Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization ("the Agreement"), dated as
of the 1st day of November 2002, by and between Soldnet Inc., a Delaware
corporation ("Soldnet") and Artfest Inc., a Delaware corporation ("Artfest") and
its shareholders, with reference to the following:
A. Soldnet Inc. is a Delaware corporation incorporated in 2002. Soldnet
has authorized capital stock of 40,000,000 shares, $.0001 par value, of which
200,000 shares are currently issued and outstanding.
B. Artfest is a privately held corporation organized under the laws of
the State of Delaware on June, 26th 2002.
C. The respective Boards of Directors of Soldnet and Artfest have
deemed it advisable and in the best interests of the Parties that Artfest be
acquired by Soldnet, pursuant to the terms and conditions set forth in this
Agreement.
D. The Parties propose to enter into this Agreement which provides
among other things that all of the outstanding shares of Artfest be acquired by
Soldnet in exchange for shares of Soldnet and such additional items as more
fully described in the Agreement.
E. The parties desire the transaction to qualify as a tax-free
reorganization under Section 368 (a)(1)(B) of the Internal Revenue Code of 1986,
as amended.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
THE ACQUISITION
1.01 Soldnet shall acquire all of the common shares of Artfest in
exchange for restricted common shares of Soldnet. The shares of Soldnet to be
issued in this transaction shall be issued as set forth in Exhibit A of this
Agreement.
1.02 At the Closing, Artfest shall deliver 100% of its issued and
outstanding stock so as to make Soldnet the sole holder thereof, free and clear
of all claims and encumbrances.
1.03 At the Closing, the Soldnet shareholders listed on Exhibit B to
this Agreement ("Selling Shareholders"), will tender their certificates
representing 200,000 common shares, which represents 100% of the currently
issued and outstanding common shares of Soldnet, for Transfer. The Selling
Shareholders will also deliver appropriate instructions, board resolutions and
other documentation as required by Soldnet's transfer agent to allow for
transfer of said shares.
1.04 On Closing, the present directors and executive officers of
Soldnet shall designate the directors and executive officers nominated by
Artfest to serve in their place and stead, until the next respective annual
meeting of the stockholders and until their respective successors shall be
elected and qualified or until their respective prior resignations or
terminations. ▇▇▇▇▇▇ ▇▇▇▇▇ shall be appointed President, Chairman and Secretary
of Soldnet. The reorganized Board of Directors of Soldnet shall be:
▇▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇, and Mr. ▇▇▇▇▇ ▇▇▇▇▇▇, and then, the current directors
and executive officers shall resign in seriatim.
1.07 Following the reorganization, there will be a total of 19,885,000
shares, $.0001 par value, issued and outstanding in Soldnet.
1.09 It is the intent of the parties that the stock exchange
contemplated hereby be treated for federal income tax purposes as a tax- free
reorganization pursuant to Section 368(a)(1)(B) of the Internal Revenue Code of
1986, as amended (the "IRC"). The parties shall report the transactions under
this Agreement consistent with such treatment, shall keep such records and file
such information with respect thereto as is required by Treasury Regulation
1.368-3.
ARTICLE 2
THE CLOSING
2.01 The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ on or before November 19, 2002, (the "Closing Date") or at such other
place or date and time as may be agreed to in writing by the parties hereto.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SOLDNET INC.
Soldnet hereby represents and warrants to Artfest as follows:
3.01 Soldnet shall deliver to Artfest, on or before Closing, each of
the following:
(a) Financial Statements. Audited financial statements of Soldnet
including, but not limited to, balance sheets and profit and loss statements for
the period ended February 27, 2002, and unaudited financial statements for the
quarters ended June 30, 2002, September 30, 2002, prepared in accordance with
United States generally accepted accounting principles and which fairly present
the financial condition of Soldnet at the dates thereof. (Schedule A)
(b) Property. An accurate list and description of all property, real
or personal, owned by Soldnet of a value equal to or greater than $1,000.00.
(Schedule B.)
(c) Liens and Liabilities. A complete and accurate list of all
material liens, encumbrances, easements, security interests or similar interests
in or on any of the assets listed on Schedule A. (Schedule C.) A complete and
accurate list of all debts, liabilities and obligations of Soldnet incurred or
owing as of the date of this Agreement. (Schedule C.1.)
(d) Leases and Contracts. A complete and accurate list describing
all material terms of each lease (whether of real or personal property) and each
contract, promissory note, mortgage, license, franchise, or other written
agreement to which Soldnet is a party which involves or can reasonably be
expected to involve aggregate future payments or receipts by Soldnet (whether by
the terms of such lease, contract, promissory note, license, franchise or other
written agreement or as a result of a guarantee of the payment of or indemnity
against the failure to pay same) of $1,000.00 or more annually during the
twelve-month period ended October 31, 2002, or any consecutive twelve-month
period thereafter, except any of said instruments which terminate or are
cancelable without penalty during such twelve-month period. (Schedule D.)
(e) Loan Agreements. Complete and accurate copies of all loan
agreements and other documents with respect to obligations of Soldnet for the
repayment of borrowed money. (Schedule E.)
(f) Consents Required. A complete list of all agreements wherein
consent to the transaction herein contemplated is required to avoid a default
thereunder; or where notice of such transaction is required at or subsequent to
closing, or where consent to an acquisition, consolidation, or sale of all or
substantially all of the assets is required to avoid a default thereunder.
(Schedule F.)
(g) Articles and Bylaws. Complete and accurate copies of the
Certificate and Articles of Incorporation and Bylaws of Soldnet together with
all amendments thereto to the date hereof. (Schedule G.)
(h) Shareholders. Artfest shall be provided information regarding
all persons or entities holding capital stock of Soldnet or any rights to
subscribe for, acquire, or receive shares of the capital stock of
Soldnet(whether warrants, calls, options, or conversion rights), including
details of all stock option plans whether qualified or nonqualified, and other
similar arrangements.
(i) Officers and Directors. A complete and current list of all
Officers and Directors of Soldnet. (Schedule I.)
(j) Salary Schedule. A complete and accurate list (in all material
respects) of the names and the current salary rate for each present employee of
Soldnet who received $1,000.00 or more in aggregate compensation from Soldnet
whether in salary, bonus or otherwise, during the year 2002, or who is presently
scheduled to receive from Soldnet a salary in excess of $1,000.00 during the
year ending October 31, 2002, including in each case the amount of compensation
received or scheduled to be received, and a schedule of the hourly rates of all
other employees listed according to departments. (Schedule J.)
(k) Litigation. A complete and accurate list (in all material
respects) of all material civil, criminal, administrative, arbitration or other
such proceedings or investigations (including without limitations unfair labor
practice matters, labor organization activities, environmental matters and civil
rights violations) pending or, to the knowledge of Soldnet threatened, which may
materially and adversely affect Soldnet. (Schedule K.)
(l) Tax Returns. Accurate copies of all Federal and State tax
returns for Soldnet through the period ended October 31, 2002. (Schedule L.)
(m) Agency Reports. Copies of all material reports or filings (and a
list of the categories of reports or filings made on a regular basis) made by
Soldnet under ERISA, EEOC, FDA and all other governmental agencies (federal,
state or local) during the last fiscal year. (Schedule M.)
(n) Banks. A true and complete list (in all material respects), as
of the date of this Agreement, showing (1) the name of each bank in which
Soldnet has an account or safe deposit box, and (2) the names and addresses of
all signatories. (Schedule N.)
(o) Jurisdictions Where Qualified. A list of all jurisdictions
wherein Soldnet is qualified to do business and is in good standing. (Schedule
O.)
(p) Subsidiaries. A complete list of all subsidiaries of Soldnet.
(Schedule P.) The term "Subsidiary" or "Subsidiaries" shall include
corporations, unincorporated associations, partnerships, joint ventures, or
similar entities in which Soldnet has an interest, direct or indirect.
(q) Union Matters. An accurate list and description (in all material
respects) of all union contracts and collective bargaining agreements of
Soldnet, if any. (Schedule Q.)
(r) Employee and Consultant Contracts. A complete and accurate list
of all employee and consultant contracts which Soldnet may have, other than
those listed in the schedule on Union Matters. (Schedule R.)
(s) Employee Benefit Plans. Complete and accurate copies of all
salary, stock options, bonus, incentive compensation, deferred compensation,
profit sharing, retirement, pension, group insurance, disability, death benefit
or other benefit plans, trust agreements or arrangements of Soldnet in effect on
the date hereof or to become effective after the date thereof, together with
copies of any determination letters issued by the Internal Revenue Service with
respect thereto. (Schedule S.)
(t) Insurance Policies. A complete and accurate list (in all
material respects) and a description of all material insurance policies naming
Soldnet as an insured or beneficiary or as a loss payable payee or for which
Soldnet has paid all or part of the premium in force on the date hereof,
specifying any notice or other information possessed by Soldnet regarding
possible claims thereunder, cancellation thereof or premium increases thereon,
including any policies now in effect naming Soldnet as beneficiary covering the
business activities of Soldnet. (Schedule T.)
(u) Licenses and Permits. A complete list of all licenses, permits
and other authorizations of Soldnet. (Schedule U.)
3.02 Organization, Standing and Power. Soldnet is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with all requisite corporate power to own or lease its properties and
carry on its businesses as are now being conducted.
3.03 Qualification. Soldnet is duly qualified and is licensed as a
foreign corporation authorized to do business in each jurisdiction wherein it
conducts its business operations. Such jurisdictions, which are the only
jurisdictions in which Soldnet is duly qualified and licensed as a foreign
corporation, are shown in Schedule O.
3.04 Capitalization of Soldnet. The authorized capital stock of Soldnet
consists of 40,000,000 shares of Common Stock, $.0001 par value, of which the
only shares issued and outstanding are 200,000, which shares were or will be
duly authorized, validly issued and fully paid and nonassessable. There are no
preemptive rights with respect to the Soldnet stock.
3.05 Authority. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate actions, including but not limited to duly and
validly authorized action and approval by the Board of Directors, on the part of
Soldnet, and by each of the selling Shareholders. This Agreement constitutes the
valid and binding obligation of Soldnet and the selling Shareholders enforceable
against it in accordance with its terms, subject to the principles of equity
applicable to the availability of the remedy of specific performance. This
Agreement has been duly executed by Soldnet Inc., and the Selling Shareholders
and the execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement shall not result in any breach of
any terms or provisions of Soldnet's Certificate and Articles of Incorporation
or Bylaws or of any other agreement, court order or instrument to which Soldnet
is a party or bound by.
3.06 Absence of Undisclosed Liabilities. Soldnet has no material
liabilities of any nature, whether fixed, absolute, contingent or accrued, which
were not reflected on the financial statements set forth in Schedule A or
otherwise disclosed in this Agreement or any of the Schedules or Exhibits
attached hereto.
3.07 Absence of Changes. Since February 27, 2002 there has not been any
material adverse change in the condition (financial or otherwise), assets,
liabilities, earnings or business of Soldnet.
3.08 Tax Matters. All taxes and other assessments and levies which
Soldnet is required by law to withhold or to collect have been duly withheld and
collected, and have been paid over to the proper government authorities or are
held by Soldnet in separate bank accounts for such payment or are represented by
depository receipts, and all such withholdings and collections and all other
payments due in connection therewith (including, without limitation, employment
taxes, both the employee's and employer's share) have been paid over to the
government or placed in a separate and segregated bank account for such purpose.
There are no known deficiencies in income taxes for any periods and further, the
representations and warranties as to absence of undisclosed liabilities
contained in Section 3.06 includes any and all tax liabilities of whatsoever
kind or nature (including, without limitation, all federal, state, local and
foreign income, profit, franchise, sales, use and property taxes) due or to
become due, incurred in respect of or measured by Soldnet income or business
prior to the Closing Date.
3.09 Options, Warrants, etc. Except as otherwise described in Schedule
H, there are no outstanding options, warrants, calls, commitments or agreements
of any character to which Soldnet or its shareholders are a party or by which
Soldnet or its shareholders are bound, or are a party, calling for the issuance
of shares of capital stock of Soldnet or any securities representing the right
to purchase or otherwise receive any such capital stock of Soldnet.
3.10 Title to Assets. Except for liens set forth in Schedule C, Soldnet
is the sole unconditional owner of, with good and marketable title to, all
assets listed in the schedules as owned by it and all other property and assets
are free and clear of all mortgages, liens, pledges, charges or encumbrances of
any nature whatsoever.
3.11 Agreements in Force and Effect. Except as set forth in Schedules D
and E, all material contracts, agreements, plans, promissory notes, mortgages,
leases, policies, licenses, franchises or similar instruments to which Soldnet
is a party are valid and in full force and effect on the date hereof, and
Soldnet has not breached any material provision of, and is not in default in any
material respect under the terms of, any such contract, agreement, plan,
promissory note, mortgage, lease, policy, license, franchise or similar
instrument which breach or default would have a material adverse effect upon the
business, operations or financial condition of Soldnet.
3.12 Legal Proceedings, Etc. Except as set forth in Schedule K, there
are no civil, criminal, administrative, arbitration or other such proceedings or
investigations pending or, to the knowledge of either Soldnet or the
shareholders thereof, threatened, in which, individually or in the aggregate, an
adverse determination would materially and adversely affect the assets,
properties, business or income of Soldnet. Soldnet has substantially complied
with, and is not in default in any material respect under, any laws, ordinances,
requirements, regulations or orders applicable to its businesses.
3.13 Governmental Regulation. To the knowledge of Soldnet and except as
set forth in Schedule K, Soldnet is not in violation of or in default with
respect to any applicable law or any applicable rule, regulation, order, writ or
decree of any court or any governmental commission, board, bureau, agency or
instrumentality, or delinquent with respect to any report required to be filed
with any governmental commission, board, bureau, agency or instrumentality which
violation or default could have a material adverse effect upon the business,
operations or financial condition of Soldnet.
3.14 Brokers and Finders. Soldnet shall be solely responsible for
payment to any broker or finder retained by Soldnet for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
herein.
3.15 Accuracy of Information. No representation or warranty by Soldnet
contained in this Agreement and no statement contained in any certificate or
other instrument delivered or to be delivered to Artfest pursuant hereto or in
connection with the transactions contemplated hereby (including without
limitation all Schedules and Exhibits hereto) contains or will contain any
untrue statement of material fact or omits or will omit to state any material
fact necessary in order to make the statements contained herein or therein not
misleading.
3.16 Subsidiaries. Except as listed in Schedule P, Soldnet does not
have any other subsidiaries or own capital stock representing ten percent (10%)
or more of the issued and outstanding stock of any other corporation.
3.17 Consents. Except as listed in Schedule F, no consent or approval
of, or registration, qualification or filing with, any governmental authority or
other person is required to be obtained or accomplished by Soldnet or any
shareholder thereof in connection with the consummation of the transactions
contemplated hereby.
3.18 Improper Payments. Neither Soldnet, nor any person acting on
behalf of Soldnet, including the Selling Shareholders, has made any payment or
otherwise transmitted anything of value, directly or indirectly, to (a) any
official or any government or agency or political subdivision thereof for the
purpose of influencing any decision affecting the business of Soldnet(b) any
customer, supplier or competitor of Soldnet or employee of such customer,
supplier or competitor, for the purpose of obtaining, retaining or directing
business for Soldnet or (c) any political party or any candidate for elective
political office nor has any fund or other asset of Soldnet been maintained that
was not fully and accurately recorded on the books of account of Soldnet.
3.19 Copies of Documents. Soldnet has made available for inspection and
copying by Artfest and its duly authorized representatives, and will continue to
do so at all times, true and correct copies of all documents which it has filed
with the Securities and Exchange Commission, and all other governmental agencies
which are material to the terms and conditions contained in this Agreement.
Furthermore, Soldnet has made all required filings with the with the Securities
and Exchange Commission, and all other governmental agencies, including but not
limited to the Internal Revenue Service, on a timely basis. All such filings
have contained information which is true and correct, to the best knowledge of
the Board of Directors of Soldnet after reasonable investigation, in all
material respects and did not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements made therein
not misleading or which could have any material adverse effect upon the
financial condition or operations of Soldnet or adversely effect the objectives
of this Agreement with respect to Artfest including, but not limited to, the
issuance and subsequent trading of the shares of common stock of Soldnet to be
received hereby, subject to compliance by the shareholders of Artfest with
applicable law.
3.20 Tradeability of Shares. The shareholders of Soldnet represent and
warrant to Artfest that the shares of Soldnet being acquired through exchange
are being acquired pursuant to this Agreement, are being acquired for investment
and not with a view to the public resale or distribution of such shares and
further acknowledges that the shares being issued have not been registered under
the Securities Act and are "restricted securities" as that term is defined in
Rule 144 promulgated under the Securities Act and must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption
from such registration is available.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ARTFEST
ARTFEST hereby represents and warrants to Soldnet as follows:
4.01 ARTFEST shall deliver to Soldnet, within 60 days of Closing, the
following:
(a) Financial Statements. Financial statements of ARTFEST from its
inception, through October 31, 2001, prepared in accordance with United States
generally accepted accounting principles and which fairly present the financial
condition of ARTFEST at the dates thereof. (Schedule AA)
(b) Property. An accurate list and description of all property, real
or personal owned by ARTFEST of a value equal to or greater than $1,000.00.
(Schedule BB)
(c) Liens and Liabilities. A complete and accurate list of all
material liens, encumbrances, easements, security interests or similar interests
in or on any of the assets listed on Schedule AA. (Schedule CC.) A complete and
accurate list of all debts, liabilities and obligations of ARTFEST incurred or
owing as of the date of this Agreement. (Schedule CC.1.)
(d) Leases and Contracts. A complete and accurate list describing
all material terms of material leases (whether of real or personal property) and
each contract, promissory note, mortgage, license, franchise, or other written
agreement to which ARTFEST is a party which involves or can reasonably be
expected to involve aggregate future payments or receipts by ARTFEST (whether by
the terms of such lease, contract, promissory note, license, franchise or other
written agreement or as a result of a guarantee of the payment of or indemnity
against the failure to pay same) of $1,000.00 or more annually during the
twelve-month period ended October 31, 2002 or any consecutive twelve-month
period thereafter, except any of said instruments which terminate or are
cancelable without penalty during such twelve-month period. (Schedule DD.)
(e) Loan Agreements. Complete and accurate copies of all loan
agreements and other documents with respect to obligations of ARTFEST for the
repayment of borrowed money. (Schedule EE.)
(f) Consents Required. A complete list of all agreements wherein
consent to the transaction herein contemplated is required to avoid a default
thereunder; or where notice of such transaction is required at or subsequent to
closing, or where consent to an acquisition, consolidation, or sale of all or
substantially all of the assets is required to avoid a default thereunder.
(Schedule FF.)
(g) Articles and Bylaws. Complete and accurate copies of the
Articles of Incorporation and Bylaws of ARTFEST, together with all amendments
thereto to the date hereof. (Schedule GG.)
(h) Shareholders. A complete list of all persons or entities holding
capital stock of ARTFEST or any rights to subscribe for, acquire, or receive
shares of the capital stock of ARTFEST (whether warrants, calls, options, or
conversion rights), including copies of all stock option plans whether qualified
or nonqualified, and other similar agreements. (Schedule HH.)
(i) Officers and Directors. A complete and current list of all
officers and Directors of ARTFEST. (Schedule II.)
(j) Salary Schedule. A complete and accurate list (in all material
respects) of the names and the current salary rate or each present employee of
ARTFEST who received $1,000 or more in aggregate compensation from ARTFEST
whether in salary, bonus or otherwise, during the year 2001, or who is presently
scheduled to receive from ARTFEST a salary in excess of $1,000.00 during the
year ending October 31, 2002, including in each case the amount of compensation
received or scheduled to be received, and a schedule of the hourly rates of all
other employees listed according to departments. (Schedule JJ.)
(k) Litigation. A complete and accurate list (in all material
respects) of all material civil, criminal, administrative, arbitration or other
such proceedings or investigations (including without limitations unfair labor
practice matters, labor organization activities, environmental matters and civil
rights violations) pending or, to the knowledge of ARTFEST threatened, which may
materially and adversely affect ARTFEST. (Schedule KK.)
(l) Tax Returns. Accurate copies of all tax returns of ARTFEST
through the period ended December 31, 2001. (Schedule LL.)
(m) Agency Reports. Copies of all material reports or filings (and a
list of the categories of reports or filings made on a regular basis) made by
ARTFEST under ERISA, EEOC, FDA and all other governmental agencies (federal,
state or local) during the last fiscal year. (Schedule MM.)
(n) A true and complete list (in all material respects), as of the
date of this Agreement, showing (1) the name of each bank in which ARTFEST has
an account or safe deposit box, and (2) the names and addresses of all
signatories. (Schedule NN.)
(o) Jurisdictions Where Qualified. A list of all jurisdictions
wherein ARTFEST is qualified to do business and is in good
standing. (Schedule OO.)
(p) Subsidiaries. A complete list of all subsidiaries of ARTFEST.
(Schedule PP.) The term "Subsidiary" or "Subsidiaries" shall include
corporations, unincorporated associations, partnerships, joint ventures, or
similar entities in which ARTFEST has an interest, direct or indirect.
(q) Union Matters. An accurate list and description (in all material
respects of union contracts and collective bargaining agreements of ARTFEST, if
any. (Schedule QQ.)
(r) Employee and Consultant Contracts. A complete and accurate list
of all employee and consultant contracts which ARTFEST may have, other than
those listed in the schedule on Union Matters. (Schedule RR.)
(s) Employee Benefit Plans. Complete and accurate copies of all
salary, stock option, bonus, incentive compensation, deferred compensation,
profit sharing, retirement, pension, group insurance, disability, death benefit
or other benefit plans, trust agreements or arrangements of ARTFEST in effect on
the date hereof or to become effective after the date thereof, together with
copies of any determination letters issued by the Internal Revenue Service with
respect thereto. (Schedule SS.)
(t) Insurance Policies. A complete and accurate list (in all
material respects) and description of all material insurance policies naming
ARTFEST as an insured or beneficiary or as a loss payable payee or for which
ARTFEST has paid all or part of the premium in force on the date hereof,
specifying any notice or other information possessed by ARTFEST regarding
possible claims thereunder, cancellation thereof or premium increases thereon,
including any policies now in effect naming ARTFEST as beneficiary covering the
business activities of ARTFEST. (Schedule TT.)
(u) Licenses and Permits. A complete list of all licenses, permits
and other authorizations of ARTFEST. (Schedule UU.)
4.02 Organization, Standing and Power. ARTFEST is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with all requisite corporate power to own or lease its properties and
carry on its business as is now being conducted and has a registered corporate
office in Michigan with all requisite corporate power to own or lease its
properties and carry on its business as is now being conducted.
4.03 Qualification. ARTFEST is duly qualified and licensed as a foreign
corporation authorized to do business in each jurisdiction wherein it conducts
business operations. Such jurisdictions, which are the only jurisdictions in
which ARTFEST is duly qualified and licensed as a foreign corporation, is shown
in Schedule OO.
4.04 Capitalization of ARTFEST. The authorized capital stock of ARTFEST
consists of 25,000,000 shares of Common Stock, par value $.001 per share, of
which the only shares issued and outstanding are 19,685,000 shares issued to the
sole shareholder listed on Schedule HH, which shares were duly authorized,
validly issued and fully paid and nonassessable. There are no preemptive rights
with respect to the ARTFEST stock.
4.05 Authority. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate action, including but not limited to duly and validly
authorized action and approval by the Board of Directors, on the part of
ARTFEST. This Agreement constitutes the valid and binding obligation of ARTFEST,
enforceable against it in accordance with its terms, subject to the principles
of equity applicable to the availability of the remedy of specific performance.
This Agreement has been duly executed by ARTFEST and the execution and delivery
of this Agreement and the consummation of the transactions contemplated by this
Agreement shall not result in any breach of any terms or provisions of ARTFEST's
Articles of Incorporation or Bylaws or of any other agreement, court order or
instrument to which ARTFEST is a party or bound.
4.06 Absence of Undisclosed Liabilities. ARTFEST has no material
liabilities of any nature, whether fixed, absolute, contingent or accrued, which
were not reflected on the financial statements set forth in Schedule AA or
otherwise disclosed in this Agreement or any of the Schedules or Exhibits
attached hereto.
4.07 Absence of Changes. Since the date of inception, there has not
been any material adverse change in the condition (financial or otherwise),
assets, liabilities, earnings or business of ARTFEST.
4.08 Tax Matters. All taxes and other assessments and levies which
ARTFEST is required by law to withhold or to collect have been duly withheld and
collected, and have been paid over to the proper government authorities or are
held by ARTFEST in separate bank accounts for such payment or are represented by
depository receipts, and all such withholdings and collections and all other
payments due in connection therewith (including, without limitation, employment
taxes, both the employee's and employer's share) have been paid over to the
government or placed in a separate and segregated bank account for such purpose.
There are no known deficiencies in income taxes for any periods and further, the
representations and warranties as to absence of undisclosed liabilities
contained in Section 4.06 includes any and all tax liabilities of whatsoever
kind or nature (including, without limitation, all federal, provincial, local
and foreign income, profit, franchise, sales, use and property taxes) due or to
become due, incurred in respect of or measured by ARTFEST income or business
prior to the Closing Date.
4.09 Options, Warrants, etc. Except as otherwise described in Schedule
HH, there are no outstanding options, warrants, calls, commitments or agreements
of any character to which ARTFEST or its shareholders are a party or by which
ARTFEST or its shareholders are bound, or are a party, calling for the issuance
of shares of capital stock of ARTFEST or any securities representing the right
to purchase or otherwise receive any such capital stock of ARTFEST.
4.10 Title to Assets. Except for liens set forth in Schedule CC,
ARTFEST is the sole and unconditional owner of, with good and marketable title
to, all the assets and patents listed in the schedules as owned by them and all
other property and assets are free and clear of all mortgages, liens, pledges,
charges or encumbrances of any nature whatsoever.
4.11 Agreements in Force and Effect. Except as set forth in Schedules
DD and EE, all material contracts, agreements, plans, promissory notes,
mortgages, leases, policies, licenses, franchises or similar instruments to
which ARTFEST is a party are valid and in full force and effect on the date
hereof, and ARTFEST has not breached any material provision of, and is not in
default in any material respect under the terms of, any such contract,
agreement, plan, promissory note, mortgage, lease, policy, license, franchise or
similar instrument which breach or default would have a material adverse effect
upon the business, operations or financial condition of ARTFEST.
4.12 Legal Proceedings, Etc. Except as set forth in Schedule KK, there
are no civil, criminal, administrative, arbitration or other such proceedings or
investigations pending or, to the knowledge of ARTFEST, threatened, in which,
individually or in the aggregate, an adverse determination would materially and
adversely affect the assets, properties, business or income of ARTFEST. ARTFEST
has substantially complied with, and is not in default in any material respect
under, any laws, ordinances, requirements, regulations or orders applicable to
its businesses.
4.13 Governmental Regulation. To the knowledge of ARTFEST and except as
set forth in Schedule KK, ARTFEST is not in violation of or in default with
respect to any applicable law or any applicable rule, regulation, order, writ or
decree of any court or any governmental commission, board, bureau, agency or
instrumentality, or delinquent with respect to any report required to be filed
with any governmental commission, board, bureau, agency or instrumentality which
violation or default could have a material adverse effect upon the business,
operations or financial condition of ARTFEST.
4.14 Broker and Finders. ARTFEST shall be solely responsible for
payment to any broker or finder retained by ARTFEST for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
herein.
4.15 Accuracy of Information. No representation or warranty by ARTFEST
contained in this Agreement and no statement contained in any certificate or
other instrument delivered or to be delivered to Soldnet pursuant hereto or in
connection with the transactions contemplated hereby (including without
limitation all Schedules and Exhibits hereto) contains or will contain any
untrue statement of a material fact or omits or will omit to state any material
fact necessary in order to make the statements contained herein or therein not
misleading.
4.16 Subsidiaries. Except as listed in Schedule PP, ARTFEST does not
have any other subsidiaries or own capital stock representing ten percent (10%)
or more of the issued and outstanding stock of any other corporation.
4.17 Consents. Except as listed in Schedule FF, no consent or approval
of, or registration, qualification or filing with, any other governmental
authority or other person is required to be obtained or accomplished by ARTFEST
or any shareholder thereof, in connection with the consummation of the
transactions contemplated hereby.
4.18 Improper Payments. No person acting on behalf of ARTFEST has made
any payment or otherwise transmitted anything of value, directly or indirectly,
to (a) any official or any government or agency or political subdivision thereof
for the purpose of influencing any decision affecting the business of ARTFEST ,
or (b) any political party or any candidate for elective political office, nor
has any fund or other asset of ARTFEST been maintained that was not fully and
accurately recorded on the books of account of ARTFEST.
4.19 Copies of Documents. ARTFEST has made available for inspection and
copying by SOLDNET and its duly authorized representatives, and will continue to
do so at all times, true and correct copies of all documents which it has filed
with any governmental agencies which are material to the terms and conditions
contained in this Agreement. Furthermore, all filings by ARTFEST with
governmental agencies, including but not limited to any taxing authority, have
contained information which is true and correct in all material respects and did
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements made therein not misleading or
which could have any material adverse effect upon the financial condition or
operations of ARTFEST or adversely affect the objectives of this Agreement.
4.20 Investment Intent of Shareholders. The shareholders of ARTFEST
represent and warrants to SOLDNET that the shares of Artfest being acquired
pursuant to this Agreement are being acquired for its own account and for
investment and not with a view to the public resale or distribution of such
shares and further acknowledges that the shares being issued have not been
registered under the Securities Act and are "restricted securities" as that term
is defined in Rule 144 promulgated under the Securities Act and must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available.
ARTICLE 5
CONDUCT AND TRANSACTIONS PRIOR TO THE
EFFECTIVE TIME OF THE ACQUISITION
5.01 Conduct and Transactions of Soldnet. During the period from the
date hereof to the date of Closing, SOLDNET shall:
(a) Conduct its operations in the ordinary course of business,
including but not limited to, paying all obligations as they mature, complying
with all applicable tax laws, filing all tax returns required to be filed and
paying all taxes due;
(b) Maintain its records and books of account in a manner that
fairly and correctly reflects its income, expenses, assets and liabilities;
SOLDNET shall not during such period, except in the ordinary course of
business, without the prior written consent of ARTFEST:
(a) Except as otherwise contemplated or required by this Agreement,
sell, dispose of or encumber any of its properties or assets;
(b) Declare or pay any dividends on shares of its capital stock or
make any other distribution of assets to the holders thereof;
(c) Issue, reissue or sell, or issue options or rights to subscribe
to, or enter into any contract or commitment to issue, reissue or sell, any
shares of its capital stock or acquire or agree to acquire any shares of its
capital stock;
(d) Except as otherwise contemplated and required by this Agreement,
amend its Articles of Incorporation or merge or consolidate with or into any
other corporation or sell all or substantially all of its assets or change in
any manner the rights of its capital stock or other securities;
(e) Except as contemplated or required by this Agreement, pay or
incur any obligation or liability, direct or contingent, of more than $1,000;
(f) Incur any indebtedness for borrowed money, assume, guarantee,
endorse or otherwise become responsible for obligations of any other party, or
make loans or advances to any other party;
(g) Make any material change in its insurance coverage;
(h) Increase in any manner the compensation, direct or indirect, of
any of its officers or executive employees; except in accordance with existing
employment contracts;
(i) Enter into any agreement or make any commitment to any labor
union or organization; or
(j) Make any capital expenditures.
5.02 Conduct and Transactions of ARTFEST. During the period from the
date hereof to the date of Closing, ARTFEST shall:
(a) Obtain an investment letter from the sole shareholder of ARTFEST
in a form substantially like that attached hereto as Exhibit E.
(b) Conduct the operations of ARTFEST in the ordinary course of
business.
ARTFEST shall not during such period, except in the ordinary course of
business, without the prior written consent of Soldnet:
(a) Except as otherwise contemplated or required by this Agreement,
sell, dispose of or encumber any of the properties or assets of ARTFEST;
(b) Declare or pay any dividends on shares of its capital stock or
make any other distribution of assets to the holders thereof;
(c) Issue, reissue or sell, or issue options or rights to subscribe
to, or enter into any contract or commitment to issue, reissue or sell, any
shares of its capital stock or acquire or agree to acquire any shares of its
capital stock;
(d) Except as otherwise contemplated and required by this Agreement,
amend its Articles of Incorporation or merge or consolidate with or into any
other corporation or sell all or substantially all of its assets or change in
any manner the rights of its capital stock or other securities;
(e) Except as otherwise contemplated and required by this Agreement,
pay or incur any obligation or liability, direct or contingent, of more than
$1,000;
(f) Incur any indebtedness for borrowed money, assume, guarantee,
endorse or otherwise become responsible for obligations of any other party, or
make loans or advances to any other party;
(g) Make any material change in its insurance coverage;
(h) Increase in any manner the compensation, direct or indirect, of
any of its officers or executive employees; except in accordance with existing
employment contracts;
(i) Enter into any agreement or make any commitment to any labor
union or organization; or
(j) Make any material capital expenditures.
ARTICLE 6
RIGHTS OF INSPECTION
6.01 During the period from the date of this Agreement to the date of
Closing of the acquisition, SOLDNETand ARTFEST agree to use their best efforts
to give the other party, including its representatives and agents, full access
to the premises, books and records of each of the entities, and to furnish the
other with such financial and operating data and other information including,
but not limited to, copies of all legal documents and instruments referred to on
any schedule or exhibit hereto, with respect to the business and properties of
SOLDNETor ARTFEST, as the case may be, as the other shall from time to time
request; provided, however, if there are any such investigations: (1) they shall
be conducted in such manner as not to unreasonably interfere with the operation
of the business of the other parties and (2) such right of inspection shall not
affect in any way whatsoever any of the representations or warranties given by
the respective parties hereunder. In the event of termination of this Agreement,
SOLDNETand ARTFEST will each return to the other all documents, work papers and
other materials obtained from the other party in connection with the
transactions contemplated hereby, and will take such other steps necessary to
protect the confidentiality of such material.
ARTICLE 7
INDEMINIFICATION
7.01 Soldnet, hereby agrees to indemnify and hold ARTFEST, its
officers, directors, employees, sole shareholder, attorneys and agents and each
person, if any, who controls ARTFEST within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act harmless from and against the following:
(a) Any and all liabilities, losses, claims, costs, expenses,
damages and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to such liabilities, losses, claims,
costs, expenses, damages and judgments) (collectively, the "Losses") resulting
from or arising out of any breach of any representation, warranty, or
non-performance of any covenant or agreement on the part of SOLDNET or any
Cancelling Shareholder(s) contained in this Agreement or in any statement or
certificate furnished or to be furnished by SOLDNETor any Cancelling
Shareholder(s) pursuant hereto or in connection with the transactions
contemplated hereby; and
(b) Any and all losses resulting from or arising out of the conduct
of any business, any act or any omissions by or on behalf of SOLDNETor any
Cancelling Shareholder(s) prior to the Closing.
7.02 ARTFEST hereby agrees, to indemnify and hold Soldnet, its
officers, directors, employees and agents and each person, if any, who controls
SOLDNET within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act harmless from and against the following:
(a) Any and all Losses resulting from or arising out of any breach
of any representation, warranty, or non-performance of any covenant or agreement
on the part of ARTFEST or Radical contained in this Agreement or in any
statement or certificate furnished or to be furnished by ARTFEST pursuant hereto
or in connection with the transactions contemplated hereby.
7.03 In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7.01 or 7.02 (the
"Indemnified Party"), the Indemnified Party shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Party") in writing.
A delay in giving notice shall only relieve the Indemnifying Party of liability
to the extent the Indemnifying Party suffers actual prejudice because of the
delay. The Indemnifying Party shall have the right, at its option and expense,
to participate in the defense of such a proceeding or claim, but not to control
the defense, negotiation or settlement thereof, which control shall at all times
rest with the Indemnified Party, unless the proceeding or claim involves only
money damages, not an injunction or other equitable relief, and unless the
Indemnifying Party:
(i) irrevocably acknowledges in writing complete responsibility for and
agrees to indemnify the Indemnified Party, and
(ii) furnishes satisfactory evidence of the financial ability to
indemnify the Indemnified Party, in which case the Indemnifying Party may assume
such control through counsel of its choice and at its expense, but the
Indemnified Party shall continue to have the right to be represented, at its own
expense, by counsel of its choice in connection with the defense of such a
proceeding or claim. If the Indemnifying Party does not assume control of the
defense of such a proceeding or claim, (i) the entire defense of the proceeding
or claim by the Indemnified Party, (ii) any settlement made by the Indemnified
Party, and (iii) any judgment entered in the proceeding or claim shall be deemed
to have been consented to by, and shall be binding on, the Indemnifying Party as
fully as though it alone had assumed the defense thereof and a judgment had been
entered in the proceeding or claim in the amount of such settlement or judgment,
except that the right of the Indemnifying Party to contest the right of the
Indemnified Party to indemnification under the Agreement with respect to the
proceeding or claim shall not be extinguished. If the Indemnifying Party does
assume control of the defense of such a proceeding or claim, it will not,
without the prior written consent of the Indemnified Party settle the proceeding
or claim or consent to entry of any judgment relating thereto which does not
include as an unconditional term thereof the giving by the claimant to the
Indemnified Party a release from all liability in respect of the proceeding or
claim. The parties hereto agree to cooperate fully with each other in connection
with the defense, negotiation or settlement of any such proceeding or claim.
ARTICLE 8
CONDITIONS TO CLOSING
8.01 Conditions to Obligations of ARTFEST. The obligation of ARTFEST to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by ARTFEST.
(a) Representations and Warranties. There shall be no information
disclosed in the schedules delivered by SOLDNET which in the opinion of ARTFEST
would materially adversely affect the proposed transaction and intent of the
parties as set forth in this Agreement. The representations and warranties of
SOLDNET set forth in Article 3 hereof shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing as though made
on and as of the Closing, except as otherwise permitted by this Agreement.
(b) Performance of Obligations. SOLDNET shall have in all material
respects performed all agreements required to be performed by it under this
Agreement and shall have performed in all material respects any actions
contemplated by this Agreement prior to or on the Closing and SOLDNET shall have
complied in all material respects with the course of conduct required by this
Agreement.
(c) Corporate Action. SOLDNET shall have furnished minutes,
certified copies of corporate resolutions and/or other documentary evidence
satisfactory to counsel for ARTFEST that SOLDNET has submitted with this
Agreement and any other documents required hereby to such parties for approval
as provided by applicable law.
(d) Consents. Execution of this Agreement by the sole shareholder of
ARTFEST and any consents necessary for or approval of any party listed on any
Schedule delivered by SOLDNET whose consent or approval is required pursuant
thereto shall have been obtained.
(e) Financial Statements. ARTFEST shall have been furnished with
financial statements of SOLDNET including, but not limited to, balance sheets
and profit and loss statements from inception through the fiscal year end
October 31, 2002. Such financial statements shall have been prepared in
conformity with United States generally accepted accounting principles on a
basis consistent with those of prior periods and fairly present the financial
position of SOLDNET as of the periods stated.
(f) Statutory Requirements. All statutory requirements for the valid
consummation by SOLDNET of the transactions contemplated by this Agreement shall
have been fulfilled.
(g) Governmental Approval. All authorizations, consents, approvals,
permits and orders of all federal and state governmental agencies required to be
obtained by SOLDNET for consummation of the transactions contemplated by this
Agreement shall have been obtained.
(h) Changes in Financial Condition of Soldnet. There shall not have
occurred any material adverse change in the financial condition or in the
operations of the business of Soldnet, except expenditures in furtherance of
this Agreement.
(i) Absence of Pending Litigation. SOLDNET is not engaged in or
threatened with any suit, action, or legal, administrative or other proceedings
or governmental investigations pertaining to this Agreement or the consummation
of the transactions contemplated hereunder.
(j) Authorization for Issuance of Stock. ARTFEST shall have received
in form and substance satisfactory to counsel for ARTFEST a letter instructing
and authorizing the Registrar and Transfer Agent for the shares of common stock
of SOLDNET issue stock certificates representing ownership of 19,685,000
restricted shares of common stock of SOLDNET to Radical in accordance with the
terms of this Agreement and a letter from said Registrar and Transfer Agent
acknowledging receipt of the letter of instruction and stating to the effect
that the Registrar and Transfer Agent holds adequate supplies of stock
certificates necessary to comply with the letter of instruction and the terms
and conditions of this Agreement.
8.02 Conditions to Obligations of Soldnet. The obligation of Soldnet to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by Soldnet.
(a) Representations and Warranties. There shall be no information
disclosed in the schedules delivered by ARTFEST, which in the opinion of
Soldnet, would materially adversely affect the proposed transaction and intent
of the parties as set forth in this Agreement. The representations and
warranties of ARTFEST set forth in Article 4 hereof shall be true and correct in
all material respects as of the date of this Agreement and as of the Closing as
though made on and as of the Closing, except as otherwise permitted by this
Agreement.
(b) Performance of Obligations. ARTFEST shall have in all material
respects performed all agreements required to be performed by it under this
Agreement and shall have performed in all material respects any actions
contemplated by this Agreement prior to or on the Closing and ARTFEST shall have
complied in all respects with the course of conduct required by this Agreement.
(c) Corporate Action. ARTFEST shall have furnished minutes,
certified copies of corporate resolutions and/or other documentary evidence
satisfactory to Counsel for SOLDNET that ARTFEST has submitted with this
Agreement and any other documents required hereby to such parties for approval
as provided by applicable law.
(d) Consents. Any consents necessary for or approval of any party
listed on any Schedule delivered by ARTFEST, whose consent or approval is
required pursuant thereto, shall have been obtained.
(e) Financial Statements. SOLDNET shall have been furnished with
financial statements of ARTFEST including, but not limited to, balance sheets
and profit and loss statements from inception through the period ended October
31, 2002. Such financial statements shall have been prepared in conformity with
United States generally accepted accounting principles on a basis consistent
with those of prior periods and fairly present the financial position of ARTFEST
as of the periods stated.
(f) Statutory Requirements. All statutory requirements for the valid
consummation by ARTFEST of the transactions contemplated by this Agreement shall
have been fulfilled.
(g) Governmental Approval. All authorizations, consents, approvals,
permits and orders of all federal and state governmental agencies required to be
obtained by ARTFEST for consummation of the transactions contemplated by this
Agreement shall have been obtained.
(h) Employment Agreements. Existing ARTFEST employment agreements
will have been delivered to counsel for Soldnet.
(i) Changes in Financial Condition of ARTFEST. There shall not have
occurred any material adverse change in the financial condition or in the
operations of the business of ARTFEST, except expenditures in furtherance of
this Agreement.
(j) Absence of Pending Litigation. ARTFEST is not engaged in or
threatened with any suit, action, or legal, administrative or other proceedings
or governmental investigations pertaining to this Agreement or the consummation
of the transactions contemplated hereunder.
(k) Shareholder Approval. The ARTFEST shareholders shall have
approved the Agreement and Plan of Reorganization.
ARTICLE 9
MATTERS SUBSEQUENT TO CLOSING
9.01 Covenant of Further Assurance. The parties covenant and agree that
they shall, from time to time, execute and deliver or cause to be executed and
delivered all such further instruments of conveyance, transfer, assignments,
receipts and other instruments, and shall take or cause to be taken such further
or other actions as the other party or parties to this Agreement may reasonably
deem necessary in order to carry out the purposes and intent of this Agreement.
ARTICLE 10
NATURE AND SURVIVAL OF REPRESENTATIONS
10.01 All statements contained in any written certificate, schedule,
exhibit or other written instrument delivered by SOLDNET or ARTFEST pursuant
hereto, or otherwise adopted by Soldnet, by its written approval, or by ARTFEST
by its written approval, or in connection with the transactions contemplated
hereby, shall be deemed representations and warranties by SOLDNET or ARTFEST as
the case may be. All representations, warranties and agreements made by either
party shall survive for the period of the applicable statute of limitations and
until the discovery of any claim, loss, liability or other matter based on
fraud, if longer.
ARTICLE 11
TERMINATION OF AGREEMENT AND ABANDONMENT OF REORGANIZATION
11.01 Termination. Anything herein to the contrary notwithstanding,
this Agreement and any agreement executed as required hereunder and the
acquisition contemplated hereby may be terminated at any time before the Closing
as follows:
(a) By mutual written consent of the Boards of Directors of SOLDNET
and ARTFEST.
(b) By the Board of Directors of SOLDNET if any of the conditions
set forth in Section 8.02 shall not have been satisfied by the Closing Date.
(c) By the Board of Directors of ARTFEST if any of the conditions
set forth in Section 8.01 shall not have been satisfied by the Closing Date.
11.02 Termination of Obligations and Waiver of Conditions; Payment of
Expenses. In the event this Agreement and the acquisition are terminated and
abandoned pursuant to this Article 11 hereof, this Agreement shall become void
and of no force and effect and there shall be no liability on the part of any of
the parties hereto, or their respective directors, officers, shareholders or
controlling persons to each other. Each party hereto will pay all costs and
expenses incident to its negotiation and preparation of this Agreement and any
of the documents evidencing the transactions contemplated hereby, including
fees, expenses and disbursements of counsel.
ARTICLE 12
EXCHANGE OF SHARES; FRACTIONAL SHARES
12.01 Exchange of Shares. At the Closing, SOLDNET shall issue a letter
to the transfer agent of SOLDNET with a copy of the resolution of the Board of
Directors of SOLDNET authorizing and directing the issuance of 19,685,000
restricted SOLDNET shares as set forth in Exhibit A to this Agreement.
12.02 Restrictions on Shares Issued to ARTFEST. Due to the fact that
ARTFEST will receive shares of SOLDNET common stock in connection with the
acquisition which have not been registered under the1933 Act by virtue of the
exemption provided in Section 4(2) of such Act, those shares of Soldnet will
contain the following legend:
The shares represented by this certificate have not been registered
under the Securities Act of 1933. The shares have been acquired for investment
and may not be sold or offered for sale in the absence of an effective
Registration Statement for the shares under the Securities Act of 1933 or an
opinion of counsel to the Corporation that such registration is required.
ARTICLE 13
MISCELLANEOUS
13.01 Construction. This Agreement shall be construed and enforced in
accordance with the laws of the State of Michigan excluding the conflicts of
laws.
13.02 Notices. All notices necessary or appropriate under this
Agreement shall be effective when personally delivered or deposited in the
United States mail, postage prepaid, certified or registered, return receipt
requested, and addressed to the parties last known address which addresses are
currently as follows:
If to "Soldnet" If to "ARTFEST "
SOLDNET INC. ARTFEST,INC.
4719 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13.03 Amendment and Waiver. The parties hereby may, by mutual agreement
in writing signed by each party, amend this Agreement in any respect. Any term
or provision of this Agreement may be waived in writing at any time by the party
which is entitled to the benefits thereof, such waiver right shall include, but
not be limited to, the right of either party to:
(a) Extend the time for the performance of any of the obligations of
the other;
(b) Waive any inaccuracies in representations by the other contained
in this Agreement or in any document delivered pursuant hereto;
(c) Waive compliance by the other with any of the covenants
contained in this Agreement, and performance of any obligations by the other;
and
(d) Waive the fulfillment of any condition that is precedent to the
performance by the party so waiving of any of its obligations under this
Agreement. Any writing on the part of a party relating to such amendment,
extension or waiver as provided in this Section 13.03 shall be valid if
authorized or ratified by the Board of Directors of such party.
13.04 Remedies not Exclusive. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies by
SOLDNET or ARTFEST shall not constitute a waiver of the right to pursue other
available remedies.
13.05 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.06 Benefit. This Agreement shall be binding upon, and inure to the
benefit of, the respective successors and assigns of SOLDNET and ARTFEST and
Radical.
13.07 Entire Agreement. This Agreement and the Schedules and Exhibits
attached hereto, represent the entire agreement of the undersigned regarding the
subject matter hereof, and supersedes all prior written or oral understandings
or agreements between the parties.
13.08 Each Party to Bear its Own Expense. SOLDNET and ARTFEST shall
each bear their own respective expenses incurred in connection with the
negotiation, execution, closing, and performance of this Agreement, including
counsel fees and accountant fees.
13.09 Captions and Section Headings. Captions and section headings used
herein are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
Executed as of the date first written above.
"Soldnet" "ARTFEST "
SOLDNET INC. ARTFEST INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------ -----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President ▇▇▇▇▇▇ ▇▇▇▇▇, President
