicable laws, to engage in the business carried on by it, and
(c) it is fully qualified to do business in the State of
Colorado;
b. All federal, state and local tax returns required to be
filed by it on or before the Merger Date will have been filed,
and all taxes shown to be required to be paid on or before the
Merger Date will have been paid;
c. It will use its best efforts to collect the accounts
receivable owned by it on or prior to the Merger Date and will
follow its past practices in connection with the extension of any
credit prior to the Merger Date;
d. All fixed assets owned by it and employed in its business
are of the type, kind and condition appropriate for its business
and will be operated in the ordinary course of business until the
Merger Date;
e. All leases now held by it are now and will be on the Merger
Date in good standing and not voidable or void by reason of any
default whatsoever;
f. During the period between January 1, 2000, and the date of
this Agreement, except as disclosed in writing to eCom Nevada, it
has not taken any action, or suffered any conditions to exist, to
any material or substantial extent in the aggregate, which it has
agreed in Article IX or this Article X of this Agreement not to
take or to permit to exist during the period between the date of
this agreement and the Merger Date;
g. It has not been represented by any broker in connection with
the transaction contemplated, except as it has advised eCom
Nevada in writing; and
h. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the
execution and delivery of this Agreement, and the performance of
the transactions contemplated by this Agreement.
i. eCom Colorado, in addition to other action which is has
covenanted, represented, and warranted to eCom Nevada that it
shall take, shall also:
(1) Use its best efforts to preserve its business organization
intact, to keep available to eCom Nevada the present officers and
employees of eCom Colorado, and to preserve for eCom Nevada the
relationships of eCom Colorado with suppliers and customers and
others having business relations with eCom Colorado; and
(2) Not increase the compensation, wages, or other benefits
payable to its officers or employees, other than increases which
eCom Nevada has approved in writing.
2. Representations and Warranties of eCom Nevada.
eCom Nevada covenants, represents and warrants to eCom Colorado
that:
a. eCom Nevada is a corporation duly organized and existing and
in good standing under the laws of the State of Nevada and has
the corporate power to own its properties and to carry on its
business as now being conducted; and
b. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the
execution and delivery of this Agreement, and the performance of
the transactions contemplated by this Agreement.
ARTICLE XI
CONSUMMATION OF MERGER
If the merger contemplated is completed, all expenses incurred in
consummating the plan of merger shall, except as otherwise agreed
in writing between the Constituent Corporations, be borne by eCom
Nevada. If the merger is not completed, each of the Constituent
Corporations shall be liable for, and shall pay, the expenses
incurred by it.
Notwithstanding shareholder authorization and at any time prior
to the filing, the filing and recording of this agreement may be
deferred from time to time by mutual consent of the respective
boards of directors of each of the Constituent Corporations, and,
to the extent provided in (a), (b), (c) and (d) below, the merger
may be abandoned:
1. By the mutual consent of the respective Boards of Directors
of each of the Constituent Corporations;
2. At the election of the Board of Directors of eCom Nevada, if
(a) demands by shareholders for appraisal of their shares of eCom
Colorado Stock have been received from the holders of twenty-five
percent (25%) or more of the outstanding shares, or (b) in the
judgment of the Board any judgment is rendered relating to any
legal proceeding not commenced and the existence of the judgment
will or may materially affect the rights of either Constituent
Corporation to sell, convey, transfer or assign any of its assets
or materially interfere with the operation of its business,
renders the merger impracticable, undesirable or not in the best
interests of its shareholders;
3. By the Board of Directors of eCom Nevada if there shall not
have been submitted to eCom Nevada the opinion of counsel for
eCom Colorado, in form and substance satisfactory to eCom Nevada,
to the effect that (1) eCom Colorado is a validly organized and
duly existing corporation, (2) this Agreement has been duly
authorized by, and is binding upon, eCom Colorado in accordance
with its terms, and (3) all the properties, estate, rights,
privileges, powers and franchises of eCom Colorado and all debts
due to eCom Colorado shall be transferred to and vested in eCom
Nevada, as the Surviving Corporation, without further act or
deed, subject only to any legal requirements for recording or
filing any instruments of conveyance, assignment or transfer, the
giving of notice of any such conveyance, assignment or transfer,
consents of third parties and governmental authorities to
assignment of any contract or lease, and other specified
exceptions acceptable to eCom Nevada;
4. At the election of the Board of Directors of eCom Colorado
if there shall not have been submitted to eCom Colorado the
opinion of counsel for eCom Nevada, in form and substance
satisfactory to eCom Colorado, to the effect that (1) eCom Nevada
is a validly organized and duly existing corporation, (2) this
Agreement has been duly authorized by, and is binding upon, eCom
Nevada in accordance with its terms, (3) when Articles of Merger
shall have been filed as provided in this Agreement, the merger
will become effective and all liabilities and obligations of eCom
Colorado will become the liabilities and obligations of eCom
Nevada, as the surviving corporation, fully and without any
further action by either Constituent Corporation, (4) the eCom
Colorado Stock will be converted into eCom Nevada Stock, (5) the
eCom Nevada Stock into which the eCom Colorado Stock will be
converted as provided herein will be legally and validly
authorized, exempt from the registration requirements of Section
5 of the Securities Act of 1933, as amended, ("Act'), provided by
Section 3(a)(10) thereof, exempt from the registration
requirements of Nevada Revised Statutes 90.460, as amended,
provided by Nevada Revised Statutes 90.530(11), and may be issued
without a restrictive legend pursuant to Rule 145(a)(2) under the
Act if the shares of eCom Colorado are otherwise unrestricted,
and (6) when issued will be validly issued, fully paid and
nonassessable stock of the surviving corporation;
5. At the election of the Board of Directors of either
Constituent Corporation if:
a. The warranties and representations of the other Constituent
Corporation contained in this Agreement shall not be
substantially accurate in all material respects on and as of the
date of election; or the covenants contained of the other
Constituent Corporation shall not have been performed or
satisfied in all material respects;
b. Prior to the merger (1) there shall have been filed in any
court or agency having jurisdiction a complaint or other
proceeding seeking to restrain or enjoin the merger contemplated
hereby, or (2) there shall have been presented to eCom Colorado
or eCom Nevada or any director or officer of either of them any
process, demand or request which, in the opinion of counsel for
either Constituent Corporation, offers reasonable ground to
believe that a complaint or xxxx in equity may be forthcoming
which, if successful, would restrain, enjoin or dissolve the
merger, and if, in either case, such Board of Directors
determines that abandonment and cancellation of this Agreement is
advisable in the best interests of the Constituent Corporations,
their shareholders, employees and customers;
d. If the Merger Date shall not have occurred by July 1, 2000,
then, at the option of the Board of Directors of ABC it may be
deferred to a date on or after August 1, 1999. If the Merger
Date shall not have occurred by September 1, 1999, then, at the
option of the Board of Directors of either Constituent
Corporation the merger may be abandoned. In the event of the
abandonment of the merger pursuant to the foregoing provisions,
this Agreement shall become void and have no effect, without any
liability on the part of either of the Constituent Corporations
or its shareholders or directors or officers in respect of this
merger except the obligation of each Constituent Corporation to
pay its own expenses as provided in this Article XI.
ARTICLE XII
RESIDENT AGENT
The respective names of the county and the city within the county
in which the principal office of the surviving corporation is to
be located in the State of Nevada, the street and number of this
office, the name of the registered agent will, as of the Merger
Date, be as set forth in Article Second of the Articles of
Incorporation of the Surviving Corporation.
ARTICLE XIII
RIGHT TO AMEND ARTICLES OF INCORPORATION
The Surviving Corporation reserves the right to amend, alter,
change or repeal its Articles of Incorporation in the manner now
or later prescribed by statute or otherwise authorized by law;
and all rights and powers conferred in the certificate of
incorporation on shareholders, directors or officers of eCom
Nevada, or any other person, are subject to this reserved power.
ARTICLE XIV
MISCELLANEOUS
1. Access to Books and Records.
To enable eCom Nevada to coordinate the activities of eCom
Colorado into those of eCom Nevada on and after the Merger Date,
eCom Colorado shall, before the Merger Date, afford to the
officers and authorized representatives of eCom Nevada free and
full access to the plants, properties, books and records of eCom
Colorado, and the officers of eCom Colorado will furnish eCom
Nevada with financial and operating data and other information as
to the business and properties of eCom Colorado as eCom Nevada
shall from time to time reasonably request. eCom Nevada shall,
before the Merger Date, afford to the officers and authorized
representatives of eCom Colorado such access, and eCom Nevada's
officers will furnish such data and information to eCom Colorado,
as may be reasonably required by eCom Colorado for the
preparation of its proxy statement in connection with the meeting
of shareholders to be called pursuant to section 1 of Article I
of this Agreement. eCom Nevada and eCom Colorado agree that,
unless and until the merger contemplated by this Agreement has
been consummated, eCom Nevada and eCom Colorado and their
officers and representatives will hold in strict confidence all
data and information obtained from one another as long as it is
not in the public domain, and if the merger provided for is not
consummated as contemplated, eCom Nevada and eCom Colorado will
each return to the other party all data as the other party may
reasonably request.
2. Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall
not be capable of being waived or varied other than by an express
waiver or variation in writing. Any failure to exercise or any
delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any
defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of
any party shall in any way preclude such party from exercising
any such right or constitute a suspension or any variation of any
such right.
3. Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators,
representatives, successors, and permitted assigns.
4. Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no
promises, agreements, conditions, undertakings, understandings,
warranties, covenants or representations, oral or written,
express or implied, between them with respect to this Agreement
or the matters described in this Agreement, except as set forth
in this Agreement. Any such negotiations, promises, or
understandings shall not be used to interpret or constitute this
Agreement.
5. Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole
or in part, without the written consent of the other party, and
any purported assignment in violation hereof shall be void.
6. Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
7. Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court
or other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
8. Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall
be deemed to include each of the singular, and pronouns of one or
no gender shall be deemed to include the equivalent pronoun of
the other or no gender.
10. Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto
agree to make, execute and deliver or cause to be made, executed
and delivered, to the requesting party such other instruments and
to take such other actions as the requesting party may reasonably
require to carry out the terms of this Agreement and the
transactions contemplated hereby.
11. Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or
by mail (either a. United States mail, postage prepaid, or b.
Federal Express or similar generally recognized overnight
carrier), addressed as provided by each of the Constituent
Corporations.
12. Governing Law.
This Agreement shall be construed and enforced under, in
accordance with, and governed by, the laws of the State of
Nevada.
13. Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent
and authority to execute and deliver this Agreement on behalf of
such party.
14. Termination of Agreement.
This Agreement shall terminate on the Effective Date unless
all actions required under this Agreement have not been fully
performed.
15. Survival of Provisions.
The representations and warranties contained in Article X of this
agreement and any liability of one Constituent Corporation to the
other for any default under the provisions of Articles IX or X of
this agreement, shall expire with, and be terminated and
extinguished by, the merger under this agreement on the Merger
Date.
16. Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and delivered as of the date first above written.
eCom Colorado:
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
eCom Nevada:
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
