MERGER AGREEMENT
THIS MERGER AGREEMENT is made this 9th day of February, 1999, by and
between ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Nevada corporation (hereinafter called the
"Company"), and all of the stockholders (hereinafter called the "Stockholders")
of Tricom, Inc., a Florida corporation (hereinafter called "Tricom") whose names
are set forth on Exhibit A attached hereto and by this reference made apart
hereof.
W I T N E S S E T H :
1.Plan of Merger. The Stockholders represent and warrant that they
are the holders and beneficial owners of all of the issued and outstanding
shares of the stock of Tricom, which consists of one hundred (100) shares of the
common stock of Tricom. It is the intention of the parties hereto that all of
the issued and outstanding shares of common stock of Tricom shall be acquired by
the Company in exchange for solely shares of its voting common stock. It is the
express intention of the parties hereto that the said exchange shall be a
tax-exempt transaction fully in compliance with Section 368 (a) (1) (B) of the
Internal Revenue Code of 1954, as amended.
2. Exchange of Shares. The Company and the Stockholders agree that
all of the one hundred (100) shares of the issued and outstanding common stock
of Tricom shall be exchanged with the Company for one hundred million
(100,000,000) shares of the common stock of the Company. A list of all of the
Stockholders showing the number of shares of common stock of Tricom held and
owned by each of them together with the number of shares of common stock of the
Company which each of them will receive in exchange is attached hereto as
Exhibit A and by this reference made a part hereof. The Stockholders agree and
acknowledge that the shares of common stock of the Company, which they will
receive, are "restricted" securities and that the Stockholders will hold such
shares for investment.
3. Delivery of the Shares. On the Closing Date (as hereinafter
defined), the Stockholders will deliver certificates for the shares of the
common stock of Tricom duly endorsed by the Stockholders in order to make the
Company the sole owner thereof, free and clear of all claims, liens, and
encumbrance, and on the Closing Date delivery of the shares of the common stock
of the Company will be made to the Stockholders as set forth on said Exhibit A
hereto.
4. Representations of the Stockholders. The Stockholders hereby
represent and warrant to the Company and to each other as follow:
a. As the Closing Date, the Stockholders will be the sole owners
of their respective shares of the common stock of Tricom
appearing of record in their names, such shares will be free from
all claims, liens, or encumbrances, and the Stockholders will
have the unqualified right to transfer the said shares.
b. The said shares constitute validly issued shares of the common
stock of Tricom and are fully paid and nonassessable.
c. Tricom is and will be on the Closing Date in good standing as
a Florida corporation.
5. Representations of the Company. The Company represents and warrants
to the Stockholders as follows:
a. As of the Closing Date, the total issued and outstanding
shares of the common stock of the Company shall be 14,529,000
shares.
b. As of the Closing Date, the shares of the common stock of the
Company to be issued to the Stockholders will constitute the
valid and legally issued shares of the Company, fully paid and
nonassessable and, except for the "restricted" nature of the said
securities, will be legally equivalent in all respects to the
common stock of the Company issued and outstanding as of the date
hereof.
c. The officers of the Company are duly authorized to execute
this Merger Agreement pursuant to authorization of the Company's
Board of Directors.
d. The Company's financial statements dated December 31, 1998 are
true and correct statements for the period indicated and fairly
present the financial position of the Company. There are no
substantial liabilities, either fixed or contingent, not
reflected in such financial statements other than contracts or
obligations in the usual course of business; and no contracts or
obligations in the usual course of business are liens or other
liabilities, which, if disclosed, would alter substantially the
financial condition of the Company as reflected in such financial
statements.
e. Since December 31, 1998 there have not been, and prior to the
Closing Date there will not be, any material changes in the
financial position of the Company except changes arising in the
ordinary course of business.
f. The Company is not involved in any pending litigation or
governmental investigation nor proceeding not reflected in such
financial statements or otherwise disclosed in writing to the
Stockholders.
g. The Company is and as of the Closing Date will be in good
standing as a Nevada corporation.
h. The shares of the common stock of the Tricom shares are being
acquired by the Company for investment and there is no present
intention of the part of the Company to dispose of such shares.
6. Deposit of Stock. All certificate for the shares the common stock
of the Company and Tricom will be deposited with the Company's attorney, A.
▇▇▇▇▇ ▇▇▇▇, as trustee, at its offices located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇.
7. The Closing. The Closing Date will be at the aforesaid offices of
the Company's said attorney on March 8, 1999 at 12:00 noon, or such other date
and time as the parties hereto may agree.
8. Reverse Splits. The parties hereto acknowledge that prior to the
execution of the Merger Agreement, the Company approved a 10:1 reverse-split in
the shares of its issued and outstanding common stock, including those shares
issued in connection with this Merger Agreement, so that the total number of the
Company issued and outstanding shares of stock after the reverse split have
reduced from 114,529,000 to 11,452,900.
9. Indemnification. The parties hereto agree to and shall indemnify
each other and their respective successors, assigns, heirs, and personal
representatives against any and all damages resulting from any breach of any
representation, warranty, or agreement set forth in this Agreement or the
untruth or inaccuracy thereof. The parties hereto further agree to and shall
indemnify each other and their successors, assignees, heirs, and personal
representatives against any and all debts, liabilities, choses in action, or
claims of any nature, absolute or contingent, resulting from such breach,
untruth or inaccuracy. This indemnity shall survive the closing of the
transactions contemplated hereunder but shall be limited to liabilities of which
one party hereto shall receive notice in writing from the other party or their
or its successors and assignees within five (5) years from the date hereof. Such
party or their, his or its successors, assignees, heirs and personal
representatives shall notify the other parties or parties of any such
liabilities, breach of warranty, untruth, or inaccuracy of representation or any
claim thereof with reasonable promptness, and such party or parties or their or
its successors and assigns shall have, at their election, the right to
compromise or defend any such matter involving asserted liability through
counsel of their own choosing and at their expense. Such notice and opportunity
to compromise or defend, if applicable, shall be a condition precedent to any
liability of such party under this indemnity. In the event that a party hereto
undertakes to compromise or defend any such liability, then such party shall
notify the other party or their, his or its successors, assigns, heirs, and
personal representatives shall cooperate with the other party or parties and
their or its counsel in the compromising or defending against any such
liabilities.
10. Survival of Representations. The representations, warranties, and
agreements of the parties hereto contained in this Merger Agreement shall not be
discharged or dissolved upon but shall survive the closing hereunder and shall
be unaffected by any investigation made by any party at any time.
11. Attorneys' Fees. If any litigation is commenced between the
parties hereto or their representatives concerning any provision of this Merger
Agreement or the rights and duties of any person or entity in relation to it,
the party prevailing in such litigation shall be entitled, in addition to such
other relief as may be granted, to a reasonable sum as and for her or its
attorneys' fees in such litigation.
12. Counterparts. This Merger Agreement may be executed in
counterparts and as executed shall constitute agreement, binding on both of the
parties to it, notwithstanding that both parties are not signatory to the
original or to the same counterpart.
13. Binding Effect. Except as otherwise provided to the contrary, this
Merger Agreement shall be binding upon and inure to the benefit of the party's
signatory to this Merger Agreement and their personal representatives, heirs,
successors and assigns.
14. Headings. The headings of the paragraphs of this Merger Agreement
in no way define, limit, extend or interpret the scope of this Merger Agreement
or of any particular paragraph or section.
15. Additional Documents. Each of the parties hereto agrees to execute
with acknowledgment or affidavit, if required, any and all additional documents
which may be necessary or expedient in the consummation of this Merger Agreement
and the achievement of its purposes.
16. Validity. If any provision of this Merger Agreement is held to be
invalid, the same shall not affect in any respect whatsoever the validity of the
remainder of this Merger Agreement.
17. Interpretation. When the context in which words are used in this
Merger Agreement indicates that such is the intent, words in the singular number
shall include the plural and in the masculine gender shall include the feminine
and neuter, and vice versa.
18. Applicable Law. It is the intention of the parties that the laws
of the State of Florida govern the validity of this Merger Agreement, the
construction of its terms and conditions, and the interpretation of the rights
and duties of the parties.
19. Integrated Agreement. This Merger Agreement constitutes the entire
understanding and agreement among the parties with respect to the subject matter
of it, and there are no agreement, understandings, restrictions, representations
or warranties among the parties other than those set forth or provided in this
Merger Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Merger Agreement the
day and year first hereinabove written.
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By:/S/▇▇▇▇ ▇▇▇▇▇▇▇
------------------
President
ATTEST:
/S/▇▇▇▇ ▇▇▇▇▇▇▇
Tricom Pictures and Productions, Inc.
By:/S/▇▇▇▇ ▇▇▇▇▇▇
-----------------
Vice President
ATTEST:
/S/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXHIBIT A
▇▇▇▇▇▇▇▇▇.▇▇▇.,Inc.
Name of Stockholder Tricom Shares Shares
------------------- ------------ ----------------------
▇▇▇▇ ▇▇▇▇▇▇▇(1)......................... 37.025 3,702,500
▇▇▇▇ ▇▇▇▇▇▇ (2)......................... 37.025 3,702,500
▇▇▇▇ Warm .............................. 10.950 1,095,000
▇▇▇ ▇▇▇▇▇▇▇ ............................ 5.000 500,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ .......................... 5.000 500,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ......................... 3.000 500,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ......................... 1.000 100,000
▇▇▇▇ ▇▇▇▇▇▇ ............................ 1.000 100,000
------- ----------
Total 100.000 10,000,000
======= ==========
(1)- The shares issued by ▇▇▇▇▇▇▇▇▇.▇▇▇., Inc. in exchange for ▇▇. ▇▇▇▇▇▇▇'▇
Tricom shares were issued in the name of The ▇▇▇▇▇▇▇-▇▇▇▇ Family Limited
Patnership #1 of which ▇▇. ▇▇▇▇▇▇▇ is the general partner.
(2)- The shares issued by ▇▇▇▇▇▇▇▇▇.▇▇▇., Inc. in exchange for ▇▇. ▇▇▇▇▇▇'▇
Tricom shares were issued in the name of The ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Family
Limited Partnership #1 of which ▇▇. ▇▇▇▇▇▇ is the general partner.