PLAN AND AGREEMENT OF REORGANIZATION
BETWEEN
NOMATTERWARE, INC.
AND
CACTUS XXXXX, INC.
RELATING TO THE EXCHANGE OF COMMON STOCK OF
NOMATTERWARE, INC.
FOR
COMMON STOCK OF
CACTUS XXXXX, INC.
DATED
XXXXX 0, 0000
X-x
TABLE OF CONTENTS
PLAN OF REORGANIZATION .................................................... 1
AGREEMENT.................................................................. 1
SECTION 1 TRANSFER OF NOMATTERWARE SHARES..................... 1
SECTION 2 ISSUANCE OF EXCHANGE STOCK AND ADDITIONAL
STOCK TO NOMATTERWARE SHAREHOLDERS.................. 2
SECTION 3 CLOSING............................................. 3
SECTION 4 REPRESENTATIONS AND WARRANTIES BY NOMATTERWARE
AND CERTAIN SHAREHOLDERS............................ 5
SECTION 5 REPRESENTATIONS AND WARRANTIES BY CACTUS.............9
SECTION 6 ACCESS AND INFORMATION..............................13
SECTION 7 COVENANTS OF NOMATTERWARE...........................13
SECTION 8 COVENANTS OF CACTUS.................................15
SECTION 9 ADDITIONAL COVENANTS OF THE PARTIES.................16
SECTION 10 SURVIVIAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS...........................................17
SECTION 11 CONDITIONS PRECEDENT TO OBLIGATIONS
OF PARTIES..........................................17
SECTION 12 TERMINATION, AMENDMENT, WAIVER......................19
SECTION 13 MISCELLANEOUS.......................................21
EXHIBIT LIST...............................................................26
SCHEDULE LIST..............................................................26
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PLAN AND AGREEMENT OF REORGANIZATION
This PLAN AND AGREEMENT OF REORGANIZATION ("Agreement") is entered into
on this 1st day of April, 2000 by and between CACTUS XXXXX, INC., a Nevada
corporation ("CACTUS") and NOMATTERWARE, INC. a Nevada corporation
("NOMATTERWARE"), and those persons listed in Exhibit A hereto, being all of the
shareholders of NOMATTERWARE who own individually at least five percent (5%) of
the outstanding stock of NOMATTERWARE and together control over 50% of the
outstanding stock of NOMATTERWARE as of the date this Agreement is executed.
PLAN OF REORGANIZATION
The transaction contemplated by this Agreement is intended to be a "tax
free' exchange as contemplated by the provisions of Sections 351 and 368(a) (1)
(B) of the Internal Revenue Code of 1986, as amended. CACTUS will acquire up to
100% of NOMATTERWARE's issued and outstanding common stock, ($0.001 par value
per share) and all warrants and options outstanding (the "NOMATTERWARE Stock" or
the "NOMATTERWARE Shares"), in exchange for approximately 5,200,000 shares of
CACTUS 's common stock, $0.001 par value per share (the "Exchange Stock") which
includes shares to be issued to finders. Upon the consummation of the exchange
transaction and the issuance and transfer of the CACTUS common stock as set
forth in Section 2 herein below, NOMATTERWARE Shareholders could hold
approximately 52% of the then outstanding common stock of CACTUS. The Exchange
Transaction will result in NOMATTERWARE becoming a wholly owned subsidiary of
CACTUS.
AGREEMENT
SECTION 1
TRANSFER OF NOMATTERWARE SHARES
1.1 All shareholders of NOMATTERWARE (the "Shareholders" or the
`NOMATTERWARE Shareholders"), as of the date of Closing as such term
is defined in Section 3 herein (the "Closing" or the "Closing Date"),
shall transfer, assign, convey and deliver to CACTUS at the date of
Closing, certificates representing approximately 100% of the
NOMATTERWARE Shares or such lesser percentage as shall be acceptable
to CACTUS, but in no event less than approximately 95% of the
NOMATTERWARE Shares. The transfer of the NOMATTERWARE Shares shall be
made free and clear of all liens, mortgages, pledges, encumbrances or
charges, whether disclosed or undisclosed, except as the NOMATTERWARE
Shareholders and CACTUS shall have otherwise agreed in writing.
SECTION 2
ISSUANCE OF EXCHANGE STOCK AND ADDITIONAL STOCK TO NOMATTERWARE
SHAREHOLDERS
2.1 As consideration for the transfer, assignment, conveyance and delivery
of the NOMATTERWARE Stock hereunder, CACTUS shall, at the Closing
issue to the NOMATTERWARE Shareholders, pro rata in accordance with
each Shareholder's percentage ownership of NOMATTERWARE immediately
prior to the Closing, certificates for approximately 5,200,000 shares.
(The CACTUS common stock to be issued are referred to herein as the
"Exchange Stock.") The parties intend that the Exchange Stock being
issued will be used to acquire all outstanding NOMATTERWARE Shares. To
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the extent that less than 100% of the NOMATTERWARE stock is acquired,
the number of shares issuable to those NOMATTERWARE Shareholders who
have elected to participate in the exchange described in this
Agreement (the "Exchange") shall increase proportionately.
2.2 The issuance of the Exchange Stock shall be made free and clear of all
liens, mortgages, pledges, encumbrances or charges, whether disclosed
or undisclosed, except as the NOMATTERWARE Shareholders and CACTUS
shall have otherwise agreed in writing. As provided herein, and
immediately prior to the Closing, CACTUS shall have issued and
outstanding: (I) not more than 10,000,000 shares of Common Stock; (ii)
no shares of Preferred Stock; and (iii) no options for the purchase of
common stock, except as may be set forth in Schedule 5.1(b) hereto.
2.3 None of the Exchange Stock issued or to be issued to the NOMATTERWARE
Shareholders, nor any of the NOMATTERWARE Stock transferred to CACTUS
hereunder shall, at the time of Closing, be registered under federal
securities laws but, rather, shall be issued pursuant to an exemption
therefrom and be considered "restricted stock" within the meaning of
Rule 144 promulgated under the Securities Act of 1933, as amended (the
"Act"). All of such shares shall bear a legend worded substantially as
follows:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") and are
`restricted securities' as that term is defined in Rule 144 under
the Act. The shares may not be offered for sale, sold or
otherwise transferred except pursuant to an exemption from
registration under the Act, the availability of which is to be
established to the satisfaction of the Company."
The respective transfer agents of CACTUS and NOMATTERWARE shall
annotate their records to reflect the restrictions on transfer
embodied in the legend set forth above. There shall be no requirement
that CACTUS register the Exchange Stock under the Act, nor shall
NOMATTERWARE or the Shareholders be required to register any
NOMATTERWARE Shares under the Act.
SECTION 3
CLOSING
3.1 Closing of Transaction. Subject to the fulfillment or waiver of the
conditions precedent set forth in Section 11 hereof, the Closing shall
take place on the Closing Date, via telephone conference call,
simultaneously at the offices of counsel for NOMATTERWARE and counsel
for CACTUS, at 3:00 p.m. P.S.T., or at such other time on the Closing
Date as NOMATTERWARE and CACTUS may mutually agree in writing
3.2 Closing Date. The Closing Date of the Exchange shall take place on a
date chosen by mutual agreement of NOMATTERWARE and CACTUS not later
than August 30, 2000, or such later date upon which NOMATTERWARE and
CACTUS may mutually agree in writing, or as extended pursuant to
subsection 12.1(b) herein below.
3.3 Deliveries at Closing.
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(a) NOMATTERWARE shall deliver or cause to be delivered to CACTUS at
or prior to Closing:
(1) Certificates representing all shares, or an amount of shares
acceptable to CACTUS, of the NOMATTERWARE Stock as described
in Section 1, each endorsed in blank by the registered
owner;
(2) an agreement from each Shareholder surrendering his or her
shares agreeing to a restriction on the transfer of the
Exchange Stock as described in Section 2 hereof;
(3) a copy of a consent of NOMATTERWARE's Board of Directors
authorizing NOMATTERWARE to take the necessary steps toward
Closing the transaction described by this Agreement in the
form set forth in Exhibit B;
(4) a copy of a Certificate of Good Standing for NOMATTERWARE
issued not more than ten (10) days prior to Closing by the
Nevada Secretary of State;
(5) an opinion of the Law Offices of Xxxxxx Xxxxxx, counsel to
NOMATTERWARE, dated the Closing Date, in a form deemed
acceptable by CACTUS and its counsel;
(6) Articles of Incorporation and Bylaws of NOMATTERWARE
certified as of the Closing Date by the President and
Secretary of NOMATTERWARE;
(7) all of NOMATTERWARE's corporate records;
(8) such other documents, instruments or certificates as shall
be reasonably requested by CACTUS or its counsel.
(b) CACTUS shall deliver or cause to be delivered to NOMATTERWARE at
Closing:
(1) a copy of a consent of CACTUS 's Board of Directors
authorizing CACTUS to take the necessary steps toward
Closing the transaction described by this Agreement in the
form set forth in Exhibit C;
(2) a copy of a Certificate of Good Standing for CACTUS issued
not more than thirty days prior to Closing by the Secretary
of State of Nevada.
(3) stock certificate(s) or a computer listing from CACTUS 's
transfer agent representing the Exchange Stock to be newly
issued by CACTUS under this Agreement, which certificates
shall be in the names of the appropriate NOMATTERWARE
Shareholders, each in the appropriate denomination as
described in Section 2;
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(4) an opinion of Xxxxxxx Xxxxxxx, special counsel to CACTUS,
dated the Closing Date, in a form deemed acceptable by
NOMATTERWARE and its counsel;
(5) Articles of Incorporation and Bylaws of CACTUS certified as
of the Closing Date by the President and Secretary of
CACTUS;
(6) executed bank forms for CACTUS bank accounts reflecting a
change in management and signatories to said bank accounts;
(7) such other documents, instruments or certificates as shall
be reasonably requested by NOMATTERWARE or its counsel.
3.4 Filings; Cooperation.
(a) Prior to the Closing, the parties shall proceed with due
diligence and in good faith to make such filings and take such
other actions as may be necessary to satisfy the conditions
precedent set forth in Section 11 below.
(b) On and after the Closing Date, CACTUS, NOMATTERWARE and the
Shareholders set forth in Exhibit A shall, on request and without
further consideration, cooperate with one another by furnishing
or using their best efforts to cause others to furnish any
additional information and/or executing and delivering or using
their best efforts to cause others to execute and deliver any
additional documents and/or instruments, and doing or using their
best efforts to cause others to do any and all such other things
as may be reasonably required by the parties or their counsel to
consummate or otherwise implement the transactions contemplated
by this Agreement.
SECTION 4
REPRESENTATIONS AND WARRANTIES BY
NOMATTERWARE AND CERTAIN SHAREHOLDERS
4.1 Subject to the schedule of exceptions, attached hereto and
incorporated herein by this reference, (which schedules shall be
acceptable to CACTUS), NOMATTERWARE and those Shareholders listed on
Exhibit A represent and warrant to CACTUS as follows:
(a) Organization and Good Standing of NOMATTERWARE. The Articles of
Incorporation of NOMATTERWARE and all Amendments thereto as
presently in effect, certified by the Secretary of State of
Nevada, and the Bylaws of NOMATTERWARE as presently in effect,
certified by the President and Secretary of NOMATTERWARE, have
been delivered to CACTUS and are complete and correct and since
the date of such delivery, there has been no amendment,
modification or other change thereto.
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(b) Capitalization. NOMATTERWARE's authorized capital stock is
25,000,000 shares of $0.001 par value Common Stock (defined as
"NOMATTERWARE Common Stock of which no more than 5,200,000 shares
of Common Stock will be issued and outstanding prior to the
Closing Date, and held of record by approximately 250 person(s).
All of such outstanding shares are validly issued, fully paid and
non--assessable. Except as set forth in Schedule 4.1(b), no other
equity securities or debt obligations of NOMATTERWARE are
authorized, issued or outstanding.
(c) Subsidiaries. NOMATTERWARE has no subsidiaries and no other
investments, directly or indirectly, or other financial interest
in any other corporation or business organization, joint venture
or partnership of any kind whatsoever.
(d) Financial Statements. NOMATTERWARE will deliver to CACTUS, prior
to Closing, a copy of NOMATTERWARE's audited financial statements
through April 30, 2000, which will be true and complete. Other
than changes in the usual and ordinary conduct of the business
since April 30, 2000, there have been, and at the Closing Date
there will be, no material adverse changes in such financial
statements.
(e) Absence of Undisclosed Liabilities. NOMATTERWARE has no
liabilities which are not adequately reflected or reserved
against in the NOMATTERWARE Financial Statements or otherwise
reflected in this Agreement and NOMATTERWARE shall not have as of
the Closing Date, any liabilities (secured or unsecured and
whether accrued, absolute, direct, indirect or otherwise) which
were incurred after April 30, 2000, and would be individually or
in the aggregate, material to the results of operations or
financial condition of NOMATTERWARE as of the Closing Date.
(f) Litigation. except as disclosed in Schedule 4.1(f), there are no
outstanding orders, judgments, injunctions, awards or decrees of
any court, governmental or regulatory body or arbitration
tribunal against NOMATTERWARE or its properties. Except as
disclosed in Schedule 4.1(f), there are no actions, suits or
proceedings pending, or, to the knowledge of NOMATTERWARE,
threatened against or affecting NOMATTERWARE, any of its officers
or Directors relating to their positions as such, or any of its
properties, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, in
connection with the business, operations or affairs of
NOMATTERWARE which might result in any material adverse change in
the operations or financial condition of NOMATTERWARE, or which
might prevent or materially impede the consummation of the
transactions under this Agreement.
(g) Compliance with Laws. To the best of its knowledge, the
operations and affairs of NOMATTERWARE do not violate any law,
ordinance, rule or regulation currently in effect, or any order,
writ, injunction or decree of any court or governmental agency,
the violation of which would substantially and adversely affect
the business, financial conditions or operations of NOMATTERWARE.
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(h) Absence of Certain Changes. Except as set forth in Schedule
4.1(h), or otherwise disclosed in writing to CACTUS, since April
30, 2000, (i) NOMATTERWARE has not entered into any material
transaction; (ii) there has been no change in the condition
(financial or otherwise), business, property, prospects, assets
or liabilities of NOMATTERWARE as shown on the NOMATTERWARE
Financial Statement, other than changes that both individually
and in the aggregate do not have a consequence that is materially
adverse to such condition, business, property, prospects, assets
or liabilities; (iii) there has been no damage to, destruction of
or loss of any of the properties or assets of NOMATTERWARE
(whether or not covered by insurance) materially and adversely
affecting the condition (financial or otherwise), business,
property, prospects, assets or liabilities of NOMATTERWARE; (iv)
NOMATTERWARE has not declared, or paid any dividend or made any
distribution on its capital stock, redeemed, purchased or
otherwise acquired any of its capital stock, granted any options
to purchase shares of its stock, or issued any shares of its
capital stock; (v) there has been no material adverse change,
except in the ordinary course of business, in the contingent
obligations of NOMATTERWARE by way of guaranty, endorsement,
indemnity, warranty or otherwise; (vi) there have been no loans
made by NOMATTERWARE to its employees, officers or directors;
(vii) there has been no waiver or compromise by NOMATTERWARE of a
valuable right or of a material debt owed to it; (viii) there has
been no extraordinary increase in the compensation of any of
NOMATTERWARE's employees; (ix) there has been no agreement or
commitment by NOMATTERWARE to do or perform any of the acts
described in this Section 4.1(h); and (x) there has been no other
event or condition of any character which might reasonably be
expected either to result in a material and adverse change in the
condition (financial or otherwise) business, property, prospects,
assets or liabilities of NOMATTERWARE or to impair materially the
ability of NOMATTERWARE to conduct the business now being
conducted.
(i) Employees. There are, except as disclosed in Schedule 4.1(i), no
collective bargaining, bonus, profit sharing, compensation, or
other plans, agreements or arrangements between NOMATTERWARE and
any of its directors, officers or employees and there is no
employment, consulting, severance or indemnification
arrangements, agreements or understandings between NOMATTERWARE
on the one hand, and any current or former directors, officers or
employees of NOMATTERWARE on the other hand.
(j) Assets. All of the assets reflected on the April 30, 2000,
NOMATTERWARE Financial Statements or acquired and held as of the
Closing Date, will be owned by NOMATTERWARE on the Closing Date.
Except as set forth in Schedule 4.1(j), NOMATTERWARE owns
outright and has good and marketable title, or holds valid and
enforceable leases, to all of such assets. None of NOMATTERWARE's
equipment used by NOMATTERWARE in connection with its business
has any material defects and all of them are in all material
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respects in good operating condition and repair, and are adequate
for the uses to which they are being put; none of NOMATTERWARE's
equipment is in need of maintenance or repairs, except for
ordinary, routine maintenance and repair. NOMATTERWARE represents
that, except to the extent disclosed in Schedule 4.1(j) to this
Agreement or reserved against on its balance sheet as of March
31, 1999, it is not aware of any accounts and contracts
receivable existing that in its judgment would be uncollectible.
(k) Tax Matters. NOMATTERWARE represents that, except as set forth in
Schedule 4.1(k) to his Agreement, all federal, foreign, state and
local tax returns, reports and information statements required to
be filed by or with respect to the activities of NOMATTERWARE
have been timely filed. Since April 30, 2000, NOMATTERWARE has
not incurred any liability with respect to any federal, foreign,
state or local taxes except in the ordinary and regular course of
business. Such returns, reports and information statements are
true and correct in all material respects insofar as they relate
to the activities of NOMATTERWARE. On the date of this Agreement,
NOMATTERWARE is not delinquent in the payment of any such tax or
assessment, and no deficiencies for any amount of such tax have
been proposed or assessed. Any tax sharing agreement among or
between NOMATTERWARE and any affiliate thereof shall be
terminated as of the Closing Date.
(1) Insurance. Set forth on Schedule 4.1(1) hereto is a list of
insurance policies currently maintained by NOMATTERWARE in full
force and effect which provide for coverage which is usual and
customary in its business as to amount and scope, and are
adequate to protect NOMATTERWARE against any reasonably
foreseeable risk of loss.
(m) Operating Authorities. To the best knowledge of NOMATTERWARE,
NOMATTERWARE has all material operating authorities, governmental
certificates and licenses, permits, authorizations and approvals
("Permits") required to conduct its business as presently
conducted. Such Permits are set forth on Schedule 4.1 (1). Since
NOMATTERWARE' s inception, there has not been any notice or
adverse development regarding such Permits; such Permits are in
full force and effect; no material violations are or have been
recorded in respect of any permit; and no proceeding is pending
or threatened to revoke or limit any Permit.
(n) Continuation of Key Management. To the best knowledge of
NOMATTERWARE, all key management personnel of NOMATTERWARE intend
to continue their employment with NOMATTERWARE after the Closing.
For purposes of this subsection 4.1(n), "key management
personnel" shall include Xxxx Xxxxxxxxx, Xxxx Xxxxxx Xxxxxx and
Xxxx Xxxxxxx.
(o) Books and Records. The books and records of NOMATTERWARE are
complete and correct, are maintained in accordance with good
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business practice and accurately present and reflect, in all
material respects, all of the transactions therein described, and
there have been no material transactions involving NOMATTERWARE
which properly should have been set forth therein and which have
not been accurately so set forth.
(p) Authority to Execute Agreement. The Board of Directors of
NOMATTERWARE, pursuant to the power and authority legally vested
in it, has duly authorized the execution and delivery by
NOMATTERWARE of this Agreement, and has duly authorized each of
the transactions hereby contemplated. NOMATTERWARE has the power
and authority to execute and deliver this Agreement, to
consummate the transactions hereby contemplated and to take all
other actions required to be taken by it pursuant to the
provisions hereof. NOMATTERWARE has taken all actions required by
law, its Articles of Incorporation, as amended, or otherwise to
authorize the execution and delivery of this Agreement. This
Agreement is valid and binding upon NOMATTERWARE and those
Shareholders listed in Exhibit A hereto in accordance with its
terms. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will
constitute a violation or breach of the Articles of
Incorporation, as amended, or the Bylaws, as amended, of
NOMATTERWARE, or any agreement, stipulation, order, writ,
injunction, decree, law, rule or regulation applicable to
NOMATTERWARE.
4.2 Disclosure. At the date of this Agreement, NOMATTERWARE and those
Shareholders listed in Exhibit A have, and at the Closing Date they
will have, disclosed all events, conditions and facts materially
affecting the business and prospects of NOMATTERWARE. NOMATTERWARE and
such Shareholders have not now and will not have at the Closing Date,
withheld knowledge of any such events, conditions or facts which they
know, or have reasonable grounds to know, may materially affect
NOMATTERWARE's business and prospects. Neither this Agreement nor any
certificate, exhibit, schedule or other written document or statement,
furnished to CACTUS by NOMATTERWARE and/or by such Shareholders in
connection with the transactions contemplated by this Agreement
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to be stated in
order to make the statements contained herein or therein not
misleading.
SECTION 5
REPRESENTATIONS AND WARRANTIES BY CACTUS
5.1 Subject to the schedule of exceptions, attached hereto and
incorporated herein by this reference, (which schedules shall be
acceptable to NOMATTERWARE), CACTUS represents and warrants to
NOMATTERWARE and those Shareholders listed in Exhibit A as follows:
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(a) Organization and Good Standing. CACTUS is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Nevada and has full corporate power and authority
to own or lease its properties and to carry on its business as
now being conducted and as proposed to be conducted. Further,
CACTUS is duly qualified and licensed and in good standing as a
foreign corporation in each jurisdiction in which its ownership
or leasing of any properties or the character of its operations
requires such qualification or licensing. The Articles of
Incorporation of CACTUS and all amendments thereto as presently
in effect, certified by the Secretary of State of Nevada, and the
Bylaws of CACTUS as presently in effect, certified by the
President and Secretary of CACTUS, have been delivered to
NOMATTERWARE and are complete and correct and since the date of
such delivery, there has been no amendment, modification or other
change thereto.
(b) Capitalization. CACTUS 's authorized capital stock consists of
100,000,000 shares of $.00lpar value Common Stock (defined above
as "CACTUS Common Stock"), approximately 10,000,000 of which will
be issued and outstanding (after and 10 for one forward stock
split), prior to Closing Date All authorized and/or outstanding
options and warrants are set forth on Schedule
5.1(b). Except as set forth in Schedule 5.1(b), no other equity
securities or debt obligations of CACTUS are authorized, issued
or outstanding and as of the Closing, there will be no other
outstanding options, warrants, agreements, contracts, calls,
commitments or demands of any character, preemptive or otherwise,
other than this Agreement, relating to any of the CACTUS Common
Stock, and there will be no outstanding security of any kind
convertible into CACTUS Common Stock. The shares of CACTUS Common
Stock are free and clear of all liens, charges, claims, pledges,
restrictions and encumbrances whatsoever of any kind or nature
that would inhibit, prevent or otherwise interfere with the
transactions contemplated hereby. All of the outstanding shares
of CACTUS Common Stock are validly issued, fully paid and
non-assessable and there are no voting trust agreements or other
contracts, agreements or arrangements restricting or affecting
voting or dividend rights or transferability with respect to the
outstanding shares of CACTUS Common Stock;
(c) Issuance of Exchange Stock. All of the CACTUS Common Stock to be
issued to or transferred to NOMATTERWARE Shareholders pursuant to
this Agreement, when issued, transferred and delivered as
provided herein, will be duly authorized, validly issued, fully
paid and non-assessable, and will be free and clear of all liens,
charges, claims, pledges, restrictions and encumbrances
whatsoever of any kind or nature, except those restrictions
imposed by State or Federal corporate and securities regulations.
(d) CACTUS will use its best efforts to forthwith obtain any approval
of the transaction set forth in this Agreement by its outstanding
shares if required by the Nevada Revised Statutes;
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(e) Neither the execution nor delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor
compliance by CACTUS with any of the provisions hereof will:
(1) Violate or conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default) under, any of the terms, conditions or provisions
of the Articles of Incorporation or Bylaws of CACTUS or any
note, bond, mortgage, indenture, deed of trust, license,
agreement or other instrument to which CACTUS is a party, or
by which it or its properties or assets may be bound or
affected; or
(2) Violate any order, writ, injunction or decree, or any
statute, rule, permit, or regulation applicable to CACTUS or
any of its properties or assets.
(f) Financial Statements. CACTUS will deliver to NOMATTERWARE prior
to Closing, a copy of CACTUS 's audited Financial Statements for
the years ended December 31, 1999 and March 31, 2000,
respectively, all of which are true and complete and have been
prepared in accordance with generally accepted accounting
principles.
(g) Absence of Undisclosed Liabilities. Except as disclosed in
CACTUS' Financial Statements, CACTUS did not have, as of the
Closing Date, any liabilities (secured or unsecured and whether
accrued, absolute, direct, indirect or otherwise) which were
incurred after March 31, 2000 and would be individually or, in
the aggregate, materially adverse to the results of operation or
financial condition of CACTUS.
(h) Litigation. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against CACTUS or its
properties. Except as disclosed in Schedule 5.1(h), there are no
actions, suits or proceedings pending or, to the knowledge of
CACTUS, threatened against or relating to CACTUS. CACTUS is not
and on the Closing Date will not be, in default under or with
respect to any judgment, order, writ, injunction or decree of any
court or of any federal, state, municipal or other governmental
authority, department, commission, board, agency or other
instrumentality; and CACTUS has, and on the Closing Date will
have, complied in all material respects with all laws, rules,
regulations and orders applicable to it, if any.
(i) Tax Matters. Except as set forth in Schedule 5.1(i), all federal,
foreign, state and local tax returns, reports and information
statements required to be filed by or with respect to the
activities of CACTUS have been filed for all the years and
periods for which such returns and statements were due, including
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extensions thereof. Since March 31, 2000, CACTUS has not incurred
any liability with respect to any federal, foreign, state or
local taxes except in the ordinary and regular course of
business. Such returns, reports and information statements are
true and correct in all material respects insofar as they relate
to the activities of CACTUS. On the date of this Agreement,
CACTUS is not delinquent in the payment of any such tax or
assessment, and no deficiencies for any amount of such tax have
been proposed or assessed. Any tax sharing agreement among or
between CACTUS and any affiliate thereof shall be terminated as
of the Closing Date.
(j) Authority to Execute Agreement. The Board of Directors of CACTUS,
pursuant to the power and authority legally vested in it, has
duly authorized the execution and delivery by CACTUS of this
Agreement and the Exchange Stock, and has duly authorized each of
the transactions hereby contemplated. CACTUS has the power and
authority to execute and deliver this Agreement, to consummate
the transactions hereby contemplated and to take all other
actions required to be taken by it pursuant to the provisions
hereof. CACTUS has taken all the actions required by law, its
Certificate of Incorporation, as amended, its Bylaws, as amended,
or otherwise to authorize the execution and delivery of the
Exchange Stock pursuant to the provisions hereof. This Agreement
is valid and binding upon CACTUS in accordance with its terms.
either the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will
constitute a violation or breach of the Certificate of
Incorporation, as amended, or the Bylaws, as amended of CACTUS,
or any agreement, stipulation, order, writ, injunction, decree,
law, rule or regulation applicable to CACTUS.
(k) Finder's Fees. CACTUS is now, and on the Closing Date will be
liable or obligated to pay a finder's, agent's or broker's fee to
Xxxxxx/Xxxxx, Ltd., of 100,000 shares of restricted shares of its
common stock, arising out of or in connection with this Agreement
or the transactions contemplated by this Agreement.
(1) Books and Records. The books and records of CACTUS are materially
complete and correct, are maintained in accordance with good
business practice and accurately present and reflect in all
material respects, all of the transactions therein described and
there have been no material transactions involving CACTUS which
properly should have been set forth therein and which have not
been accurately so set forth.
(m) From the date of this Agreement until the Closing Date, CACTUS
will give NOMATTERWARE and its counsel, accountants, and other
representatives upon reasonable notice, full access, during
normal business hours, to all of the properties, books, records,
and files of CACTUS and will furnish NOMATTERWARE and such
representatives during such period copies of all material
documents for their examination and review.
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5.2 Disclosure. CACTUS has and at the Closing Date it will have, disclosed
all events, conditions and facts materially affecting the business and
prospects of CACTUS. CACTUS has not now and will not have at the
Closing Date, withheld knowledge of any such events, conditions and
facts which it knows or has reasonable grounds to know, may materially
affect CACTUS 's business and prospects. Neither this Agreement, nor
any certificate, exhibit, schedule or other written document or
statement, furnished to NOMATTERWARE or the NOMATTERWARE Shareholders
by CACTUS in connection with the transactions contemplated by this
Agreement contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to be
stated in order to make the statements contained herein or therein not
misleading.
SECTION 6
ACCESS AND INFORMATION
6.1 As to NOMATTERWARE. Subject to the protections provided by subsection
9.4 herein, NOMATTERWARE shall give to CACTUS and to CACTUS 'S
counsel, accountants and other representatives full access during
normal business hours throughout the period prior to the Closing, to
all of NOMATTERWARE's properties, books, contracts, commitments, and
records, including information concerning products and customer base,
and patents held by, or assigned to, NOMATTERWARE, and furnish CACTUS
during such period with all such information concerning NOMATTERWARE's
affairs as CACTUS reasonably may request.
6.2 As to CACTUS. Subject to the protections provided by subsection 9.4
herein, CACTUS shall give to NOMATTERWARE, the NOMATTERWARE
Shareholders and their counsel, accountants and other representatives,
full - access, during normal business hours throughout the period
prior to the Closing, to all of CACTUS 's properties, books,
contracts, commitments, and records, if any, and shall furnish
NOMATTERWARE and the NOMATTERWARE Shareholders during such period with
all such information concerning CACTUS's affairs as NOMATTERWARE and
the NOMATTERWARE Shareholders reasonably may request.
SECTION 7
COVENANTS OF NOMATTERWARE AND CERTAIN SHAREHOLDERS
7.1 No Solicitation. NOMATTERWARE and those Shareholders listed on Exhibit
A, to the extent within each Shareholder's control, will use their
best efforts to cause its officers, employees, agents and
representatives not, directly or indirectly, to solicit, encourage, or
initiate any discussions with, or indirectly to solicit, encourage, or
initiate any discussions with, or negotiate or otherwise deal with, or
provide any information to, any person or entity other than CACTUS and
its officers, employees, and agents, concerning any merger, sale of
substantial assets, or similar transaction involving NOMATTERWARE, or
any sale of any of its capital stock or of the capital stock held by
such Shareholders in excess of 10% of such Shareholder's current stock
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holdings except as otherwise disclosed in this Agreement. NOMATTERWARE
will notify CACTUS immediately upon receipt of an inquiry, offer, or
proposal relating to any of the foregoing. None of the foregoing shall
prohibit providing information to others in a manner in keeping with
the ordinary conduct of NOMATTERWARE's business, or providing
information to government authorities.
7.2 Conduct of Business Pending the Transaction. NOMATTERWARE and those
Shareholders listed on Exhibit A, to the extent within each
Shareholder's control, covenant and agree with CACTUS that, prior to
the consummation of the transaction called for by this Agreement, and
Closing, or the termination of this Agreement pursuant to its terms,
unless CACTUS shall otherwise consent in writing, and except as
otherwise contemplated by this Agreement, NOMATTERWARE and those
Shareholders listed on Exhibit A, to the extent within each
Shareholder's control, will comply with each of the following:
(a) Its business shall be conducted only in the ordinary and usual
course. NOMATTERWARE shall use reasonable efforts to keep intact
its business organization and good will, keep available the
services of its respective officers and employees, and maintain
good relations with suppliers, creditors, employees, customers,
and others having business or financial relationships with it,
and it shall immediately notify CACTUS of any event or occurrence
which is material to, and not in the ordinary and usual course of
business of, NOMATTERWARE;
(b) It shall not declare, set aside, or pay any dividend or other
distribution on any of its outstanding securities;
(c) It shall not (i) issue or agree to issue any additional shares
of, or rights of any kind to acquire any shares of, its capital
stock of any class, or (ii) enter into any contract, agreement,
commitment, or arrangement with respect to any of the foregoing,
except as set forth in this Agreement;
(d) It shall not create, incur, or assume any long--term or
short--term indebtedness for money borrowed or make any capital
expenditures or commitment for capital expenditures, except in
the ordinary course of business and consistent with past
practice;
(e) It shall not adopt, enter into, or amend any bonus, profit
sharing, compensation, warrant, pension, retirement, deferred
compensation, employment, severance, termination or other
employee benefit plan, agreement, trust fund, or arrangement for
the benefit or welfare of any officer, director, or employee, or
(ii) agree to any material (in relation to historical
compensation) increase in the compensation payable or to become
payable to, or any increase in the contractual term of employment
of, any officer, director or employee except, with respect to
employees who are not officers or directors, in the ordinary
course of business in accordance with past practice, or with the
written approval of CACTUS ;
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(f) It shall not sell lease, mortgage, encumber, or otherwise dispose
of or grant any interest in any of its assets or properties
except for: (i) sales, encumbrances, and other dispositions or
grants in the ordinary course of business and consistent with
past practice; (ii) liens for taxes not yet due; (iii) liens or
encumbrances that are not material in amount or effect and do not
impair the use of the property, or (iv) as specifically provided
for or permitted in this Agreement;
(g) It shall not enter into any agreement, commitment, or
understanding, whether in writing or otherwise, with respect to
any of the matters referred to in subparagraphs (a) through (f)
above;
(h) It will continue properly and promptly to file when due all
federal, state, local, foreign, and other tax returns, reports,
and declarations required to be filed by it, and will pay,, or
make full and adequate provision for the payment of, all taxes
and governmental charges due from or payable by it;
(i) It will comply with all laws and regulations applicable to it and
its operations;
(j) It will maintain in full force and effect insurance coverage of a
type and amount customary in its business, but not less than that
set forth in Schedule 4.1(m).
SECTION 8
COVENANTS OF CACTUS
8.1 No Solicitation. CACTUS will not discuss or negotiate with any other
corporation, firm or other person or entertain or consider any
inquiries or proposals relating to the possible disposition of its
shares of capital stock, or its assets, and will conduct business only
in the ordinary course. Notwithstanding the foregoing, CACTUS shall be
free to engage in activities mentioned in the preceding sentence which
are designed to further the mutual interests of the parties to this
Agreement.
8.2 Conduct of CACTUS Pending Closing. CACTUS covenants and agrees with
NOMATTERWARE that, prior to the consummation of the transactions
called for by this Agreement, and Closing, or the termination of this
Agreement pursuant to its terms, unless NOMATTERWARE shall otherwise
consent in writing, and except as otherwise contemplated by this
Agreement, CACTUS will comply with each of the following;
(a) No change will be made in CACTUS 's Certificate of Incorporation
or Bylaws or in CACTUS 's authorized or issued shares of stock,
except as may be first approved in writing by NOMATTERWARE.
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(b) No dividends shall be declared, no stock options granted and no
employment agreements shall be entered into with officers or
directors in CACTUS, except as may be first approved in writing
by NOMATTERWARE.
SECTION 9
ADDITIONAL COVENANTS OF THE PARTIES
9.1 Cooperation. Both NOMATTERWARE and CACTUS will cooperate with each
other and their respective counsel, accountants and agents in carrying
out the transaction contemplated by this Agreement, and in delivering
all documents and instruments deemed reasonably necessary or useful by
the other party.
9.2 Expenses. Each of the parties hereto shall pay all of its respective
costs and expenses (including attorneys and accountants' fees, costs
and expenses) incurred in connection with this Agreement and the
consummation of the transactions contemplated herein.
9.3 Publicity. Prior to the Closing, any written news releases or public
disclosure by either party pertaining to this Agreement shall be
submitted to the other party for its review and approval prior to such
release or disclosure, provided, however, that (a) such approval shall
not be unreasonably withheld, and (b) such review and approval shall
not be required of disclosures required to comply, in the judgment of
counsel, with federal or state securities or corporate laws or
policies.
9.4 Confidentiality. While each party is obligated to provide access to
and furnish information in accordance with Sections 4 and S herein, it
is understood and agreed that such disclosure and information
subsequently obtained as a result of such disclosures are proprietary
and confidential in nature. Each party agrees to hold such information
in confidence and not to reveal any such information to any person who
is not a party to this Agreement, or an officer, director or key
employee thereof, and not to use the information obtained for any
purpose other than assisting in its due diligence inquiry precedent to
the Closing. Upon request of any party, a confidentiality agreement,
acceptable to the disclosing party, will be executed by any person
selected to receive such proprietary information, prior to receipt of
such information.
9.5 Limited Indemnification. NOMATTERWARE agrees to indemnify and hold
harmless the two current directors of CACTUS from and against any and
all damages arising from any act or omission of such directors related
solely to this Agreement or the transactions contemplated by this
Agreement.
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SECTION 10
SURVIVAL OF REPRESENTATIONS,
WARRANTIES AND COVENANTS
10.1 The representations, warranties and covenants of NOMATTERWARE and
those Shareholders listed in Exhibit A contained herein shall survive
the execution and delivery of this Agreement, the Closing and the
consummation of the transactions called for by this Agreement. The
representations, warranties and covenants of CACTUS contained herein
shall survive the execution and delivery of this Agreement, the
Closing and the consummation of the transactions called for by this
Agreement.
SECTION 11
CONDITIONS PRECEDENT TO
OBLIGATIONS OF PARTIES
11.1 The obligations of CACTUS, NOMATTERWARE and those Shareholders listed
in Exhibit A under this Agreement shall be subject to the fulfillment,
on or prior to the Closing, of all conditions elsewhere herein set
forth, including, but not limited to, receipt by the appropriate party
of all deliveries required by Sections 4 and B herein, and
fulfillment, prior to Closing, of each of the following conditions:
(a) All representations and warranties made by NOMATTERWARE,
Shareholders listed in Exhibit A and CACTUS in this Agreement
shall be true and correct in all material respects on and as of
the Closing Date with the same effect as if such representations
and warranties had been made on and as of the Closing Date;
(b) NOMATTERWARE, Shareholders listed in Exhibit A and CACTUS shall
have performed or complied with all covenants, agreements and
conditions contained in this Agreement on their part required to
be performed or complied with at or prior to the Closing.
(c) All material authorizations, consents or approvals of any and all
governmental regulatory authorities necessary in connection with
the consummation of the transactions contemplated by this
Agreement shall have been obtained and be in full force and
effect.
(d) The Closing shall not violate any permit or order, decree or
judgment of any court or governmental body having competent
jurisdiction and there shall not have been instituted any legal
or administrative action or proceeding to enjoin the transaction
contemplated hereby or seeking damages from any party with
respect thereto.
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(e) Each NOMATTERWARE Shareholder and Xxxxxx/Xxxxx, Ltd. who will be
acquiring Exchange stock will be required, at Closing, to submit
an agreement confirming that all the Exchange Stock received will
be acquired for investment and not with a view to, or for sale in
connection with, any distribution thereof, and agreeing not to
transfer any of the Exchange Stock for a period of one year from
the date of the Closing, except to those persons approved by
legal counsel to CACTUS as falling within the exemption from
registration under the Securities Act of 1933 and any applicable
state securities laws, which transfers do not constitute a public
distribution of securities, and in which the transferees execute
an investment letter in form and substance satisfactory to
counsel for CACTUS. It is the intention of Cactus, subsequent to
the Exchange, to prepare and file with the U.S. Securities &
Exchange Commission a Form SB-2 Registration Statement, which
will register all of the shares of the Company. Each NOMATTERWARE
Shareholder acquiring Exchange Stock will be required to transfer
to CACTUS at the Closing his/her respective NOMATTERWARE Shares,
free and clear of all liens, mortgages, pledges, encumbrances or
changes, whether disclosed or undisclosed.
(g) All schedules, prepared by NOMATTERWARE or CACTUS shall be
current or updated as necessary as of the Closing Date.
(h) Each party shall have received favorable opinions from the other
party's counsel on such matters in connection with the
transactions contemplated by this Agreement as are reasonable.
(i) Each party shall have satisfied itself that since the date of
this Agreement the business of the other party has been conducted
in the ordinary course. In addition, each party shall have
satisfied itself that no withdrawals of cash or other assets have
been made and no indebtedness has been incurred since the date of
this Agreement, except in the ordinary course of business or with
respect to services rendered or expenses incurred in connection
with the Closing of this Agreement, unless said withdrawals or
indebtedness were either authorized by the terms of this
Agreement or subsequently consented to in writing by the parties.
(j) Each party covenants that, to the best of its knowledge, it has
complied in all material respects with all applicable laws,
orders and regulations of federal, state, municipal and/or other
governments and/or any instrumentality thereof, domestic or
foreign, applicable to their assets, to the business conducted by
them and to the transactions contemplated by this Agreement.
(k) NOMATTERWARE shall have provided to CACTUS through April 30,
2000, audited financial statements prepared in accordance with
generally accepted accounting principles.
(1) CACTUS shall have provided to NOMATTERWARE unaudited financial
statements of CACTUS for the three months ended March 31, 2000,
prepared in accordance with generally accepted accounting
principles.
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(m) Each party shall have granted to the other party (acting through
its management personnel, counsel, accountants or other
representatives designated by it) full opportunity to examine its
books and records, properties, plants and equipment, proprietary
rights and other instruments, rights and papers of all kinds in
accordance with Sections 4 and B hereof, and each party shall be
satisfied to proceed with the transactions contemplated by this
Agreement upon completion of such examination and investigation.
(n) If Shareholders, who in the aggregate own more than five percent
(5%) of the NOMATTERWARE Shares, dissent from the proposed share
exchange, or are unable or for any reason, refuse to transfer any
or all of their NOMATTERWARE shares to CACTUS in accordance with
Section 1 of this Agreement, CACTUS, at its option, may terminate
this Agreement.
(o) Each party shall have satisfied itself that all transactions
contemplated by this Agreement, including those contemplated by
the exhibits and schedules attached hereto, shall be legal and
binding under applicable statutory and case law of the State of
Nevada, including, but not limited to Nevada securities laws and
all other applicable state securities laws.
(p) The Exchange shall be approved by the Boards of Directors of both
NOMATTERWARE and CACTUS. Furthermore, the Exchange shall be
approved by the shareholders of NOMATTERWARE and CACTUS, if
deemed necessary or appropriate by counsel for the same, within
thirty (30) days following execution of this Agreement. If such a
meeting is deemed necessary, the management of NOMATTERWARE and
CACTUS agree to seek and obtain the approval to their respective
Shareholders and to solicit proxies in support of the same.
(q) CACTUS and NOMATTERWARE and their respective legal counsel shall
have received copies of all such certificates, opinions and other
documents and instruments as each party or its legal counsel may
reasonably request pursuant to this Agreement or otherwise in
connection with the consummation of the transactions contemplated
hereby, and all such certificates, opinions and other documents
and instruments received by each party shall be reasonably
satisfactory, in form and substance, to each party and its legal
counsel.
(r) Both NOMATTERWARE and CACTUS shall have the right to waive any or
all of the conditions precedent to its obligations hereunder not
otherwise legally required; provided, however, that no waiver by
a party of any condition precedent to its obligations hereunder
shall constitute a waiver by such party of any other condition.
SECTION 12
TERMINATION, AMENDMENT, WAIVER
12.1 This Agreement may be terminated at any time prior to the Closing, and
the contemplated transactions abandoned, without liability to either
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party, except with respect to the obligations of CACTUS, NOMATTERWARE
and the NOMATTERWARE Shareholders under Section 9.4 hereof:
(a) By mutual agreement of CACTUS and NOMATTERWARE;
(b) If the Closing (as defined in Section 3) shall not have taken
place on or prior to May 30, 2000, this Agreement can be
terminated upon written notice given by CACTUS or NOMATTERWARE
whomever is the party that is not in material default.
(c) By CACTUS, if in its reasonable belief there has been a material
misrepresentation or breach of warranty on the part of any
Shareholder in the representations and warranties set forth in
the Agreement.
(d) By NOMATTERWARE or a majority of those Shareholders listed in
Exhibit A (as measured by their equity interest) if, in the
reasonable belief of NOMATTERWARE or any such Shareholders, there
has been a material misrepresentation or breach of warranty on
the part of CACTUS in the representations and warranties set
forth in the Agreement;
(e) By CACTUS if, in its opinion or that of its counsel, that the
Exchange does not qualify for exemption from registration under
applicable federal and state securities laws, or qualification,
if obtainable, cannot be accomplished in CACTUS 's opinion or
that of its counsel, without unreasonable expense or effort;
(f) By CACTUS, if, in its opinion or that of its counsel, the
Exchange cannot be consummated under Nevada or other relevant
state corporate law or, if consummation is possible, that it
cannot be accomplished, in CACTUS 's opinion or that of its
counsel, without unreasonable expense or effort;
(g) By CACTUS or by a majority of those Shareholders listed in
Exhibit A (as measured by their equity interest) if either party
shall determine in its sole discretion that the Exchange has
become inadvisable or impracticable by reason of the institution
or threat by state, local or federal governmental authorities or
by any other person of material litigation or proceedings against
any party (it being understood and agreed that a written request
by a governmental authority for information with respect to the
Exchange, which information could be used in connection with such
litigation or proceedings, may be deemed to be a threat of
material litigation or proceedings regardless of whether such
request is received before or after the signing of this
Agreement);
(h) By CACTUS if the business or assets or financial condition of
NOMATTERWARE, taken as a whole, have been materially and
adversely affected, whether by the institution of litigation or
by reason of changes or developments or in operations in the
ordinary course of business or otherwise; or, by NOMATTERWARE
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through action by a majority of those Shareholders listed in
Exhibit A (as measured by their equity interest) if the business
or assets or financial condition of CACTUS, taken as a whole,
have been materially and adversely affected, whether by the
institution of litigation or by reason of changes or developments
or in operations in the ordinary course of business or otherwise;
(i) By CACTUS if holders of more than five percent (5%) of the
NOMATTERWARE Shares fail to tender their stock at the Closing of
the Exchange;
(j) By NOMATTERWARE if, in its sole discretion, it should appear that
the combined entity will not be auditable;
(k) By NOMATTERWARE if CACTUS fails to perform material conditions
set forth in Section 11 herein;
(1) By NOMATTERWARE if examination of CACTUS 's books and records
pursuant to Section 5 herein uncovers a material deficiency;
(m) By CACTUS if NOMATTERWARE fails to perform material conditions
set forth in Section 11 herein; and
(n) By CACTUS if examination of NOMATTERWARE's books and records
pursuant to Section 4 herein uncovers a material deficiency.
SECTION 13
MISCELLANEOUS
13.1 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) contains the entire agreement between the
parties with respect to the transactions contemplated hereby,
and supersedes all negotiations, representations, warranties,
commitments, offers, contracts, and writings prior to the date
hereof. No waiver and no modification or amendment of any
provision of this Agreement shall be effective unless
specifically made in writing and duly signed by the party to
be bound thereby.
13.2 Binding Agreement.
(a) This Agreement shall become binding upon the parties when,
but only when, it shall have been signed on behalf of all
parties.
(b) Subject to the condition stated in subsection (a), above,
this Agreement shall be binding upon, and inure to the
benefit of, the respective parties and their legal
representatives, successors and assigns. This Agreement, in
all of its particulars, shall be enforceable by the means
set forth in subsection 13.9 for the recovery of damages or
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by way of specific performance and the terms and conditions
of this Agreement shall remain in full force and effect
subsequent to Closing and shall not be deemed to be merged
into any documents conveyed and delivered at the time of
Closing. In the event that subsection 13.9 is found to be
unenforceable as to any party for any reason or is not
invoked by any party, and any person is required to initiate
any action at law or in equity for the enforcement of this
Agreement, the prevailing party in such litigation shall be
entitled to recover from the party determined to be in
default, all of its reasonable costs incurred in said
litigation, including attorneys' fees.
13.3 Shareholders Owning at Least Five Percent (5%) of the Outstanding
Common Stock of NOMATTERWARE. The Shareholders owning at least 5% of
the outstanding common stock of NOMATTERWARE (see Exhibit A hereto)
are only executing this Agreement with respect to sections 3.4, 4, 7,
9.4, 10, 11, 12.l(d and g ), 13.2, 13.3, 13.4, 13.5, and 13. 9.
13.4 Counterparts. This Agreement may be executed in one or more
counterparts, via facsimile signature, each of which may be deemed an
original, but all of which together, shall constitute one and the same
instrument.
13.5 Severability. If any provisions hereof shall be held invalid or
unenforceable by any court of competent jurisdiction or as a result of
future legislative action, such holding or action shall be strictly
construed and shall not affect the validity or effect of any other
provision hereof.
13.6 Assignability. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto; provided,
that neither this Agreement nor any right hereunder shall be
assignable by NOMATTERWARE or CACTUS without prior written consent of
the other party.
13.7 Captions. The captions of the various Sections of this Agreement have
been inserted only for convenience of reference and shall not be
deemed to modify, explain, enlarge or restrict any of the provisions
of this Agreement.
13.8 Governing Law. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of
Nevada.
13.9 Dispute Resolution. In the event of a dispute between the parties
hereto involving a claim of breach of representation or warranty
hereunder, or to enforce a covenant herein (either or both of which
are referred to hereafter as a Claim"), if it is the desire of any
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party for quick resolution, the rights and obligations of the parties
hereto arising under the terms of this Agreement with respect to such
Claims and/or resolution of such disputes will be by the means of the
judgment of an independent third party ("Rent--A--Judge") who has been
selected and hired through the mutual agreement of the parties. The
utilization of this subsection 13.9, if invoked by any party hereto,
shall be the exclusive remedy for resolving a claim regardless of
whether legal action has or has not been otherwise instituted. If
legal action has been instituted by any party, and this subsection
13.9 is invoked in a timely manner, any such legal action shall be
voided and immediately withdrawn.
(a) In the event of a Claim by any party, any party may make a
written request upon the other parties for a "Rent-A-Judge." A
request by any party for the employment of a "Rent-A-Judge" to
resolve the Claim shall be binding on all other parties to this
Agreement in accordance with the terms hereof. The parties may
agree upon one "Rent-A-Judge," but in the event that they cannot
agree, there shall be three, one named in writing by each of the
parties within twenty (20) days after the initial demand for
employment of a "Rent- A-Judge," and a third chosen by the two
appointed. Should either party refuse or neglect to join in the
appointment of the "Rent-A-Judge(s)" or to furnish the
"Rent-A-Judge(s) with any papers or information demanded, the
"Rent-A-Judge(s)" are empowered by all parties to this Agreement
to proceed ex parte.
(b) Claim resolution proceedings shall take place in the City of Las
Vegas, State of Nevada, and the hearing before the
Rent-A-Judge(s)" of the matter to be arbitrated shall be at the
time and place within said city or county as is selected by the
"Rent-A-Judge(s)?' The "Rent-A-Judge(s)" shall select such
time and place promptly after appointment arid shall give written
notice thereof to each party at least thirty (30) days prior to
the date so fixed. At the hearing, any relevant evidence may be
presented by either party, and the formal rules of evidence
applicable to judicial proceedings shall not govern. Evidence may
be admitted or excluded in the sole discretion of the
"Rent-A-Judge(s) Said "Rent-A-Judge(s)" shall hear and
determine the matter and shall execute and acknowledge their
award in writing and cause a copy thereof to be delivered to each
of the parties.
(c) If there is only one (1) "Rent-A-Judge," his or her decision
shall be binding and conclusive on the parties, and if there are
three (3) "Rent-A-Judge(s)" the decision of any two (2) shall be
binding and conclusive.
(d) If three (3) "Rent-A-Judge(s)" are selected under the foregoing
procedure, but two (2) of the three (3) fail to reach an
agreement in the determination of the matter in question, the
matter shall be decided by three (3) new "Rent-A-Judge(s)" who
shall be appointed and shall proceed in the same manner, and the
process shall be repeated until a decision is finally reached by
two (2) of the three (3) "Rent-A-Judge(s)" selected.
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(e) The costs of such Claim resolution shall be borne by the parties
equally and each party shall pay its own attorneys' fees,
provided, however, that in the event either party challenges or
in any way seeks to have the Rent-A- Judge's decision or award
vacated or corrected or modified, if the challenge is denied or
the original decision or award is affirmed, the challenging party
shall pay the costs and fees, including reasonable attorneys'
fees, of the non-challenging party, both for the challenge and
for the original Claim resolution process.
13.10Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and delivered in person or sent by
certified mail, postage prepaid and properly addressed as follows:
To NOMATTERWARE:
Xxxx Xxxxxxxxx
NOMATTERWARE
Suite 360, 000 - 0xx Xxxxxx XX Xxxxxxx XX,
Xxxxxx X0X 0X0
With a Copy to:
Xxxxxx Xxxxxx, Esq.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 00
Xxx Xxxxx, XX 00000
To CACTUS :
Xxx Xxxxxxxxxx, President
CACTUS XXXXX, INC.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
With a Copy to:
Xxxxxxx Xxxxxxx
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Any party may from time to time change its address for the purpose of
notices to that party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
respective party hereto.
All notices and other communications required or permitted under this
Agreement which are addressed as provided in this Section 13.10 if delivered
personally, shall be effective upon delivery; and, if delivered by mail, shall
be effective three days following deposit in the United States mail, postage
prepaid.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CACTUS XXXXX, INC.
A Nevada Coorporation
By: ________________________________
Xxxxx X. Xxxxxxxxxx
President
NOMATTERWARE
a Nevada corporation
By: ________________________________
Xxxx Xxxxxxxxx
President
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EXHIBIT LIST
Exhibit A: Five Percent Shareholders of NOMATTERWARE
Exhibit B: Consent of Board of Directors of NOMATTERWARE
Exhibit C: Consent of Board of Directors of CACTUS XXXXX, INC.
Exhibit D: Finders Agreement between CACTUS XXXXX, INC. and Xxxxxx/Xxxxx Ltd.
SCHEDULE LIST
Schedule 4.1(b): NOMATTERWARE Common Stock Outstanding
Schedule 4.1 (f): Litigation Involving NOMATTERWARE
Schedule 4.1 (h): Absence of Certain Changes - NOMATTERWARE
Schedule 4.1 (i): NOMATTERWARE Employee Benefit Plans
Schedule 4.1 (j): Asset Ownership Exceptions
Schedule 4.1 (k): NOMATTERWARE Tax Matters
Schedule 4.1 (1): List of Insurance Policies in Force
Schedule 4.1 (m): Operating Permits/Licenses
Schedule 5.1 (b): CACTUS Options and Warrants Outstanding
Schedule 5.1 (b) CACTUS Employee Stock Option Plan
Schedule 5.1 (h) Litigation Involving CACTUS
Schedule 5.1 (i): CACTUS Tax Matters
A-26
EXHIBIT A
FIVE PERCENT SHAREHOLDERS OF NOMATTERWARE
Shareholder No. of Shares Percentage
A-27
EXHIBIT "B"
CONSENT OP DIRECTORS OF NOMATTERWARE
A special meeting of the Directors of NOMATTERWARE (the "Corporation"),
a Nevada corporation was held by consent and without an actual meeting. The
undersigned, being all of the Directors, do hereby waive notice of the time,
place and purpose of this meeting of the Directors of the Corporation and, in
lieu thereof, hereby agree and consent to the adoption of the following
corporate actions.
WHEREAS, the Corporation entered into an Agreement for Sale and
Purchase of the Common Stock of Cactus Xxxxx, Inc.(the "Agreement") as of March
30, 2000 with CACTUS XXXXX, INC. ("CACTUS ") whereby the Corporation intends to
exchange approximately all of the issued and outstanding capital stock of the
Corporation for a specified number of CACTUS common shares;
WHEREAS, a formal agreement has been prepared consistent with the terms
of the Agreement, which "Plan and Agreement of Reorganization" is attached
hereto;
WHEREAS, it is in the Corporations best interests to approve the terms
and execution of the Plan and Agreement of Reorganization on behalf of the
Corporation;
NOW, THEREFORE, BE IT RESOLVED, that the terms and conditions of the
exchange as set forth in the Plan and Agreement of Reorganization be, and the
same hereby are, ratified and confirmed, and the President and Secretary of the
Corporation are authorized to execute the same on behalf of the Corporation.
GENERAL AUTHORIZATION
BE IT RESOLVED that the President and Secretary of the Corporation be,
and they hereby are, authorized, directed and empowered to prepare or cause to
be prepared, execute and deliver all such documents and instruments and to
undertake all such actions as they deem necessary or advisable in order to carry
out and perform any or all of the matters contemplated by the Plan and Agreement
of Reorganization and as authorized in the foregoing resolution.
IN WITNESS WHEREOF, each of the undersigned has executed this written
consent, which shall be effective as of April ____, 2000.
------------------------------------ -----------------------------------
Xxxx Xxxxxxxxx Xxxx Xxxxxxx
A-28
EXHIBIT "C"
CACTUS XXXXX, INC.
Minutes of Special Meeting of the Board of Directors
April ______________, 2000
A special meeting of the Board of Directors of CACTUS XXXXX, INC. (the
"Company") was held on April_____ 2000, at the offices of Xxxxxx Xxxxxx, 0000 X.
Xxxxxxx Xxxxxx, Xxx Xxxxx, XX.
Xxx Xxxxxxxxxx, Chairman of the Board, called the meeting to order.
Xxxxxxx Xxxxxx acted as Secretary of the meeting. All of the directors of the
Company were present as follows:
Xxx Xxxxxxxxxx, sole Director
Also present was Xxxxxx Xxxxxx, counsel to the Company.
All of the Directors, constituting quorum, acknowledged that they could
hear and be heard at all times during the meeting. In addition, all directors
waived notice of the meeting.
Reorganization of Company.
WHEREAS, the Company has had no business activity since December 1996;
and
WHEREAS, over the past twenty-nine months the Board has investigated
numerous potential business strategies, including, but not limited to, the sale
or merger of the Company with another company; and
WHEREAS, the Board has now identified NOMATTERWARE, a Nevada
corporation ("NOMATTERWARE"), as a corporation with which to undertake a
tax--free reorganization (the "Reorganization"), as a result of which
Reorganization some value could be returned to the shareholders of the Company;
and
WHEREAS, considering all facts and circumstances, the Board deems it to
be in the best interests of the shareholders of the Company to proceed with the
Reorganization;
NOW, THEREFORE, after discussion by the Board, it was
RESOLVED, that all actions previously undertaken by the officers and
directors of the Company in connection with the proposed Reorganization be
hereby ratified and approved; and
RESOLVED, FURTHER, that the officers of the Company are authorized,
empowered, and directed to execute and deliver the proposed form of "Plan and
Agreement of Reorganization" (the "Agreement"), a copy of which Agreement is
attached hereto as Exhibit A; and
RESOLVED, FURTHER, that the officers of the company are authorized,
empowered, and directed to execute and deliver all such additional documents and
instruments, and to take all such additional actions, as they deem necessary or
advisable in order to carry out the purposes and intent of the Agreement,
including, but not limited to, the preparation of a Proxy Statement and the
solicitation of votes in favor of the Reorganization, if required.
A-29a
There being no further business to come before the Board, the meeting
was adjourned.
April _________, 2000
------------------------------------
Xxxxxxx Xxxxxx, Assistant secretary
A-29b
SCHEDULE 4.1(b)
NOMATTERWARE Common Stock Outstanding
A-30
SCHEDULE 4.1 (f)
Litigation Involving NOMATTERWARE
None.
A-31
SCHEDULE 4.1 (h)
Absence of Certain Changes -- NOMATTERWARE
There have been no substantive changes.
A-32
SCHEDULE 4.1(i)
NOMATTERWARE Employee Benefit Plans
None.
A-33
SCHEDULE 4.1(j)
Asset Ownership Exceptions
There are no exceptions to Asset Ownership.
A-34
SCHEDULE 4.1(k)
NOMATTERWARE Tax Matters
A-35
SCHEDULE 4.1 (1)
List of Insurance Policies in Force
A-36
SCHEDULE 4.1 (m)
Operating Permits/Licenses
There are no Operating Permits/Licenses required by NOMATTERWARE to
conduct its business.
A-37
SCHEDULE 5.1 (b)
CACTUS Options and Warrants Outstanding
None
A-38
SCHEDULE 5.1 (b)
Litigation Involving CACTUS
None
A-39
SCHEDULE 5.1(i)
CACTUS Tax Matters
None.
A-40