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EXHIBIT 2.2
ACQUISITION AGREEMENT
Agreement dated as of September 10, 1998 between SUNRISE EXPRESS, INC., Inc., a
Nevada corporation ("Buyer") on behalf of its shareholders, and World Commerce
Online, Inc., a Nevada corporation ("Seller") on behalf of its shareholders.
The parties wish to provide for Seller's sale of the Shares to Buyer and Buyer's
purchase of the Shares from Seller on the terms and conditions of this
Agreement.
The parties agree as follows:
1. The Acquisition.
1.1 Purchase and Sale Subject to the terms and conditions
of this Agreement, at the Closing to be held as
provided in Section 2, Seller shall sell the Shares
to Buyer, and Buyer shall purchase the Shares from
Seller, free and clear of all Encumbrances. Buyer
shall change its name to WCO Holdings, Inc.
1.2 Purchase Price. Purchaser will exchange 9,000,000
shares of its restricted common stock for each share
representing all of the outstanding capital stock or
ownership interest of World Commerce Online
Development, Inc. currently held by World Commerce
Online, Inc.. The shares to be delivered by purchase
shall be delivered directly to the holders of the
World Commerce Online, Inc. Stock and not to the
treasury of World Commerce Online, Inc.
1.3 It is anticipated that this transaction is a non
taxable share exchange under Rule 368 of the Internal
Revenue Code.
2. The Closing.
2.1 Place and Time. The closing of the sale and purchase
of the Shares (the "Closing") shall take place at the
offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
▇▇. #▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ no later than the close
of business (Las Vegas time) on 9/10/98, or at such
other place, date and time as the parties may agree
in writing.
2.2 Deliveries by Seller. At the Closing, Seller shall
deliver the following to Buyer:
(a) Certification representing the Shares, duly
endorsed for transfer to Buyer and
accompanied by any applicable stock transfer
tax stamps; Seller shall cause SUNRISE
EXPRESS, INC., Inc. to change those
certificates for, and to deliver to Buyer at
the Closing, a certificate representing the
Shares registered in the name of Buyer
(without any legend or other reference to
any Encumbrance).
(b) The documents contemplated by Section 3.
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(c) All other documents, instruments and
writings required by this Agreement to be
delivered by Seller at the Closing and any
other documents or records relating to World
Commerce Online, Inc.'s business reasonably
requested by Buyer in connection with this
Agreement.
2.3 Deliveries by Buyer. At the Closing, Buyer shall
deliver the following to Seller:
(a) The shares as contemplated by section 1.
(b) The documents contemplated by Section 4.
(c) All other documents, instruments and
writings required by this Agreement to be
delivered by Buyer at the Closing.
(d) A legal opinion as to transaction validity
and as to Buyer representations.
3. Conditions to Buyer's Obligations.
The obligations of Buyer to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Buyer:
3.1 Representations, Warranties and Agreements.
(a) The representations and warranties of Seller
set forth in this Agreement shall be true
and complete in all material respects as of
the Closing Date as though made at such
time, (b) Seller shall have performed and
complied in all material respects with the
agreements contained in this Agreement
required to be performed and complied with
by it at or prior to the Closing and (c)
Buyer shall have received a certificate to
that effect signed by an authorized
representative of Seller.
3.2 Resignations of Directors. All directors of SUNRISE
EXPRESS, INC., Inc. and its Subsidiaries whose
resignations shall have been requested by Buyer not
less than ten Business Days before the Closing Date
shall have submitted their resignations or been
reserved effective as of the Closing Date.
4. Conditions to Seller's Obligations
The obligations of Seller to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Seller.
4.1 Representations, Warranties and Agreements.
(a) The representations and warranties of Buyer
set forth in this Agreement shall be true
and complete in all material respects as of
the Closing Date as though made at such
time, (b) Buyer shall have performed and
complied in all material respects with the
agreements contained in this Agreement
required to be performed and complied with
by it prior to or
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at the Closing and (c) Seller shall have
received a certificate to that effect signed
by an officer of Buyer.
5. Representations and Warranties of Seller.
Seller represents and warrants to Buyer that, to the Knowledge of Seller (which
limitation shall not apply to Section 5.3), and except as set forth in the
Disclosure Letter:
5.1 Organization of Seller; Authorization Seller is a
corporation duly organized, validly existing and in
good standing under the laws of Nevada with full
corporate power and authority to execute and deliver
this Agreement and to perform its obligations
hereunder. The execution, delivery and performance
of this Agreement have been duly authorized by all
necessary corporate action of Seller and this
Agreement constitutes a valid and binding obligation
of Seller, enforceable against it in accordance with
its terms.
5.2 Conflict as to Seller: Neither the execution and
delivery of this Agreement nor the performance of
Buyer's obligations hereunder will (a) violate any
provision of the certificate of incorporation or
by-laws of Seller or (b) violate any statute or law
or any judgment, decree, order, regulation or rule of
any court or other Governmental Body applicable to
Seller.
5.3 Ownership of Shares. The delivery of certificates to
Buyer and the payment to Seller will result in
Buyer's immediate acquisition of record and
beneficial ownership of the Shares, free and clear of
all Encumbrances. There are no outstanding options,
rights, conversion rights, agreements or commitments
of any kind relating to the issuance, sale or
transfer of any Equity Securities or other securities
of World Commerce Online, Inc.
5.4 Title to Properties: Either World Commerce Online,
Inc. or one of its Subsidiaries owns all the material
properties and assets that they purport to own (real,
personal and nixed, tangible and intangible),
including without limitation, all the material
properties and assets reflected in the Balance Sheet
(except for property sold since the date of the
Balance Sheet in the ordinary course of business or
leased under capitalized leases), and all the
material properties and assets purchased or otherwise
acquired by World Commerce Online, Inc. or any of its
Subsidiaries since the date of the Balance Sheet.
5.5 Buildings, Plants and Equipment. The buildings,
plants, structures and material items of equipment
and other personal property owned or leased by World
Commerce Online, Inc. or its Subsidiaries are, in all
respects material to the business or financial
condition of World Commerce Online, Inc. and its
Subsidiaries, taken as a whole, in good operating
condition and repair (ordinary wear and tear
excepted) and are adequate in all such respects for
the purposes for which they are being used.
5.6 Litigation. There is no action, suit, inquiry,
proceeding or investigation by or before any court or
Governmental Body pending or threatened in writing
against or involving World Commerce Online, Inc. or
any of its Subsidiaries which is
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likely to have a material adverse effect on the
business or financial condition of SUNRISE EXPRESS,
INC., Inc. and its Subsidiaries, taken as whole, or
which would require a payment by SUNRISE EXPRESS,
INC., Inc. or its subsidiaries in excess of $2000 in
the aggregate or which questions or challenges the
validity of this Agreement. Neither World Commerce
Online, Inc. nor any of its Subsidiaries is subject
to any judgment, order or decree that is likely to
have a material adverse effect on the business or
financial condition of SUNRISE EXPRESS, INC., Inc.
and its Subsidiaries, taken as a whole, or which
would require a payment by SUNRISE EXPRESS, INC.,
Inc. or its subsidiaries in excess of $2000 in the
aggregate.
5.7 Absence of Certain Changes. Since the date of the
Balance Sheet, neither World Commerce Online, Inc.
nor any of its Subsidiaries has:
(a) suffered the damage or destruction of any of
its properties or assets (whether or not
covered by insurance) which is materially
adverse to the business or financial
condition of World Commerce Online, Inc. and
its Subsidiaries, taken as a whole, or made
any disposition of any of its material
properties or assets other than in the
ordinary course of business;
(b) made any change or amendment in its
certificate of incorporation or by-laws, or
other governing instruments;
(c) issued or sold any Equity Securities or
other securities, acquired, directly or
indirectly, by redemption or otherwise, any
such Equity Securities, reclassified,
split-up or otherwise changed any such
Equity Security, or granted or entered into
any options, warrants, calls or commitments
of any kind with respect thereto;
(d) paid, discharged or satisfied any material
claim, liability or obligation (absolute,
accrued, contingent or otherwise), other
than in the ordinary course of business;
(e) prepaid any material obligation having a
maturity of more than 90 days from the date
such obligation was issued or incurred;
(f) cancelled any material debts or waived any
material claims or rights, except in the
ordinary course of business;
(g) made any capital expenditures or additions
to property, plans or equipment or acquired
any other property or assets (other than raw
materials and supplies) at a cost in excess
of $2000 in the aggregate;
(h) written off or been required to write off
any notes or accounts receivable in an
aggregate amount in excess of $2000;
5.8 No Material Adverse Change. Since the date of the
Balance Sheet, there has not been any material
adverse change in the business or financial condition
of World
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Commerce Online, Inc. and its Subsidiaries taken as a
whole, other than changes resulting from economic
conditions prevailing in the United States.
5.9 Brokers or Finders. Seller has not employed any
broker or finder or incurred any liability for any
brokerage or broker's fees or commissions or similar
payments in connection with the sale of the Shares to
Buyer.
5.10 Transactions with Directors and Officers. World
Commerce Online, Inc. and its Subsidiaries do not
engage in business with any Person (other than
Seller) in which any of World Commerce Online, Inc.'s
directors or officers has a material equity interest.
No director or officer of World Commerce Online, Inc.
owns any property, or right which is material to the
business of World Commerce Online, Inc. and its
Subsidiaries, taken as a whole.
6. Representations and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:
6.1 Organization of Buyer; Authorization. Buyer is a
corporation duly organized, validly existing and in
good standing under the laws of Nevada with full
corporate power and authority to execute and deliver
this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all
necessary corporate action of Buyer and this
Agreement constitutes a valid and binding obligation
of Buyer, enforceable against it in accordance with
its terms.
6.2 Brokers or Finders. Buyer has not employed any broker
or finder or incurred any liability for any brokerage
or finder's fees or commissions or similar payments
in connection with any of the transactions
contemplated hereby.
6.3 Purchase for Investment. Buyer is purchasing the
shares solely for its own account for the purpose of
investment and not with a view to, or for sale in
connection with any distribution of any portion
thereof in violation of any applicable securities
law.
6.4 Conflict as to Buyer. Neither the execution and
delivery of this Agreement nor the performance of
Buyer's obligations hereunder will (a) violate any
provision of the certificate of incorporation or
by-laws of Buyer or (b) violate any statute or law or
any judgment, decree, order, regulation or rule of
any court or other Governmental Body applicable to
Buyer.
6.5 Buyer is a publicly traded company which trades on
the OTC:BB under the ticker symbol SUBX. Buyer has
properly filed all documentation with the SBC, NASD
or other applicable bodies necessary to become and
remain a publicly traded company.
6.6 There are no pending or threatened legal or
regulatory claim, demands or liabilities of any kind
or nature against buyers of its assets.
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6.7 Buyer has filed all federal, state and local income
or other tax returns as required by law, and has paid
all taxes which are due, and has no tax delinquencies
of any kind.
6.8 There are currently 5,000,000 shares issued and
outstanding in buyers, with 2,500,000 freely
tradable. The shares, when issued were properly
distributed under applicable securities laws, and
Buyers has taken no action to cause said stock to
loose its free trading status. There are no warrants,
option agreements or pending subscription agreements
whereby Buyer is obligated to issue any additional
stock to any person. Buyer will, at closing, cause to
be cancelled all certificates representing the
current insider stock (2,500,000 shares) or
transferred.
6.9 Upon on closing, seller's shareholders will receive a
controlling interest in and complete management
control over Buyer by virtue of their stock
ownership, and there are no shareholder rights or
agreements, or other legal impediments to the
transfer of management control of Buyers.
7. Access and Reporting; Filings With Governmental Authorities.
7.1 Access Between the date of this Agreement and the
Closing Date, Seller shall, and shall cause World
Commerce Online, Inc. to, (a) give Buyer and its
authorized representative reasonable access to all
plants, offices, warehouses and other facilities and
properties of World Commerce Online, Inc. and its
Subsidiaries and to the books and records of World
Commerce Online, Inc. and its Subsidiaries, (b)
permit Buyer to make inspections thereof, and (c)
cause its officers and its advisors to furnish Buyer
with such financial and operating data and other
information with respect to the business and
properties of World Commerce Online, Inc. and its
Subsidiaries and to discuss with Buyer and its
authorized representatives the affairs of World
Commerce Online, Inc. and its Subsidiaries, all as
Buyer may from time to time reasonably request.
7.2 Exclusivity. From the date hereof until the earlier
of the Closing or the termination of this Agreement,
Seller shall not solicit or negotiate or enter into
any agreement with any other Person with respect to
or in furtherance of any proposal for a merger or
business combination involving, or acquisition of any
interest in, or (except in the ordinary course of
business) sale of assets by, World Commerce Online,
Inc., except for the acquisition of the Shares by
Buyer.
7.3 Publicity. Between the date of this Agreement and the
Closing Date, Seller and Buyer shall, and Seller and
Buyer shall cause SUNRISE EXPRESS, INC., Inc. to,
discuss and coordinate with respect to any public
filing or announcement or any internal or private
announcement (including any general announcement to
employees) concerning the contemplated transaction.
7.4 Confidentiality. Prior to the Closing Date (or at any
time if the Closing does not occur) Buyer shall keep
confidential and not disclose to any Person (other
than its employees, attorneys, accountants and
advisors) or use (except in connection with the
transactions contemplated hereby) all nonpublic
information obtained
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by Buyer pursuant to Section 7.1. Following the
Closing, Seller shall keep confidential and not
disclose to any Person (other than its employees,
attorneys, accountants and advisors) or use (except
connection with preparing Tax Returns and conducting
proceeds relating to Taxes) any nonpublic information
relating to SUNRISE EXPRESS, INC., Inc. and its
Subsidiaries. This Section 7.7 shall not be violated
by disclosure pursuant to court order or as otherwise
required by law, on condition that notice of the
requirement for such disclosure is given the other
party prior to making any disclosure and the party
subject to such requirement cooperates as the other
may reasonably request in resisting it. If the
Closing does not occur, Buyer shall return to Seller,
or destroy, all information it shall have received
from Seller or World Commerce Online, Inc. in
connection with this Agreement and the transactions
contemplated hereby, together with any copies or
summaries thereof or extracts therefrom. Seller and
Buyer shall use their best efforts to cause their
respective representatives, employees, attorneys,
accountants and advisors to whom information is
disclosed pursuant to Sections 7.1 and 7.6 to comply
with the provisions of this Section 7.7.
8. Conduct of World Commerce Online, Inc.'s Business Prior to the
Closing.
8.1 Operation in Ordinary Course. Between the date of
this Agreement and the Closing Date, Seller shall
cause World Commerce Online, Inc. and its
Subsidiaries to conduct their businesses in all
material respects in the ordinary course.
8.2 Business Organization. Between the date of this
Agreement and the Closing Date, Seller shall use its
reasonable efforts, and shall cause World Commerce
Online, Inc. and each of its Subsidiaries to use its
respective reasonable efforts, to (a) preserve
substantially intact the business organization of
World Commerce Online, Inc. and each of its
Subsidiaries and keep available the services of the
present officers and employees of World Commerce
Online, Inc. and each of its Subsidiaries, and (b)
preserve in all material respects the present
business relationships and good will of World
Commerce Online, Inc. and each of its Subsidiaries.
8.3 Corporate Organization. Between the date of this
Agreement and the Closing Date, neither Buyer or
Seller shall not cause or permit any amendment of the
certificate of incorporation or by-laws (or other
governing instrument) of World Commerce Online, Inc.
or any of its Subsidiaries, and shall cause World
Commerce Online, Inc. and each of its Subsidiaries
not to:
(a) issue, sell or otherwise dispose of any of
its Equity Securities, or create, sell or
otherwise dispose of any options, rights,
conversion rights or other agreements or
commitments of any kind relating to the
issuance, sale or disposition of any of its
Equity Securities;
(b) sell or otherwise dispose of any Equity
Securities of World Commerce Online, Inc. or
any of its Subsidiaries, or create or suffer
to be created any Encumbrances thereon, or
create, sell or otherwise dispose of any
options, rights, conversion rights or other
agreements or commitments of
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any kind relating to the sale or disposition
of any Equity Securities of World Commerce
Online, Inc. or any of its Subsidiaries;
(c) reclassify, split up or otherwise change any
of its Equity Securities;
(d) be party to any merger, consolidation or
other business combination;
(e) sell, lease, license or otherwise dispose of
any of its properties or assets (including,
but not limited to rights with respect to
patents and registered trademarks and
copyrights or other proprietary rights), in
an amount which is material to the business
or financial condition of World Commerce
Online, Inc. and its Subsidiaries, taken as
a whole, except in the ordinary course of
business.
8. Survival of Representations and Warranties; Indemnification.
8.1 Survival. No representation or warranty contained in
this Agreement or in any certificate or document
delivered pursuant hereto shall survive the Closing,
except for those contained in Sections 5.1, 5.2, 5.3
(only as to Seller), 5.10, 6.1, 6.2, 6.3, 6.4 (the
"Surviving Representations and Warranties").
8.2 Indemnification by Seller. Seller shall indemnify and
hold harmless Buyer and SUNRISE EXPRESS, INC., Inc.,
and shall reimburse Buyer and SUNRISE EXPRESS, INC.,
Inc. for, any loss, liability, damage or expense
(including reasonable attorneys fees) (collectively,
"Damages") arising from or in connection with (a) any
inaccuracy in any of the Surviving Representations
and Warranties of Seller in this Agreement or (b) any
failure by Seller to perform or comply with any
agreement in this Agreement.
8.3 Indemnification by Buyer. Buyer shall indemnify and
hold harmless Seller, and shall reimburse Seller for,
any Damages arising from or in connection: with (a)
any inaccuracy in any of the Surviving
Representations and Warranties of Buyer in this
Agreement, (b) any failure by Buyer to perform or
comply with any agreement in this Agreement, except
that after the Closing no claim shall be made with
respect to the failure to perform or comply with any
agreement required to have been performed or complied
with prior to the Closing Date, (c) any claims
arising from the conduct of the business of World
Commerce Online, Inc; and the Subsidiaries after the
Closing and (d) any payments made by Seller after the
Closing pursuant to any guaranty by Seller of any
obligation of SUNRISE EXPRESS, INC., Inc. or any of
its Subsidiaries (other than as contemplated by
Section 2.4). Buyer shall use its best efforts to
obtain Seller's release from any such guaranties.
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9. Termination.
9.1 Termination. This Agreement may be terminated before
the Closing occurs only as follows:
(a) By written agreement of Seller and Buyer at
any time.
(b) By Seller, by notice to Buyer at any time,
if one or more of the conditions specified
in Section 4 is not satisfied at the time at
which the Closing (as it may be deferred
pursuant to Section 2.1) would otherwise
occur or if satisfaction of such a condition
is or becomes impossible.
(c) By Buyer, by notice to Seller at any time,
if one or more of the conditions specified
in Section 3 is not satisfied at the time at
which the Closing (as it may be deferred
pursuant to Section 2.1), would otherwise
occur or if satisfaction of such a condition
is or becomes impossible.
(d) By Buyer or Seller, by notice to the other
at any time after 12-17-98.
9.2 Effect of Termination. If this Agreement is
terminated pursuant to Section 12.1, this Agreement
shall terminate without any liability or further
obligation of any party to another.
10. Notices.
All notices, consents, assignments and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given when (a)
delivered by hand, (b) sent by telex or telecopier (with receipt confirmed),
provided that a copy is mailed by registered mail, return receipt requested, or
(c) received by the delivery service (receipt requested), in each case to the
appropriate addresses, telex numbers and telecopier numbers set forth below (or
to such other addresses, telex numbers and telecopier numbers as a party may
designate as to itself by notice to the other parties).
(a) If to Buyer: (b) If to Seller:
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. World Commerce Online, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇. #206-A ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 702-732-2253 Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
11. Miscellaneous.
11.1 Expenses. Each party shall bear its own expenses
incident to the preparation, negotiation, execution
and delivery of this Agreement and the performance of
its obligations hereunder.
11.2 Captions. The captions in this Agreement are for
convenience of reference only and shall not be given
any effect in the interpretation of this agreement.
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11.3 No Waiver. The failure of a party to insist upon
strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive
that party of the right thereafter to insist upon
strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing.
11.4 Exclusive Agreement; Amendment. This Agreement
supersedes all prior agreements among the parties
with respect to its subject matter and is intended
(with the documents referred to herein) as a complete
and exclusive statement of the terms of the agreement
among the parties with respect thereto and cannot be
changed or terminated orally.
11.5 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be
considered an original, but all of which together
shall constitute the same instrument.
11.6 Governing Law. This Agreement and (unless otherwise
provided) all amendments hereof and waivers and
consents hereunder shall be governed by the internal
law of the State of Nevada, without regard to the
conflicts of law principles thereof.
11.7 Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and
their respective successors and assigns, provided
that neither party may assign its rights hereunder
without the consent of the other except that Buyer
may assign its rights (but not its obligations) under
this Agreement to its wholly-owned Subsidiary without
the consent of Seller, provided that, after the
Closing, no consent of Seller shall be needed in
connection with any merger or consolidation of Buyer
with or into another entity.
SUNRISE EXPRESS, INC., Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
World Commerce Online, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
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