EXHIBIT 10.2
MERGER AGREEMENT
by and between
WIRELESS NETCOM, INC.
A Nevada Corporation
and
XXXXXXXXXXX.XXX, INC.
A California Corporation
Dated as of April 19, 1999
MERGER AGREEMENT
THIS MERGER AGREEMENT (this "Agreement") is dated as of April 19, 1999, by
and between WIRELESS NETCOM, INC., a Nevada corporation ("Buyer"), and the
shareholders (the "Sellers") of XXXXXXXXXXX.XXX, INC., a California corporation
("Acquired Company").
RECITALS
WHEREAS, the Acquired Company is a development-stage business whose assets
consist of intellectual property and good will primarily related to Internet
software and services; and,
WHEREAS, Buyer is a telecommunications business with a desire to expand its
Internet-related business activities; and,
WHEREAS, upon completion of this transaction, the Buyer will change its
name to the name of the Acquired Company; and,
WHEREAS, the Buyer's Articles of Incorporation and its Bylaws shall be the
surviving Articles of Incorporation and Bylaws, with an amendment to the
Articles reflecting the change of name of the Buyer to "xXxxxxxxxxx.xxx, Inc.";
and,
WHEREAS, Buyer wishes to acquire from the Sellers all of the outstanding
common shares of the Acquired Company (the "Shares");
WHEREAS, the Board of Directors of the constituent corporations deem it
desirable and in the best interests of the corporations and their shareholders
that the Acquired Company be merged into Buyer, in accordance with the
provisions of Nevada Revised Statutes 92 A.120 and 92 A.190, and California
Corporations Code Section 108, in order that the transaction qualify as a
"reorganization" within the meaning of Section 368(a) (1) (A) of the Internal
Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the foregoing recitals and the
representations, warranties and covenants set forth below, the parties hereto
agree as follows:
ARTICLE I
ISSUANCE OF STOCK
Section 1.1 Issuance of Shares. Pursuant to the terms and subject to the
------------------
conditions of this Agreement, Sellers shall, at Closing (as defined in Section 3
hereof), sell, assign, grant, transfer and convey to Buyer, and Buyer shall
acquire from Sellers all of Sellers' right, title and interest in and to all the
Shares of the Acquired Company.
1
Section 1.2 Assumptions of Liabilities related to Shares. Sellers hereby
--------------------------------------------
specifically acknowledge and agree that Buyer shall receive the Shares free and
clear of all liens or encumbrances, and Buyer shall not assume any obligations,
liabilities or debts related to the Shares purchased by Buyer of any nature
whatsoever, whether absolute, accrued, contingent or otherwise, or whether due
or to become due.
ARTICLE II
CONSIDERATION
Section 2.1 Purchase Price for Shares. As consideration for the Shares,
-------------------------
Buyer shall issue to the Sellers at the Closing an aggregate of 6,100,000 common
shares of Buyer valued at their par value of $0.0001 per share (the "Purchase
Price").
ARTICLE III
CLOSING
Section 3.1 Closing. The closing of the transactions contemplated by this
-------
Agreement (the "Closing") shall take place as of April 19, 1999, subject to
receipt of approval from the Board of Directors of Buyer. The date of the
Closing shall be referred to as the Closing Date. The effective date of merger
shall be the date of filing of the Articles of Merger with the Secretary of
State of the State of Nevada. Delivery of the Shares shall be by such documents
and instruments of issuance in such form as Buyer may request in its reasonable
discretion. Sellers shall from time to time after the Closing make further
conveyances, transfers, assignments and deliveries, and execute further
documents and instruments as Buyer deems necessary in its reasonable discretion
in order to effect and conform the sale of the Shares and the other transactions
contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Sellers as follows:
Section 4.1 Organization, Standing and Qualification. Buyer is a
----------------------------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada, with all necessary corporate power and authority to own,
operate and conduct its properties and to carry on its business as now
conducted, and is duly qualified to conduct its business and is in good standing
as a foreign corporation in each jurisdiction where the character of its
properties or the nature of its business makes such qualification necessary,
except for such jurisdictions when the failure to so qualify or to be in good
standing would not, individually or in the aggregate, have a material adverse
effect on Buyer taken as a whole.
2
Section 4.2 Authorization of Agreement - No Violation - No Consents.
-------------------------------------------------------
(a) The execution and performance by Buyer of this Agreement and
agreements ancillary hereto, and the transaction contemplated hereby and
thereby, have been approved by the Board of Directors of Buyer, and no further
corporate action is required to be taken by Buyer in order to execute, deliver
and perform this Agreement and the agreements ancillary hereto and to consummate
the transactions contemplated hereby. This Agreement is a legal, valid and
binding obligation of Buyer enforceable in accordance with its terms, and each
agreement or instrument contemplated by this Agreement, when executed and
delivered by Buyer in accordance with the provisions hereof and thereof will be
a legal, valid and binding obligation of Buyer enforceable in accordance with
their terms, except as the enforcement hereof and thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the enforcement
of creditors' rights generally and subject to the availability of equitable
remedies.
(b) Buyer has full power and authority to make the representations,
warranties, covenants and agreements contained in this Agreement and in the
agreement ancillary hereto.
(c) Neither the execution and delivery of this Agreement and the
agreements ancillary hereto, nor the consummation of the transactions
contemplated herein and therein will conflict with or result in a breach,
default or violation of any of Buyer's Articles of Incorporation, Bylaws or any
agreement, document, instrument, judgment, decree, order, governmental permit,
certificate, license, law, statute, rule or regulation by which Buyer is bound
or affected.
(d) No consent, action, approval or authorization of or
registration, declaration or filing with any governmental department,
commission, agency or other instrumentality or any other person or entity is
required to authorize, or is otherwise required in connection with, the
execution and delivery of this Agreement and the agreements ancillary hereto by
Buyer or its performance of the terms hereof and thereof or the validity or
enforceability hereof and thereof.
ARTICLE V
CONDITIONS TO THE CLOSING
Section 5.1 Conditions to Buyer Obligations. The obligation of the Buyer
-------------------------------
to consummate the transactions contemplated by this Agreement are, unless waived
by Buyer, subject to fulfillment on or before the Closing, of each of the
following conditions:
(a) The Shares shall be free and clear of all liens, claims,
liabilities and encumbrances; and
(b) Sellers shall have performed all of the covenants required
hereunder to be performed prior to the Closing.
3
Section 5.2 Conditions to Sellers's Obligations. The obligation of the
-----------------------------------
Sellers to consummate the transactions contemplated by this Agreement shall be
subject to:
(a) the receipt by Sellers of common shares of Buyer pursuant to
Section 2.1 herein which are free and clear of all liens, claims, liabilities
and encumbrances; and
(b) Buyer shall have performed all of the covenants required
hereunder to be performed prior to the Closing.
Section 5.3 Failure of Conditions. In the event of the failure of a
---------------------
condition resulting in Buyer or Sellers not performing its obligations hereunder
pursuant to the terms of Articles V, VI or VII, as the case may be, this
Agreement shall become null and void and there shall be no liability on the part
of any party hereto, except nothing herein shall relieve any party from
liability for any breach of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Attorney Fees and Costs. The parties to this Agreement
-----------------------
hereby agree that the prevailing party in any action arising from or as a result
of this Agreement or the transactions contemplated hereby shall be entitled to
reasonable attorneys' fees and other costs and expenses incurred (a) after
referral to an attorney, (b) in any settlement negotiations and (c) in preparing
for and prosecuting any suit or action, including trial, arbitration, mediation,
appeals or other proceedings.
Section 6.2 Time of the Essence. Time is of the essence with respect to
-------------------
the obligations to be performed under this Agreement.
Section 6.3 Rights Cumulative. Except as expressly provided in this
-----------------
Agreement, and to the extent permitted by law, any remedies described in this
Agreement are cumulative and not alternative to any other remedies available at
law or in equity.
Section 6.4 Governing Law, Jurisdiction and Venue. This Agreement shall
-------------------------------------
be governed by and construed in accordance with the laws of the State of
California. The parties agree that the Court shall have exclusive jurisdiction
of any action arising from or in connection with this Agreement.
Section 6.5 Expenses. Each party hereto shall bear all of its legal,
--------
accounting and other costs and expenses incident to the negotiation of this
Agreement and the performance of the transactions contemplated herein.
Section 6.6 Notices. All notices and other communications hereunder to a
-------
party hereto shall be deemed to be properly given if delivered personally or
mailed to it by registered or certified mail (return receipt requested) as
follows:
4
in the case of the Sellers, to:
Xxxx X. XxXxxx, E.V.P. - xXxxxxxxxxx.xxx, Inc.
0000 Xx Xx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
and in the case of Buyer, to:
Wireless Netcom, Inc.
000 Xxxx Xxxx., #00
Xxxxxxx Xxxxxxx, XX 00000
or at such other address as may have been specified by proper notice.
Section 6.7 Headings. The descriptive headings of the Articles and
--------
Sections of this Agreement are set forth for convenience only and shall not
constitute a part of this Agreement.
Section 6.8 Waiver. Any agreement on the part of a party hereto to any
------
extension or waiver with regard to any provision hereof shall be valid only if
set forth in a written instrument signed by each party to this Agreement. The
consummation of the transactions contemplated hereby shall not be deemed a
waiver of any right any party may have with respect to representations,
warranties, covenants or agreements contained in or related to this Agreement
being incorrect, untrue or breached.
Section 6.9 Amendment. This Agreement may not be amended except by a
---------
written instrument signed by each party to this Agreement.
Section 6.10 Further Actions. Each party shall execute and deliver such
---------------
other certificates, agreements and other documents and take such other actions
as may reasonably be requested by any other party in order to consummate or
implement the transactions contemplated by this Agreement.
Section 6.11 Assignment. This Agreement and all of the provisions hereof
----------
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and assigns, but neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned (other than by
will or by operation of law upon the death of any such party, as applicable)
without the prior written consent of the other parties. Nothing in this
Agreement, express or implied, is intended to confer upon any person or entity
other than the parties hereto and their respective heirs, successors and
assigns, any rights, remedies or obligations pursuant to or by reason of this
Agreement.
Section 6.12 Severability. The provisions contained herein are
------------
independent and separate, and in the event that any provision contained herein
is declared invalid or illegal, the other provisions hereof shall not be
affected or impaired thereby and shall remain valid and enforceable in
accordance with the terms thereof.
Section 6.13 Injunctive Relief. In the event of a breach or threatened
-----------------
breach by a party hereto of the provisions of this Agreement, any other party
hereto shall be entitled to an injunction to prevent irreparable injury which
may result from such breach or threatened breach. Nothing contained herein shall
5
be construed as prohibiting any party hereto from pursuing any other remedies
available for such breach or threatened breach, including the recovery of
damages.
Section 6.14 Disclosures. A qualification or exception to any
-----------
representation, warranty or covenant contained in this Agreement shall not be
construed as a qualification or exception to any other representation, warranty
or covenant contained herein, unless such qualification or exception expressly
refers to such other representation, warranty or covenant.
Section 6.15 Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which when so executed shall be deemed an original but
all of which together shall constitute one and the same instrument.
Section 6.16 Entire Agreement. This Agreement and the exhibits, schedules
----------------
and attachments hereto shall supersede all prior agreements, memoranda and other
documents regarding the subject matter hereof and represent the final agreement
between the parties with regard thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above to be effective as of the day and year first
above written.
BUYER:
WIRELESS NETCOM, INC. (a Nevada Corporation)
___________________________________________
By: Xxxxxx Xxxx, Executive Vice President
SELLERS:
The Shareholders of XXXXXXXXXXX.XXX, INC.
(a California Corporation)
___________________________________________
By: Xxx Xxxxxxxx, Shareholder
___________________________________________
By: Xxxx XxXxxx, Shareholder and
as agent for Xxxxx Xxxx, Xxxxxx XxXxxxxx,
Xxx Xxxxxx, Xxx XxXxxx and Xxxx Xxxxx
6
SELLING SHAREHOLDER
SHARE DISTRIBUTION LIST
Shareholder Number of eCom Shares Sold Number of WNC Shares Received
----------- -------------------------- -----------------------------
Xxx Xxxxxxxx 2,000,000 2,000,000
Xxxx XxXxxx 2,000,000 2,000,000
Xxxxx Xxxx 800,000 800,000
Xxxxxx XxXxxxxx 600,000 600,000
Xxx Xxxxxx 600,000 600,000
Xxx XxXxxx 80,000 80,000
Xxxx Xxxxx 20,000 20,000
7
