Exhibit 10.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Plan") is made this ___day
of September, 1999, among HomeQuest, Inc., a Nevada corporation ("HomeQuest");
Web Audio & Radio Portal, Inc., a Colorado corporation ("WARP"); and the WARP
stockholders, all of whom are listed on Exhibit A hereto and who execute and
deliver a copy of the Plan (the "WARP Stockholders").
WITNESSETH:
RECITALS
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WHEREAS, the respective Boards of Directors of HomeQuest and WARP have
adopted resolutions pursuant to which HomeQuest shall acquire and the WARP
Stockholders shall exchange 100% of the outstanding common stock of WARP; and
WHEREAS, the sole consideration for 100% interest in WARP shall be the
exchange of $0.001 par value common stock of HomeQuest (which shares are all
"restricted securities" as defined in Rule 144 of the Securities and Exchange
Commission) as outlined in Exhibit A; and
WHEREAS, the WARP Stockholders shall acquire in exchange the "restricted
securities" of HomeQuest in a reorganization within the meaning of Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, it is agreed:
Section 1
Exchange of Stock
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1.1 Number of Shares. The WARP Stockholders agree to transfer to HomeQuest
at the closing (the "Closing") 100% of the outstanding securities of WARP,
listed in Exhibit A, which is attached hereto and incorporated herein by
reference (the "WARP Shares"), in exchange for 7,500,000 post-split shares (see
Section 1.4 below) of common stock of HomeQuest, pro rata, as outlined in
Exhibit A. The pre-Plan outstanding shares of HomeQuest's common stock will
amount to 1,500,000 shares, after taking into account the one for 7.2 reverse
split of the 37,200,000 presently outstanding shares of HomeQuest and the
cancellation of 3,666,667 post-split shares of HomeQuest, more or less, by its
sole director, executive officer and principal stockholder as outlined in
Section 1.4 below; accordingly, there will be approximately 9,000,000 post-split
and post-Plan outstanding securities of HomeQuest.
1.2 Delivery of Certificates by WARP Stockholders. The transfer of the WARP
Shares by the WARP Stockholders shall be effected by the delivery to HomeQuest
at the Closing of stock certificate or certificates representing the transferred
shares duly endorsed in blank or accompanied by stock powers executed in blank
with all signatures witnessed or guaranteed to the satisfaction of HomeQuest and
with all necessary transfer taxes and other revenue stamps affixed and acquired
at the WARP Stockholders' expense.
1.3 Further Assurances. At the Closing and from time to time thereafter,
the WARP Stockholders shall execute such additional instruments and take such
other action as HomeQuest may request in order to exchange and transfer clear
title and ownership in the WARP Shares to HomeQuest.
1.4 Reverse Split and Cancellation of Shares by a Principal Stockholder .
At or simultaneous with the Closing, the outstanding common stock of HomeQuest
shall be reverse split on a basis of one for 7.2 shares, while retaining the
current authorized shares and par value, with a appropriate adjustments to the
capital accounts of HomeQuest, and with all fractional shares being rounded up
to the nearest whole share; and ▇▇▇ ▇▇▇▇▇▇▇, the sole director, executive
officer and the principal stockholder of HomeQuest shall have agreed to convey
to HomeQuest for cancellation approximately 3,666,667 post-split shares, more or
less, so that after rounding resulting from the reverse split, there will be
1,500,000 post-split and pre-Plan outstanding securities of HomeQuest.
1.5 Resignations of Present Directors and Executive Officers and
Designation of New Directors and Executive Officers. On Closing, the present
sole director and executive officer of HomeQuest, ▇▇▇ ▇▇▇▇▇▇▇, shall designate
the directors and executive officers nominated by WARP to serve in his place and
stead, until the next respective annual meetings of the stockholders and the
Board of Directors of HomeQuest, and until their respective successors shall be
elected and qualified or until their respective prior resignations or
terminations, who shall be: ▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO, Secretary/Treasurer and
Director; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and Director; and ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Vice
President; and then, the current sole director and executive officer shall
resign.
1.6 Change of Name. At or simultaneous to the Closing of this Plan, the
Board of Directors of HomeQuest, with the written consent of ▇▇▇ ▇▇▇▇▇▇▇, its
majority stockholder, shall adopt the resolutions necessary to amend HomeQuest's
Articles of Incorporation to change its name to "▇▇▇▇▇▇▇▇▇.▇▇▇, Inc."
1.7 Assets and Liabilities of HomeQuest at Closing. HomeQuest shall have no
material assets and no liabilities at Closing, and all costs incurred by
HomeQuest incident to the Plan shall have been paid or satisfied.
1.8 Closing. The Plan will be deemed to be completed on receipt of the
signatures of WARP Stockholders collectively owning not less than 80% of the
outstanding WARP Shares; and the remainder of the WARP Shares shall be acquired
under and pursuant to the terms and provisions of the Plan as soon as
practicable.
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Section 2
Closing
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The Closing contemplated by Section 1 shall be held at the offices of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Suite 205 Hermes Building, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, on or before ten days following the execution and
delivery of this Plan, unless another place or time is agreed upon in writing by
the parties. The Closing may be accomplished by wire, express mail or other
courier service, conference telephone communications or as otherwise agreed by
the respective parties or their duly authorized representatives.
Section 3
Representations and Warranties of HomeQuest
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HomeQuest represents and warrants to, and covenants with, the WARP
Stockholders and WARP as follows:
3.1 Corporate Status. HomeQuest is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and is
licensed or qualified as a foreign corporation in all states in which the nature
of its business or the character or ownership of its properties makes such
licensing or qualification necessary (Nevada only). HomeQuest is a publicly held
company, having previously and lawfully offered and sold a portion of its
securities in accordance with applicable federal and state securities laws,
rules and regulations. HomeQuest's common stock is nominally quoted on the OTC
Bulletin Board of the National Association of Securities Dealers, Inc. (the
"NASD") under the symbol "HOMQ." Presently, pursuant to rules and regulations
adopted by the NASD on January 4, 1999, unless HomeQuest files a 10-SB
Registration Statement with the Securities and Exchange Commission which becomes
effective and all comments of the Securities and Exchange Commission have been
satisfied by December, 1999, quotations of HomeQuest's common stock on the.OTC
Bulletin Board of the NASD will cease.
3.2 Capitalization. The current pre-Plan authorized capital stock of
HomeQuest consists of 50,000,000 shares of $0.001 par value common voting stock,
of which approximately 37,200,000 shares are issued and outstanding, all fully
paid and non-assessable; and 7,000,000 shares of $0.001 par value preferred
stock, of which no shares are issued and outstanding. Except as otherwise
provided herein, there are no outstanding options, warrants or calls pursuant to
which any person has the right to purchase any authorized and unissued common or
preferred stock of HomeQuest;
3.3 Financial Statements. The financial statements of HomeQuest furnished
to the WARP Stockholders and WARP, consisting of audited financial statements
for the years ended December 31, 1998 and 1997, and unaudited financial
statements for the period ended June 30, 1999, attached hereto as Exhibit B and
incorporated herein by reference, are correct and fairly present the financial
condition of HomeQuest at such dates and for the periods involved; such
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statements were prepared in accordance with generally accepted accounting
principles consistently applied, and no material change has occurred in the
matters disclosed therein, except as indicated in Exhibit C, which is attached
hereto and incorporated herein by reference. Such financial statements do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading.
3.4 Undisclosed Liabilities. HomeQuest has no liabilities of any nature
except to the extent reflected or reserved against in its balance sheets,
whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except as set
forth in Exhibit C.
3.5 Interim Changes. Since the date of its balance sheets, except as set
forth in Exhibit C, there have been no (1) changes in financial condition,
assets, liabilities or business of HomeQuest which, in the aggregate, have been
materially adverse; (2) damages, destruction or losses of or to property of
HomeQuest, payments of any dividend or other distribution in respect of any
class of stock of HomeQuest, or any direct or indirect redemption, purchase or
other acquisition of any class of any such stock; or (3) increases paid or
agreed to in the compensation, retirement benefits or other commitments to its
employees.
3.6 Title to Property. HomeQuest has good and marketable title to all
properties and assets, real and personal, reflected in its balance sheets, and
the properties and assets of HomeQuest are subject to no mortgage, pledge, lien
or encumbrance, except for liens shown therein or in Exhibit C, with respect to
which no default exists.
3.7 Litigation. There is no litigation or proceeding pending, or to the
knowledge of HomeQuest, threatened, against or relating to HomeQuest, its
properties or business, except as set forth in Exhibit C. Further, no officer,
director or person who may be deemed to be an "affiliate" of HomeQuest is party
to any material legal proceeding which could have an adverse effect on HomeQuest
(financial or otherwise), and none is party to any action or proceeding wherein
any has an interest adverse to HomeQuest.
3.8 Books and Records. From the date of this Plan to the Closing, HomeQuest
will (1) give to the WARP Stockholders and WARP or their respective
representatives full access during normal business hours to all of HomeQuest's
offices, books, records, contracts and other corporate documents and properties
so that the WARP Stockholders and WARP or their respective representatives may
inspect and audit them; and (2) furnish such information concerning the
properties and affairs of HomeQuest as the WARP Stockholders and WARP or their
respective representatives may reasonably request.
3.9 Tax Returns. HomeQuest has filed all federal and state income or
franchise tax returns required to be filed or has received currently effective
extensions of the required filing dates.
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3.10 Confidentiality. Until the Closing (and thereafter if there is no
Closing), HomeQuest and its representatives will keep confidential any
information which they obtain from the WARP Stockholders or from WARP concerning
the properties, assets and business of WARP. If the transactions contemplated by
this Plan are not consummated by October 1, 1999, HomeQuest will return to WARP
all written matter with respect to WARP obtained by HomeQuest in connection with
the negotiation or consummation of this Plan.
3.11 Corporate Authority. HomeQuest has full corporate power and authority
to enter into this Plan and to carry out its obligations hereunder and will
deliver to the WARP Stockholders and WARP or their respective representatives at
the Closing a certified copy of resolutions of its Board of Directors through
its sole director authorizing execution of this Plan by HomeQuest's officers
through its sole officer and performance thereunder, and that the director
adopting and delivering such resolutions is the duly elected and incumbent sole
director of HomeQuest.
3.12 Due Authorization. Execution of this Plan and performance by HomeQuest
hereunder have been duly authorized by all requisite corporate action on the
part of HomeQuest, and this Plan constitutes a valid and binding obligation of
HomeQuest and performance hereunder will not violate any provision of the
Articles of Incorporation, Bylaws, agreements, mortgages or other commitments of
HomeQuest.
3.13 Environmental Matters. HomeQuest has no knowledge of any assertion by
any governmental agency or other regulatory authority of any environmental lien,
action or proceeding, or of any cause for any such lien, action or proceeding
related to the business operations of HomeQuest or HomeQuest's predecessors. In
addition, to the best knowledge of HomeQuest, there are no substances or
conditions which may support a claim or cause of action against HomeQuest or any
of HomeQuest' current or former officers, directors, agents or employees,
whether by a governmental agency or body, private party or individual, under any
Hazardous Materials Regulations. "Hazardous Materials" means any oil or
petrochemical products, PCB's, asbestos, urea formaldehyde, flammable
explosives, radioactive materials, solid or hazardous wastes, chemicals, toxic
substances or related materials, including, without limitation, any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials" or "toxic substances" under any applicable
federal or state laws or regulations. "Hazardous Materials Regulations" means
any regulations governing the use, generation, handling, storage, treatment,
disposal or release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
3.14 Access to Information Regarding WARP. HomeQuest acknowledges that it
has been delivered copies of what has been represented to be documentation
containing all material information respecting WARP and WARP's present and
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contemplated business operations, potential acquisitions, management and other
factors; that it has had a reasonable opportunity to review such documentation
and discuss it, to the extent desired, with its legal counsel, directors and
executive officers; that it has had, to the extent desired, the opportunity to
ask questions of and receive responses from the directors and executive officers
of WARP, and with the legal and accounting firms of WARP, with respect to such
documentation; and that to the extent requested, all questions raised have been
answered to HomeQuest's complete satisfaction.
Section 4
Representations, Warranties and Covenants of WARP
and the WARP Stockholders
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WARP and the WARP Stockholders represent and warrant to, and covenant with,
HomeQuest as follows (providing that WARP Stockholders owning less than 5% of
the WARP Shares make only those representations and warranties contained in
Sections 4.1, 4.11, 4.12 and 4.16:
4.1 Ownership. WARP Stockholders own the WARP Shares, free and clear of any
liens or encumbrances of any type or nature whatsoever, and each has full right,
power and authority to convey the WARP Shares owned without qualification.
4.2 Corporate Status. WARP is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado and is
licensed or qualified as a foreign corporation in all states or foreign
countries and provinces in which the nature of WARP's business or the character
or ownership of WARP properties makes such licensing or qualification necessary.
4.3 Capitalization. The authorized capital stock of WARP consists of
50,000,000 shares of common stock, no par value per share, of which 3,281,249
shares are issued and outstanding, all fully paid and non-assessable. Except as
otherwise provided herein or in promissory notes convertible into WARP Shares
which would be equal to 500,000 post-split shares of HomeQuest under the Plan,
if the notes had been converted prior to the completion of the Plan, there are
no outstanding options, warrants or calls pursuant to which any person has the
right to purchase any authorized and unissued common stock of WARP.
4.4 Financial Statements. The financial statements of WARP furnished to
HomeQuest, consisting of an unaudited trial balance sheet and income statement
for the period ended June 30, 1999, attached hereto as Exhibit D and
incorporated herein by reference, are correct and fairly present the financial
condition of WARP as of these dates and for the periods involved, and such
statements were prepared by management in good faith from the books and records
of WARP, and no material change has occurred in the matters disclosed therein,
except as indicated in Exhibit E, which is attached hereto and incorporated
herein by reference. These financial statements do not contain any untrue
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statement of a material fact or omit to state a material fact necessary in order
to make the statements made, in light of the circumstances under which they were
made, not misleading.
4.5 Undisclosed Liabilities. WARP has no material liabilities of any nature
except to the extent reflected or reserved against in the trial balance sheet,
whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except as set
forth in Exhibit E attached hereto and incorporated herein by reference.
4.6 Interim Changes. Since the date of the trial balance sheet, except as
set forth in Exhibit E, there have been no (1) changes in the financial
condition, assets, liabilities or business of WARP, in the aggregate, have been
materially adverse; (2) damages, destruction or loss of or to the property of
WARP, payment of any dividend or other distribution in respect of the capital
stock of WARP, or any direct or indirect redemption, purchase or other
acquisition of any such stock; or (3) increases paid or agreed to in the
compensation, retirement benefits or other commitments to their employees.
4.7 Title to Property. WARP has good and marketable title to all properties
and assets, real and personal, proprietary or otherwise, reflected in the trial
balance sheet, and the properties and assets of WARP are subject to no mortgage,
pledge, lien or encumbrance, except as reflected in the trial balance sheet or
in Exhibit E, with respect to which no default exists.
4.8 Litigation. There is no litigation or proceeding pending, or to the
knowledge of WARP, threatened, against or relating to WARP or its properties or
business, except as set forth in Exhibit E. Further, no officer, director or
person who may be deemed to be an affiliate of WARP is party to any material
legal proceeding which could have an adverse effect on WARP (financial or
otherwise), and none is party to any action or proceeding wherein any has an
interest adverse to WARP.
4.9 Books and Records. From the date of this Plan to the Closing, the WARP
Stockholders will cause WARP to (1) give to HomeQuest and its representatives
full access during normal business hours to all of its offices, books, records,
contracts and other corporate documents and properties so that HomeQuest may
inspect and audit them; and (2) furnish such information concerning the
properties and affairs of WARP as HomeQuest may reasonably request.
4.10 Tax Returns. WARP has filed all federal and state income or franchise
tax returns required to be filed or has received currently effective extensions
of the required filing dates.
4.11 Confidentiality. Until the Closing (and continuously if there is no
Closing), WARP, the WARP Stockholders and their representatives will keep
confidential any information which they obtain from HomeQuest concerning its
properties, assets and business. If the transactions contemplated by this Plan
are not consummated by October 1, 1999, WARP and the WARP Stockholders will
return to HomeQuest all written matter with respect to HomeQuest obtained by
them in connection with the negotiation or consummation of this Plan.
4.12 Investment Intent. The WARP Stockholders are acquiring the shares to
be exchanged and delivered to them under this Plan for investment and not with a
view to the sale or distribution thereof, and the WARP Stockholders have no
commitment or present intention to liquidate the Company or to sell or otherwise
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dispose of the HomeQuest shares. The WARP Stockholders shall execute and deliver
to HomeQuest on the Closing an Investment Letter attached hereto as Exhibit F
and incorporated herein by reference, acknowledging the "unregistered" and
"restricted" nature of the shares of HomeQuest being received under the Plan in
exchange for the WARP Shares; receipt of certain material information regarding
HomeQuest; waiver and compromise of any pre-emptive rights relating to the prior
issuance of shares of any of the WARP Shares; and whereby each is compromising
and/or waiving any claims each has or may have against WARP by reason of the
purchase of any securities of WARP by each or any of them prior to the
Closing of the Plan.
4.13 Corporate Authority. WARP has full corporate power and authority to
enter into this Plan and to carry out its obligations hereunder and will deliver
to HomeQuest or its representative at the Closing a certified copy of
resolutions of its Board of Directors authorizing execution of this Plan by its
officers and performance thereunder.
4.14 Due Authorization. Execution of this Plan and performance by WARP
hereunder have been duly authorized by all requisite corporate action on the
part of WARP, and this Plan constitutes a valid and binding obligation of WARP
and performance hereunder will not violate any provision of the Articles of
Incorporation, Bylaws, agreements, mortgages or other commitments of WARP.
4.15 Environmental Matters. WARP and the WARP Stockholders have no
knowledge of any assertion by any governmental agency or other regulatory
authority of any environmental lien, action or proceeding, or of any cause for
any such lien, action or proceeding related to the business operations of WARP
or its predecessors. In addition, to the best knowledge of WARP, there are no
substances or conditions which may support a claim or cause of action against
WARP or any of its current or former officers, directors, agents, employees or
predecessors, whether by a governmental agency or body, private party or
individual, under any Hazardous Materials Regulations. "Hazardous Materials"
means any oil or petrochemical products, PCB's, asbestos, urea formaldehyde,
flammable explosives, radioactive materials, solid or hazardous wastes,
chemicals, toxic substances or related materials, including, without limitation,
any substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," " hazardous materials" or "toxic substances"
under any applicable federal or state laws or regulations. "Hazardous Materials
Regulations" means any regulations governing the use, generation, handling,
storage, treatment, disposal or release of hazardous materials, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, the Resource Conservation and Recovery Act and the Federal Water
Pollution Control Act.
4.16 Access to Information Regarding HomeQuest. WARP and the WARP
Stockholders acknowledge that they have been delivered copies of what has been
represented to be documentation containing all material information respecting
HomeQuest and its present and contemplated business operations, potential
acquisitions, management and other factors; that they have had a reasonable
opportunity to review such documentation and discuss it, to the extent desired,
with their legal counsel, directors and executive officers; that they have had,
to the extent desired, the opportunity to ask questions of and receive responses
from the directors and executive officers of HomeQuest, and with the legal and
accounting firms of HomeQuest, with respect to such documentation; and that to
the extent requested, all questions raised have been answered to their complete
satisfaction.
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Section 5
Conditions Precedent to Obligations of WARP
and the WARP Stockholders
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All obligations of WARP and the WARP Stockholders under this Plan are
subject, at their option, to the fulfillment, before or at the Closing, of each
of the following conditions:
5.1 Representations and Warranties True at Closing. The representations and
warranties of HomeQuest contained in this Plan shall be deemed to have been made
again at and as of the Closing and shall then be true in all material respects
and shall survive the Closing.
5.2 Due Performance. HomeQuest shall have performed and
complied with all of the terms and conditions required by this Plan to be
performed or complied with by it before the Closing.
5.3 Officers' Certificate. WARP and the WARP Stockholders shall have been
furnished with a certificate signed by the President of HomeQuest, in such
capacity, attached hereto as Exhibit G and incorporated herein by reference,
dated as of the Closing, certifying (1) that all representations and warranties
of HomeQuest contained herein are true and correct; and (2) that since the date
of the financial statements (Exhibit B hereto), there has been no material
adverse change in the financial condition, business or properties of HomeQuest,
taken as a whole.
5.4 Opinion of Counsel of HomeQuest. WARP and the WARP Stockholders shall
have received an opinion of counsel for HomeQuest, dated as of the Closing, to
the effect that (1) the representations of Sections 3.1, 3.2 and 3.11 are
correct; (2) except as specified in the opinion, counsel knows of no inaccuracy
in the representations in 3.5, 3.6 or 3.7; and (3) the shares of HomeQuest to be
issued to the WARP Stockholders under this Plan will, when so issued, be validly
issued, fully paid and non-assessable.
5.5 Assets and Liabilities of HomeQuest. Unless otherwise agreed, HomeQuest
shall have no assets and no liabilities at Closing, and all costs, expenses and
fees incident to the Plan shall have been paid.
5.6 Reverse Split and Cancellation of Shares by a Principal Stockholder. At
or simultaneous with the Closing, the outstanding common stock of HomeQuest
shall be reverse split on a basis of one for 7.2 shares, while retaining the
current authorized shares and par value, with a appropriate adjustments to the
capital accounts of HomeQuest, and with all fractional shares being rounded up
to the nearest whole share; and ▇▇▇ ▇▇▇▇▇▇▇, the sole director, executive
officer and the principal stockholder of HomeQuest shall have agreed to convey
to HomeQuest for cancellation of 3,666,667 post-split shares, more or less, so
that depending upon rounding resulting from the reverse split, that there will
be 1,500,000 post-split and pre-Plan outstanding securities of HomeQuest.
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5.7 Resignations of Present Directors and Executive Officers and
Designation of New Directors and Executive Officers. On Closing, the present
sole director and executive officer of HomeQuest, ▇▇▇ ▇▇▇▇▇▇▇, shall designate
the directors and executive officers nominated by WARP to serve in his place and
stead, until the next respective annual meetings of the stockholders and the
Board of Directors of HomeQuest, and until their respective successors shall be
elected and qualified or until their respective prior resignations or
terminations, who shall be: ▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO, Secretary/Treasurer and
Director; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and Director; and ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Vice
President; and then, the current sole director and executive officer shall
resign.
5.8 Change of Name. At or simultaneous to the Closing of this Plan, the
Board of Directors of HomeQuest, with the written consent of ▇▇▇ ▇▇▇▇▇▇▇, its
majority stockholder, shall adopt the resolutions necessary to amend HomeQuest's
Articles of Incorporation to change its name to "▇▇▇▇▇▇▇▇▇.▇▇▇, Inc."
5.9 Stockholders' Consent. Persons owing not less than 80% of the
outstanding WARP Shares shall have executed and delivered the Plan.
5.10 Representations of Former Director and Officer. ▇▇▇▇▇▇ ▇▇▇▇, a former
director and executive officer of HomeQuest, shall have executed and delivered
Exhibit H attached hereto and incorporated herein respecting limitations on the
sale of shares of HomeQuest owned by him and the dissemination of written
materials respecting HomeQuest following the completion of the Plan.
5.11 Indemnification Agreement. HomeQuest shall have provided WARP and the
WARP Stockholders with satisfactory evidence of the indemnification of HomeQuest
by Phoenix Ink, LLC of all prior indebtedness of HomeQuest as of March 1, 1998.
Section 6
Conditions Precedent to Obligations of HomeQuest
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All obligations of HomeQuest under this Plan are subject, at HomeQuest's
option, to the fulfillment, before or at the Closing, of each of the following
conditions:
6.1 Representations and Warranties True at Closing. The representations and
warranties of WARP and the WARP Stockholders contained in this Plan shall be
deemed to have been made again at and as of the Closing and shall then be true
in all material respects and shall survive the Closing.
6.2 Due Performance. WARP and the WARP Stockholders shall have performed
and complied with all of the terms and conditions required by this Plan to be
performed or complied with by them before the Closing.
6.3 Officers' Certificate. HomeQuest shall have been furnished with a
certificate signed by the President of WARP, in such capacity, attached hereto
as Exhibit I and incorporated herein by reference, dated as of the Closing,
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certifying (1) that all representations and warranties of WARP and the WARP
Stockholders contained herein are true and correct; and (2) that since the date
of the financial statements (Exhibit D), there has been no material adverse
change in the financial condition, business or properties of WARP, taken as a
whole.
6.4 Books and Records. The WARP Stockholders or the Board of Directors of
WARP shall have caused WARP to make available all books and records of WARP,
including minute books and stock transfer records; provided, however, only to
the extent requested in writing by HomeQuest at Closing.
6.5 Stockholders' Consent. Persons owing not less than 80% of the
outstanding WARP Shares shall have executed and delivered the Plan.
Section 7
Termination
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Prior to Closing, this Plan may be terminated (1) by mutual consent in
writing; (2) by either the directors of HomeQuest or WARP and the WARP
Stockholders if there has been a material misrepresentation or material breach
of any warranty or covenant by the other party; or (3) by either the directors
of HomeQuest or WARP and the WARP Stockholders if the Closing shall not have
taken place, unless adjourned to a later date by mutual consent in writing, by
the date fixed in Section 2.
Section 8
General Provisions
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8.1 Further Assurances. At any time, and from time to time, after the
Closing, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Plan.
8.2 Waive. Any failure on the part of any party hereto to comply with any
its or their obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
8.3 Brokers. Each party represents to the other parties hereunder that no
broker or finder has acted for it in connection with this Plan, and agrees to
indemnify and hold harmless the other parties against any fee, loss or expense
arising out of claims by brokers or finders employed or alleged to have been
employed by he/she/it.
8.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first-class registered or certified mail, return receipt requested, as
follows:
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If to HomeQuest: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
455 East ▇▇▇ ▇▇▇▇▇, #▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to WARP: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇. Agron, Esq.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the WARP
Stockholders: To the addresses listed on Exhibit A
8.5 Entire Agreement. This Plan constitutes the entire agreement between
the parties and supersedes and cancels any other agreement, representation or
communication, whether oral or written, between the parties hereto relating to
the transactions contemplated herein or the subject matter hereof.
8.6 Headings. The section and subsection headings in this Plan are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Plan.
8.7 Governing Law. This Plan shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada, except to the
extent pre-empted by federal law, in which event (and to that extent only),
federal law shall govern.
8.8 Assignment. This Plan shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns.
8.9 Counterparts. This Plan may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.10 Default. In the event of any default hereunder, the prevailing party
in any action to enforce the terms and provisions hereof shall be entitled to
recover reasonable attorney's fees and related costs.
IN WITNESS WHEREOF, the parties have executed this Agreement and Plan of
Reorganization effective the latest date hereof.
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HOMEQUEST, INC.
Date: ____________________. By /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇▇▇▇▇▇▇, President
WEB AUDIO & RADIO PORTAL, INC.
Date: ____________________. By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
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